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New Prime, Inc. v. Brandon Balchune Construction, Inc.

United States District Court, M.D. Pennsylvania

December 15, 2017

NEW PRIME, INC., Plaintiff,



         I. Introduction

         This case concerns the construction of a defective concrete parking lot, for which plaintiff has brought claims against seven defendants, all of whom were contractors or subcontractors for the construction project. Plaintiff has alleged eleven counts for breaches of contract, breaches of implied warranties, and negligence relating to the construction. Presently before the Court are five motions for summary judgment brought by defendants against plaintiff. For sake of clarity, the Court will address each of the five motions in a separate opinion, though the underlying facts of the case remain substantively the same.

         This opinion concerns Defendants Patrick McLaine and Civil Design Partners Inc. (the "McLaine Defendants")'s motion for summary judgment as to plaintiffs breach of contract and breach of warranty claims against them. Doc. 219.

         II. Statement of Undisputed Facts

         The McLaine Defendants have submitted a Statement of Material Facts as to which they argue there is no genuine issue or dispute for trial. Doc. 221. Plaintiff submitted an opposition to the motion and an answer to the Statement of Facts. Docs. 283, 284. The following facts are not reasonably in dispute except as noted.

         Plaintiff, New Prime, is a corporation that hired various entities to construct a new parking lot (the "Drop Lot"). Doc. 221 ¶¶ 1, 10-15. New Prime hired the McLaine Defendants to create several documents in the process of obtaining governmental permits for the Drop Lot. Id. ¶ 18. In particular, the McLaine Defendants were hired to "generate and submit a land development plan for the purpose of complying with the ordinances and permit requirements" of local authorities. Id. ¶ 15. The Land Development Plan was to contain "sufficient information to obtain those governmental permits and approvals." Id. ¶ 16. It is undisputed that the Plan did not contain any "references to concrete" except the specification that the construction was to use "Class A concrete for the curbing [of the Drop Lot construction], and eight inch thick concrete slabs upon a ten inch sub-base, and a compacted sub-grade." Id. ¶ 17.

         In August 2012, New Prime hired Brandon Balchune Construction, Inc. ("Balchune"), a construction company, as the general contractor for the Drop Lot. Doc. 221 ¶ 11; Doc. 221-6. Balchune in turn hired Defendant Jerry Ranieli to serve as the site superintendent. Id. ¶ 14. Defendant Pocono Transcrete, Inc. ("Pocono") supplied the concrete for the construction, while Defendant Midlantic Engineering, Inc. ("Midlantic") provided quality control and inspection services for the construction. Id. ¶¶ 12-13.[1]

         The McLaine Defendants did not enter into a formal contract with New Prime, but rather, agreed to proceed based upon an email exchange, which the parties treated as the contract between them. Id. ¶¶ 15, 18; Doc. 221-1. However, neither the McLaine Defendants nor New Prime attached the entire email thread to their motion papers, but rather, only included the first page of the email. Docs. 221-1, 284-3. At the bottom of the first page, the remaining text of an April 26, 2012 email sent from Patrick McLaine to Johnnie Madison (a New Prime employee) is cut off. Id. The latter part of the April 26, 2017 email, or any emails preceding it, is not included in the record.

         In accordance with the email that served as a contract between them, the McLaine Defendants prepared the following documents: the Land Development Plan, "an erosion and sediment plan for the Luzerne Conservation District, a general NPDES permit for the Luzerne Conservation District and DEP, and a PP&L encroachment application." Doc. 221 ¶ 18. The McLaine Defendants submitted their plans to Ron Slone, New Prime's architect, and Johnnie Madison, the New Prime employee in charge of overseeing the project. Id. ¶ 20. Neither communicated any deficiencies in the plans to the McLaine Defendants. Id. Citing deposition testimony of Richard Yarborough, the McLaine Defendants contend that Johnnie Madison and a firm called Killian Construction were responsible for developing the general bid specifications for the Drop Lot project, and that the specifications were not provided to the McLaine Defendants. Id. ¶ 21. The McLaine Defendants further aver that Mr. Madison and Killian Construction later changed the "sub-base" specification without the knowledge of the McLaine Defendants. Id. ¶ 22. New Prime, however, disputes these statements, stating that the deposition testimony of Richard Yarborough was mischaracterized. Rather, Yarborough only testified that he "is not sure who developed the blueprints [or bid specifications]." Doc. 284 ¶ 21. New Prime also disputes that the "sub-base" specifications were changed without the knowledge of the McLaine Defendants, but cites nothing in the record or provides any explanation in support of this denial. Id. ¶ 22. Furthermore, both parties have failed to inform the Court who Mr. Yarborough is and what role he played in the construction of the Drop Lot. But the Court was able to glean from its own review of the record that he is a "terminal manager" for New Prime who would be familiar with the Drop Lot project, and that he testified that he has no knowledge of who prepared the bid specifications. Doc. 284-2, at 9:18-11; Doc. 221-4, at 2.

         The McLaine Defendants also contend that they "were never asked to generate, and never agreed to provide, construction specifications." Doc. 221 ¶ 24. This, again, is disputed by New Prime, who avers that "Civil Design failed to specify the required quality of concrete...and required methods of quality control" in the Land Development Plan. Doc. 284, ¶ 24. This denial, however, does not resolve the fundamental question: which is whether the McLaine Defendants were asked to generate or provide such specifications. As discussed above, the actual contract between New Prime and McLaine Defendants consists of a single email thread, of which the Court only has the first page. Docs. 221-1, 284-3. The bottom email of the first page is from Patrick McLaine, listing a partial list of draft terms for a "proposal for the permitting and approvals of the trailer parking area." Id. There is no indication whether this "proposal" refers to the Land Development Plan or another document. Furthermore, the response from New Prime to McLaine's email merely states "Patrick[, ] go ahead on the project." Id. McLaine then responded to New Prime, in relevant part: "We started. Similar to the topographic survey and the NPDES Major Modification, hopefully we can come in under budget." Id.

         III. Procedural History

         On December 22, 2014, New Prime filed its original complaint naming Balchune and Pocono as defendants. Doc. 1. On August 10, 2015, New Prime filed an Amended Complaint adding the McLaine Defendants, Jerry Ranieli, Samuel J. Marranca, and Samuel J. Marranca General Contracting Company as defendants. Doc. 36.[2] On July 13, 2016, New Prime filed the Second Amended Complaint (which is the operative complaint for this motion), adding Midlantic as a defendant. Doc. 156.

         The Second Amended Complaint contains eleven counts as follows: Count I (Breach of Contract as against Balchune); Count II (Breach of Warranty as against Balchune); Count III (Breach of Warranty as against Pocono); Count IV (Breach of Contract as against Patrick McLaine and Civil Design Partners); Count V (Breach of Warranty as against Patrick McLaine and Civil Design Partners); Count VI (Breach of Contract as against Jerry Ranieli); Count VII (Negligence as against Jerry Ranieli); Count VIII (Breach of Contract as against the Marranca Defendants; Count IX (Negligence as against the Marranca Defendants); Count X (Breach of Contract as against Midlantic); and Count XI (Negligence as against Midlantic). Id. After the parties engaged in discovery, all defendants except Ranieli have filed motions for summary judgment. In ...

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