United States District Court, E.D. Pennsylvania
E.K. PRATTER UNITED STATES DISTRICT JUDGE
Heery Joint Venture (“WHJV”) was a general
contractor retained for construction work on a new prison
facility in Montgomery County. WHJV hired subcontractor
Connelly Construction Corp. (“CCC”) to perform
masonry work on the facility.
the course of the construction project, CCC executed a series
of contracts, styled as releases and change orders, that
purported to waive claims against WHJV. Subsequently, CCC
sued WHJV, claiming that it lost money on the project due to
2017, the Court held a three-day bench trial on a subset of
CCC's claims. In January 2018, the Court issued findings
of fact and reached two conclusions of law:
1. Subcontractor CCC waived any potential claims against
general contractor WHJV by signing the periodic releases and
change orders; and
2. Statements and action by WHJV's employees did not
waive WHJV's ability to rely on the releases and change
subcontractor CCC brings this motion for reconsideration or,
in the alternative, for an interlocutory appeal. For the
reasons outlined in this Memorandum, the Court denies the
Court's January 2, 2018 Memorandum containing Findings of
Fact and Conclusions of Law provides a thorough summary of
the facts. See Mem., Doc. No. 77, at 2-14. For
purposes of this Memorandum, the Court will briefly highlight
the facts most favorable to each side.
Facts Favorable to CCC
preferred legal conclusions are that the release language
does not bar its claims against WHJV and that WHJV waived the
ability to rely on the release language. The two factual
circumstances that CCC believes should lead to these legal
conclusions are (1) statements and (2) conduct by WHJV
WHJV's Statements. CCC submitted evidence that,
over the course of the construction project, WHJV employees
generally made assurances to Rita Connelly, the President of
CCC, about the state of the project. The gist of the alleged
assurances was that Ms. Connelly should “trust”
WHJV, that WHJV would not “hurt” CCC, and that
the parties would “work out” their differences.
See, e.g., Mem., Doc. No. 77, at 4, 8, 13, 17 n.4.
WHJV's Conduct. CCC submitted evidence that,
over the course of the construction project, WHJV did not
consistently enforce the release language against CCC and
other subcontractors. E.g., Mem., Doc. No. 77, at
12-14. Instead, WHJV sometimes sought to accommodate the
needs of its subcontractors rather than hold their feet to
Fact Favorable to WHJV
preferred legal conclusion, with which the Court agrees, is
that the release language, negotiated at arms' length by
sophisticated and experienced parties, straightforwardly
operates to bar CCC's claims. Two primary circumstances
lead to this conclusion: (1) CCC's general experience and
sophistication and (2) the plain language of the releases and
CCC's Sophistication. Ms. Connelly had decades
of experience in the construction industry. She negotiated
the change orders and releases at arm's length. She
understood the legal effect of the release language. In fact,
she refused to sign one change order precisely because she
knew that CCC was about to bring a claim against WHJV.
See Mem., Doc. No. 77, at 10.
Contract Language. The specific terms of the
releases, change orders, and notice provision are reproduced
in the analysis section on this Memorandum. In brief, even
CCC seems to agree that the plain language of these
contractual terms precludes its claims. CCC's entire
case, in other words, rests on identifying factual
circumstances and legal rules to help CCC escape the
plain meaning of the contractual terms.
OF MOTION FOR RECONSIDERATION
judgment may be altered or amended if the party seeking
reconsideration shows at least one of the following grounds:
(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available
previously; or (3) the need to correct a clear error of law
or fact or to prevent manifest injustice.” Tomasso
v. Boeing Co., No. 03-CV-4220, 2007 WL 2458557, at *1
(E.D. Pa. Aug. 24, 2007) (citing Max's Seafood Cafe
ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999)).
only the third ground for reconsideration - a clear error of
law - is at issue. CCC has identified five conclusions by the
Court that it argues were clear errors of law:
1. Contract Meaning: The plain meaning of
the releases and change orders operates to waive CCC's
2. Contract Formation: CCC waived its claims
by knowingly and voluntarily agreeing to the release
3. Waiver: Statements and actions by WHJV
employees did not relinquish WHJV's right to rely on the
releases and change orders.
4. Notice: CCC's requests for extensions
of deadlines during the project did not amount to notices
that CCC was asserting a claim against WHJV.
5. Hearsay and Parol Evidence: Testimony
about statements by WHJV employee Patrick Delaney to CCC is
inadmissible as hearsay and parol evidence.
conclusion is analyzed in turn. For the reasons that follow,
the Court rejects CCC's arguments and denies the motion
criticism permeates CCC's motion and bears addressing at
the outset: CCC insists that the Court overlooked certain
evidence, presented at trial, concerning the parties'
bare fact that the Court's prior Memorandum did not
mention a given piece of evidence or testimony should not be
taken to mean that the Court, as factfinder, did not consider
Contract Meaning: The plain meaning of the releases and
change orders operates to waive CCC's claims.
prior Memorandum, the Court concluded that CCC “clearly
and unambiguously waived its claims against WHJV by signing
the releases and change orders” because the terms of
those documents were “clear and unambiguous.”
Mem., Doc. No. 77, at 17. CCC argues that the Court erred in
reaching this conclusion without considering the effect of
WHJV's conduct on the clarity of the terms in
the releases and change orders.
release expressly stated that CCC was “waiving and
releasing” WHJV, its sureties, and others:
from any and all suits, debts, demands, torts,
charges, causes of action, and claims for
payment including claims under the laws of the
municipality, state or federal government relating to payment
bonds . . . on account of, arising out of or
relating in any way to the labor, services, material,
fixtures, equipment, apparatus or machinery furnished by
[CCC] on the above described Project from the
beginning of time until the date [on which the document was
signed] including extras.
DX-21; DX-23-24; DX-26; DX-28; DX-30-31 (emphasis added).
Each of Change Orders 3, 4, 5 and 6 ...