PRO-SPEC CORPORATION v. CHESTER WATER AUTHORITY et al

Filing 70

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 6/28/17. 6/28/17 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PRO-SPEC CORPORATION
vs.
CHESTER WATER AUTHORITY, et al.

: CIVIL ACTION
:
: NO. 16-4728
:
:
:

KEARNEY, J.

June 28, 2017
MEMORANDUM

Citizens may expect contractors awarded work from our water authorities following a
competitive bid process will perform their contract obligations, including through subcontractors
hoping to work for the contractor who won the bid from the water authority. We also expect the
water authority and contractors act in accordance with their contract and commercial
expectations just like a party to any contract. When the water authority, contractor and
subcontractor each claim a failure in performance and ascribe a wide variety of disputed reasons,
we cannot enter summary judgment on disputed issues of fact.

After review of substantial

discovery relating to the water authority’s and a contractor’s motion for summary judgment, we
find certain claims must be dismissed as a matter of law.

We cannot draw the same legal

conclusions based on disputed facts relating principally to competing contract claims. Ferreting
through several genuine issues of material fact, we need the adversarial process at trial to
understand if there is a breach of contract and by whom.
I.

Background1
Chester Water Authority (the “Authority”) delivers potable water to customers in

Delaware and Chester Counties.2 It owns and operates the Village Green Tank Farm. Water

tanks at the Tank Farm require periodic maintenance, and in the past, the Authority contracted
with DN Tanks to work on the tanks.3
In December 2014, the Authority solicited bids for a contract relating to the
“Rehabilitation of Village Green Tanks No. 2 and No. 9” (referred to as the “Tanks Contract”). 4
Pro-Spec Corporation submitted the lowest bid for the Tanks Contract, and DN Tanks submitted
the second lowest bid.5
On March 16, 2015, the Authority and Pro-Spec agreed to the Tanks Contract, which the
parties agree is enforceable and governed by Pennsylvania law. 6 The underlying project is a
public works project requiring Pro-Spec to recoat the exterior of Tank No. 9, install a line stop
and two manholes at Tank No. 2, and apply an elastomeric coating membrane to areas within
both tanks’ interiors.7 The Tanks Contract required DN Tanks or Preload install manholes.8
A. Before Pro-Spec agrees to the Tanks Contract, it begins negotiating a
subcontractor agreement with DN Tanks.
On January 9, 2015, DN Tanks sent an initial subcontractor proposal to Pro-Spec to
install manholes and perform other work on the project.9 Pro-Spec did not accept this proposal
in writing and proceeded to agree to the Tanks Contract with the Authority on March 16, 2015
even though it lacked a subcontractor agreement with DN Tanks.10
Pro-Spec responded to DN Tanks’ initial proposal on April 8, 2015 by sending a draft
subcontractor agreement to DN Tanks, which contradicted many terms in DN Tank’s initial
proposal.11 DN Tanks did not agree to these terms, and instead returned the draft subcontractor
agreement with “proposed modifications” on April 29, 2015.12

For example, DN Tanks

proposed delaying the manhole installation start date by approximately three and a half months.13
DN Tanks also demanded the agreement incorporate DN Tanks’ initial proposal by reference.14

2

Pro-Spec responded it would never incorporate DN Tanks’ initial proposal into a subcontractor
agreement, calling this term a “deal breaker.”15
During Pro-Spec’s negotiations with DN Tanks, project engineer Gannett Flemming
issued Pro-Spec a “Notice to Proceed” requiring Pro-Spec commence work on May 4, 2015.16
The Tanks Contract required Pro-Spec to achieve substantial completion of all work by
December 30, 2015, and final completion by January 29, 2016.17

Pro-Spec admittedly did not

complete the work by these deadlines, but the parties dispute whether Pro-Spec is responsible for
not meeting the deadlines.18
B. Pro-Spec and DN Tanks continue to negotiate the terms of the subcontractor
agreement.
On April 30, 2015, Pro-Spec requested design submittals from DN Tanks.19 DN Tanks
responded it would not provide design submittals until the parties agreed to a subcontract.20 On
May 5, 2015, Pro-Spec sent DN Tanks a Letter of Intent requesting design submittals.21 The
cover email enclosing the Letter of Intent stated “issue[s] related to the Subcontract will proceed
but should not delay the non-site work.”22 Pro-Spec President Ron Yarbrough acknowledged the
parties were still negotiating “issues” concerning the subcontract.23
Pro-Spec’s Letter of Intent did not include all of DN Tanks’ proposed terms.24 For
example, the Letter of Intent did not incorporate by reference DN Tanks’ initial proposal, and it
required DN Tanks dispose of waste rather than Pro-Spec.25
On May 7, 2015, DN Tanks returned a marked-up copy of the Letter of Intent, which reproposed DN Tanks’ requested incorporation of the initial proposal and Pro-Spec’s disposal of
waste.26 On May 11, 2015, Pro-Spec rejected DN Tanks’ marked-up Letter of Intent, stating “I
trust that an amicable subcontract will include any concerns of both parties and an amicable
subcontract will be agreed to.”27
3

On May 19, 2015, DN Tanks emailed Pro-Spec asking if it would send a revised Letter of
Intent soon.28 On June 18, 2015, Pro-Spec asked DN Tanks if it would provide an executed
subcontractor agreement.29

The following day, DN Tanks asked Pro-Spec to include its

requirements into an acceptable subcontract, and DN Tanks reminded Pro-Spec they did not have
an agreement.30 DN Tanks also worried the delayed start date would push DN Tanks’ work into
cold weather and Pro-Spec would need to make provisions to protect DN Tanks’ work.31
As of June 19, 2015, DN Tanks and Pro-Spec still disagreed about incorporating DN
Tanks’ initial proposal by reference in the subcontractor agreement.32 On July 1, 2015, Pro-Spec
sent DN Tanks a revised subcontractor agreement, but the proposed agreement failed to address
many of DN Tanks’ concerns and incorporate many of DN Tanks’ material terms, including DN
Tanks’ initial proposal and its work schedule.33 DN Tanks responded by returning a list of its
material terms to Pro-Spec on July 15, 2015.34 These terms included:






Pro-Spec had not agreed to exempt DN Tanks from providing “permits, fees and
inspections”;
Pro-Spec had not updated the schedule to match DN Tanks’ most
recent schedule;
Pro-Spec had not incorporated DN Tanks’ initial proposal by
reference;
Pro-Spec had not incorporated DN Tanks’ most recent schedule by
reference; and,
Pro-Spec had not agreed it would bear the costs associated with
protection of winter work.35

On July 23, 2015, Pro-Spec sent DN Tanks another proposed subcontract.36 On July 27,
2015, DN Tanks responded by calling the proposed subcontractor agreement unacceptable and
again requested DN Tanks’ material revisions be incorporated into the proposed subcontractor
agreement.37
On July 28, 2015, Pro-Spec purported to send DN Tanks a Notice to Proceed even though
it had not revised the subcontractor agreement to address DN Tanks’ concerns. 38 The same day,
4

DN Tanks responded by reminding Pro-Spec it did not agree to a subcontractor agreement and
requested Pro-Spec correct several unacceptable provisions in the proposed agreement.39
C. Pro-Spec claims to reach a subcontractor agreement with Preload.
On August 19, 2015, Pro-Spec wrote a letter to Gannett Fleming admitting it “just
couldn’t get a fair agreement with [DN Tanks] as a Subcontractor.”40 The same day, Pro-Spec
informed Gannet Fleming it terminated its purported agreement with DN Tanks and issued a
subcontractor agreement to Preload.41
On September 18, 2015, the Authority sent Pro-Spec a letter regarding Pro-Spec’s delays,
reminding them the Tanks Contract allows the owner to assess liquidated damages against ProSpec for late completion.42 Pro-Spec forwarded this letter to Preload, threatening it would hold
Preload responsible for all damages resulting from the delay.43 Preload ultimately declined to
enter a subcontractor agreement with Pro-Spec.44
D. Pro-Spec reaches out to DN Tanks to reinstitute negotiations.
In October 2015, Pro-Spec approached DN Tanks regarding a subcontractor agreement.45
On October 27, 2015, DN Tanks and Pro-Spec discussed necessary revisions to the subcontractor
agreement.46 On November 2, 2015, Pro-Spec sent DN Tanks another proposed subcontractor
agreement.47 The following day, DN Tanks responded by advising Pro-Spec certain agreed-upon
revisions were not included in the recent draft subcontract.48
During November 2015, DN Tanks and Pro-Spec participated in several conference calls
and exchanged several emails regarding the revisions to the subcontractor agreement.49 On
November 20, 2015, Pro-Spec and DN Tanks agreed to a subcontractor agreement.50

5

DN Tanks did not perform work or provide any deliverables to Pro-Spec before signing
the agreement on November 20, 2015.51 DN Tanks and Pro-Spec did not have a course of
dealing before this project because they did not work together in the past.52
E. DN Tanks performs under the subcontractor agreement.
On November 30, 2015, DN Tanks began work on the project.53 The November 20, 2015
subcontractor agreement between DN Tanks and Pro-Spec defined the scope of the work in
Article 8, which refers to Schedule A and Schedule D.54 These Schedules explain the scope of
the work is contained in “Bid Item B6.”55 Despite this clear language, Pro-Spec president Ron
Yarbrough testified DN Tanks’ responsibilities are not limited to Bid Item B6, but are also found
in the bid forms.56 Pro-Spec does not point to any contract language directing DN Tanks’
responsibilities are included in the bid forms or elsewhere. Nor does Pro-Spec identify DN
Tanks’ specific responsibilities encompassed in these documents.
DN Tanks’ subcontract price for performing work under Contract Item B6 is $475,000.57
DN Tanks invoiced Pro-Spec for this amount, but Pro-Spec paid only $137,250.58 On June 23,
2016, Pro-Spec submitted its Payment Application No. 11.59 Mr. Yarbrough signed Payment
Application No. 11, and by doing so he represented to the owner, to the best of his knowledge,
the work for each line item had been completed.60 Nevertheless, Pro-Spec submitted the expert
report of Coatings Consultants, Inc., which found defects in DN Tanks’ work.61
F. The Authority terminates the Tanks Contract with Pro-Spec.
On June 30, 2016, the Authority sent Pro-Spec a Termination Notice stating the
Authority would end its agreement with Pro-Spec so the Authority could “correct the
deficiencies of [Pro-Spec] and complete the work set forth in the Contract, including remediation

6

or corrective action required by the misapplication of the coating to the interior surfaces of Tank
No. 2 by [Pro-Spec].”62
II.

Analysis
Pro-Spec sued DN Tanks and the Authority for breach of contract and civil conspiracy,

and brought an alternative claim against the Authority for unjust enrichment. The Authority
counterclaimed for breach of contract and set-off. DN Tanks counterclaimed for, among other
claims, breach of contract and set-off.63
DN Tanks and the Authority move for summary judgment, arguing Pro-Spec’s claims fail
as a matter of law.64 DN Tanks also argues it is entitled to summary judgment on its breach of
contract claim against Pro-Spec. We grant in part Defendants’ motions, but find genuine issues
of material fact preclude the entry of judgment on Pro-Spec’s breach of contract claim against
the Authority and DN Tanks’ breach of contract claim against Pro-Spec.
A. Pro-Spec’s breach of contract claim against the Authority must be resolved
at trial.
The Authority is not entitled to summary judgment on Pro-Spec’s claim for breach of
contract. To succeed on its claim for breach of contract against the Authority, Pro-Spec must
prove: “(1) the existence of a contract, including its essential terms, (2) a breach of the contract;
and, (3) resultant damages.”65 To prove damages, Pro-Spec “must give a factfinder evidence
from which damages may be calculated to a ‘reasonable certainty.’”66 This standard requires at
least “a rough calculation that is not ‘too speculative, vague or contingent’ upon some unknown
factor.”67
The Authority argues Pro-Spec cannot prove damages to a reasonable certainty. We
disagree. Pro-Spec’s expert Mr. Versaw identified damages resulting from the alleged breach
amounting to over $1.1 million.68 We do not consider Mr. Versaw’s testimony or expert report
7

because Pro-Spec failed to timely provide expert disclosures, and its belated disclosure is not
substantially justified or harmless under Federal Rule of Civil Procedure 37(c)(1).

Upon

reviewing facts underlying Mr. Versaw’s report demonstrating damages based on unpaid bills,
we find Mr. Yarbrough may be competent to testify about breach of contract damages. Pro-Spec
may proceed on its breach of contract claim against the Authority.
B. We dismiss Pro-Spec’s breach of contract claim against DN Tanks.
We grant summary judgment on Pro-Spec’s claim against DN Tanks for breach of
contract. The ordinary elements of offer, acceptance, and consideration apply in the context of a
construction contract.69 An acceptance of an offer “must be absolute and identical with the terms
of the offer.”70 A purported acceptance “which adds qualifications or requires performance of
conditions, is not an acceptance but is a counter-offer.”71
Pro-Spec argues its breach of contract claim against DN Tanks arises from “DN [Tanks’]
bad faith conduct in refusing to execute a subcontract,” “demanding additional contract terms,”
and not working during the summer 2015 timeframe.72 Its argument presupposes the existence
of a subcontractor agreement requiring performance in the summer of 2015. Pro-Spec, however,
provides no evidence it agreed with DN Tanks to a subcontractor agreement before November
20, 2015.
During the time period leading up to November 20, 2015, DN Tanks and Pro-Spec
exchanged a series of offers and counteroffers. After DN Tanks submitted its initial proposal,
Pro-Spec responded with a draft subcontractor agreement contradicting many of the initial
proposal’s terms. The parties continued this back-and-forth negotiation process for several
months until they finally agreed to a subcontractor agreement on November 20, 2015. Even
though the Authority required Pro-Spec sign a subcontractor agreement with DN Tanks or

8

Preload, DN Tanks had no contractual obligations until it agreed to the subcontractor agreement
in November 2015. As Pro-Spec’s breach of contract claim against DN Tanks is based on DN
Tanks’ conduct preceding November 20, 2015, we must grant summary judgment on this claim
for lack of an agreement.
Pro-Spec abandoned its claim to the extent it could be based on alleged breaches of the
November 20, 2015 subcontractor agreement occurring after November 20, 2015, as Pro-Spec
fails to address these alleged breaches in its response.73
C. We dismiss Pro-Spec’s unjust enrichment claim.
We grant the Authority’s motion for summary judgment on Pro-Spec’s claim against the
Authority for unjust enrichment. The “doctrine of unjust enrichment is inapplicable when the
relationship between parties is founded on a written agreement or express contract.” 74 As the
Authority and Pro-Spec do not dispute a valid contract governs their relationship, we dismiss this
claim.
D. We dismiss Pro-Spec’s civil conspiracy claim.
To prove a civil conspiracy, Pro-Spec must demonstrate (1) a combination of two or
more persons acting with a common purpose to do an unlawful act or to do a lawful act by
unlawful means or for an unlawful purpose, (2) an overt act done in pursuance of the common
purpose, and (3) actual legal damage.”75 Pro-Spec must also prove “malice, i.e. an intent to
injure.”76 Pro-Spec may prove a conspiracy through circumstantial evidence provided such
evidence is “full, clear and satisfactory.”77

“Mere suspicion or the possibility of guilty

connection is not sufficient, nor proof of acts which are equally consistent with innocence.”78
“Absent a civil cause of action for a particular act, there can be no cause of action for
civil conspiracy to commit that act.”79 Stated another way, a conspiracy claim cannot be based

9

on dismissed claim, but instead must be based on a predicate cause of action in the lawsuit.80 For
example, courts have dismissed conspiracy-to-defame claims after finding no basis for the
underlying defamation claim.81
Pro-Spec does not identify the underlying claim forming the basis of its conspiracy claim.
Having dismissed Pro-Spec’s breach of contract claim against DN Tanks and its unjust
enrichment claim against the Authority, Pro-Spec’s only remaining claim is for breach of
contract against the Authority based on the Authority’s failure to pay Pro-Spec under the Tanks
Contract.82 To the extent Pro-Spec’s civil conspiracy claim is based on one of these dismissed
claims, we dismiss its conspiracy claim because there is no remaining underlying cause of action.
We also dismiss Pro-Spec’s conspiracy claim to the extent it is based Pro-Spec’s breach
of contract claim against the Authority for failure to pay. The initial problem with this theory of
conspiracy liability is it is based on conduct unrelated to Pro-Spec’s breach of contract theory
against the Authority for failing to pay under the Tanks Contract. Pro-Spec characterizes its
conspiracy claim as DN Tanks and the Authority’s conspiracy to (a) delay Pro-Spec’s progress
on the project, and (b) have Pro-Spec terminated from the project.83 These alleged conspiratorial
acts have nothing to do with the theory of Pro-Spec’s breach of contract claim against the
Authority—failing to pay under the Tanks Contract. In other words, Pro-Spec does not plead or
argue DN Tanks conspired with the Authority to refuse to pay Pro-Spec in breach of the Tanks
Contract. Pro-Spec accordingly fails to maintain an underlying cause of action forming the basis
of its conspiracy claim.
Alternatively, we dismiss the conspiracy claim because Pennsylvania law does not allow
Pro-Spec to bring a claim for conspiracy to breach a contract, as the underlying claim must
constitute a tort. We begin by stating the obvious: a breach of contract claim is not a tort.84

10

Although we are unaware of Pennsylvania case law requiring the underlying cause of action for a
conspiracy claim constitute a tort, our court of appeals has consistently stated a conspiracy claim
must be based on an “underlying tort.”85 For example, in a 1999 multidistrict litigation case
involving civil conspiracy claims under Pennsylvania law and other state laws, our court of
appeals explained “[t]he established rule is that a cause of action for civil conspiracy requires a
separate underlying tort as a predicate for liability.”86

In 2000, our court of appeals

acknowledged “Pennsylvania precedent that holds that a claim of civil conspiracy cannot be pled
without also alleging an underlying tort.”87 And again, in 2005, our court of appeals held, “A
claim for civil conspiracy ‘cannot be pled without also alleging an underlying tort.’” 88 These
decisions came up in different contexts did not specifically address whether one may sue for
conspiracy to breach a contract, but we nonetheless find the unqualified language in these
appellate decisions is binding on us. We grant summary judgment on Pro-Spec’s conspiracy
claim against Defendants to the extent it is based on an underlying breach of contract claim.
Even if we were not bound by our court of appeals’ unqualified language, we predict the
Pennsylvania Supreme Court would prohibit a claim for conspiracy to breach a contract. The
Pennsylvania Supreme Court has long recognized a tort claim based on interference with
contractual relations.89 The court in Caskie explained this tort claim derives from the contract
itself, which both confers rights upon the parties and “imposes on all the world the duty of
respecting that contractual obligation.”90
This duty, however, does not impose unlimited tort liability. The court in Glazer v.
Chandler held a contract promisee may not sue the promisor for the tort of “inducing breach of
contract or refusal to deal with third parties,” but instead must resort to a breach of contract
claim.91 In Glazer, the defendant agreed to sell building lots and related sewer connection rights

11

to the plaintiff, but later refused to go forward with the sale, resulting in the expiration of
plaintiffs’ sewer connection permits.92 The court found that while Pennsylvania law permits a
plaintiff to sue a defendant for interfering with the plaintiff’s agreement with a third party, the
plaintiff-promisee could not sue the defendant-promisor in tort for what is essentially a breach of
contract.93 The court explained:
To permit a promisee to sue his promissor in tort for breaches of
contract inter se would erode the usual rules of contractual
recovery and inject confusion into our wellsettled forms of actions.
Most courts have been cautious about permitting tort recovery for
contractual breaches and we are in full accord with this policy. The
methods of proof and the damages recoverable in actions for
breach of contract are well established and need not be embellished
by new procedures or new concepts which might tend to confuse
both the bar and litigants.94
This ruling is consistent with the Pennsylvania Supreme Court’s 2014 decision in Bruno
v. Erie Insurance Company. In Bruno, the court discussed over 200 years of jurisprudence on
the gist of the action doctrine, which prohibits a tort claim which “is, in actuality, a claim for
breach of contract.”95 The court explained the doctrine precludes a tort claim when liability
depends upon breach of a contractual duty, but not when liability depends on breach of a broader
social duty existing outside of the contract.96
The principles announced in Glazer and Bruno prohibit a claim for conspiracy to breach a
contract. As civil conspiracy requires at least two actors, a claim for conspiracy to breach a
contract necessarily requires at least one conspirator be a party to the contract, which in this case
is the Authority. Pro-Spec seeks tort relief against the Authority under a conspiracy claim for
breaching its agreement with Pro-Spec. But as the court in Glazer instructs, a contract promisee
like Pro-Spec cannot sue the promisor in tort for what is essentially a breach of contract. And
under Bruno, the conspirator’s tort claim would be barred by the gist of the action doctrine

12

because the conspiracy claim’s underlying cause of action for breach of contract necessarily
seeks relief arising from breach of a contractual duty, not breach of a broader social duty. We
accordingly grant summary judgment in favor of the Authority and DN Tanks on Pro-Spec’s
conspiracy claim.
E. DN Tanks’ breach of contract and set-off claims against Pro-Spec.
We deny DN Tanks’ motion for summary judgment on its claims for breach of contract
against Pro-Spec.

DN Tanks performed all work governed by the November 20, 2015

subcontractor agreement, yet Pro-Spec paid only $137,250 of the $475,000 total, leaving an
outstanding sum of $337,750.
In its response to DN Tanks’ statement of undisputed material facts, Pro-Spec argues DN
Tanks did not perform all of the work under the November 20, 2015 subcontractor agreement
because the scope of the work included work in the bid documents. Mr. Yarbrough testified the
scope of DN Tanks’ work could be found in the bid documents, but Pro-Spec did not identify the
specific provision of the bid form expanding DN Tanks’ work responsibilities. In contrast, the
subcontractor agreement specifically references “Bid Item B6” as encompassing the scope of DN
Tanks’ work.97
“Pennsylvania contract law begins with the ‘firmly settled’ point that ‘the intent of the
parties to a written contract is contained in the writing itself.’”98 If the parties’ intent is clear, we
must rely on the contents of the agreement alone.99 In light of these settled principles, Mr.
Yarbrough’s testimony as to the scope of DN Tanks’ work does not create a genuine dispute of
material fact as to the scope of DN Tanks’ work under the November 20, 2015 subcontractor
agreement. The parties’ intended obligations are encompassed in the written agreement, which
identifies Bid Item B6 as encompassing the scope of DN Tanks’ work. Pro-Spec fails to identify

13

a provision of the written subcontractor agreement which expands the scope of the subcontractor
work to include unperformed work described in bid documents.
Although the scope of the work is not genuinely disputed, there is a genuine issue of
material fact as to whether DN Tanks satisfactorily performed. Pro-Spec’s expert, Coatings
Consultants, Inc., submitted a report stating it found defects in DN Tanks’ work. This creates a
genuine dispute of material fact for trial as to DN Tanks’ breach of contract claim against ProSpec.
We accordingly deny DN Tanks’ motion for summary judgment as to its breach of
contract claim against Pro-Spec.100
III.

Conclusion
We grant Defendants’ motions for summary judgment as to Pro-Spec’s civil conspiracy

claims.

We grant the Authority’s motion for summary judgment on Pro-Spec’s unjust

enrichment claim against the Authority, but we deny the Authority’s motion as to Pro-Spec’s
breach of contract claim. While we grant DN Tanks’ motion for summary judgment as to ProSpec’s breach of contract claim against DN Tanks, we deny DN Tanks’ motion as to its breach
of contract claim against Pro-Spec. We dismiss DN Tanks’ set-off claim as moot.
The parties may proceed to trial on Pro-Spec’s breach of contract claim against the
Authority, the Authority’s claims against Pro-Spec for breach of contract and set-off, DN Tanks’
claims against Pro-Spec for breach of contract, quantum meruit, and violating the Pennsylvania
Contractor and Subcontractor Payment Act,101 and DN Tanks’ claims against International
Fidelity Insurance Company under a payment bond.
1

In reviewing summary judgment motions, we consider the “underlying facts and all reasonable
inferences therefrom in the light most favorable to” Pro-Spec, “the party opposing the motion.”
Slagle v. Cnty. of Clarion, 435 F.3d 262, 264 (3d Cir. 2006) (citations omitted). Our Policies
14

require a Statement of Undisputed Material Facts be filed in support of a Rule 56 motion, as well
as an appendix of exhibits. The Authority filed its Statement of Undisputed Material Facts at
ECF Doc. No. 55-2. The Authority filed an appendix at ECF Doc. No. 56. DN Tanks filed its
Statement of Undisputed Material Facts at ECF Doc. No. 53-2. DN Tanks filed an appendix at
ECF Doc. No. 54. Pro-Spec responded to the Authority’s Statement of Undisputed Material
Facts at ECF Doc. No. 61. Pro-Spec responded to the DN Tanks’ Statement of Undisputed
Material Facts at ECF Doc. No. 62. Pro-Spec added documents to the Appendix at ECF Doc.
Nos. 61-2 through 61-5. References to the exhibits in the appendices shall be referred to by
party and bates number, for example, “DN Tanks Appx. 1.”
2

ECF Doc. No. 61, ¶ 1.

3

ECF Doc. No. 18, ¶ 13.

4

ECF Doc. No. 61, ¶ 3.

5

ECF Doc. No. 61, ¶ 4; ECF Doc, No. 30, at p. 7.

6

ECF Doc. No. 61, ¶¶ 5–7.

7

ECF Doc. No. 61, ¶¶ 8–9.

8

DN Tanks Appx. 168–69, at p. 37:14–38:05.

9

ECF Doc. No. 62, ¶ 6; DN Tanks Appx. 96.

10

ECF Doc. No. 62, ¶ 18; ECF Doc. No. 61, ¶¶ 5–7.

11

ECF Doc. No. 62, ¶¶ 17, 19.

12

ECF Doc. No. 62, ¶¶ 33, 39.

13

ECF Doc. No. 62, ¶ 35.

14

ECF Doc. No. 62, ¶ 34.

15

ECF Doc. No. 62, ¶ 36–37.

16

ECF Doc. No. 61, ¶¶ 10–11.

17

ECF Doc. No. 61, ¶ 12.

18

ECF Doc. No. 61, ¶ 13.

19

ECF Doc. No. 62, ¶ 40.
15

20

ECF Doc. No. 62, ¶ 41.

21

ECF Doc. No. 62, ¶ 43.

22

ECF Doc. No. 62, ¶ 44.

23

ECF Doc. No. 62, ¶¶ 38, 45.

24

ECF Doc. No. 62, ¶¶ 47, 49.

25

ECF Doc. No. 62, ¶¶ 48–49.

26

ECF Doc. No. 62, ¶ 50.

27

ECF Doc. No. 62, ¶ 53.

28

DN Tanks Appx. 246.

29

DN Tanks Appx. 249.

30

ECF Doc. No. 62, ¶¶ 56–57.

31

ECF Doc. No. 62, ¶ 58.

32

ECF Doc. No. 62, ¶ 59.

33

ECF Doc. No. 62, ¶¶ 60–61.

34

ECF Doc. No. 62, ¶ 62.

35

ECF Doc. No. 62, ¶ 63. Pro-Spec contends “these items were previously agreed to based upon
the contract documents which were used for the bid as well as the prime contract between ProSpec and [the Authority].” ECF Doc. No. 62, ¶ 63. Federal Rule of Civil Procedure 56(c)(1)(A)
obligates Pro-Spec to support this assertion by “citing to particular parts of materials in the
record.” Although Pro-Spec cites “Exhibit ‘G’, p. 33, Ln. 7-20,” this citation does not support its
assertion. Pro-Spec does not cite the agreement between Pro-Spec and the Authority or DN
Tanks’ bid. Under Rule 56(e)(2), we may accordingly consider DN Tanks’ proposed fact in
paragraph 63 undisputed for the purposes of this motion.
36

ECF Doc. No. 62, ¶ 64.

37

ECF Doc. No. 62, ¶¶ 67–68.

38

ECF Doc. No. 62, ¶¶ 70–71.
16

39

ECF Doc. No. 62, ¶ 72.

40

DN Tanks Appx. 350.

41

DN Tanks Appx. 352.

42

ECF Doc. No. 62, ¶ 78.

43

DN Tanks Appx. 357.

44

ECF Doc. No. 62, ¶ 81.

45

ECF Doc. No. 62, ¶ 82.

46

ECF Doc. No. 62, ¶ 83.

47

ECF Doc. No. 62, ¶ 85.

48

ECF Doc. No. 62, ¶ 85.

49

ECF Doc. No. 62, ¶ 87.

50

ECF Doc. No. 30, at p. 8.

51

ECF Doc. No. 62, ¶ 90.

52

ECF Doc. No. 62, ¶ 91.

53

ECF Doc. No. 62, ¶ 96.

54

DN Tanks Appx. 46.

55

DN Tanks Appx. 53, 56.

56

DN Tanks Appx. 164, at pp. 19:01–20:11.

57

ECF Doc. No. 62, ¶ 162.

58

ECF Doc. No. 62, ¶¶ 163–64.

59

ECF Doc. No. 62, ¶ 165.

60

ECF Doc. No. 62, ¶¶ 166, 169; DN Tanks Appx. 491, at pp. 321:23–322:03.

17

61

Pro-Spec Appx. 560.

62

ECF Doc. No. 62, ¶ 105.

63

DN Tanks also sued International Fidelity Insurance Company as third party defendant for a
payment bond claim.
64

Summary judgment is proper when there is no genuine dispute of material fact and the movant
is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). A dispute as to a material fact is
genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). On a motion for summary
judgment, “we view the underlying facts and all reasonable inferences therefrom in the light
most favorable to the party opposing the motion.” Mancini v. Northampton Cnty., 836 F.3d 308,
313 (3d Cir. 2016) (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)).
“The party seeking summary judgment ‘has the burden of demonstrating that the evidentiary
record presents no genuine issue of material fact.’” Parkell v. Danberg, 833 F.3d 313, 323 (3d
Cir. 2016) (quoting Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir.
2015)). If the movant carries its burden, “the nonmoving party must identify facts in the record
that would enable them to make a sufficient showing on essential elements of their care for
which they have the burden of proof.” Willis, 808 F.3d at 643 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). “If, after adequate time for discovery, the nonmoving party has not
met its burden, pursuant to Federal Rule of Civil Procedure 56, the court must enter summary
judgment against the nonmoving party.” Willis, 808 F.3d at 643 (citing Celotex Corp., 477 U.S.
at 322-323).
65

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C.,
137 A.3d 1247, 1258 (Pa. 2016) (citing J.F. Walker Co., Inc. v. Excalibur Oil Grp., Inc., 792
A.2d 1269, 1272 (Pa. Super. 2002)).
66

Ware v. Rodale Press, Inc., 322 F.3d 218, 225–26 (3d Cir. 2003) (quoting ATACS Corp. v.
Trans World Communications, Inc., 155 F.3d 659, 668 (3d Cir. 1998)).
67

Id. at 226 (quoting ATACS Corp., 155 F.3d at 669).

68

Appx. 600.

69

See Hedden v. Lupinsky, 176 A.2d 406 (Pa. 1962); Ribarchak v. Mun. Auth. of City of
Monongahela, 44 A.3d 706, 708 (Pa. Commw. 2012).
70

Hedden, 176 A.2d at 408 (citing Cohn v. Penn Beverage Co. et al., 169 A. 768 (Pa. 1934)).

71

Id. (quoting Eastern Electric Sales Co. Inc., v. Provident Tradesmens Bank & Trust Co., 162
A.2d 215 (Pa. 1960); see also Temple Univ. Hosp., Inc. v. Healthcare Mgmt. Alternatives, Inc.,
764 A.2d 587, 593 (Pa. Super. 2000).

18

72

ECF Doc. No. 62-2, at p. 10.

73

See Cicchiello v. Beard, 726 F. Supp. 2d 522, 531 (M.D. Pa. 2010); Ankele v. Hambrick, 286 F.
Supp. 2d 485, 496 (E.D. Pa. 2003); Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570, 572
(E.D. Pa. 1999).
74

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896 (Pa. Super. 2011) (citation omitted).

75

Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. 2008) (citation omitted).

76

Lackner v. Glosser, 892 A.2d 21, 35 (Pa. Super. 2006) (citation omitted).

77

Scully v. US WATS, Inc., 238 F.3d 497, 516 (3d Cir. 2001) (quoting Fife v. Great Atlantic &
Pacific Tea Co., 52 A.2d 24, 27 (Pa. 1947)).
78

Id. (citation omitted).

79

McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000) (citation omitted).

80

Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 407 (3d Cir. 2000); see also
Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. 2008); Pelagatti v. Cohen, 536 A.2d 1337, 1342
(Pa. Super. 1987).
81

See Pelagatti, 536 A.2d at 1342 (collecting cases).

82

ECF Doc. No. 1, ¶¶ 36–45.

83

ECF Doc. No. 62-2, at p. 11.

84

See generally Bruno v. Erie Ins. Co., 106 A.3d 48 (2014).

85

In re Orthopedic Bone Screw Prod. Liab. Litig., 193 F.3d 781, 789 (3d Cir. 1999).

86

Id.

87

Boyanowski, 215 F.3d at 405.

88

McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005) (quoting Boyanowski, 215 F.3d at 405).

89

Caskie v. Philadelphia Rapid Transit Co., 184 A. 17, 18 (Pa. 1936).

90

Id. (citation omitted).

91

Glazer v. Chandler, 200 A.2d 416, 417–18 (Pa. 1964).

19

92

Id. at 417.

93

Id. at 418.

94

Id. (internal citation omitted).

95

Bruno, 106 A.3d at 60.

96

Id. at 68.

97

DN Tanks Appx. 53, 56.

98

Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 92 (3d Cir. 2001) (quoting
Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa. Super. 1993)).
99

Id.

As Pro-Spec no longer has a breach of contract claim against DN Tanks, we dismiss DN
Tanks’ set-off claim as moot.
100

101

73 P.S. § 501 et seq.

20