BORGHESE LANE, LLC

Filing 649

ORDER that, for the reasons set forth in the accompanying opinion, Industry Terminal & Salvage Company's 618 MOTION to Strike McKees Rocks' Sur-Reply Brief is GRANTED. McKees Rocks' 618 Sur-Reply Brief is stricken; and ITS's [ 536] Motion for Partial Summary Judgment is GRANTED. The August 2015 Harbor Services Agreement, and subsequent oral Harbor Services Agreement, are valid maritime contracts. McKees Rocks has breached the Harbor Services Agreement as set forth in the O rder. As explained in detail in Order, Judgment and Declaratory Judgment are granted in favor of ITS on ITS's crossclaims against McKees Rocks; and Judgment granted in favor of ITS as to McKees Rocks' cross- and counterclaims seeking reformation and equitable reformation of the Harbor Services Agreement. Additional details as set forth in Order.. Signed by Judge Marilyn J. Horan on 4/24/23. (rtw)

Case 2:18-cv-00533-MJH Document 649 Filed 04/24/23 Page 1 of 3

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COMPLAINT OF:
BORGHESE LANE, LLC
For Exoneration or Limitation of
Liability

)
)
)
) Civil No. 2:18-cv-00533-MJH (Lead Case)
)
) Member and Related Cases: Civil Action Nos.
) 18-510; 18-178; 18-317; 18-913; 18-902; and
) 18-1647.
ORDER

AND NOW, this 24th day of April, 2023, upon consideration of the Motion to Strike SurReply and Motion for Partial Summary Judgment filed by Industry Terminal & Salvage
Company, and for the reasons set forth in the accompanying opinion, IT IS HEREBY
ORDERED, as follows:
1.

Industry Terminal & Salvage Company’s Motion to Strike McKees Rocks’ Sur-

Reply Brief (ECF No. 618) is GRANTED. McKees Rocks Harbor Services, LLC’s Sur-Reply
Brief, filed at ECF No. 613, is hereby stricken,

2.

Industry Terminal & Salvage Company’s Motion for Partial Summary Judgment

on the Issue of Breach of Contract and Contractual Indemnity Against McKees Rocks Harbor
Services, LLC (ECF No. 536) is GRANTED.
A. The August 2015 Harbor Services Agreement and the subsequent oral Harbor
Services Agreement, which arose after expiration of the written Agreement, are valid,
unambiguous, and enforceable maritime contracts.

Case 2:18-cv-00533-MJH Document 649 Filed 04/24/23 Page 2 of 3

B. McKees Rocks Harbor Services, LLC has not produced sufficient clear and
convincing evidence of any legal basis for reformation or equitable reformation of the
Harbor Services Agreement.
C. McKees Rocks Harbor Services, LLC has breached the Harbor Services Agreement
by failing to defend Industry Terminal & Salvage Company as required under Section 8.
D. McKees Rocks Harbor Services, LLC has breached the Harbor Services Agreement
by failing to name Industry Terminal & Salvage Company as an additional insured as
required under Section 8.
E. McKees Rocks Harbor Services, LLC must provide indemnity to Industry Terminal &
Salvage Company, to the extent Industry Terminal & Salvage Company is found liable
for damages caused by the Mooring Services and/or mooring area condition at the Jack’s
Run fleeting and mooring area on January 13, 2018.
IT IS FURTHER ORDERED as follows:
JUDGMENT is entered in favor of Industry Terminal & Salvage Company and against
McKees Rocks Harbor Services, LLC, on Industry Terminal & Salvage Company’s
crossclaim 1 against McKees Rocks Harbor Services, LLC.
JUDGMENT is entered against McKees Rocks Harbor Services, LLC for costs, defense
costs, and reasonable attorney’s fees incurred as a result of McKees Rocks’ breach of its
obligation to defend and for all expenses incurred and discharged and all expenses
incurred in discharging the claims asserted against ITS in the current litigation.

1

Industry Terminal & Salvage Company filed the identical crossclaim, as to the Harbor Services Agreement, against
McKees Rocks Harbor Services, LLC in multiple pleadings. See, for example, ITS’s crossclaim was filed at Civil Action
No. 18-178 at document number 25; at Civil Action 18-317 at document number 14; at Civil Action No. 18-510 at
document number 17; and at Civil Action No. 18-533 at document numbers 228 and 229.

2

Case 2:18-cv-00533-MJH Document 649 Filed 04/24/23 Page 3 of 3

DECLARATORY JUDGMENT is entered in favor of Industry Terminal & Salvage
Company and against McKees Rocks Harbor Service, LLC on Industry Terminal &
Salvage Company’s crossclaim. 2 Pursuant to Section 8 of the Harbor Services
Agreement, McKees Rocks Harbor Services, LLC must provide indemnity to Industry
Terminal & Salvage Company, to the extent Industry Terminal & Salvage Company is
found liable for damages caused by the Mooring Services and/or mooring area condition
at the Jack’s Run fleeting and mooring area on January 13, 2018.
JUDGMENT is entered in favor of Industry Terminal & Salvage Company and against
McKees Rocks Harbor Services, LLC, as to McKees Rocks Harbor Services, LLC’s
crossclaim and counterclaim 3 seeking reformation and equitable reformation of the
Harbor Services Agreement.

___________________________
____________________________
Marilyn JJ. H
Horan
oran
n
United States District Court Judge

2

Industry Terminal & Salvage Company filed the identical crossclaim, as to the Harbor Services Agreement, against
McKees Rocks Harbor Services, LLC in multiple pleadings. See, for example, ITS’s crossclaim was filed at Civil Action
No. 18-178 at document number 25; at Civil Action 18-317 at document number 14; at Civil Action No. 18-510 at
document number 17; and at Civil Action No. 18-533 at document numbers 228 and 229.

3

McKees Rocks Harbor Services, LLC’s filed the same or similar crossclaim and counterclaim seeking reformation
and equitable reformation of the Harbor Services Agreement in multiple pleadings. See, for example,
counterclaims filed at Civil Action No. 18-178 at document number 29 and Civil Action No. 533 at document
number 15; and crossclaims filed at Civil Action 18-178 at document number 27 & 28; at Civil Action 18-533 at
document numbers 15 & 60.

3