Opinion
Civil Action No. 01-CV-3409.
February 26, 2004
MEMORANDUM AND ORDER
Presently before this Court is Plaintiff's Motion for Summary Judgment (Doc. 76). For the reasons set forth below, upon consideration of Plaintiff's Motion, Defendants' Response (Doc. 85), Plaintiff's Supplemental Memorandum of Law in Support of Summary Judgment (Doc. 82) and Defendant's Letter Response dated December 5, 2003, this Court will deny the motion for summary judgment.
BACKGROUND
From the evidence of record, taken in a light most favorable to the non-moving party, the pertinent facts are as follows. Plaintiff E.P. Guidi, Inc. ("Guidi"), a general contractor, was hired by North Broad Development Company, Inc. ("NBDC") to build a Rite Aid pharmacy store at Broad Street and Susquehanna Avenue, in Philadelphia, Pennsylvania. This site previously contained several structures, including row homes and a church, which had been demolished and partially remained beneath the surface of the lot. Rite Aid hired Geotech, Inc. to perform a geotechnical survey of the site. This survey found that the fill was not suitable to build on and recommended soil remediation.
Guidi hired Defendant Underwood to act as the on-site engineer for construction and geotechnical matters. Underwood was "responsible for examining the site and soil, conducting and supervising soil testing, recommending and advising E.P. Guidi, Inc. and/or North Broad Development Company as to when the soil and site were adequately prepared so that construction could proceed." Pl's Brief at 3. Underwood representatives noted the existence of structurally unsound voids in the fill caused by the debris and stated that the removal of the debris was necessary for the stability of the structure.
Defendants claim that there was never a written contract between the parties. The only written evidence of this project was a per diem or test cost quotation. Underwood claims that it was not responsible for removing demolition material.
Defendants claim that their responsibility stopped there. "Deleterious material is the ken of construction workers . . . Thus, in the event demolition material remained it was the fault of Guidi and/or its workers." Defs' Brief at 6. "Removal of deleterious material was not in the scope of defendant's work note the cost estimate does not contain a cost factor for removal of materials." Defs' Brief at 7.
Underwood supervised the removal of the fill by Northeastern Contractors, the Third-Party Defendant. On December 31, 1998, Underwood reported that the site was ready to be re-filled, that the site was free of deleterious material and ready to be built upon on January 20, 1999. Underwood Field Reports of 12/31/98 and 01/20/99. However, deleterious material was still present in the fill underneath the structure after the work on the Rite Aid was completed, causing structural instability. The soil condition caused the structure to begin to crack and suffer severe damage requiring remediation. The subsequent remediation work revealed the presence of large voids created by deleterious material consistent with the Geotech reports.
The Plaintiff participated in AAA proceedings instituted by NBDC, which resulted in an award of more than $516,269.31 plus interest in favor of NBDC and against Guidi on May 25, 2001. Pl's Brief at 6. The award was based on NBDC's claims for the forensic investigation, remediation work performed and consequential losses. Defendant Underwood did not participate in the AAA proceedings. Guidi then commenced the present proceedings against the Defendants.
Defendant Underwood joined Northeastern Contractors as the Third-Party Defendant alleging that it "was responsible for the placement of soil at aforesaid locations as well as removal of such deleterious materials as may have been present." Third-Party Complaint ¶ 11. Defendant further alleged that Northeastern Contractors was "responsible for the preparation of the site, supervision of the work ongoing, and such other duties related to soil compaction and building construction at the aforesaid site," and that Northeastern Contractors was liable for any damages that ensued from this action. Third-Party Complaint ¶¶ 3 11.
LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis of its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325, 106 S. Ct. at 2553-54. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552-53. "[I]f the opponent [of summary judgment] has exceeded the `mere scintilla' [of evidence] threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent." Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513-14.
DISCUSSION
Plaintiff argues that summaryjudgment is warranted in this case because Defendants William R. Underwood and William Underwood Engineering Company, Inc.'s liability and E.P. Guidi's damages are both admitted. Plaintiff argues that pursuant to this Court's Order dated December 6, 2001, it was established that Underwood was "responsible for examining the site and soil, conducting and supervising soil testing, recommending and advising E.P. Guidi, Inc. and/or North Broad Development Company as to when the soil and site were adequately prepared so that construction could proceed." Pl's Brief at 1. In addition, all damages were admitted as fact in this case, therefore no questions of material fact remain, and damages are set in the amount of $516,269.31 plus interest.
Conversely, Defendants' expert identified the Plaintiff and Underwood as the individuals responsible for the "sinking" Rite Aid pharmacy store. In this expert's report, Plaintiff's performance was evaluated, and the expert made the following findings: (1) Plaintiff failed in his responsibility to construct the project in accordance with the terms of his contract with NBDC; and (2) Plaintiff failed to perform the required excavation and removal of demolition debris; these conditions were easily discernible and distinguishable from other site soils. Under the terms of the contract that Plaintiff signed with NBDC:
The contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect . . . or by tests, inspections or approvals required or performed by persons other than the Contractor.
The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent work.Defs' Brief, Ex. B at 5-6.
It is clear to this Court that there are several issues of material fact that should be left to the discretion of the factfinder. Defendants present evidence that the general contractor is ultimately responsible for the construction site and the actions of the sub-contractors. This evidence is in direct conflict with that asserted by the Plaintiff. It should be up to the jury to decide whether or not both parties should be held responsible in some way for failing to prepare the soil for construction, and if so, in what proportion should the damages be allocated. Therefore, this Court will deny Plaintiff's motion for summary judgment.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary Judgment is denied. An appropriate order follows.
ORDER
AND NOW, this 26th day of February, 2004, upon consideration of Plaintiff's Motion for Summary Judgment (Doc. 76), Defendants' Response (Doc. 85), Plaintiffs' Supplemental Memorandum of Law in Support of Summary Judgment (Doc. 82) and Defendants' Letter Response dated December 5, 2003, IT IS HEREBY ORDERED and DECREED that the Plaintiff's Motion for Summary Judgment is DENIED.The Trial Date for this case shall be Monday, April 5, 2004. The parties in this case shall file all pre-trial memorandum and other filings in accordance with the scheduling order issued in this case.