112 F.3d 695 (3rd Cir. 1997), 95-2022, Rhone Poulenc Rorer Pharmaceuticals Inc. v. Newman Glass Works

Docket Nº:95-2022.
Citation:112 F.3d 695
Party Name:RHONE POULENC RORER PHARMACEUTICALS INC.; Turner Construction Co., Appellants, v. NEWMAN GLASS WORKS; Employers Insurance Of Wausau, Appellees, v. SPECTRUM GLASS PRODUCTS, INC.; Interpane Coatings, Inc.; Interpane Acquisition Co.; CUH2A Architects, Engineers, Planners.
Case Date:May 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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112 F.3d 695 (3rd Cir. 1997)


Construction Co., Appellants,


NEWMAN GLASS WORKS; Employers Insurance Of Wausau, Appellees,


SPECTRUM GLASS PRODUCTS, INC.; Interpane Coatings, Inc.;

Interpane Acquisition Co.; CUH2A Architects,

Engineers, Planners.

No. 95-2022.

United States Court of Appeals, Third Circuit

May 5, 1997

        Argued Oct. 3, 1996.

        Sur Petition for Rehearing June 4, 1997.

        Joyce K. Hackenbrach (Argued), Charles E. Harris, Pepper, Hamilton & Scheetz, Philadelphia, Pennsylvania, for Appellants.

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        A. Christopher Young (Argued), Piper & Marbury, L.L.P., Philadelphia, Pennsylvania, for Appellees.

        Before: ALITO, McKEE and SEITZ, Circuit Judges.


        SEITZ, Circuit Judge.

        Plaintiff Turner Construction Company ("Plaintiff") appeals from an order of the district court granting Defendant Newman Glass Works' ("Defendant") motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b). The district court exercised diversity jurisdiction. We have jurisdiction under 28 U.S.C. § 1291. The parties agree that Pennsylvania law governs this matter.


        Rhone Poulenc Rorer, Inc. ("Rhone") contracted with Plaintiff to have Plaintiff install opaque spandrel glass in Rhone's headquarters and research facility. In turn, Plaintiff, as the general contractor, entered into two subcontracts with Defendant, which required Defendant to supply and to install the opaque spandrel glass that comprised the structure's curtainwall. The subcontracts, which are identical as relevant here, specify the type of glass Defendant was to install and list the three manufacturers from whom Defendant could purchase the glass. The subcontracts' specification for the glass reads:

d. Spandrel Glass

        (a) Type 8: 1/4 inch thick heat strengthened float glass coated on the face with opaque colored ceramic coating or black polyethylene opacifier on the rear surface.

        (Pl.'s Ex. 34A, R. at A801.) For each manufacturer, the subcontracts specify a product identification number, the color, and the type of glass to be purchased.

        In compliance with the foregoing terms, Defendant set about installing the specified spandrel glass that it had purchased from Spectrum Glass Products, Inc. ("Spectrum"), one of the three listed manufacturers. Spectrum had attached the opacifier coating, a polyethylene film, to the glass with a glue that product literature stated normally could be expected to perform in temperatures exceeding 180 degrees Fahrenheit. The glass was exposed to such temperatures after installation.

        Before Defendant completed the installation, the opacifier coating began to delaminate from portions of the glass. Plaintiff and its architect noticed the delamination because portions of the installed glass exhibited a mottled appearance. Plaintiff demanded in writing that Defendant replace the defective glass. Defendant refused, and Plaintiff instituted this action for breach of contract.

        At the close of evidence at the trial, the district court denied both parties' motions for judgment as a matter of law. The jury then awarded Plaintiff damages of $225,691.15.

        The district court thereafter granted Defendant's renewed motion for judgment as a matter of law without addressing the import of the Defendant's express warranties against defective materials. The district court held that Defendant complied with the subcontracts' specifications in purchasing and installing the opaque spandrel glass, and that the jury therefore could not reasonably find Defendant in breach. The court entered judgment for Defendant on its counterclaim for $111,668.00, the balance owed under the subcontracts. Plaintiff appealed.


        Our review of the district court's order granting judgment as a matter of law for Defendant is plenary. See Mosley v. Wilson, 102 F.3d 85, 89 (3d Cir.1996); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir.1995). Defendant is entitled to judgment as a matter of law if after Plaintiff was heard fully, "there is no legally sufficient evidentiary basis for a reasonable jury to find for" Plaintiff. Fed.R.Civ.P. 50(a).


        We commence our analysis on this appeal by focusing our attention on the warranty provisions of the subcontracts. Section X of

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the subcontracts requires Defendant to remove and to replace all materials that Plaintiff or its architect "condemn as unsound, defective or improper." 1 In Section 4.5.1 of the general contract, Plaintiff expressly warrants to Rhone that all work will be "free from faults and defects." 2 Defendant, in turn, assumes this warranty toward Plaintiff in the subcontracts. 3

        Defendant argues that these express warranties are legally insufficient to support the jury's verdict because these warranties are nullified by Plaintiff's implied warranty that the specified glass was adequate for use in this building. Defendant asserts that under the Supreme Court's 1918 decision in United States v. Spearin, 248 U.S. 132, 54 Ct.Cl. 187, 39 S.Ct. 59, 63 L.Ed. 166 (1918), and its progeny, it cannot be held liable for any defects in the glass because it complied with the specifications in the subcontracts.

        In Spearin, the Court held that a contractor is not liable for the consequences of defects in specifications provided by the owner. Id. at 136, 39 S.Ct. at 61. The Court explained that by prescribing the character, dimensions and location of the work to be done, the owner "imported a warranty that, if the specifications were complied with, the [work] would be adequate." Id. at 137, 39 S.Ct. at 61. This implied warranty, the Court noted, is not overcome by general clauses requiring the contractor to visit the site, review plans, or to assume responsibility for the work until completion and acceptance. Id. Pennsylvania law is in accord. Pennsylvania Dep't of Transp. v. W.P. Dickerson & Son, Inc., 42 Pa.Cmwlth. 359, 400 A.2d 930, 932 (1979).

        We need not predict how the Pennsylvania Supreme Court might define the contours of the implied warranty of specification, however. Assuming arguendo, that the implied warranty of specification normally would absolve Defendant of liability for the defective glass, we are presented here with a conflict between the implied and the express warranties. We conclude that the Pennsylvania Supreme Court would find that the express warranties must prevail.

        Implied warranties are generally not favored by law and are construed narrowly. See, e.g., Green Constr. Co. v. Kansas Power & Light Co., 717 F.Supp. 738, 742 (D.Kan.1989). This warranty of specification permits a court to allocate the risk of an inadequate specification, quite equitably, to the party that drafted the specification. 4 Here, though, the parties have explicitly allocated to Defendant the risk that the glass would be defective. The parties are free to do so, and there is no indication of overreaching or bad faith by Plaintiff. Cf. PBS Coals, Inc. v. Burnham Coal Co., 384 Pa.Super. 323, 558 A.2d 562, 564 (1989) (holding that implied warranties attendant to the sale of goods may be disclaimed if the purchaser reasonably should know of resultant potential liabilities).

        Defendant accurately notes that Spearin provides that an implied warranty of specification is not overcome by "general clauses"

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requiring a contractor to visit a site or to review plans. Spearin, 248 U.S. at 136, 39 S.Ct. at 61. The express warranties in the subcontracts here, however, are not the sort of general clauses about which Spearin speaks. Section X of the subcontracts very specifically requires Defendant to remove and to replace any materials that Plaintiff or its architect deem defective. Through the incorporation of the general contract's Section 4.5.1 into the subcontracts, Defendant specifically warranted that all work would be "free from faults and defects." These duties far exceed site inspection or plan review.

        In Green Construction Co. v. Kansas Power & Light Co., the United States Court of Appeals for the Tenth Circuit, applying Kansas law, confronted an issue similar to that before us. 1 F.3d 1005 (10th Cir.1993). Green contracted to build a earthen dam...

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