New Prime, Inc. v. Brandon Balchune Constr., Inc., 3:14-CR-2410

Decision Date15 December 2017
Docket Number3:14-CR-2410
CourtU.S. District Court — Middle District of Pennsylvania



This case concerns the construction of a defective concrete parking lot, for which plaintiff has brought claims against seven defendants, all of whom were contractors or subcontractors for the construction project. Plaintiff has alleged eleven counts for breaches of contract, breaches of implied warranties, and negligence relating to the construction. Presently before the Court are five motions for summary judgment brought by defendants against plaintiff. For sake of clarity, the Court will address each of the five motions in a separate opinion, though the underlying facts of the case remain substantively the same.

This opinion addresses Defendants Samuel J. Marranca and Samuel J. Marranca General Contracting Co. (together "Marranca")'s motion for summary judgment as to (1) plaintiff's breach of contract and negligence claims against Marranca, and (2) Defendant Pocono Transcrete, Inc. ("Pocono")'s crossclaim for contribution against Marranca. Doc. 202.


Marranca has submitted a Statement of Material Facts as to which it argues there is no genuine issue or dispute for trial. Doc. 202-1. Plaintiff has not opposed Marranca's motion, but Pocono has submitted an opposition and a "Counterstatement of Material Facts." Docs. 222, 223. The following facts are not reasonably in dispute. Plaintiff, New Prime, is a corporation that hired various entities to construct a new parking lot (the "Drop Lot") at its facility in Pittston Township. Doc. 223 ¶ 64. Rick Yarborough, a terminal manager at New Prime, worked at the facility in Pittston. Id. ¶ 65. One day, Yarborough and some New Prime colleagues went to a restaurant called Café Italia, located near the Prime facility in Pittston, for dinner. Id. ¶ 66. Samuel Marranca owns Café Italia as well as Samuel J. Marranca Contracting Co., a company in the construction industry. Id. ¶¶ 67, 68. Yarborough described Marranca as "one of those restaurant owners who visits every table in his restaurant." Id. ¶ 67; Doc. 223-1 (Deposition Testimony of Yarborough), at 88:9-89:3.

During Yarborough's dinner at Café Italia, Marranca stopped by Yarborough's table and discovered that Yarborough is an employee of New Prime, which was contemplating the construction of "a parking lot for [its] trailers." Id. at 89:15-16. Marranca then said: "I have a partner. We do construction. Is the bidding still open? ... How do I bid?" Id. at89:17-21. At the dinner, Marranca told Yarborough that his partner was Brandon Balchune. Id. at 92:11-14.

Subsequently, Yarborough provided Marranca with the plans for the Drop Lot project and instructions for bid submission. Id. at 90:5-9. Thereafter, Defendant Balchune Construction Inc. submitted a bid to New Prime to do construction work for the Drop Lot. Doc. 223-3. In his initial disclosures, Marranca admitted he "assisted Mr. Balchune in negotiating contracts with New Prime, Inc. and that he "also assisted Balchune Construction in locating a job trailer for the site." Doc. 223-4, at 3. Eventually, New Prime awarded the construction project to Balchune in the amount of $1,631,278. Doc. 202-2.

According to Balchune, he entered into an oral agreement with Marranca to share in the profits that would be derived from the Drop Lot construction should he win the bid. Doc. 206 at 6. Specifically, profits would be calculated as costs of labor, material, and overhead subtracted from total revenues; and one third of the resulting profits would go to Marranca. Id. Balchune recalled that Marranca eventually received over a hundred thousand dollars for the project. Id. Marranca, however, had a different recollection at deposition, and recalled that under the oral agreement, he was only to receive 10 or 12 percent of the profits. Doc. 223-2, at 38:5-6. During the Project, every time Balchune received a payment from Prime, it would share the proceeds of the payment with Marranca. Id. at 40:21-24. Marranca characterized this compensation as a "finder's fee or consulting fee," which was "percentage of whatever money was made." Id. at 36:12-37:25.

Balchune also testified that Marranca assisted with negotiations with New Prime on "what the project was going to entail and what [New Prime] expected." Doc. 206, at 5. According to Marranca, he and Balchune have had a business relationship for about 10 to15 years. Doc. 223-2, at 21:17. Marranca located certain other vendors for Balchune, including vendors for fencing or guardrails for the Drop Lot. Id. at 37:13-17. He testified he did so because he is "from the area, [he] know[s] a lot of people. [He's in business, and if [he] got a better price, it worked." Id. at 43:2444:2. Moreover, Marranca paid at least one vendor, Wilkes Barre Clay, directly from his own funds and was subsequently reimbursed by Balchune. Id. at 39:4-21. While construction was ongoing, Marranca was present at the Drop Lot construction site approximately three times. Id. at 26:18-27:7. Since the construction of the Drop Lot completed, New Prime has brought suit against various contractors or subcontractors for the Drop Lot project, including Balchune and Marranca, alleging that they breached a contract by constructing a defective Drop Lot. Doc. 156. Notably, while Balchune has a direct contractual relationship with New Prime, the record does not reflect that Marranca had such a relationship with New Prime or the other defendants. Doc. 202-1 ¶ 1.


On December 22, 2014, New Prime filed its original complaint naming Balchune and Pocono as defendants. Doc. 1. On August 10, 2015, New Prime filed an Amended Complaint adding Patrick McLaine, Civil Design Partners, Jerry Ranieli, Samuel J.Marranca, and Samuel J. Marranca General Contracting Company as defendants. Doc. 36.1 On July 13, 2016, New Prime filed the Second Amended Complaint (which is the operative complaint for this motion), adding Midlantic as a defendant. Doc. 156.

The Second Amended Complaint contains eleven counts as follows: Count I (Breach of Contract as against Balchune); Count II (Breach of Warranty as against Balchune); Count III (Breach of Warranty as against Pocono); Count IV (Breach of Contract as against Patrick McLaine and Civil Design Partners); Count V (Breach of Warranty as against Patrick McLaine and Civil Design Partners); Count VI (Breach of Contract as against Jerry Ranieli); Count VII (Negligence as against Jerry Ranieli); Count VIII (Breach of Contract as against Marranca; Count IX (Negligence as against Marranca); Count X (Breach of Contract as against Midlantic); and Count XI (Negligence as against Midlantic). Id. After the parties engaged in discovery, all defendants except Ranieli have filed motions for summary judgment. In total, there are five pending motions for summary judgment before the Court—brought by Pocono (Doc. 215), McLaine and Civil Design (Doc. 219), Balchune (Doc. 217), the Marranca Defendants (Doc. 202), and Midlantic (Doc. 210).

To make matters more complicated, all defendants (with the exception of Jerry Ranieli) have filed crossclaims against other defendants in this case. See Docs. 161 (Pocono's Answer and Crossclaims), 200 (Midlantic's Answer and Crossclaim), 201(Marranca Defendants' Answer and Crossclaims), 212 (Balchune's Answer and Crossclaims), 224 (McLaine Defendants' Answer and Crossclaims). The McLaine Defendants have since dropped their crossclaims. See e.g. Doc. 265 at 1(stating that "[a]fter analysis, CDP and McLaine do not believe they have valid crossclaims against any defendant, and hereby withdraw them").

None of the crossclaims allege specifically allege any acts or omissions that could support of a finding of breach of contractual duties, breach of other legal obligations, or breach of any duties sounding in tort. See e.g. Doc. 200, at 16-17 (Midlantic's crossclaim alleging only that if Plaintiff sustained damages, then all other defendants "are primarily liable" and "are liable to Midlantic [] by way of contribution and/or indemnity."); Doc. 201, ¶¶ 130, 132 (Marranca Defendants' crossclaim alleging that "to the extent that there are defects or deficiencies in the concrete at the Drop Lot, such were caused by the acts and omission of one or all of the other Defendants..." and that they are "entitled to contribution" from other defendants); Doc. 212, at 11-12 (Balchune's crossclaim alleging that to the extent New Prime suffered damages, "said damages were not caused by any act or omission of Balchune and, instead, were caused by [other defendants]," who are liable to Balchune "for contribution and/or indemnity"); Doc. 161, at 16-17 (Pocono's crossclaim alleging that "to the extent there are defects or deficiencies in the concrete at the Drop Lot, such defects or deficiencies were caused by the actions of one or all of the otherDefendants," and that "Pocono is entitled to contribution from [all other Defendants] for any damages assessed against Pocono").

The present opinion concerns Marranca's motion for summary judgment, arguing that Marranca was not in a "joint venture" or partnership with Balchune such that he may be liable for breach of contract or negligence to New Prime, and that the crossclaims for contribution or indemnity brought by other Defendants against Marranca must be dismissed. Doc. 202, at 7-11. Notably, Marranca did not move for summary judgment on his own crossclaims against other defendants.2 While New Prime has not opposed Marranca's motion, Pocono has filed an opposition, arguing that Marranca cannot be dismissed from the case because whether Marranca was in a joint venture...

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