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HomeMy WebLinkAbout97-1496 CivilLANE ENTERPRISES, INC., Plaintiff SPEARIN, PRESTON & BURROWS, 1NC., Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 97-1496 Civil Term IN RE: PLAINTIFF'S MOTION FOR SUMMARY ~-DGMENT BEFORE HOFFEI~ P.J. and OLER, J ,. ORDER OF COURT AND NOW, this 2,~ ~day of March, 1998, upon consideration of Plaintiff's MOtion for Summary Judgment, and for the reasons stated in the accompanying opinion, Plaintiff's motion is denied, without prejudice to its fight to file a new motion when the record has been supplemented· John B. Consevage, Esq. Buchanan Ingersoll Professional Corporation Eighth Floor 30 North Third Street Harrisburg, PA 17101 Attorney for Plaintiff BY THE COURT, J0y., J. Marc E. Elliott, Esq. Goetz, Fitzpatrick, Carbone, Eiseman, Finegan & Rubin, LLP One Penn Plaza New York, NY 10119-0196 Attorney for Defendant LANE ENTERPRISES, INC., Plaintiff. SPEARIN, PRESTON & BURROWS, INC., Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 97-1496 Civil Term IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER~ P.J., and OLER~ J. OPINION and ORDER OF COURT OLER, J., March dq, 1998. In this civil case, an alleged subcontractor has sued an alleged contractor on theories of breach of contract, promissory estoppel, and unjust enrichment. The action arises out of Defendant's alleged failure to pay Plaintiff for cleaning and coating (with epoxy) a certain piece of equipment; the equipment~ was allegedly owned by the City of New York, Department of Sanitation, with which Defendant had contracted. For disposition at this time is a motion for summary judgment filed on behalf of Plaintiff· Because of an insufficient record upon which to review the motion, it will be denied without prejudice. STATEMENT OF FACTS Plaintiff Lane Enterprises, Inc., commenced the present action against Defendant Spearin, Preston & Burrows, Inc., on March 24, 1997, by the filing of a complaint. The complaint alleged that Defendant was engaged by the City of New York in March of 1993 to perform general construction rehabilitation work at various sanitation department facilities. It alleged further that Defendant solicited and accepted a bid f~om Plaintiff to clean and coat with epoxy a piece of equipment known as a "Super Boom." The agreed- ' The equipment is described in Plaintiff's complaint as a "spare anchor shaft super boom ("the Super Boom") for the Fresh Kills Landfill Plant No. 1 on Staten Island, New York." NO. 97-1496 CIVIL TERM upon price for the work, according to the complaint, was $53,800.00, with freight charges of $538.00 plus road toll fees. Plaintiff alleged that it had properly performed the work, but that Defendant had failed to pay for it. In its answer with new matter to the complaint, Defendant conceded that it had not paid Plaintiff for the work, but maintained that a number of defenses to Plaintiff's complaint existed, including the fact that New York had refused to pay Defendant the amount being charged by Plaintiff for its work. On June 2, 1997, Plaintiff filed a reply to Defendant's new matter, and on September 2, 1997, Defendant filed a praecipe for a writ to join the City of New York as an additional defendant.2 On November 14, 1997, Plaintiff filed the motion for summary judgment subjudice. The motion asserted that there were no issues of material fact in dispute with respect to Plaintiff's breach of contract claim against Defendant, and requested entry of judgment in its favor in the amount of $53,800.00, with prejudgment interest and costs of suit. In its brief in support of the motion, Plaintiff has relied heavily upon the contents of a deposition of Patrick B. Kelleher, vice-president of operations of Defendant, conducted on October 21, 1997, as well as certain exhibits from that deposition. Copies of the deposition and these exhibits have been attached to Plaintiff's brief; but do not otherwise appear in the record. DISCUSSION Under Pennsylvania Rule of Civil Procedure 1035.2, a motion for summary judgment may properly be granted: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense 2 The question of whether this attempted joinder without leave of court was proper under Pennsylvania Rule of Civil Procedure 2253 (time for filing praecipe or complaint for joinder of additional defendant) is not before the court. NO. 97-1496 CIVIL TERM which could be established by additional discovery or expert report, or (2) if, after the ctmpletion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to ajury. The record upon which a motion for summary judgment is to be decided includes pleadings, depositions, answers to interrogatories, admissions and affidavits, and qualifying expert reports. Pa. R.C.P. 1035.1. However, attachments to a brief are not part of the record for purposes of a motion for smmnmy judgment. See Freed v. Allstate Insurance Co., 45 Cumberland L.J. 272 (1996); cf. Mc~lllonis v. Pryor, 301 Pa~ Super. 473, 448 A.2d 5 (1982). In this case, a deposition and exhibits cited by Plaintiff in support of its motion for summary judgment have not been filed of record. Although the motion may appear to have arguable merit, this court would not be warranted in relying upon matters not of record to dispose of it. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this,..~r//xtay of March, 1998, upon consideration of Plaintiff's Motion for Smmnmy Judgment, and for the reasons stated in the accompanying opinion, Plaintiff's motion is denied, without prejudice to its right to file a new motion when the record has been supplemented. BY THE COURT, NO. 97-1496 CIVIL TERM John B. Consevage, Esq. Buchanan Ingersoll Professional Corporation Eighth Floor 30 North 3d Street Harrisburg, PA 17101 Attorney for Plaintiff Marc E. Elliot, Esq. Goetz, Fitzpatrick, Carbone, Eiseman, Finegan & RUbin, LLP One Penn Plaza New York, NY 10119-0196 Attorney for Defendant