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HomeMy WebLinkAbout1999-6516 Civil DICKINSON COLLEGE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW NOCUTS, Defendant NO. 1999-6516 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER and GUIDO,* JJ. ORDER OF COURT AND NOW, this 8th day of March, 2006, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted in part and denied in part: 1. The motion for summary judgment IS granted as to Plaintiff s claim for negligence; and 2. The motion for summary judgment IS denied as to Plaintiff s claim for breach of contract. BY THE COURT, 1. Wesley Oler, Jr., 1. Howard D. Kauffman, Esq. 100 Pine Street Suite 260 Harrisburg, P A 17101 Attorney for Plaintiff * Guido, 1., did not participate in the consideration or disposition of this case. Rodger L. Puz, Esq. Two PPG Place Suite 400 Pittsburgh, P A 15219 Attorney for Defendant 2 DICKINSON COLLEGE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW NOCUTS, Defendant NO. 1999-6516 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, OLER and GUIDO,t JJ. OPINION and ORDER OF COURT OLER, 1., March 8,2006. In this civil case, Plaintiff seeks to recover damages on theories of negligence and breach of contract? Plaintiff, in preparation for excavation work to transplant trees, contracted with Defendant to locate underground lines on Plaintiff s property. During excavation of the property, underground lines were allegedly struck notwithstanding Defendant's performance. Plaintiff filed a complaint,3 which it later amended,4 and Defendant filed an answer with new matter and counterclaim,5 to which Plaintiff replied. 6 Defendant moved for summary judgment on the basis of an exclusion-from-liability provision in the contract. 7 1 Guido, 1., did not participate in the consideration or disposition of this case. 2 Amended Complaint, ~~ 10-11, 12-13, filed May 11,2000. 3 Complaint, filed March 16,2000. 4 Amended Complaint, filed May 11,2000 (hereinafter Compl.~. 5 Answer, New Matter and Counterclaim to Amended Complaint, filed July 31, 2000 (hereinafter Ans.~. 6 Reply to Defendant's New Matter and Counter Claim, filed August 4,2000. 7 Defendant Nocuts, Inc.'s Motion for Summary Judgment, ~ 6, filed January 6,2006 (hereinafter Motion for Summary Judgment~. F or the reasons stated herein, Defendant's motion for summary judgment will be granted in part and denied in part. STATEMENT OF FACTS For purposes of Defendant's motion, the facts may be summarized as follows: Plaintiff Dickinson College contracted with Defendant Nocuts8 to have underground lines located on its property prior to excavation work in connection with the transplanting of certain trees.9 According to the terms of the written contract: 3. [Nocuts] shall perform its services in a reasonable and workmanlike manner under the laws of the State in which the site location is located and with due regard for the subterranean condition. . . . 4. [Nocuts] does not guarantee the accuracy of any locations and does not assume liability for damages, direct or otherwise, that may result from [Nocuts'] performance of this work. 5. [N ocuts] shall not be held responsible for the loss of or damage to the site location, or injury to the COMPANY, or COMP ANY'S partners . . . occurring in or about the site location, by reason of the performance or lack of performance on the part of [N ocuts] in its scope of work as identified herein or by reason of any existing or future conditions, defect, matter or thing in the site location or property of which the site location is a part, or for acts, omissions or negligence of the COMP ANY . . . in or about the site location, or by reason of the elements or virtue of the carelessness or improper conduct of the aforementioned.10 On November 14, 1997, an employee of Defendant performed line-locating services on Plaintiff s property. 11 Defendant's employee "assessed the site where the 8 Nocuts, at the time of the contract was know as, and conducted business as, Joint Underground Line Service (JULS). Compl. ~~ 3-4; Ans. ~~ 3-4. 9 Compl. ~ 5. 10 Compl. Exhibit A. 11 Compl. ~ 6; Motion for Summary Judgment ~ 6. 2 cables were hit, [but] did not attempt to locate any wires there.,,12 After Defendant performed services, Plaintiff, through an independent contractor known as N arber Brothers,13 began excavation of the area on November 17, 1997.14 Digging equipment struck and damaged an underground fiber optic cable and telephone/television cable.15 Specifically, during the excavation "two four-inch conduits were broken, including the wires within the conduits, which included four fiber optic cable, main trunk line coax for the campus TV cable system, a 100-pair phone cable and some minor coax serving the Instructional Technology Department." 16 Plaintiff alleges that Defendant was negligent and breached the contract "in that the [Nocuts'] employee failed to properly locate the aforementioned cables and wires as required." 17 Following the filing of the amended complaint, to which Defendant filed an answer with new matter and counterclaim,18 and Plaintiffs reply thereto,19 Defendant moved for summary judgment,20 and Plaintiff filed a response thereto?1 In the motion, 12 Compl. ~ 8. 13 Defendant Nocuts unsuccessfully attempted to join Narber Brothers, Inc. as an additional defendant in the case. See Complaint to Join Additional Defendant, filed July 8, 2003; Order of Court, August 28, 2003. 14 Compl. ~ 8; Motion for Summary Judgment ~~ 2,4. 15 Compl. ~ 8; Motion for Summary Judgment ~ 5. 16 Compl. ~ 8. 17 Compl. ~ 10, 12. 18 Answer, New Matter and Counterclaim to Amended Complaint, filed July 31, 2000. 19 Reply to Defendant's New Matter and Counter Claim, filed August 4,2000. 20 Motion for Summary Judgment ~ 6. 21 Plaintiff, Dickinson College's Reply to Defendant's Motion for Summary Judgment, filed February 9, 2006. 3 Defendant asserts that "Dickinson's claims against NOCUTS are clearly barred by the plain language of the Contract between the parties.,,22 DISCUSSION Motion for Summary Judgment. Pennsylvania Rule of Civil Procedure 1035.2 provides: After the relevant pleadings are closed, but within such time as not to umeasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion 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 a jury. In evaluating a motion for summary judgment the court must look at the record in the light most favorable to the non-moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996). Summary judgment "may be granted only in cases where the right is clear and free of doubt." Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989) (citing Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198,412 A.2d 466 (1979)). Negligence and Exculpatory Clauses. An exculpatory clause is valid so long as it: (1) does not contravene public policy; (2) is a contract relating exclusively to private affairs; and (3) each party is a free bargaining agent. Employers Liability Assurance Corp. v. Greenville Business Men's Association, 423 Pa. 288, 292, 224 A.2d 620, 622-23 (1966). The validity of an exculpatory clause is to be considered in accordance with certain principles: 22 Motion for Summary Judgment ~ 9. 4 (1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law; (2) such contracts 'must spell out the intention of the parties with the greatest of all particularity' and show the intent to release from liability 'beyond doubt by express stipulation'. . . ; (3) such contracts must be construed with every intendment against the party who seeks the immunity from liability; (4) the burden to establish immunity from liability is upon the party who asserts such immunity. Id at 292-93 (citations omitted). As noted, the plain language of the private line-locating contract provides: [N ocuts] shall not be held responsible for the loss of or damage to the site location, . . . occurring . . . by reason of the performance or lack of performance on the part of [N ocuts] in its scope of work . . . or for acts, omissions or negligence of the COMPANY. . . in or about the site location, or by reason of the elements or virtue of the carelessness or improper conduct of the aforementioned. 23 This limiting contract language would seem to be valid, as it does not contravene public policy, and relates to a private matter, and each contracting party was a free bargaining agent. The language also meets the applicable standards when construed strictly to limit liability for negligence. Breach of Contract. "A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Corestates Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super 1999) (citation omitted). A contract for services contains an implied warranty of workmanlike services. [A]ccompanying every contract is a common-law duty to perform with care, skill, reasonable expediency and faithfulness the thing agreed to be done. A failure to observe any of these conditions is . . . a breach of contract. Thus, '[a] cause of action for breach of contract may be based on an implied promise to exercise due care in performing the 23 Compl. Exhibit A, ~ 5 (emphasis added). 5 servIces required by the contract.' Whether a contract for services is breached depends upon whether the service provider exercises or fails to exercise that degree of skill and knowledge normally possessed by those members of the trade in which the service provider is engaged who are in good standing in the same or similar communities. 23 Williston on Contracts S 63 :25 (4th ed.) (footnotes omitted). See generally Huling v. Henderson, 161 Pa. 553, 560, 29 A. 276, 278 (1894); Koval v. Country & Town Homes, Inc., 9 Cumbo L.1. 109 (1959); ("One who undertakes any work impliedly assumes that he will do it with ordinary skill and care, and becomes liable to make compensation for not doing so."). In the present case, the private line-locating contract expressly provided that, "[Nocuts] shall perform its services in a reasonable and workmanlike manner under the laws of the State in which the site location is located and with due regard for the subterranean condition . . . ." At the very least, a genuine issue of material fact exists as to whether the exculpatory language of the contract in question was intended to exclude or modify the express and implied warranties of workmanlike performance on the part of Defendant and, if not, whether Defendant breached either or both warranties. Therefore, the following order will be entered: ORDER OF COURT AND NOW, this 8th day of March, 2006, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted in part and denied in part: 1. The motion for summary judgment IS granted as to Plaintiff s claim for negligence; and 2. The motion for summary judgment IS denied as to Plaintiff s claim for breach of contract. 6 BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Howard D. Kauffman, Esq. 100 Pine Street Suite 260 Harrisburg, P A 17101 Attorney for Plaintiff Rodger L. Puz, Esq. Two PPG Place Suite 400 Pittsburgh, P A 15219 Attorney for Defendant 7