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Rhone Poulenc Rorer Pharmaceuticals Inc. v. Newman Glass Works

May 5, 1997

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.



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 94-1647)

Before: ALITO, MCKEE and SEITZ, Circuit Judges.

SEITZ, Circuit Judge.

Filed May 5, 1997

Argued October 3, 1996

OPINION OF THE COURT

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. Section(s) 1291. The parties agree that Pennsylvania law governs this matter.

I.

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.

II.

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 ...


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