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Boro Construction, Inc v. Lenape Regional High School District Board of Education

December 23, 2010

BORO CONSTRUCTION, INC., PLAINTIFF,
v.
LENAPE REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

MEMORANDUM DECISION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Memorandum Decision serves as the Court's Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52, in connection with the parties' non-jury trial which occurred on September 21 and 22, 2010.*fn1 Pursuant to 28 U.S.C. §636(c), the parties consented to the jurisdiction of this Court to preside over the trial. Findings of Fact

A. General Background 1. Plaintiff Boro Construction, Inc. ("Boro") filed its complaint against Lenape Regional High School District Board of Education ("Lenape") on September 27, 2005. See Doc. No. 1. Boro generally alleged that Lenape owed it money (i.e., retained balance) for the services Boro performed in connection with the construction of the new Seneca High School located in Tabernacle, Burlington County, New Jersey.

2. Boro is a Pennsylvania Corporation with its principle place of business in King of Prussia, Pennsylvania. Lenape is a New Jersey public body with its principal place of business in Shamong, New Jersey. Subject matter jurisdiction exists pursuant to 28 U.S.C. §1332 as Boro is a citizen of Pennsylvania and Lenape is a citizen of New Jersey, and the amount in controversy exclusive of interest and costs exceeds the sum of $75,000.

3. On December 15, 2005 [Doc. No. 4] Lenape filed its answer to Boro's complaint and included a counterclaim. Lenape's counterclaim alleged that portions of Boro's work was defective and negligently performed and that Boro breached its Contract with Lenape.

4. Although at one time this litigation concerned numerous different areas of Seneca High School, the only remaining dispute between the parties involves the 400 meter running track ("Track"). The primary issue in dispute is whether the Track Boro arranged to build and line measured 400 meters. Lenape does not allege that the Track was improperly constructed.

5. On December 20, 2007, Boro filed a third-party complaint against DiGeronimo/Mikula Associates, LLC ("DMA") [Doc. No. 58]. Pursuant to its Contract with Lenape, Boro was responsible for the layout and original lining of the Track. DMA was hired to layout the Track and then certify the Track after the lining was completed.

(N.T. 246:18-20). Boro generally alleges that if Lenape's allegations as to the Track are true, then DMA is liable to it for contribution and/or indemnification because of DMA's failure to properly perform pursuant to the terms of DMA's oral agreement with Boro.

B. The Lenape/Boro Contract 6. On March 21, 2001, Boro contracted with Lenape to be the general contractor with regard to the construction of the new Seneca High School. Joint Final Pretrial Order ("JFPO"), Stipulated Facts

¶2; Joint Exhibit ("JE") 1. (Hereinafter "Contract"). Work began on March 23, 2001. The Contract included the associated General Conditions and the specifications prepared by Lenape's architect, The Design Collaboratives ("TDC"). (N.T. 83:8-10).

7. The Contract included the construction of a 400-meter all-weather running track and all associated field events including high jump, long jump and pole vault areas. See JE 2 at 2.

8. The Track was to be a "double bend" or "broken-back" configuration. (N.T. 87:22-24). This layout permits a full sized soccer field to be located within the running track. (N.T. 90:16-20). A traditional track has a single large half circle at both ends of the track. The double bend or broken-back layout pulls the track to a greater width which results in a tighter radius at the ends of the straightaways. The tighter radiuses are then joined by a longer, smoother radius at the far ends of the track. (N.T. 91:6-12).

9. Six radius points were required to layout the Track. (N.T. 92:9-14). (A broken-back curve design incorporates the use of six radii to form an elliptical curve instead of a more conventional two radii design). TDC determined that the Contract required Boro to install radius monuments at the radius points. (N.T. 97:5-8).

10. Specifications for the Track were included in Section 02970 Attachment "D." (JE 4). Part 1.3 of the specifications stated in pertinent part as follows:

1.3 QUALITY ASSURANCE

A. Submit certification by installer of at least five previous installations of resilient exterior athletic surfacing. Installer shall include list of contacts with telephone numbers. ...

D. Certification of Accuracy: The Contractor shall provide a plan at a scale of 1" = 20' signed and sealed by a licensed New Jersey Land Surveyor which certifies the exact measurements of the following for both the pre-construction and post-construction conditions:

a. Levels of the track, runway, approach and landing surfaces.

b. Permanent track measurements.

c. Start and finish lines.

d. Track lines.

e. Baton passing lanes.

f. Hurdle placements.

g. Radius Monuments.

h. Any and all other makings required by the Owner.

11. With regard to the layout of the Track, the specifications provided, inter alia:

2.1 MATERIALS

B. PRODUCTS

6. Track layout, length, lane width, number of lanes and events shall conform with the National Federation of State High School Association [NFSHSA]. Track markings shall be installed within a tolerance of 0.01' plus or minus. A pre-striping meeting shall be held between the Contractor, Owner, Engineer to discuss layout and to accommodate specific requests. ...

The Contractor shall submit the name and phone number of the licensed surveyor to be used for the ...


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