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The existence of an oral contract cannot be legally established to successfully support a summary judgment motion when the evidence that the contract was formed consists almost solely of testimony from a former employee of the nonmoving party, the Philadelphia Common Pleas Court has ruled. With his ruling in Calbar Inc. v. Andrews Sprinkler Co., Judge Albert W. Sheppard Jr. denied Calbar’s motion for partial summary judgment on its claim that Andrews had breached an oral contract when it failed to repair Calbar’s sprinkler system. “Generally, summary judgment may not be granted where the moving party relies exclusively upon oral testimony, through affidavits or depositions, to establish the absence of a genuine issue of material fact,” Sheppard wrote. “This is so because, no matter how clear and indisputable that testimony may appear, it is the province of the jury to decide the credibility of witnesses.” According to the decision, Calbar claimed that Andrews had reneged on its promise to repair the sprinkler system in Calbar’s warehouse. Andrews did not install the system. Allegedly, Andrews had still not repaired the system three weeks after Calbar made the initial request, according to the decision. At that point, Calbar claimed, the sprinkler pipes froze and burst, flooding the warehouse and causing more than $800,000 in damages. Calbar, according to its Web site, manufactures and distributes commercial waterproofing and masonry protection materials. In support of its motion, Calbar produced the deposition testimony of one of its own agents and of one of Andrews’ former employees. However, Sheppard noted, the man had not been employed by Andrews at the time of his deposition. “Furthermore,” Sheppard wrote, “Calbar has not demonstrated that [the former employee] had sufficient authority to bind Andrews to the oral contract that Calbar alleges he agreed to on behalf of Andrews. Therefore, the court may not treat the statements [he] made at his deposition as admissions by Andrews. Summary judgment cannot be granted based on his testimony.” Sheppard also reasoned that, even if the oral contract had been valid, Andrews’ actions did not necessarily meet the standard for breach of contract. To prove such a breach, Calbar would have had to show that Andrews failed to meet its obligation of fulfilling the contract “within a reasonable time,” as the Superior Court’s 1996 decision in Hodges v. Pennsylvania Miller Mutual Ins. Co. mandates. “Without meaningful evidence of the standards of the industry and other circumstances of the transaction,” Sheppard wrote, “the court is not comfortable holding, as a matter of law, that three weeks is an unreasonable time within which to fix a sprinkler.” The Philadelphia Common Pleas prothonotary did not have current information for Andrews’ attorney. The attorney for Calbar, Chad Snyder of Zelle Hofmann Voelbel Mason & Gette in Minneapolis, did not wish to comment on the decision.

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