NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 22-2724

__________

SOLID STATE CHEMICALS LTD, and;

SOLID STATE CHEMICALS INC.

Appellants

v.

ASHLAND INC.

__________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(W.D. Pa. No. 2-19-cv-1044)

District Judge: Honorable Marilyn J. Horan

__________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 11, 2023

Before: SHWARTZ, RESTREPO, and CHUNG, Circuit Judges

(Opinion filed: October 25, 2023)

__________

OPINION*

__________

RESTREPO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Appellants, Solid State Chemicals Ltd. and Solid State Chemicals Inc.

(collectively, “Solid State”), appeal the District Court’s decision which denied in part, 

and granted in part, each of the two respective cross-motions for summary judgment.

Specifically, Solid State appeals the denial of Solid State’s breach of contract claims, and

the grant of two of the breach of contract counterclaims of Appellee, Ashland, Inc.

(“Ashland”). Because the Court properly found in favor of Ashland and against Solid

State on their aforementioned respective breach of contract claims, we affirm.

I. FACTUAL BACKGROUND

The process of manufacturing solid maleic anhydride (“solid maleic”) involves

converting molten (liquid) maleic anhydride (“molten maleic”) into solid maleic by 

pumping the molten maleic onto a machine called a pastillator which includes a metal 

roller or conveyer belt that cools and solidifies the molten maleic. The pastillator then

breaks up the solid maleic into droplets, which are known as pastilles, after which the 

pastilles are conveyed to a bagger where they are packaged for shipment.

1

 From 

approximately 2014 to 2017, Ashland supplied molten maleic to Solid State for the 

manufacture of solid maleic pastilles in Alabama. 

1 Maleic anhydride is a chemical intermediary primarily used to produce polyester resins 

which can be combined with fiberglass, for example, and used for such things as auto 

parts, boat hulls, and home construction items such as shower stalls. It can be harmful to 

the respiratory system and becomes increasingly hazardous upon repeated exposure. 

Therefore, it is subject to stringent Occupational Safety and Health Administration 

(OSHA) standards, as well as other industry standards, such as the American Conference

of Governmental Industrial Hygienists (ACGIH) Threshold Limit Value (TLV), to

protect workers from exposure. 
3

In early 2017, the parties discussed moving Solid State’s pastillation process to 

Ashland’s facility in Neville Island, Pennsylvania. That same year, Ashland and Solid 

State negotiated and executed a Manufacturing Services Agreement (MSA), which 

became effective on November 1, 2017.2

Pursuant to the MSA, Ashland agreed to manufacture solid maleic exclusively for 

Solid State at Ashland’s Neville Island facility. Under MSA section 2.10: “In the event

that additional significant capital investments or equipment are required to meet

production demands, the Parties will agree on an appropriate cost amortization or

bailment agreement to be executed by the Parties and incorporated to this Agreement by

reference.” Appx. 96. The MSA further provides in section 2.9: “In no event will

[Ashland] be required to perform any of its obligations under this Agreement in[:] (i) an

unsafe or imprudent manner; (ii) contravention of [Ashland’s] environmental, health and 

safety standards; or (iii) violation of applicable laws.” Id. 

Pursuant to the Parties’ agreement, Solid State’s pastillator and other equipment 

were installed at Ashland’s Neville Island facility in late 2017. Ashland started the

pastillator in 2018 and monitored indoor air quality for compliance with its internal

Occupational Exposure Limit (OEL). Due to the fact that all personnel samples greatly

exceeded its internal exposure limit, and all work areas were affected, Ashland put

pastillator operations on hold in July 2018, and Ashland immediately took steps to protect

workers and reduce exposures. Solid State accepted this plan as a prudent path forward.

2 New York law governs construction and enforcement of the MSA. 
4

Despite starting operations again with employees using personal protective

equipment and other efforts to improve the safety of the operations, including authorizing 

$544,047 to purchase an autobagger and related expenses, indoor sampling in October 

2018 continued to significantly exceed the ACGIH TLV. Indeed, despite efforts to 

improve safety, testing continued to show exceedances of the TLV, and on May 3, 2019, 

Ashland shut the line down because of identified safety concerns which posed a serious 

health risk to employees. Ashland thereafter asked Solid State to contribute to the cost of

seven improvements that were identified as necessary before the pastillator could be

restarted.

The MSA called for Ashland to invoice Solid State monthly, and payments were

due within thirty days following the date of invoice. Ashland routinely invoiced Solid 

State for the pastilles made. Although Solid State had previously paid its invoices, it 

stopped paying invoices due after April 15, 2019. 

In May 2019, there were discussions about the future of the pastillator line, and

Solid State “initiated a discussion with Ashland about ‘ways to pay Solid State as part of 

an exiting of the arrangement.’” Appx. 2326. On June 21, 2019, Solid State wrote

Ashland alleging material default under the MSA and made a proposal of settlement with

a demand that, among other things, Ashland purchase all of the physical assets of the 

pastillation production line at Neville Island. Solid State contends that Ashland breached

the MSA because it unilaterally shut down production.
5

On July 1, 2019, Ashland then provided written notice to Solid State that Solid 

State materially defaulted under the MSA and that, unless Solid State engaged with 

Ashland to come to an agreement as to expenditures toward additional safety measures

necessary to safely resume production, Ashland would formally terminate the agreement 

under MSA Section 9.2. On July 15, 2019, Solid State’s counsel responded, reaffirming 

its position that Ashland was in breach because of its “unilateral decision to cease

production.” Appx. 2327. On July 31, 2019, Ashland wrote to Solid State confirming 

termination of the MSA. As the District Court pointed out, as of July 31, 2019, each 

party had declared material breach of the MSA, and neither party thereafter responded to 

the demands of the other. 

Solid State has $237,500.95 in unpaid invoices. Further, Solid State has never 

removed its equipment and materials from Neville Island, as required under MSA section

9.5. 

II. PROCEDURAL HISTORY

In the District Court, Solid State’s operative First Amended Complaint alleged

breach of contract due to Ashland’s failure to manufacture solid maleic. Ashland brought 

counterclaims for breach of contract, breach of duty of good faith and fair dealing, and a

request for specific performance of Solid State’s duty to remove its equipment and 

materials.

Following discovery, the parties filed cross-motions for summary judgment, and

the District Court granted in part and denied in part each motion. In so doing, the Court 
6

found Solid State breached the MSA in failing to pay the invoices due and failing to 

remove the equipment. The Court also denied Solid State’s claim of breach of contract 

when Ashland ceased production of solid maleic in light of the safety concerns, and the

Court denied Ashland’s claims that Solid State violated section 2.10 of the MSA.

3 Solid 

State requested reconsideration of the Court’s summary judgment order, and the Court 

reaffirmed its decision.4

III. DISCUSSION5

The District Court properly found in favor of Ashland on its counterclaim that

3 In the District Court, Ashland contended that Solid State breached MSA section 2.10 by 

refusing to “participate in discussions with regard to expenditures needed for the 

pastillator line to safely produce solid maleic anhydride” and that “said breach and 

conduct also constitute[d] a breach of the implied covenant of good faith and fair 

dealing.” Appx. 19-20. However, as the Court pointed out in concluding that neither 

party may recover under the provisions of MSA section 2.10, section 2.10 was not legally 

enforceable against either party under New York law as an “agreement to agree.” Appx. 

20 (citing Betty, Inc. v. Pepsico, Inc., 848 F. Appx. 43, 45 (2d Cir. 2021)); see Joseph 

Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109 (1981) (It is 

“rightfully well-settled” under New York law “that a mere agreement to agree, in which a 

material term is left for future negotiation, is unenforceable.”). 

4 The Court reserved for trial Ashland’s claims for damages and specific performance 

regarding equipment removal, but the parties subsequently entered a joint stipulated

judgment, accepted by the Court, that Ashland’s damages for Solid State’s failure to 

remove its equipment amounted to $150,000, and that the total damages when added to 

the $237,500.95 in unpaid invoices, were $387,500.95. 

5 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have appellate 

jurisdiction under 28 U.S.C. § 1291. “We review the District Court’s grant of summary 

judgment de novo,” applying “the same standards and presumptions as the District 

Court.” Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 249 (3d Cir. 2019).
7

Solid State breached the MSA by failing to pay invoices due. Under New York law, the 

elements of a breach of contract claim are: (1) the existence of a contract; (2) 

performance under the contract by one side; (3) breach of the contract by the other side; 

and (4) resulting damages. JP Morgan Chase v. JH Elec. of NY, Inc., 69 A.D.3d 802, 803 

(N.Y. App. Div. 2010). 

Section 3.2 of the MSA provides for the payment of invoices. Concluding that

Solid State breached its duty under section 3.2 of the MSA by failing to pay invoices, the 

District Court properly found that Solid State received nearly a quarter million dollars of 

pastilles, the pastilles met the MSA’s specifications, Solid State was properly invoiced, 

and Solid State failed to pay the invoices due, totaling $237,500.95. 

Solid State argues that its payment terms were orally modified by a conversation 

with a contact at Ashland. However, as the District Court pointed out, even besides the 

fact that Ashland’s contact specifically disagreed with Solid State’s summary of this 

conversation, the content of the conversation recounted by Solid State contained no 

language indicating the alleged actual modification of the terms of the MSA. Moreover, 

even assuming arguendo the record established any question of material fact as to any 

mutual intention to orally modify the MSA, which the District Court properly found it did 

not, the MSA specifically precludes amendment or modification except as defined by 

section 11.4. MSA section 11.4 provides in relevant part: “No supplement, modification

or amendment of the Agreement shall be binding unless in writing and executed by [Solid 

State] and [Ashland].” Appx. 103. It is undisputed no such writing exists. 
8

Solid State further points to MSA section 3.2, which provides: “Unless otherwise 

agreed between the Parties, [Ashland] shall invoice [Solid State] on a monthly basis . . .

Payments shall be due within thirty (30) days following the date of invoice.”6 Appx. 96-

97 (emph. added). As explained, however, MSA section 11.4 further provides that any

modification must be “in writing” and executed by the parties. Appx. 103.

The District Court pointed out that New York law permits parties to “knowingly, 

voluntarily and intentionally” abandon their contract rights by waiver, by “affirmative

conduct or by failure to act so as to evince an intent not to claim a purported advantage.”

Appx. 18 (citing Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P., 

7 N.Y.3d 96, 104 (2006) (internal citations and quotations omitted)). The Court

explained that “the presence of a non-waiver clause does not preclude a contract from

being effectively modified by actual performance and the parties’ course of conduct.”

Appx. 18 (quoting 1301 Prop. Owner LP v. Abelson, 37 N.Y.S.3d 207 (N.Y. Sup. Ct.

2016)) (internal citations and quotations omitted). However, as the District Court also 

found, here “the record demonstrates no evidence of a modification through actual 

performance . . . [or] through a course of conduct with regard to the regular payment of

invoices.” Id. 

6 We will assume arguendo that the “unless otherwise agreed” clause in section 3.2, 

which clearly relates to Ashland’s invoicing, also relates to the due dates for Solid State’s 

invoice payments, even though the sentence indicating the timing of Solid State’s 

“payment due date” is a separate sentence following the one containing the “unless 

otherwise agreed” clause and Ashland’s invoicing duties. 
9

The District Court also properly found in favor of Ashland on its counterclaim that 

Solid State breached the MSA by failing to remove Solid State’s equipment. Under MSA 

section 9.5, Solid State had a duty to remove all of its equipment from Ashland’s Neville 

Island facility within 180 days of termination of the MSA. As explained, Solid State

breached the MSA in failing to pay the invoices due pursuant to MSA section 3.2.

Moreover, as the Court found, both parties gave notice of material default by the other 

and neither party moved to cure in response to the other’s notice.

7

 Indeed, “[t]here is no 

material question of fact that, following July 31, 2019, neither party acted in any way to 

challenge or question that the MSA was terminated.” Appx. 25. It is undisputed that

Solid State had a contractual obligation to remove its equipment after termination of the

MSA. The Court properly found that Solid State’s failure to do so was a breach of the

contract.

Finally, having twice breached the MSA, as explained above, Solid State cannot

maintain a claim for breach of contract under New York law. See GTF Marketing, Inc. v.

7 Under the MSA, “‘Material Default’ means a breach of this Agreement causing a 

detriment of such severity for the aggrieved Party as to impede the receipt of substantial 

performance promised under the Agreement.” Appx. 94. The District Court pointed out

that “[s]aid breach [of Solid State’s failure to pay invoices due] was a ‘material default,’

because it caused detriment to Ashland as to impede its receipt of payment in exchange 

for services performed as promised under the MSA.” Appx. 25. Further, by the time of 

its July 15, 2019 letter to Ashland, Solid State was clearly alleging that Ashland’s 

“decision to cease production” was a material default under the MSA, see Appx. 1831 

(“Ashland’s unilateral decision to cease production has caused significant damage to 

Solid State already and threatens the very destruction of the business.”), and, by that time,

Solid State was attempting to negotiate a resolution as a result of termination of the MSA. 
10

Colonial Aluminum Sales, Inc., 498 N.Y.S.2d 786, 788 (1985) (dismissing plaintiff’s

breach of contract claim because plaintiff was itself in breach). Moreover, Ashland did

not violate the MSA when it stopped and did not resume commercial production because

Ashland “had no duty to perform under the MSA to produce solid maleic anhydride when

to do so was in contravention of Ashland’s Industrial Hygiene and Occupational Health

Standard Policy, environmental health and safety standards.” Appx. 23. Here, the

District Court properly concluded there was “no question of material fact that the

provisions of MSA [s]ection 2.9 apply to relieve Ashland from performing its obligations

under the MSA.” 8 Appx. 22; see Appx. 96 (“In no event will [Ashland] be required to

perform any of its obligations under this Agreement in . . . contravention of [Ashland’s]

environmental, health and safety standards.”).

Because the District Court correctly granted summary judgment in favor of

Ashland on its counterclaims for breach of contract due to Solid State’s failure to pay

invoices due and failure to remove Solid State’s equipment, and the Court correctly

denied Solid State’s claims for breach of contract, we affirm.

8 As Ashland points out, since Solid State did not argue anticipatory repudiation in the 

District Court, that argument is waived. See DIRECTV, Inc. v. Seijas, 508 F.3d 123, 125 

n.1 (3d Cir. 2007) (“It is well established that arguments not raised before the [d]istrict 

[c]ourt are waived on appeal.”); Brenner v. Local 514 United Bhd. of Carpenters and 

Joiners of Am., 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well established that failure to 

raise an issue in the district court constitutes a waiver of the argument.”); see also John 

Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) 

(“arguments raised in passing . . . but not squarely argued, are considered waived”). 

Thus, Solid State is precluded from raising the argument on appeal.