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GAST v. PETSINGER ET AL. (06/21/74)

decided: June 21, 1974.

GAST, APPELLANT,
v.
PETSINGER ET AL.



Appeals from orders of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1972, No. 1737, in case of Richard A. Gast v. Robert E. Petsinger, John J. McMullen Associates, Inc., J. Judson Brooks, John C. Oliver, Jr., W. D. George, Alexander M. Laughlin, J. Anthony Boalt, Dr. Leo Garwin, Charles E. Manning, Jr., Joan M. Apt and Jerome Apt, Jr., trading and doing business as LNG Services.

COUNSEL

James Victor Voss, with him Neely and Voss, for appellant.

Alan H. Finegold, with him Stephen M. Olson, and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellees at Nos. 68 and 113.

Harry J. Gruener, with him Litman, Litman, Harris & Specter, for appellees at No. 113.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 228 Pa. Super. Page 396]

This appeal is from a summary judgment involving a contract dispute. Appellant charges in his Complaint that he was employed by LNG Services as a project engineer in 1968. For over a year, he was paid his agreed salary of $15,000.00 per year. From October of 1969 until March of 1971, when he severed his employment from the business, he continued in his capacity without pay. Upon tendering notice of termination of employment, appellant submitted a claim for back pay and expenses. This amount was never paid and a suit in assumpsit was thereupon instituted. The Complaint states that the business known as LNG Services is formally a limited partnership. The only named general partner is the defendant, Robert E. Petsinger. Nevertheless, appellant claims that the other named individual defendants, while ostensibly limited partners, were, by virtue of their participation in the enterprise, acting as general partners, and should therefore be liable for the monies due him. The appellees' Answers may be described as general denials of appellant's allegations. A copy of the Limited Partnership Agreement is annexed to each Answer showing the amount of capital investment of each appellee, and the status of each as a "limited partner". The New Matter alleges that no indicia of "control" were evident from the relationship of each partner to the business.

Plaintiff served written interrogatories on the defendants, and answers were submitted thereto. Following the oral deposition of the plaintiff at which demands were made for specific proof of involvement of any or all of the limited partners in the activity and operation of LNG Services, the appellees moved for summary judgment. Appellant did not answer these motions, but instead submitted an Affidavit saying that he was "prepared to prove at trial that the defendants jointly and severally took control of the partnership

[ 228 Pa. Super. Page 397]

    business, acted as managers or managed the partnership business." Oral Argument was heard; thereafter, the Court entered an Order granting defendants' Motion of Summary Judgment. The plaintiff-appellant has appealed to this Court asserting that the Answers to Interrogatories and his own Deposition supported by documentary evidence establish certain involvement in the partnership by the named defendants that presents a factual dispute on the question of "control" which should be submitted to a jury.

We have examined the record in this case and find the following to be the degree and kind of participation of the Limited Partners in LNG Services:

1. All Limited Partners have the following rights and powers as described in the Limited Partnership Agreement:

(a) the right to receive distributions from time-to-time and upon dissolution;

(b) the right to prevent the transfer of assets and other acts "outside the ordinary business of the partnership" unless an aggregate of 50% in interest give written consent to the transfers or acts;

(c) the right to examine the books and records of the partnership at the principal office of the partnership;

(d) the right to attend meetings "for the purpose of receiving the report of the General Partner and for taking any action ...


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