These rules of contract construction dictate a single possible interpretation of this contract: the proposal submitted by TPS and accepted and executed by Triangle required TPS to remediate all of the contaminated soil on the property. Any other interpretation would be unwarranted under the circumstances surrounding the formation and execution of the contract and would allow the defendants to avoid their payment obligations simply because the amount of contaminated soil may have been greater than originally anticipated.
Triangle was required to turn over a clean property to its tenant. Triangle's site remediation supervisor Dunn, not TPS, determined the amount of contaminated soil on the property. Triangle executed the TPS contract (1) after receiving the Dunn report and recommendations approximating 1,800 tons of contaminated soil at the site and (2) during excavation while Dunn was making a final determination of the total tonnage of contaminated soil on the property. Under Florida law, which provides that "a unit price contract provides for payment of the actual amount work done . . . where the precise amounts needed are not known at the inception of the project," Phillips & Jordan, Inc. v. Dept. of Transp., 602 So. 2d 1310, 1313 (Fla. Dist. Ct. App. 1 1992), there is no question that TPS is entitled to be compensated for performing its contractual obligation to remediate all of the soil that Dunn determined was contaminated. TPS does not dispute that the parties intended the Pa. DER letter to be "incorporated" into the contract through Section 8.1 of the Agreement, but correctly identifies section 8.1 as incorporating the "standards for soil remediation" required by Pa. DER as TPS's warranty of its performance of its duties under the contract.
I am unpersuaded by defendants' reliance on Innkeeper's International, supra, which found that a contract could consist of a written agreement and related correspondence, as authority to impose a quantity term limitation based on the reference to "approximately 1,000 tons" in the Pa. DER letter incorporated by the contract. The written agreement in Innkeepers included a purposefully omitted term left open for future agreement. In this case, the executed proposal required TPS to remediate all of the soil that a third party, Dunn, determined to be contaminated. It strains any possible interpretation of section 8.1 and would defeat the entire purpose of the contract to say that the incorporation of the Pa. DER letter created a quantity term limitation on the amount of soil that TPS was to remediate.
B. All of the named defendants are liable to TPS for the outstanding invoice for soil remediation under its contract with Triangle.
Under Pennsylvania law, all general partners of a Pennsylvania limited partnership are liable for the debts and obligations of the partnership. 15 Pa. C.S.A. §§ 8327, 8533(b) (Purd. Supp. 1992).
Here, all three general partners of Triangle -- Buttzville, Rodin, and RK Triangle -- are to liable to TPS. Although the certificate of amendment substituting RK for Rodin as a general partner specifies that it is effective April 9, 1987, Triangle did not file the certificate of amendment with the Pennsylvania Department of State until May 29, 1991. Because a certificate of amendment becomes effective on the later of the effective amendment date specified on the certificate or the date the certificate was filed with the commonwealth, 15 Pa. C.S.A. § 8512(e) (Purd. Supp. 1992), Rodin was a general partner at the time that Triangle incurred the liability and, indeed, Rodin was the partner that executed the proposal on behalf of Triangle. RK is also liable to TPS even though it did not become a partner until May 29, 1991, because an incoming general partner is liable for all the debts of the partnership incurred prior to its admission as a partner, 15 Pa. C.S.A. § 8329 (Purd. Supp. 1992); however, RK's liability may be satisfied only out of the partnership property, (id.).
For the foregoing reasons, I will enter a verdict in favor of TPS and against defendants Rodin, RK, and Buttzville in the amount of $ 58,637.80. Pursuant to section 4.2 of the contract, TPS has a contractual right to pre-judgment interest and to costs of collection and reasonable attorneys' fees. Therefore, I will allow TPS ten (10) days from the date of the accompanying order to submit a motion and proposed order for pre-judgment interest, calculated to the date of the verdict, and for attorneys' fees along with supporting documentation and evidence of the reasonableness of the fee. Defendants shall have five (5) days after service of TPS's motion and proposed order to respond. An appropriate order follows.
ANITA B. BRODY, J.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 816 F. Supp. 345.
AND NOW, this 11th day of March, 1993, following adjudication of the merits on the record submitted by the parties, it is ORDERED that a verdict in the amount of $ 58,637.80 is entered in favor of plaintiff TPS Technologies, Inc. and against defendants Rodin Enterprises, Inc., RK Triangle Realty Four Inc., and Buttzville Corporation.
Plaintiff shall have ten (10) days from the date of this order to file a motion and proposed order for pre-judgment interest, calculated to the date of this verdict, and for reasonable attorneys' fees with supporting documentation and evidence of the reasonableness of the fee. Defendants shall have five (5) days after service to respond to said motion and proposed order.
ANITA B. BRODY, J.