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TPS TECHS. v. RODIN ENTERPRISES

March 11, 1993

TPS TECHNOLOGIES, INC., Plaintiff,
v.
RODIN ENTERPRISES, INC., TRIANGLE CENTER ASSOCIATES, RK TRIANGLE REALTY FOUR, INC., and BUTTZVILLE CORP., Defendants.



The opinion of the court was delivered by: ANITA B. BRODY

 Brody, J.

 March 11, 1993

 Before me is the record submitted by the parties to the Court. I am being called upon to decide:

 (1) Whether, in a contract requiring the contractor to treat all of the soil on the property determined to be contaminated by a third party, a permit exemption letter from the Pennsylvania Department of Environmental Resources ("Pa. DER") referring to "the approximately 1,000 tons of petroleum contaminated soil to be treated" that was incorporated into a contract as a performance warranty created a quantity term limitation of 1,000 tons? I find that it did not.

 (2) Whether the general partners of a limited partnership, including both the withdrawing and substituted general partners pursuant to a certificate of amendment that was not filed with the state until after the liability was incurred, are liable to the contractor for amounts due and owing by the limited partnership? I find that they are.

 I. FINDINGS OF FACT.

 This dispute arises from a contract between plaintiff TPS Technologies, Inc. ("TPS"), a Florida corporation, and defendant Triangle Center Associates ("Triangle"), a Pennsylvania limited partnership. *fn2" TPS seeks $ 58,637.80 plus pre-judgment interest at the rate of 1.5 % per month plus attorney's fees from the three general partners of Triangle in compensatory damages for breach of contract or, in the alternative, under a claim of quantum meruit for services rendered. (See Plaintiff's Pretrial Memorandum).

 The original general partners of Triangle identified on the certificate of limited partnership filed on August 28, 1986 were Rodin Enterprises, Inc. ("Rodin"), a Pennsylvania corporation, and Buttzville Corporation ("Buttzville"), a Netherlands Antilles corporation with its principal place of business in the United States in New York. (Exh. P-21).

 During the fall of 1989, Triangle owned a property known as the Golden Triangle Shopping Center in Lancaster County, Pennsylvania; the property manager of the shopping center was a management company operated by Rodin, one of Triangle's general partners. (See Exh. P-23 at 13-14, 16).

 Triangle first learned of a soil contamination problem from one of its tenants, a Jiffy Lube International franchisee that had agreed to construct a Jiffy Lube station on the site of an existing Gulf Oil Station at the center contingent upon Triangle's (1) demolishing the gasoline station and (2) turning over a "clean piece of property". (Exh. P-23 at 15). After being notified of the contamination problem, Stuart Seidman, a Rodin employee, contacted TPS in response to a magazine clipping from an industry publication about TPS's soil remediation process. (Exh. P-23 at 15-16, 21).

 On December 8, 1989, Jeffrey Powell, the vice-president of TPS, forwarded brochures to Mr. Seidman describing the TPS remediation process that utilized on-site mobile soil remediation units for thermal treatment of petroleum contaminated soil. (Exh. P-2). One week later, Mr. Seidman requested a proposal from TPS. (Exh. P-3).

 Mr. Seidman testified that Rodin -- and most probably that he himself -- initially told TPS that approximately 1,000 tons of soil were involved in the remediation after Rodin was advised of the same by Dunn Geoscience Corporation ("Dunn"), a company retained by Triangle to oversee the environmental remediation at the site. (Exh. P-23 at 69-70). In fact, the Dunn Summary and Recommendations to Rodin, dated March 8, 1990, identified "290 tons of contaminated soil" ...


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