Opinion

Trizechahn Gateway LLC v. Titus

  • 2007 Pa. Super. 196
  • 930 A.2d 524
  • 2007 Pa. Super. LEXIS 2034
Court
Superior Court of Pennsylvania
Filed
Jul 3, 2007
Status
Published
Author
Melvin
On the bench
Melvin, Bender, Tamilia
Cited by
11 cases

Reversed in part, on other grounds by Trizechahn Gateway LLC v. Titus, 601 Pa. 637 (2009)

The opinion

CONCURRING AND DISSENTING STATEMENT BY

ORIE MELVIN, J.:

¶ 1 I concur in the majority’s decision in 1050 WDA 2006 and 1091 WDA 2006 to vacate the award of counsel fees and interest, remand for the limited purpose of recalculating interest, and affirm the judgment in all other respects. I also concur in the majority’s decision to affirm the orders challenged on cross-appeal in 1151 WDA 2006.

¶ 2 I dissent, however, from the majority’s decision in 1050 WDA 2006 and 1091 WDA 2006 to reverse the imposition of individual liability against Appellants Thomas D. Arbogast and Thomas C. Wet-tach. While I agree with the majority that Arbogast and Wettach are the only two Appellants conceivably protected against liability under Section 28(i) of the master lease (referred to by the majority as the “absolution clause”), Maj. Op. at 538, I disagree that the latter portion of that same section is ambiguous as to whether they are also protected against liability in their individual capacities. Section 28(i), which I believe should be read as a whole and not carved into separate clauses, clearly means that “such representatives would not be subject to liability merely for having signed” and does not “purport to excuse anyone who might be personally liable on the [master] lease for other reasons.” Trial Court Opinion, 3/31/05, at 21-22. Here, the individual liability of Arbo-gast and Wettach arises not from the fact that they executed the master lease on behalf of the partnership but from their separate juridical existence as general partners. These Appellants, in other words, donned their “representative hat” but did not remove their “partner hat” when they executed the master lease on behalf of the partnership. Accordingly, I would affirm the judgment imposing individual liability on Appellants Arbogast and Wettach.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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