Joseph Paolino & Sons, Inc. v. City of Philadelphia
| Decision Date | 14 October 1993 |
| Citation | 631 A.2d 1353,429 Pa.Super. 191 |
| Parties | JOSEPH PAOLINO & SONS INC., Appellant, v. CITY OF PHILADELPHIA, Appellee. |
| Court | Pennsylvania Superior Court |
Bruce L. Phillips, Philadelphia, for appellant.
Patrick K. O'Neill, Philadelphia, for appellee.
Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
Joseph Paolino & Sons Inc., ["JPS"] appeals from the order entered October 19, 1992, in the Court of Common Pleas of Philadelphia County, granting summary judgment in favor of the City of Philadelphia ["the City"]. We affirm.
Central to this dispute is the parties' waste disposal contract. JPS and the City entered into a contract in December of 1985 for the hauling and disposal of Philadelphia incinerator residue from December 1985 through June 1987. The relevant contract provisions are the following:
The Contractor shall assume all handling, transportation, disposal, permit and licensing costs. Hauling and disposal methods shall be in strict accordance with the regulations of the governing state and local environmental agencies. At time of bid, the Contractor shall provide evidence as to the approval of the appropriate regulatory agencies to dispose sanitary residue in the sanitary landfill listed in the bid.
R.R. at Exhibit A(1) (emphasis supplied). In addition, the Service Contract specified that
Contractor agrees to furnish ... subject to the conditions therein set forth ... All work performed and services rendered shall strictly conform to all laws, statutes and ordinances and the applicable rules, regulations, methods and procedures of all governmental boards, bureaus, offices, commissions and other agents.
R.R. at Exhibit A(4) (emphasis supplied).
In its bid, JPS submitted that its disposal site would be a Virginia landfill. JPS notified the City in January 1986, however, that a Virginia landfill different from the one specified in the bid would be used. Subsequently, that landfill was enjoined from accepting any further waste. Thus, JPS arranged for different landfills across the United States to accept the incinerator ash. The City made seven payments under the contract to JPS, between February 1986 and August 1986.
In June of 1986, JPS subcontracted with Amalgamated Shipping Corporation, a Bahamian company, for transport of incinerator ash from Philadelphia to the Bahamas for disposal. In August of 1986, the Bahamian ship "Khian Sea" was loaded with incinerator ash and departed Philadelphia for the Bahamas. The Bahamas refused to accept the waste. Thereafter, the Khian Sea sailed the seas from Central America to Yugoslavia to Sri Lanka in search of a disposal site for the incinerator ash. When the Khian Sea finally docked in Singapore in the fall of 1988, the ship's holds were empty. JPS failed to produce any evidence that it satisfied its obligation to properly dispose of the incinerator ash hauled by the Khian Sea, contrary to the contract terms requiring disposal in accordance with "governing state and local environmental agencies" and "all governmental boards, bureaus, offices, commissions and other agents." 1 JPS and the City stipulated that the City made continuing inquiries regarding the disposal of the incinerator residue as soon as it discovered that the Khian Sea left the port of Philadelphia.
The City refused to pay JPS for their services because it did not properly dispose of the incinerator waste in compliance with applicable laws and regulations. 2 The City contends that proper disposal was a condition precedent to its duty to pay for JPS's services. JPS argues that the contract provisions governing the manner of waste disposal were mere promises of performance, the breach of which would only entitle the City to damages for harm actually suffered. JPS sued on the basis that the City's failure to pay was a breach of their contract, because JPS fulfilled its duty to haul and dispose of waste.
A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P., Rule 1035, 42 Pa.C.S.A. On appellate review, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Western Penn Power Co. v. Piatt, 405 Pa.Super. 467, 592 A.2d 1306 (1991).
The trial court found that there was no material issue of fact concerning the City's duty to pay for the ash hauled by the Khian Sea, because JPS was unable to provide any...
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...been the parties' intention. See Estate of Barilla, 369 Pa.Super. 213, 535 A.2d 125 (1987); see also Joseph Paolino & Sons v. City of Philadelphia, 429 Pa.Super. 191, 631 A.2d 1353 (1993). In addition, we note that the purpose of any condition set forth in a contract must be determined in a......