Coal Operators Cas. Co. v. Charles T. Easterby & Co.

• Decision Date: 09 October 1970
• Parties: COAL OPERATORS CASUALTY CO., Appellant, v. CHARLES T. EASTERBY AND CO., Inc.
• Court: Pennsylvania Supreme Court

269 A.2d 671

440 Pa. 218

COAL OPERATORS CASUALTY CO., Appellant, v. CHARLES T. EASTERBY AND CO., Inc.

Supreme Court of Pennsylvania.

October 9, 1970.

Alfred Sarowitz, Philadelphia, for appellant.

Louis J. Carter, Philadelphia, for appellee.

Before BELL, C.J., and JONES COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.

OPINION

JONES Justice.

This is an appeal from an order of the court below denying a motion for judgment on the pleadings in an assumpsit action instituted by Coal Operators Casualty Co., an insurance company (appellant), against Charles T. Easterby & Co., Inc., an incorporated insurance agency (appellee), to recover insurance premiums due under a written agency agreement existing between the parties.

On January 6 1961, a contract was executed between appellant's state agent and appellee whereby the appellee was authorized to write insurance policies and collect premiums for and on behalf of appellant in the counties of Philadelphia, Bucks, Montgomery, Delaware and Chester, Pennsylvania. One paragraph of that agreement provided, '* * * the Company reserves the right to appoint and license other agents within said territory, at its discretion.' The contract further stated, '* * * its terms embody all agreements existing between the State Agent and (appellee) * * *.' Notwithstanding this language, it was appellee's understanding that it was the Exclusive agent in the aforementioned counties. In support of this belief, appellee attached to its pleadings a copy of a letter in its possession dated November 26, 1963, signed by appellant's chairman, wherein it was stated, 'At the time this arrangement was made (appellee) was appointed the Exclusive general agent for the Counties of Philadelphia, Bucks, Chester Delaware and Montgomery, Pennsylvania.' (Emphasis added)

Commencing in the fall of 1963, appellee sent no remittances to appellant although it continued to collect premiums and it appears from appellee's allegations that, at that time, appellant, through its various agents, officers and employees, began to interfere with appellee's alleged exclusive agency, causing loss to appellee's business. The agreement was admittedly terminated when appellee fell into arrears.

On November 7, 1968, appellant filed a complaint in assumpsit in the Court of Common Pleas of Philadelphia alleging non-payment of premium collections due appellant and demanding judgment for that amount ^[1] with interest. Appellee answered and counterclaimed, alleging the contract was not the Entire agreement insofar as it had an exclusive agency and demanding judgment for the breach thereof in an amount in excess of appellant's claim. Preliminary objections to the answer and counterclaim were filed an tentatively resolved by a stipulation whereby appellee was allowed to file an amended answer, new matter and counterclaim. ^[2] Following a reply to the amended new matter and amended counterclaim, appellant moved for judgment on the pleadings. The motion was refused and this appeal was taken from the refusal to grant that motion. ^[3]

Preliminarily, it must be noted that to grant a motion for judgment on the pleadings a court must be confronted with a very clear case. 'In order to succeed on a motion for judgment on the pleadings, the moving party's right to prevail must be so clear that 'a trial would clearly be a fruitless exercise.' Bata v. Central Penn Nat. Bank of Phila., 423 Pa. 373, 378, 224 A.2d 174, 178 (1966).' Goldman v. McShain, 432 Pa. 61, 68, 247 A.2d 455, 458 (1968). Thus, if there is any issue of fact which is unresolved, no motion for judgment on the pleadings should be granted. Analogous to the motion for a judgment on the pleadings is the motion for summary judgment and in connection with the latter procedure, we recently stated: 'The applicability and effect of the parol evidence rule is properly considered in the context of a motion for summary judgment. (Citations omitted). There is no logical reason for forcing the parties to go to trial when there could be no genuine issue as to a material fact, regardless of the reasons for the lack of such issues. Of course, if there are factual issues bearing on the applicability of the parol evidence rule or other genuine issues as to material facts, then the case ought properly proceed to trial.' Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120, 262 A.2d 851, 853 (1970).

On the instant pleadings it appears that the determinative issue might well be whether appellee had an exclusive agency and the resolution of that issue could conceivably turn upon whether the letter admitting of such agency may properly be received in evidence in light of the Parol Evidence Rule. Indeed, it is the applicability of the Parol Evidence Rule to which the bulk of the arguments on both sides is addressed. Accordingly, if a factual issue involving the Parol Evidence Rule is unresolved, we should affirm the denial of the motion.

In Dunn v. Orloff, 420 Pa. 492, 495--496, 218 A.2d 314, 316--317 (1966), this Court said: 'In 1924, the present statement of the Pennsylvania parol evidence rule was enunciated by this Court in the landmark case of Gianni v. R. Russell & Co., Inc., 281 Pa. 320, 126 A. 791 (1924). In Gianni, it was held that if a written agreement was intended by the parties to encompass the entire understanding between the parties, then evidence of a contrary nature, based upon an oral agreement at the time of the execution of the written agreement, was barred in the absence of fraud, accident or mistake. As later stated by former Chief Justice Stern in O'Brien v. O'Brien, 362 Pa. 66, 71, 66 A.2d 309, 311 (1949): 'That principle (The Parol Evidence Rule) is to the effect that, in the absence of any allegation of fraud, accident or mistake, 'the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. " See also: Speier v. Michelson, 303 Pa. 66, 154 A. 127 (1931); United Refining Co. v. Jenkins, 410 Pa. 126, 189 A.2d 574 (1963).

'In Gianni, however, the court provided for an exception by saying: 'The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at and if it appears to be a contract complete within itself * * * it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.' (281 Pa. at 323, 126 A. (791) at 792.) From this language has developed an exception to the Rule, i.e. that parol evidence is admissible to explain and supplement a written agreement...