Summary
observing "[i]f time were of the essence, any delay—in this case, a three-day delay—would not be reasonable."
Summary of this case from M Elec. Corp. v. Phil-Gets Guam Int'l Trading CorpOpinion
Argued May 3, 1982
December 15, 1982.
Judgment on the pleadings — Contract — Option — Time of the essence.
1. To succeed on a motion for judgment on the pleadings, the moving party's right to prevail must be so clear that trial would be a fruitless exercise. [403]
2. A contract is an exhibit attached to the pleadings to be read with the pleadings during consideration of a motion for judgment on the pleadings. [403]
3. Time is generally of the essence in an option contract, so any delay would not be reasonable; therefore, when a contract might be determined to be an option contract at trial, judgment on the pleadings is inappropriate. [403]
Argued May 3, 1982, before President Judge CRUMLISH, JR. and Judges WILLIAMS, JR. and DOYLE, sitting as a panel of three.
Appeal, No. 3005 C.D. 1980, from the Order of the Court of Common Pleas of Allegheny County in the case of Kenneth Lotz t/d/b/a Conley's Towing Service v. The City of McKeesport, No. G.D. 80-9836.
Complaint in assumpsit in the Court of Common Pleas of Allegheny County. Defendant filed motion for judgment on the pleadings. Motion granted. NARICK, J. for the court en banc. Complainant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Yaier Y. Lehrer, for appellant.
John F. Cambest, with him Steven F. Kessler, City Attorney, for appellee.
The Allegheny County Common Pleas Court granted the City of McKeesport's Motion for Judgment on the Pleadings. We reverse and remand.
Conley's Towing Service (Conley) contracted with the City of McKeesport (City) to perform towing services within the City. The contract contained a clause providing for yearly automatic renewal unless either party informed the other thirty days in advance of the contract's anniversary date of an intent to change or abrogate the contract. Conley was informed, by letter, of the termination of the contract twenty-seven days before the anniversary date.
Paragraph 13 of the contract states that:
This contract shall remain in full force and effect until March 23, 1976 and shall renew itself automatically thereafter, from year to year, for additional periods of one (1) year each, unless either party shall have given written notice of desire to change or abrogate the contract thirty (30) days in advance of the March 23rd expiration date in any year.
The contract's anniversary date was March 23, 1980. The notice was sent out by the City on February 26, 1980, and received by Conley on February 27, 1980.
Following Conley's suit in assumpsit, the City moved for judgment on the pleadings, which was granted. The court concluded, as a matter of law, that the time delay was reasonable and that to hold otherwise would cause an unconscionable result.
Rule 1034. Motion for Judgment on the Pleadings.
(a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be proper on the pleadings.
Pa. R.C.P. No. 1034.
To succeed on Motion for Judgment on the Pleadings, the moving party's right to prevail must be so clear that trial would be a fruitless exercise. Keil v. Good, 437 Pa. 37, 355 A.2d 768 (1976). The contract is an exhibit attached to the pleadings to be read with the pleadings. Because of the nature of the clause, the contract may be determined to be an option contract. Our Superior Court, in Western Savings Fund Society of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 285 Pa. Super. 187, 427 A.2d 175 (1981), restated the previously-held principle in Pennsylvania that, absent circumstances that would except the general rule, time is of the essence in an option contract. If time were of the essence, any delay — in this case, a three-day delay — would not be reasonable. This question alone is sufficient to make the granting of the City's Motion for Judgment on the Pleadings inappropriate.
E.g., if the clause had been waived either by agreement or conduct of the parties. Western Savings, 285 Pa. Super. at 193, 427 A.2d at 178.
We reverse and remand for proceedings not inconsistent with this Opinion.
ORDER
The Allegheny County Common Pleas Court order, No. 6580-09836 of February 26, 1981, is hereby reversed and remanded for proceedings not inconsistent with this Opinion.