under the Federal Employers Liability Act the question of the validity of a release granted to the carrier by the injured employee is to be determined by Federal rather than State law. In that case the Court stated:
'A release of rights under the Act is void when the employee is induced to sign it by the deliberately false and material statements of the railroad's authorized representatives made to deceive the employee as to the contents of the release.'
The Dice case was cited in the case of Marshall v. New York Central Railroad Co., 7 Cir., 1955, 218 F.2d 900. The Court in the Marshall case held that the question of whether the release was procured by fraud was a question for the jury. The Court also cited with approval a case relied on by Taxin. Gifford v. Wichita Falls & Southern Ry. Co., 5 Cir., 1954, 211 F.2d 494. These cases and those cited therein present the strongest possible argument in favor of plaintiffs who seek to avoid the release here. We note some differences, however, in the factual situation there than in the matter we must decide. In the leading cases cited, the issue was always under the Federal Employers Liability Act and there was always a claim by an employee which had been settled under most unusual circumstances and in which the employee, generally not represented by counsel and unaware of his rights, had executed a release on the promise of the claim agent or other representative of the employer to do some act for him in the future (such as in the Wichita case, or where the releasor was an ignorant person and had no clear understanding of her rights, as in the Marshall case). More important, however, is the fact that in each of these cases a definite misrepresentation was alleged and proven. In our case there is absolutely no evidence insofar as the affidavits or depositions are concerned to show that at any time Mandell made any misrepresentation whatever, nor is there any allegation that plaintiffs relied on Mandell doing anything in the future, although they may have alleged that they relied on things which Food Fair agreed to do in the future. Since, as we have said, both parties seem to rely on the Bardwell case, in which Mr. Justice Bell said:
'Fraudulent misrepresentations may be proved to modify or avoid a written contract if it is averred and proved that they were omitted from the (complete) written contract by fraud, accident or mistake * * *' (375 Pa. at page 507, 100 A.2d at page 104)
we comment briefly on it. Also, plaintiff in support of his position under the Bardwell case cites In re Boyd's Estate, 1958, 394 Pa. 225, 146 A.2d 816, in which the Court said:
'* * * If the written agreement was intended by the parties to encompass the matter in dispute, 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 * * *' (394 Pa. at pages 232, 233, 146 A.2d at page 820).
The Bardwell and Boyd's Estate cases involve the Pennsylvania Parol Evidence rule. The Marshall and Wichita cases were decided after conflicting testimony had been taken, but the basic issue is the same, and Mandell has avoided liability under both standards. Can this plaintiff avoid an admittedly binding release when all of the evidence available clearly shows that Mandell made no misrepresentations, and when the documentary evidence involved clearly indicates that both parties involved in the actual misrepresentations, that is to say, Food Fair and plaintiff, mutually agreed that the alleged oral promise should be kept out of the written agreement? (This agreement was set forth in the affidavit of John Taxin.) Certainly there was no accident or mistake, and if there were fraudulent misrepresentations made which were relied on to the detriment of the plaintiffs, and which there was no intention to keep in the future on the part of the promisor, then admittedly Mandell neither made any such misrepresentations, nor can we find that he failed to do something in the future which he never promised to do in the first place. We are bound by the record before us and we have searched arduously but in vain to find some fact material to this allegation of fraud which could be submitted to a jury.
This brings us then to the claim that the release was 'part and parcel of the conspiracy' and that if there is a factual question which Food Fair could be held to answer (although we do not pass on that question at this time) then Mandell could also be held because it is alleged that he was originally a coconspirator with Food Fair. As previously stated, neither counsel has been able to cite any authority on this problem nor have we been able to find an applicable decision. In the absence of any fact in the proceedings thus far to show that Mandell conspired with Food Fair in actually obtaining the release or in the absence of any fact to show that he knew or should have known that fraudulent misrepresentations were being made by Food Fair, or in the absence of any proof that he was a third-party beneficiary of this contract of release and having paid good consideration
therefor, we must hold that he is entitled to the benefit of the release and that the plaintiffs as to him are bound by the terms thereof. To hold otherwise, we believe, would mean that in any case in which a group of conspirators were involved in an antitrust case none could obtain a valid, binding release if one of the conspirators obtained a release by fraud. This, it is submitted, would not only be contrary to the law but contrary to public policy.
In view of our findings here, it is unnecessary to pass on the question as to the applicability of the Statute of Limitations raised by the movant.
Our decision here involves a controlling question of law as to which there is substantial ground for a difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.
And now, to wit, this 18th day of February, 1960, it is hereby ordered that Summary Judgment in favor of defendants Samuel P. Mandell Co., Inc., Mandell Distributing Co., Inc. and Samuel P. Mandell is granted as to that part of plaintiffs' claim based upon events occurring up to and including March 28, 1958.