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LERMAN v. RUDOLPH. (03/17/64)

March 17, 1964

LERMAN, APPELLANT,
v.
RUDOLPH.



Appeal, No. 266, Jan. T., 1963, from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1962, No. 4610, in case of Albert Lerman v. David M. Rudolph, individually and trading as David M. Rudolph Agency, and Life Assurance Company of Pennsylvania. Order affirmed.

COUNSEL

Norman P. Zarwin, with him Zarwin, Prince & Baum, for appellant.

David J. Dean, with him Dean and Dean, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: O'brien

[ 413 Pa. Page 556]

OPINION BY MR. JUSTICE O'BRIEN

Appellant filed an action of assumpsit against David M. Rudolph, individually and Trading as David M. Rudolph Agency [Rudolph] and Life Assurance Co. of Pa. [Life] seeking the recovery of certain renewal commissions allegedly owing to him. His complaint recited that he had entered into a written contract, a copy of which was attached to the complaint, with both defendants, providing for his employment in the sale of insurance policies written by Life, Rudolph being Life's general agent. He further averred that, after about three and one-half years, his employment was terminated but that he was nevertheless entitled to commissions on premiums for policy renewals paid by insureds procured by him during his employment.

[ 413 Pa. Page 557]

Life demurred to the complaint, contending that the complaint, together with the attached contract, made out no cause of action against it, it appearing from the pleading that Life was not a party to the contract sued upon. The court below sustained the demurrer and dismissed the complaint as to Life. Appellant petitioned for leave to amend the complaint in order to show that Rudolph was acting as agent for Life in entering into the contract and that Life was therefore liable on a "principal agency theory". The court below refused to allow the amendment and appellant has appealed from the dismissal of the complaint as to Life and the refusal to allow an amendment.

Appellant contends that the court below erred in sustaining Life's demurrer because he had pleaded that Life was a party to the contract sued upon. Appellant goes on to reason that all well pleaded facts must be accepted as true for purposes of a demurrer and, therefore, he had sufficiently pleaded a cause of action against Life. The complaint contained following paragraphs, relied on by appellant in connection with this argument:

"4. On August 1, 1958, plaintiff executed a written contract with defendants, a copy of which is attached hereto and marked Exhibit 'A', whereby he became an agent employed by defendant David M. Rudolph, ind. and t/a David M. Rudolph Agency for the purpose of representing and selling insurance policies issued by the defendant Life Assurance Company of Pennsylvania.

"5. The said written agreement was duly executed and joined in by the duly authorized official of the defendant Life Assurance Company of Pennsylvania."

While appellant is correct in his general statement, reference to the above quoted paragraphs of the complaint will show that the "facts" pleaded are in ...


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