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BUREAU FOR CHILD CARE v. UNITED FUND PHILADELPHIA AREA (03/16/65)

decided: March 16, 1965.

BUREAU FOR CHILD CARE, APPELLANT,
v.
THE UNITED FUND OF THE PHILADELPHIA AREA



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1963, No. 107, in case of Bureau for Child Care v. The United Fund of the Philadelphia Area.

COUNSEL

Samuel Dashiell, for appellant.

Benjamin M. Quigg, Jr., with him E. Barclay Cale, Jr., and Morgan, Lewis & Bockius, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Roberts would affirm the court below.

Author: Jones

[ 416 Pa. Page 618]

On June 1, 1959, the United Fund of the Philadelphia Area (United Fund), and the Bureau for Child Care (Bureau), both nonprofit corporations, entered into a written agreement entitled a "Participating Agency Agreement". In pertinent part, this agreement provided: (1) the term of the agreement was to be from June 1, 1959 to May 31, 1960, and thereafter from year to year unless terminated by either party on fifteen days' written notice to the other party on or before May 15th; (2) between September 1, 1959 and December 30, 1959, and at like periods in subsequent years, United Fund was required to conduct fund raising campaigns, from the proceeds of which the Bureau would receive an allocated share of the funds raised; (3) the Bureau would not conduct any separate fund raising campaigns, solicitations or similar activities during the term of the agreement except with the United Fund's sanction; (4) on or before April 1 of each year -- beginning April 1, 1960, -- the allocations committee of the United Fund would determine the net basic allocation for the Bureau for the following United Fund allocation year; (5) while the United Fund was not to be given any control, supervision or responsibility for the operations or program of the Bureau, it was recognized that United Fund would have "the right and obligation in determining allocations to give due consideration to demonstrated community needs, appropriateness of support, agency standards and effectiveness and similar criteria"; (6) in the event of termination of the agreement, the Bureau, notwithstanding such termination, would "be entitled to receive . . . its allocation from the preceding campaign . . . ." However, the United Fund reserved the right "at any time to cancel or defer payments to [the Bureau] in the event [the Bureau] fails to comply with the provisions of this agreement.";

[ 416 Pa. Page 619]

(7) that the Bureau's services would be open and available to all persons in need of such services and that, during the term of the agreement, such services would be so maintained to the extent of available funds and facilities; (8) the Bureau agreed to "maintain responsible management, [to] establish and maintain sound financial practices, and [to] provide such financial and service data as may reasonably be required by United Fund from time to time . . . ."

Upon execution of this agreement, the Bureau received regularly from the United Fund a monthly allocation of $11,017 until May 31, 1963. On April 30, 1963, the United Fund, in accordance with the agreement, notified the Bureau of the termination of the agreement as of May 31, 1963. However, between May 31, 1963 and October 24, 1963 the United Fund continued to pay the Bureau six monthly payments of $11,017 each and then refused to make any further payments.

The Bureau by complaint instituted suit in assumpsit against the United Fund in the Court of Common Pleas of Philadelphia County for $66,102, representing six payments which were allegedly due to the Bureau from the United Fund for the months of December 1963 to May 1964, inclusive. To the Bureau's complaint, the United Fund filed an answer containing new matter and, thereafter, the Bureau filed a motion for judgment on the pleadings. The Bureau's motion for judgment on the pleadings was dismissed by Judge Gleeson and the Bureau was granted leave to file an amended complaint or a reply to new matter within thirty days. The Bureau filed neither an amended complaint nor a reply to new matter. Thereafter, the United Fund renewed its previous undetermined motion for judgment on the pleadings and the court, acting through Judge McClanaghan, granted this motion.

[ 416 Pa. Page 620]

From the judgment thus entered the Bureau has taken this appeal.

The Bureau has three contentions: (a) that, since one judge of the court of common pleas had denied United Fund's motion for judgment on the pleadings, thereafter another judge of the same court could not grant a motion for judgment on the same pleadings; (b) that the allegation in the United Fund's new matter of the delivery to the Bureau of a letter and resolution, both attached as exhibits to the new matter, wherein the United Fund notified the Bureau that it was terminating the written agreement, did not impose upon the Bureau the duty to deny the statements contained in either the letter or resolution; (c) that, under Paragraph 6 of the agreement between the ...


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