The opinion of the court was delivered by: LORD, JR.
JOHN W. LORD, Jr., District Judge.
After a trial before the Court without a jury, upon pleadings and proof, the Court makes the following:
1. Plaintiff is Phoenix Mutual Life Insurance Company, a corporation duly incorporated under the laws of the State of Connecticut with its principal place of business there.
2. Defendant, John J. McLean, an individual, is a citizen of Pennsylvania residing in this District at 390 Rittenhouse Street, Norristown, Pennsylvania.
3. The amount in controversy exceeds $10,000 exclusive of interest and costs.
4. From June 3, 1952 until November 11, 1962, defendant was manager of one of plaintiff's Philadelphia agencies, the Keystone Agency (hereafter sometimes referred to simply as the agency). He had been employed by Phoenix on March 16, 1948 and had served as an agent and then as a field supervisor prior to being designated as the Keystone Agency manager.
5. McLean had no written contract with Phoenix as agency manager, but his appointment was confirmed by two letters dated June 3, 1952 (P-33, D-5).
6. As agency manager, McLean had the duty to supervise the business of the agency, to oversee the agents and employees of that office, to see that the agency made proper requests for funds from Phoenix's home office, to see that funds received from the home office were properly disbursed to meet Phoenix's obligations to the personnel of the agency and to others, and to see that moneys due Phoenix submitted by others to McLean or to the agency were properly delivered to Phoenix.
8. McLean was paid a salary as long as the incentive formula of compensation used by Phoenix to compensate its managers produced an amount lower than the salary. Within a few years after his appointment, the incentive formula of compensation produced higher rates of compensation for McLean and he was thereafter compensated as the Keystone Agency Manager under that formula with which he was thoroughly familiar.
9. All expenses of operating and staffing the agency were paid by plaintiff including rent, telephone, supplies, salaries of office employees and secretarial staff.
10. On November 13, 1958 and June 8, 1961, McLean, acting as the manager of the Keystone Agency of Phoenix Mutual, using stationery of that company and indicating, by his signature as "Manager", that he was acting in his capacity as the employee of that company, prepared written agreements under the terms of which Bernard I. Waters, a Keystone agent, agreed to make payments on account of ...