Appeal from judgment of County Court of Allegheny County, No. 595 of 1967, in case of Music, Inc. v. Henry B. Klein Co.
Henry W. Wallace, with him Donald E. Rohall, for appellant.
Samuel J. Reich, with him H. Arnold Gefsky, and Cooper, Goodman & Schwartz, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Hannum, J., absent). Opinion by Spaulding, J. Montgomery, J., concurs in the result. Dissenting Opinion by Hoffman, J. Watkins, J., joins in this dissenting opinion.
[ 213 Pa. Super. Page 183]
This is an appeal from a judgment entered in favor of Henry B. Klein Co., defendant-appellee, in an assumpsit action in Allegheny County Court.
Music, Inc., appellant, which provides a programmed music service commonly known as "Musak,"
[ 213 Pa. Super. Page 184]
contracted with appellee to provide such service from April 1, 1963 to November 30, 1966. The contract in part provided: "The term of this agreement shall be for three (3) years and eight (8) months from the date of installation and shall continue thereafter for subsequent like periods unless at least (60) sixty days prior to the end of any term either party shall give the other written notice of desire to discontinue said service at the end of the current term." In an attempt to end the contract, appellee wrote a letter of termination which was posted on Friday, September 30, 1966, sixty-one days prior to the termination date of November 30. This notice, which was clear and unambiguous, was received by appellant on Monday, October 3, 1966, fifty-eight days before the termination date.
The sole question on this appeal is whether effective termination notice was given pursuant to the terms of the contract and the intent of the parties. The trial court, in an action by appellant for the additional monthly payments due under the extended contract, rendered judgment for the appellee, concluding "that the notice given by the defendant was adequate under the contract."*fn1
There was no specific provision in the contract making time of the essence and no circumstances have been demonstrated which clearly indicate that both parties intended that time should be of the essence. In Central Guarantee Co. v. Nat'l Bank, 137 Wash. 24, 241 Pac. 285 (1925), the court held that under a clause in a subscription contract covering a series of 5 years giving the subscriber the privilege to cancel "at the end of the first year," his right to act arises at the termination of the year, so that he must be given a reasonable time thereafter to signify his cancellation,
[ 213 Pa. Super. Page 185]
and that such action within 10 days after the stipulated period expires was reasonable. Several other courts have approved a rule of construction which permits a finding that a termination notice is sufficient even though delivered later than the period specified in the contract when the terminating party acted reasonably under the circumstances and there is no demonstrable prejudice resulting from the delayed notice. Those courts found, however, as a matter of law, that the notice in those cases was not ...