Appeal from judgment of County Court of Philadelphia, March T., 1968, No. 566A, in case of Samuel McFadden, Jr. v. American Oil Company et al.
Louis A. Kassen, with him Louis Kassarich, for appellant.
Charles Jay Bogdanoff, with him Albert C. Gekoski and Jeffrey M. Miller, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
[ 215 Pa. Super. Page 46]
This appeal is from a summary judgment granted by the lower court to defendant-appellee on appellee's motion under Pa. R.C.P. 1035.
[ 215 Pa. Super. Page 47]
Plaintiff instituted an action in trespass seeking recovery for property damage sustained in a collision between his automobile and a truck operated by Clarence H. Bartlett, an employee of American Oil Company. The defendants filed an answer and in new matter asserted that on August 19, 1966, the plaintiff executed a general release under which both the corporate and individual defendants were released from any and all claims for damage resulting from the accident. The release, a copy of which was attached to the answer, extended to "any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof. . . ."
Plaintiff's reply to new matter averred that the intention of the parties was that the release cover only plaintiff's personal injuries and not his property damage claim, the subject of the present suit. The reply averred further that "this release was procured by fraud, mistake and/or accident in that the plaintiff did not realize the legal effect of this release."
Thereafter defendants took plaintiff's oral deposition in which he was asked the basis for his averment of fraud or mistake in the reply to new matter. Plaintiff's response, although somewhat ambiguous and susceptible to interpretation, was essentially that the consideration received for the release ($3000) was for bodily injury only and not property damage. Plaintiff admitted that he was represented by counsel during the negotiations leading to settlement and that he signed the release in his attorney's office. Defendants then moved for summary judgment on the basis of the pleadings and plaintiff's deposition. In opposition to the motion, plaintiff contended that an issue of fact existed as to the intent of the parties to the release and attached to his answer the affidavit of the
[ 215 Pa. Super. Page 48]
attorney who represented him when the release was executed.*fn1 The affidavit stated that "it was not the intention of the parties to the release that said release would cover property damage, but bodily injuries only." Plaintiff also alleged that whether his deposition showed fraud, accident, or mistake was a jury question.
Noting the broad, inclusive language of the release, and that plaintiff was represented by counsel at its execution, the trial court granted ...