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COAL OPERATORS CASUALTY CO. v. CHARLES T. EASTERBY & CO. (10/09/70)

decided: October 9, 1970.

COAL OPERATORS CASUALTY CO., APPELLANT,
v.
CHARLES T. EASTERBY & CO., INC.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1968, No. 299, in case of Coal Operators Casualty Co. v. Charles T. Easterby & Co., Inc.

COUNSEL

Leon Rosenfield, with him Alfred Sarowitz, for appellant.

Louis J. Carter, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Pomeroy concurs in the result.

Author: Jones

[ 440 Pa. Page 219]

This is an appeal from an order of the court below denying a motion for judgment on the pleadings in an assumpsit action instituted by Coal Operators Casualty Co., an insurance company [appellant], against Charles T. Easterby & Co., Inc., an incorporated insurance agency [appellee], to recover insurance premiums due under a written agency agreement existing between the parties.

On January 6, 1961, a contract was executed between appellant's state agent and appellee whereby the appellee was authorized to write insurance policies and collect premiums for and on behalf of appellant in the counties of Philadelphia, Bucks, Montgomery, Delaware and Chester, Pennsylvania. One paragraph of that agreement provided, ". . . the Company reserves the right to appoint and license other agents within said territory, at its discretion." The contract further stated, ". . . its terms embody all agreements existing between the State Agent and [appellee]. . . ." Notwithstanding this language, it was appellee's understanding that it was the exclusive agent in the aforementioned counties. In support of this belief, appellee attached to its pleadings

[ 440 Pa. Page 220]

    a copy of a letter in its possession dated November 26, 1963, signed by appellant's chairman, wherein it was stated, "At the time this arrangement was made [appellee] was appointed the exclusive general agent for the Counties of Philadelphia, Bucks, Chester, Delaware and Montgomery, Pennsylvania." (Emphasis added.)

Commencing in the fall of 1963, appellee sent no remittances to appellant although it continued to collect premiums and it appears from appellee's allegations that, at that time, appellant, through its various agents, officers and employees, began to interfere with appellee's alleged exclusive agency, causing loss to appellee's business. The agreement was admittedly terminated when appellee fell into arrears.

On November 7, 1968, appellant filed a complaint in assumpsit in the Court of Common Pleas of Philadelphia alleging non-payment of premium collections due appellant and demanding judgment for that amount*fn1 with interest. Appellee answered and counterclaimed, alleging the contract was not the entire agreement insofar as it had an exclusive agency and demanding judgment for the breach thereof in an amount in excess of appellant's claim. Preliminary objections to the answer and counterclaim were filed and tentatively resolved by a stipulation whereby appellee was allowed to file an amended answer, new matter and counterclaim.*fn2 Following a reply to the amended new matter and amended counterclaim, appellant moved for judgment on the pleadings. The motion was refused and

[ 440 Pa. Page 221]

    this appeal was taken from the refusal to ...


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