receipt of this response, plaintiffs' counsel phoned counsel for the defendant and advised him that he wished to reschedule the deposition in order to determine agency prior to the running of the statute of limitations. To this suggestion, defendant's counsel allegedly replied that "as far as defendant's counsel knew, the driver was employed by the defendant at the time of the accident." Plaintiffs further allege that in reliance on this statement, the deposition was postponed and, thereafter, the statute ran against the actual principal, Tenneco Chemicals, Inc.
In his affidavit, defendant's counsel vigorously denied that he ever represented that the driver was an employee of defendant. Such a genuine dispute of a material fact -- whether the representation was, in fact, made -- would ordinarily preclude the granting of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Moreover, although the application of estoppel on established facts is generally for the determination of the Court, the question of whether the alleged remarks were made is for the jury. Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473 (1964). For the purpose of this motion, however, we will accept the averments made in the affidavit of plaintiffs' counsel as true and correct.
Initially, plaintiff argues that, notwithstanding the denial of agency in the answer, defendant's counsel has, in fact, admitted agency. In the first place, plaintiffs argue that defendant's cross-claim, seeking indemnity and contribution in the event of recovery against it, is inconsistent with a denial of agency and, in essence, an admission thereof. We find no merit in this contention, since the rules of federal pleading expressly permit pleading in the alternative. F.R.Civ.P. 8(e)(2). Secondly, plaintiffs argue that the fact that the truck bore the lettering "Berman Leasing Co." constitutes an admission of agency. We must likewise reject this contention for the lettering provides merely an indication of ownership and nothing more. Thirdly, plaintiffs argue that the statement of defendant's counsel over the telephone -- that as far as he knew, the driver was an employee of defendant -- constituted an admission of agency. In so arguing, plaintiffs rely on Taylor v. Allis-Chalmers Mfg. Co., 320 F. Supp. 1381 (E.D.Pa.1969), holding that admissions by an attorney which concern the management of litigation may be used against the party-client. The Court, in Taylor, had no difficulty in concluding that an attorney's authority extends to admissions made in formal pleading, but questioned whether statements made in less formal documents, such as a pre-trial memorandum, would constitute an admission within an attorney's authority. In this case, we are concerned with an alleged admission made in an off-the-record telephone conversation between counsel. The most definitive statement of Pennsylvania law on this point is contained in Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa.Super. 215, 235 A.2d 176 (1967), where the Court stated:
"On several occasions our courts have [sic] considered admissions purportedly made by attorneys. In these opinions emerge a great reluctance to admit such evidence in the absence of express authority by the client. The rule which has emerged from these cases is that, 'If the admissions are made out of court and not in the presence of the client, authority to make them or knowledge or assent of the client thereto must be shown'. 1 Henry, Evidence § 96, pp. 143-44 (4th ed. 1953).