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December 21, 1973

David SPATZ et al.,
Frank J. NASCONE and Frank J. Zappala, Jr.

Snyder, District Judge.

The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

The Plaintiffs in this proceeding filed a Motion that the Court (1) vacate and set aside its Order entered October 12, 1973, granting Defendant's Motion for Summary Judgment and (2) enter an Order denying Defendant's Motion for Summary Judgment and directing that this action proceed on the merits. In addition to opposing the Plaintiff's Motion to Vacate and Set Aside the Order of October 12, 1973, the Defendants filed a Motion to Strike the Plaintiff's Motion.

 The basis of the Defendant's Motion to Strike the Plaintiff's Motion was an allegation that the Plaintiff's Motion was improper and not allowed by the Federal Rules of Civil Procedure. While it is true that we can find no reference whatsoever in the Federal Rules of Civil Procedure for a Motion to Vacate and Set Aside a Summary Judgment, the Courts have universally held that since the Amendment of 1946 which added Subsection (e) to Rule 59 of the Federal Rules of Civil Procedure, *fn1" the wording of this subsection was broad enough to include what were in substance Motions for Reconsideration of Orders Finally Disposing of Actions before Trial. Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084 (3rd Cir. 1972); Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858 (3rd Cir. 1970); Gainey v. Brotherhood of Railway & Steamship Clerks, Etc., 303 F.2d 716 (3rd Cir. 1962). In the latter case the following appears (at Page 718):

". . . Rule 59 has been properly described as 'an amalgamation of the motion for new trial at common law and the petition for rehearing in equity adapted to the unified procedure (8) * * *. ' 6 Moore, Federal Practice (2d ed. 1953) para. 59.02, at 3707. Of course, technically there is no trial when summary judgment is granted. But even before Rule 59 was amended in 1946 to add subsection (e), specifically providing for motions to alter or amend a judgment, the original provision of the Rule authorizing a party to move for a new trial within ten days after judgment was construed by several courts as broad enough to include motions for reconsideration of orders finally disposing of action before trial. Jusino v. Morales & Tio, 1st Cir. 1944, 139 F.2d 946; Safeway Stores, Inc. v. Coe, 78 U.S. App. D.C. 19, 1943, 136 F.2d 771, 148 A.L.R. 782. Since the addition of subsection (e) the courts which have considered the problem seem to have experienced no difficulty in concluding that a motion for rehearing or reconsideration made within ten days after the entry of an appealable order is within the coverage of Rule 59 . . . ." (Emphasis added.)

 It is, therefore, apparent that the Defendant's Motion to Strike the Plaintiffs' Motion to Set Aside the Order of October 12, 1973, must be denied.

 We then come to the consideration of the substance of the Plaintiffs' Motion to Vacate and Set Aside the Order of October 12, 1973. Without attempting to set forth in full what was contained in a twenty-seven page opinion, suffice it to say that the Order granted the Defendant's Motion for Summary Judgment in a diversity suit based on a contract which contained a provision that "This Agreement shall be interpreted under Pennsylvania law and any disputes hereunder shall be tried in the Courts of the Commonwealth of Pennsylvania, the parties hereby waiving the right to a jury trial." The Plaintiffs claim that the Defendants breached the agreement involving the sale of real property located in the State of New York. The Defendants moved to dismiss on the basis that the provision of the agreement limited the Plaintiffs to maintaining their action only in the State Courts of Pennsylvania. The Court treated the Motion as a Motion for Summary Judgment under Rule 56. For the reasons hereinafter set forth, the Plaintiffs' Motion to Set Aside the Order of October 12, 1973 is denied.

 Plaintiffs' counsel in a rather lengthy brief repeats the arguments which were presented in their numerous briefs and memoranda submitted prior to our decision of October 12, 1973. We do believe, however, that the following may be of assistance in stating the Court's position with respect to the Plaintiffs' arguments.


 Contrary to what appears in the record of this case, the Plaintiffs claim that the Court accepted the statement contained in an affidavit of Richard Zappala dated March 1, 1973. This affidavit was flatly contradicted according to the Plaintiffs by both paragraph five of the supplemental affidavit of Donald Kahan and by Kahan's deposition testimony. It is then their contention that the facts set forth in this affidavit should not have been considered by the Court.

 In our Opinion of October 12, 1973, we set forth that the Agreement disclosed that the Defendants, real estate developers based in Pennsylvania, had sold to the Plaintiffs' assignee, who was a citizen of Illinois, commercial real estate located in the State of New York. Thus, the transaction touched three states. Then, apparently, in order to resolve any uncertainty as to which of the three state laws would govern, or to avoid uncertainty within a given state as to a proper choice of law, the parties determined that the Agreement should be interpreted under Pennsylvania law. Secondly, it prescribed clearly that any dispute was to be tried "in the Courts of the Commonwealth of Pennsylvania." Pennsylvania was the domicile of the Defendants. In light of the principles of law applicable to this case, that is, that there was a patent ambiguity, we were then required to determine whether or not there were any indications as to construction of the language. In this context we referred to the affidavit of Richard Zappala. It is clear that while Richard Zappala acted as attorney for the Defendants and worded this clause in this transaction, the forum selection clause was carried verbatim from the language of a previous real estate purchase agreement between the principals. It was in this context that this Court referred to the Zappala affidavit, not from the standpoint of whether or not he had specifically construed the language "Courts of the Commonwealth of Pennsylvania" but merely to indicate that there was a discussion concerning the clause and that consequently there would be applicable the well recognized exception to the rule of construction that an instrument is most strongly construed against he who worded it. That exception is where a contract is the result of the joint efforts of attorneys or negotiators, then it is not to be construed against either party. Consumers Ice Company v. United States, 201 Ct. Cl. 116, 475 F.2d 1161 (Ct. Claims 1973); Kaiser Aluminum & Chemical Corporation v. United States, 388 F.2d 317, 181 Ct. Cl. 902 (1967); Carter v. Certain-Teed Products Corp., 200 F.2d 754 (8th Cir. 1953); United States v. Continental Oil Company, 237 F. Supp. 294 (W.D. Okl. 1964). It is, thus, clear that the Court did not accept the testimony of Zappala and reject the contradictory testimony of Kahan. We were concerned only with the fact that the discussion about the forum selection clause had taken place and the evidence was clear that the discussion did, in fact, occur.

 In the following passage from the transcript of the deposition of Donald Kahan, Plaintiffs' lawyer in the real estate transaction, he states that the discussion concerning the forum selection clause in the Canton Agreement took place. The "prior agreement" referred to in this portion of the testimony is an agreement covering real estate in Altoona, Pennsylvania. That agreement did not contain a forum selection clause.

"Q. And looking at that agreement, does your recollection concur with Mr. Zappala's that you and ...

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