The opinion of the court was delivered by: DAVIS
Defendant Pepsi Cola Bottling Company of Pennsauken ("Pepsi") seeks post-trial relief from a jury verdict against it based on both a contract claim and an antitrust claim. Canada Dry Delaware Valley Bottling Co. ("Canada Dry") was absolved of all liability by the jury, and is not involved in these post trial motions. Both claims against Pepsi relate to a sub-franchise agreement between Pepsi and Booth Bottling Co., Inc. ("Booth"). The breach of contract claim is based on the allegedly premature termination of this sub-franchise agreement. The antitrust claim is that the attempted repurchase and ultimate termination of the sub-franchise were among the "unfair means of competition" alleged by plaintiff, and that these were acts of unfair competition, and evidenced an anticompetitive intent. More specifically, it is the attempted repurchase from which plaintiff claims a jury may infer that defendant, at the time it granted Booth the sub-franchise, harbored a secret intent to repurchase shortly thereafter, in order to destroy Booth's employee morale, its financial stability and its root beer as a competitive product.
In November, 1968, Pepsi was offered the Hires Root Beer franchise for Southern New Jersey, Southeastern Pennsylvania and Northern Delaware, provided it could find a means of distributing the product in Southeastern Pennsylvania and Northern Delaware, where it did not operate. Pepsi therefore offered a sub-franchise to Booth, to cover the Southeastern Pennsylvania and Northern Delaware territory.
Pepsi had previously made unsuccessful attempts to acquire the Metropolitan Philadelphia Pepsi-Cola bottling plant and franchise. Booth knew this; and in its negotiations with Pepsi over the terms of the sub-franchise, the question of what would happen if Pepsi did acquire such a Philadelphia facility of its own, was the subject of intense discussion both between the parties and internally at Booth. The end result was that the parties entered into a sub-franchise agreement which included not only the usual termination provisions, but also a contractual provision whereby Pepsi could repurchase the sub-franchise if it paid a stipulated price, even if none of the termination provisions applied. That provision stated the following:
(d) If circumstances shall be such that at a particular time PENNSAUKEN is not entitled to terminate under subsections (b) and (c) of this section, PENNSAUKEN shall nevertheless have the right to repurchase (terminate) this subfranchise agreement by paying to BOOTH for BOOTH's good will and for the subfranchise a price computed by multiplying the number of standard cases of HIRES sold by BOOTH at its usual and regularly established prices during the twelve (12) month period immediately preceding the date of purchase by twenty-five cents ($.25) per case. * * *
The present point of contention is that Pepsi claimed that this allowed it to repurchase the sub-franchise at will, and Booth claimed that its permission was necessary.
I. Breach of Contract Claim.
Under the breach of contract claim, the question we must decide is whether or not the Court was correct in submitting the interpretation of this subfranchise to the jury, and admitting parole evidence in this regard. If its provisions are ambiguous or obscure, then its interpretation becomes a question of fact for the jury, and parole evidence is admissible to aid in this interpretation. If its provisions are unambiguous and clear, then its interpretation becomes a question of law for the Judge, and parole evidence is not admissible. The question of whether its provisions are ambiguous or obscure on the one hand, or unambiguous and clear on the other hand, is a question of law for the Judge. Haskins v. Point Towing Co., 421 F.2d 532, 536 ( 3d. Cir. 1970); Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3rd Cir. 1969); Jamison v. A.M. Byers Co., 330 F.2d 657, 660 (3d Cir. 1964); Globe Motors Inc. v. Studebaker-Packard Corp., 328 F.2d 645, 649 (3d Cir. 1964); Magill v. Westinghouse Electric Corp., 327 F.Supp. 1097, 1107 (E.D.Pa. 1971 , aff'd in part, rev'd in part (on other grounds), 464 F.2d 294 (3d Cir. 1972); A.L.K. Corp. v. Columbia Pictures Industries, Inc., 320 F.Supp. 816, 818 (E.D.Pa. 1970), rev'd on other grounds, 440 F.2d 761 ( 3d. Cir. 1971); Sirianni v. General Motors Corp., 313 F.Supp. 1176, 1178 (W.D.Pa.1970); Hall Motor Sales, Inc. v. Studebaker-Packard Corp., 145 F.Supp. 430 (W.D.Pa. 1956); Shipley v. Pittsburgh & L.E.R. Co., 83 F.Supp. 722, 741 (W.D.PA. 1949); Consolidated Tile & Slate Co. v. Fox, 410 Pa. 336, 189 A.2d 228 (1963); Easton v. Washington County Ins. Co., 391 Pa. 28, 137 A.2d 332 (1957); Foulke v. Miller, 381 Pa. 587, 112 A.2d 124 (1955); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951); 12A. P.S. § 2-202 (U.C.C. § 2-202); Corbin on Contracts § 535; Notes of Testimony 3/59-60.
At trial, this Court decided that the terms of the subfranchise were ambiguous or unclear, and submitted the contract to the jury, and admitted parole evidence to aid in its interpretation. Now that the heat of trial has subsided, we must re-examine the terms of the subfranchise in the more dispassionate, reflective circumstances afforded us by defendant's post trial motions.
The contract between Pepsi and Booth contains the following provisions :
3. Master Franchise Provisions Applicable.
(a) * * * this subfranchise agreement is subject to the terms and conditions provided for by the printed provisions of each of the MASTER FRANCHISE AGREEMENTS attached hereto as Exhibits "C" and "D" in like manner as if such provisions were an integral part hereof and the names of the parties hereto were substituted for those of the parties to said MASTER FRANCHISE AGREEMENTS. Under no circumstances shall BOOTH's rights hereunder within its subterritories exceed those of ...