Parke H. Ulrich, Fox, Differ, Callahan & Ulrich, Norristown, for appellant.
Lawrence E. MacElree, West Chester, for appellee; MacElree, Harvey, Gallagher & Kean, Ltd., West Chester, of counsel.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Jones, C. J., and Nix, J., concur in the result.
This is an action in equity. After the pleadings were closed and the filing of depositions, both the plaintiff and the defendant filed a motion for summary judgment pursuant to Pennsylvania Rule of Civil Procedure No. 1035.*fn1 The trial court entered a decree granting the motion filed by the defendant. The plaintiff filed this appeal.
The following facts were uncontroverted in the trial court and formed the basis of that court's decree.
The plaintiff-appellant, Rachel Stone, is the widow of Harold E. Stone, deceased, who was the Chairman of the Board of Directors of defendant-appellee, the American Lacquer Solvents Company [American], a Pennsylvania corporation, on December 7, 1967, and continuously thereafter until his death on November 1, 1968. On December 7, 1967, the Board of Directors of American, in consideration for services rendered the company by Harold E. Stone, adopted a Resolution providing that in the event of Harold E. Stone's death prior to that of his wife (Rachel Stone), American was to pay an annual pension of $8000 to said wife until her death or remarriage. The
Resolution further provided that it could not be revoked without Harold E. Stone's consent.
On March 2, 1968, Stone and his wife suffered a marital dispute while residing in Coral Gables, Florida. Following this Stone contacted his son-in-law Robert Shaw, President and General Manager of American, who was visiting in Florida at the time, and told him he wanted the Resolution providing a pension for his wife cancelled. Shaw contacted the company's counsel and, acting in accordance with his advice as to the procedure to be followed, prepared a letter from Stone to the Board of Directors of American saying, "It is my wish that the Resolution dated December 7, 1967 concerning a pension for my wife Rachel be rescinded." Stone signed and personally delivered the letter to Shaw on March 3rd.
On March 11, 1968, Shaw convened a special meeting of the Board of Directors of American. Five of the seven members of the board attended the meeting and when Stone's letter was brought to their attention, they voted unanimously to rescind the Resolution of December 7, 1967. Stone was not notified the meeting was to be held and did not attend.
Stone died on November 1, 1968, and when American refused to pay his widow, Rachel Stone, the pension provided for in the Resolution of December 7, 1967, she instituted this action seeking specific performance. The trial court ruled the Resolution, providing for the payment of the pension, had been validly rescinded by the Board at the meeting of March 11, 1968, and hence, ...