No. 113 April Term, 1978, Appeal from the Order Entered July 28, 1977, of the Court of Common Pleas of Beaver County, Civil Action-Law, at No. 609 of 1975 - In Assumpsit.
John Alan Havey, and Havey & Neff, Aliquippa, for appellant.
J. Frank Kelker, Jr., and Kelker & Kelker, Rochester, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring and dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 571]
Appellant has taken this appeal from the entry of a judgment against it in the amount of $6,291. The only issue to be decided is whether Judge SALMON properly directed a verdict in favor of appellee because of appellant's failure to admit or specifically deny the averments of the complaint. For the reasons stated below, we affirm in part and reverse in part.
Appellee, a mechanical design engineer, brought this suit in assumpsit asserting his status as an intended third party beneficiary under an agreement executed by the Commonwealth of Pennsylvania and appellant. The contract, dated April 4, 1973, provided that the Pennsylvania Department of Commerce would make a grant of $20,000 in consideration for appellant's production of a full-scale model of an improved "radial truck"*fn1 previously designed by appellee.
Attached to the contract, and incorporated by reference therein, was a proposal signed by appellant's president, Anthony J. Pecora, and by appellee. The proposal clearly stated that appellee was to be in charge of all engineering work necessary to develop the improved "radial truck" and that of the $20,000 grant, $10,000 was to be used for engineering, design, research and development, and testing. See record at 23a and 24a. It was on the basis of this proposal that the parties to the contract, which was also signed by Mr. Pecora, entered into their agreement.
In signing the contract and accepting the grant from the Commonwealth, appellant impliedly promised to pay appellee up to $10,000 (100 man days at $100 per day) for
[ 258 Pa. Super. Page 572]
engineering and development. Appellee, as the dissent agrees, was therefore entitled to sue on the contract as an intended third party beneficiary.
A dispute arises, however, with regard to whether appellant properly availed itself of Pa.R.C.P. 1029(c) in answering both the complaint and the amended complaint.*fn2 Rule 1029(a) provides that a responsive pleading shall admit or deny the averments of fact contained in the pleading to which it responds. Averments in a pleading which are not specifically denied are deemed to be admitted unless the exception set forth in Rule 1029(c) comes into play. See Pa.R.C.P. 1029(b).
The language of Rule 1029(c) may be employed, however, only if the pleader demands proof of the averments to which he is responding and states either that after reasonable investigation he is without information sufficient to form a belief as to the truth of the averment or that he is without such information because the means of proof are within the exclusive control of the adverse party. See Pa.R.C.P. 1029(c). As to the averments of fact contained in paragraph 5 of the complaint, appellant could not properly utilize the narrow exception formulated in Rule 1029(c).*fn3
[ 258 Pa. Super. Page 573]
When it is obvious as it is here, that the information necessary to formulate a specific denial is neither within the exclusive control of the adverse party nor unascertainable after reasonable investigation, the court ought to ignore the 1029(c) averment. Delaware Valley Carpeting v. Leicht, 73 D. & C.2d 51, 53 (C. P. Bucks 1975), aff'd per curiam 234 Pa. Super. 754, 342 A.2d 419.
Paragraph 5 contains the following averment:
5. That in addition to the Defendant corporation producing two radial trucks as aforesaid, Brian T. Scales was to be employed by the Defendant corporation for engineering, design, research, development and testing for a minimum of one hundred (100) man days at One Hundred Dollars ($100.00) per day totaling Ten Thousand Dollars ($10,000.00). While the Plaintiff performed the work, he has only been paid the sum of Five Thousand Dollars ($5,000.00) of that amount.
To this appellant made a general denial using the language of Rule 1029(c). We agree with the lower court that it is "incredible that [appellant] as a party to said documents (contract and proposal) and the party responsible for carrying out the building of the prototype should be so completely ignorant of what transpired . . . as to be ...