The opinion of the court was delivered by: RAMBO
Presently before the court is plaintiff's motion for summary judgment and defendant's
motion for leave to file a third party complaint. Subsequent to a finding by this court that the Commonwealth of Pennsylvania was not an indispensible party to the instant action (See Memorandum filed September 7, 1979), plaintiff filed a set of interrogatories on October 12, 1979 and a request for admissions on March 18, 1980, which were answered on February 28, 1980 and April 15, 1980 respectively. On April 30, 1980 plaintiff filed its motion for summary judgment, which defendant opposes. Defendant then filed its motion for leave to file a third-party complaint on May 28, 1980, which is opposed by plaintiff. This memorandum will address both motions.
A. Motion For Summary Judgment
It is undisputed that a motion for summary judgment may not be granted where there exists a genuine issue of material fact, Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3rd Cir. 1978), even if it is the movant's rather than the opposing party's documents which demonstrate the existence of material factual issues. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970).
Plaintiff alleges that defendant, in its reply to plaintiff's request for factual admissions, admits the following:
2. That the final accounting between plaintiff and defendant indicated defendant owed plaintiff a net amount of $ 168,979.36;
3. That defendant acknowledged at least partial liability to plaintiff in the sum of $ 100,000.00 in a letter from defendant's general manager to a third party;
4. That defendant acknowledged its liability to plaintiff in a subsequent letter, indicating that funds made available by the release of a performance bond would enable defendant to pay plaintiff; and
5. That an audit report of defendant as of November 30, 1977, indicates defendant had current liabilities in the amount of $ 168,979.00 owing to plaintiff.
Plaintiff contends that these admissions, coupled with this court's previous finding that the contract in question was a sub-contract, as opposed to an assignment of a contract, eliminates any factual issues and submits it is entitled to summary judgment as a matter of law.
Defendant, in its brief opposing the motion for summary judgment, disagrees with plaintiff's statement that no genuine issues of fact remain. Defendant contends that
(Because) of the need to interpret documents pertaining to a very sophisticated program in a transition stage from Paid (defendant) to Blue Cross (plaintiff) and the resultant need to determine from these documents whether an assignment or subcontract arose and whether Paid was a mere conduit with responsibility for payment ultimately in the control of the State Department there is reason to deny Plaintiff's Motion.
Defendant apparently does not contest the fact that the Letter of Agreement dated June 29, 1977 constitutes the total agreement between plaintiff and defendant, nor does defendant contend the agreement, either in part or in toto, is unclear, incomplete, or ambiguous and should be given an interpretation different from that of plaintiff. In essence, defendant admits to everything averred by plaintiff with the exception that defendant denies the documents "establish any present, outstanding liability" to plaintiff because the agreement ...