Paragraph 2.1.6 is so unclear that it can be read to support either defendant's claim that the obligation was dependent on an accounts receivable formula or plaintiffs' claim that it was not. (See n.4 supra, for text of Paragraph 2.1.6) Consequently, the ambiguity of crucial language found in both the J.P.A. and the Second Amendment necessitates resort to extrinsic evidence to determine the intent of the parties.
Defendant also has argued that "integration clauses" appearing in the written documents bar any consideration of extrinsic evidence. Generally, the Pennsylvania courts strictly construe such clauses. See, e.g., Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425, 428-29 (1979). However, when a written contract is ambiguous, as are the writings in this case, an integration clause will not prevent consideration of extrinsic evidence to aid in interpreting the contract. Mellon Bank, N.A. v. Aetna Business Credit, 619 F.2d 1001, 1010, n.9 (3d Cir. 1980).
Having determined that some material facts are in dispute concerning the breach of contract claim, I will deny defendant's motion for summary judgment on this count.
THE UNJUST ENRICHMENT CLAIM
Count III of the complaint alleges that because defendant Continental received the $ 1.3 million from the plaintiffs but did not make the $ 1 million loan to STE it has been enriched unjustly in the amount of $ 1.3 million. Continental has moved for summary judgment on this count, arguing that the principle of unjust enrichment does not apply to an agreement deliberately entered into by the parties and that at any rate STE, not the bank, received the benefit of the $ 1.3 million. For several reasons, these arguments are not persuasive.
First, as previously discussed in this memorandum, there are material facts in dispute regarding the nature of the loan agreement entered into by plaintiffs and defendants. Also, plaintiffs concede that they cannot recover both in damages (contract) and restitution (unjust enrichment or quasi contract) for the same transaction. While they do not challenge defendant's claim that the principle of unjust enrichment does not apply to agreements deliberately entered into, plaintiffs contend that if there has not been a meeting of minds, thus rendering the contract unenforceable, a party may recover for unjust enrichment. I share plaintiffs' view that if an agreement is unenforceable, in some circumstances a party may be entitled to restitution from another who has been unjustly enriched at that party's expense. See, e.g., Sachs v. Continental Oil Company, 454 F. Supp. 614, 619 (E.D.Pa.1978).
Finally, I do not share defendant's view that it is clear, on the present record, that Continental did not receive any benefit from the $ 1.3 million. With the $ 1.3 million, the Shulmans brought a junior participation in the bank's loan to STE, thereby allowing the bank to recoup a portion of the outstanding loan. In addition, as a result of the loan agreement with the Shulmans, Continental acquired additional collateral in the form of two valuable pieces of real estate. According to plaintiffs, the STE trustee in bankruptcy sold that collateral for the benefit of the bank for over $ 1 million. (p. 54, n.75, plaintiffs' memorandum in opposition to summary judgment) Accordingly, as the record now stands I cannot say as a matter of law that plaintiffs cannot recover against Continental for unjust enrichment.
THE FRAUDULENT MISREPRESENTATION CLAIM
Count IV of the complaint alleges that Continental Bank, knowing that it would not advance additional funds, fraudulently induced Martin and Harry Shulman to buy a junior participation in the bank's loan to STE. Defendant's motion for summary judgment on this claim involves two arguments. First, it is urged that the complaint does not describe the alleged fraudulent conduct with sufficient specificity. Second, the defendant argues that plaintiffs cannot prove this claim without relying on evidence outside the written documents, the J.P.A. and the Second Amendment. Citing Bardwell v. The Willis Company, 375 Pa. 503, 100 A.2d 102 (1953), the bank asserts that because there was a written agreement between the parties and plaintiffs have not alleged specifically that matters were omitted from the writings by fraud, accident or mistake, the Parole Evidence Rule bars any consideration of extrinsic evidence.
In addition to the fact that there are disputed material facts, discussed previously, concerning the terms of the loan agreement, I am not convinced by defendant's arguments that summary judgment would be appropriate on this count. While Count IV does not contain specific allegations regarding the purported fraudulent misrepresentation, it does incorporate by reference previous paragraphs of the complaint. Those paragraphs include allegations sufficiently specific to state a claim of fraudulent misrepresentation. Also without merit is the argument that the Bardwell line of cases would prevent the Shulmans from proving this claim. Recent Pennsylvania opinions have held that the principles of Bardwell do not control actions for misrepresentation and that the Parol Evidence Rule does not bar extrinsic evidence to show fraud or misrepresentation. See, e.g., Miller v. Bare, 457 F. Supp. 1359, 1365 (W.D.Pa.1978); Sunseri v. RKO-Stanley Warner Theatres, Inc., 248 Pa.Super. 111, 374 A.2d 1342 (1977).
For these reasons, I also will deny summary judgment on the fraudulent misrepresentation claim.
THE PUNITIVE DAMAGES CLAIM
Finally, plaintiffs have included a claim for punitive damages, stating that the "fraudulent, unconscionable acts and conduct" of the defendant concerning the loan agreement mandate such an award. The only argument made by Continental is that since it is entitled to summary judgment on the other four claims it is also entitled to judgment on this claim. As I have denied summary judgment on Counts II through IV, this argument is unpersuasive. Also, in view of the record now before me in this case, I cannot say that as a matter of law plaintiffs cannot prove sufficiently outrageous conduct by defendant to permit an award of punitive damages.