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August 2, 1982


The opinion of the court was delivered by: GILES

 GILES, District Judge.

 Faulkner Advertising Associates, Inc. ("Faulkner") has moved for summary judgment. Plaintiff, Goodway Marketing, Inc. ("Goodway") filed the underlying complaint claiming Faulkner owed it certain sums. In this motion, Faulkner asserts that the amount owed was disputed and was resolved by accord and satisfaction. Jurisdiction exists under 28 U.S.C. § 1332, based upon diversity of citizenship and an amount in controversy in excess of $10,000. For the following reasons, Faulkner's motion shall be granted.

 Rule 56(c) of the Federal Rules of Civil Procedure requires the court to enter summary judgment whenever it appears from the record that there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Faulkner, therefore, has the burden of showing that all material facts are undisputed. The court must consider all evidence in the light most favorable to Goodway, the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once a moving party sustains its burden, the non-movant must come forward with opposing evidentiary matter beyond the allegations in the pleadings showing the existence of a disputed issue of material fact. Id. Applying these standards to the undisputed facts, it is apparent that an accord and satisfaction exists as a matter of fact and law.

 Goodway, a nationwide producer of promotional newspaper inserts, contracts to develop, print and distribute newspaper advertisements placed in newspapers designated by its clients. In the instant case, Goodway contracted with Nissan Motor Corp. U.S.A. ("Nissan"), the manufacturer and distributor of Datsun automobiles and trucks, to develop a spring advertising campaign.

 Faulkner is an advertising agency. One of its major accounts is a group of Datsun dealers who were included within the market areas targeted for Goodway's campaign. Faulkner, and a number of other advertising agencies holding Datsun accounts, contracted with Goodway in the form of purchase orders for the printing and distribution of the Nissan inserts in their respective geographical areas. Faulkner's role was to submit forms to Goodway designating the dealers to appear in the insert, the number of inserts desired and the newspaper in which the insert was to appear. Faulkner was also responsible for collecting payments for the advertising from its accounts, and remitting the full amount to Goodway, less its commission. The present controversy involves a dispute over the amount of Faulkner's commission.

any deposit, cashing, certification, endorsement or other negotiation or transfer of the enclosed check will constitute your company's [Goodway's] agreement to accept the payment indicated in full satisfaction of all present and prior claims as aforesaid. These terms are non-negotiable, and if unacceptable, the check should be returned to me [Faulkner].

 The letter stated that Faulkner would stop payment on October 1, 1981. This gave Goodway approximately 12 days in which to cash the check or return it if the terms were unsatisfactory. The face of the check itself was clearly marked in red ink with the phrase, "restricted check see reverse". A release, restriction and agreement were printed on the back. Goodway cashed the check and retained the money. Nothing in the record demonstrates that it protested the release legend. Subsequently, Goodway filed suit seeking a return of Faulkner's "overpayment."

 The case of Law v. Mackie, 373 Pa. 212, 95 A.2d 656 (1953), provides a clear statement of the doctrine of accord and satisfaction in the Commonwealth of Pennsylvania. *fn1"

An accord and satisfaction is the result of an agreement between the parties which may be and usually does result from an implied agreement arising from the circumstances. If an agreement stems from a disputed claim, the acceptance of an amount less than the creditor claims to be due, when tendered by the debtor in full satisfaction of the creditor's claim, becomes a completed accord and satisfaction. When [the settlement checks were cashed] there was a final acceptance of the offer of settlement and an accord and satisfaction resulted, unless vitiated by fraud, deception or some other invalidating element.

 Id. at 222, 95 A.2d at 660.

 Under Mackie, the essential elements of an accord and satisfaction are a disputed debt, a clear and unequivocal offer of payment in full satisfaction of the debt and acceptance and retention of payment by the offeree. Here, the undisputed facts establish that there was an unliquidated debt, that Faulkner tendered an unequivocal offer of payment, and that Goodway cashed the check and kept the payment. Goodway does not dispute these facts, but instead contends that there is a material issue as to the validity of the accord and satisfaction.

 First, it asserts that an accord and satisfaction can operate only between parties in the status of debtor and creditor and that the parties in this action stood in an agency relationship, instead of a debtor-creditor relationship. In Pennsylvania "the basic elements of agency are 'the manifestation by the principal that the agent shall act for him, the agent's acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.'" Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980) (quoting Restatement (Second) of Agency, § 1(1) comment b (1958)). It is not necessary that the parties explicitly state their intention to create an agency relationship, but their intention must be clear from their conduct. Brock v. Real Estate-Land Title & Trust Co., ...

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