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KENNETH LOTZ v. CITY MCKEESPORT (12/15/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 15, 1982.

KENNETH LOTZ, T/D/B/A CONLEY'S TOWING SERVICE, APPELLANT
v.
THE CITY OF MCKEESPORT, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Kenneth Lotz t/d/b/a Conley's Towing Service v. The City of McKeesport, No. G.D. 80-9836.

COUNSEL

Yaier Y. Lehrer, for appellant.

John F. Cambest, with him Steven F. Kessler, City Attorney, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 70 Pa. Commw. Page 402]

The Allegheny County Common Pleas Court granted the City of McKeesport's Motion for Judgment on the Pleadings. We reverse and remand.

Conley's Towing Service (Conley) contracted with the City of McKeesport (City) to perform towing services within the City. The contract contained a clause providing for yearly automatic renewal unless either party informed the other thirty days in advance of the contract's anniversary date of an intent to change or abrogate the contract.*fn1 Conley was informed,

[ 70 Pa. Commw. Page 403]

    by letter, of the termination of the contract twenty-seven days*fn2 before the anniversary date.

Following Conley's suit in assumpsit, the City moved for judgment on the pleadings, which was granted.*fn3 The court concluded, as a matter of law, that the time delay was reasonable and that to hold otherwise would cause an unconscionable result.

To succeed on Motion for Judgment on the Pleadings, the moving party's right to prevail must be so clear that trial would be a fruitless exercise. Keil v. Good, 437 Pa. 37, 355 A.2d 768 (1976). The contract is an exhibit attached to the pleadings to be read with the pleadings. Because of the nature of the clause, the contract may be determined to be an option contract. Our Superior Court, in Western Savings Fund Society of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 285 Pa. Superior Ct. 187, 427 A.2d 175 (1981), restated the previously-held principle in Pennsylvania that, absent circumstances that would except the general rule,*fn4 time is of the essence in an option contract. If time were of the essence, any delay -- in this case, a three-day delay -- would not be reasonable. This question alone is sufficient to make the granting of the City's Motion for Judgment on the Pleadings inappropriate.

[ 70 Pa. Commw. Page 404]

We reverse and remand for proceedings not inconsistent with this Opinion.

Order

The Allegheny County Common Pleas Court order, No. 6580-09836 of February 26, 1981, is hereby reversed and remanded for proceedings not inconsistent with this Opinion.

Disposition

Reversed and remanded.


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