This was because the cab-chassis, being a multi-purpose vehicle, was subject to so many varied additions, deletions and other changes that until all the changes were completed, it could not be determined whether an underride guard was even needed. Also, since only the final stage manufacturer is in a position to know the final size, shape and overall configuration of the truck, it is most practical for that party to consider and, if needed, to install any necessary guard. Defendant submitted evidence which showed that final stage manufacturers had the necessary expertise to provide adequate underride safety devices in 1971 when the truck at issue was completed.
Following the conclusion of the evidence, the jury returned a verdict for defendant and found that the IH cab-chassis was not defective when it was sold by IH to the dealer without an underride guard kit as a delete option. Plaintiff moved for judgment n.o.v. or for a new trial raising 28 separate grounds. Of these, 21 are not briefed, and are stated in merely general terms. In view of this, the Court has re-examined its previous rulings and is not persuaded that those rulings on these non-briefed points should be changed. Accordingly, it shall dismiss all non-briefed points of error for lack of prosecution in addition to lack of merit. See Local Rule 20(c); Carl Walker & Associates, Inc. v. Dickerson Prestress, Inc., No. 75-2215, slip op. at 2 (E.D. Pa. Dec. 8, 1982). The remaining points are discussed below.
Plaintiff contends that the Court erred in ruling, as a matter of law, that defendant IH could not be held liable under principles of agency for the knowledge or conduct of its authorized dealer, Troy, Inc., with respect to the finished product. At the close of plaintiff's evidence pursuant to a Rule 50 motion of defendant, the Court concluded that plaintiff did not have a claim for liability under an agency theory. (Tr. 7-14). The Court's ruling was based on plaintiff's failure to prove that the scope of the agency relationship between Troy and IH would allow the knowledge and conduct of Troy relating to conversion of the cab-chassis into a completed truck to be imputed to IH. As such, removal of the agency question from the province of the jury was not error and does not afford plaintiff grounds for relief.
It is well established in Pennsylvania that the knowledge of an agent can only be imputed to the principal in connection with any transaction conducted by the agent on behalf of the principal, when such knowledge is acquired in the course of the business in which the agent is employed. Higgins v. Shenango Pottery Company, 256 F.2d 504 (3d Cir. 1958). Merely to state this principal, however, is to note its most obvious limitation. The knowledge in question must have been acquired by the agent while he was acting within the scope of the agency relationship as both he and the principal understood it. Thus for the purpose of the present case, the narrow question for resolution is whether Troy, Inc. was acting as IH's agent for the specific purpose of completing the unfinished product supplied by IH and delivering it into a stream of assembly and fabrication activity by different business houses that IH had no knowledge of nor affiliation with. It should be noted that the existence of an agency relationship between the parties for purposes of sale and delivery of the cab-chassis, the component part, is not determinative of the question and may even be immaterial. Merely because a party is an agent for some purposes does not mean that the party is an agent for all purposes. Mellon Nat. Bank & Trust Co. v. Esler, 357 Pa. 525, 55 A.2d 327 (1947).
It is beyond dispute that for a principal to be bound by the acts of his agent, those actions must fall within the actual or apparent scope of the agency. See Restatement of Agency (Second) § 216 comment a & § 228 and comments a, b, c & d (1958). The scope of the agency is to be determined in light of the agreement of the principal and the agent as well as all of the accompanying circumstances. In deciding whether a particular undertaking by the agent was within the scope of the agency, one key factor is to consider if the service performed by the agent was one in which he was subject to control, or the right to control, by the principal. See Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). If the facts concerning the connection between the parties are not in dispute, questions concerning the existence and the nature of the relationship are properly determined by the court. Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 431 A.2d 1073 (1981).
Here, the relationship between Troy, Inc. and IH was governed by a written agreement. Plaintiff neither introduced this agreement nor questioned his witness, Chester Troy, as to its contents. Additionally, the evidence which was adduced failed to establish any question of fact on the issue of control of the cab-chassis as it evolved at the hands of other parties into a completed product. The evidence merely demonstrated a course of conduct by the parties whereby Troy, Inc., acting as an authorized sales representative of IH cab-chassis, would solicit orders for cab-chassis, complete them without any input from IH, forward them to IH, and thereafter expect and accept delivery of the cab and chassis as ordered. There was absolutely no evidence that IH had knowledge of or any involvement in the completion of the truck once the cab-chassis was delivered to Troy, Inc. Plaintiff, at page 17 of his brief, states:
For the purpose of this argument, plaintiff also concedes that there is insufficient evidence of control by International over Troy, Inc.'s manner of selling finished trucks to establish a master-servant relationship.
Indeed, it is perfectly clear from the evidence that following delivery of the cab-chassis to the dealer, the dealer than became the agent of the customer in structuring the final stages of assembly and fabrication. The Court was thus correct in concluding as a matter of law that even if an agency relationship existed between Troy, Inc. and IH, the sale of completed trucks was not within the scope of the agency that brought forth only the sale of a cab and chassis.
Plaintiff also argues that the Court erred in determining as a matter of law that IH could not be held liable under the doctrine of apparent authority or agency by estoppel. In Turnway Corporation v. Soffer, 461 Pa. 447, 457, 336 A.2d 871, 876 (1975), the Pennsylvania Supreme Court summarized what was then and is still current law concerning this theory of agency.
Agency by estoppel is defined by Section 8B. of the Restatement (Second) of Agency and the doctrine has been embraced by this Court in Reifsnyder v. Dougherty, 301 Pa. 328, 152 A.98 (1930). Reifsnyder emphasized two basic elements of agency by estoppel: (1) there must be negligence on the part of the principal in failing to correct the belief of the third party concerning the agent; and (2) there must be justifiable reliance by the third party. . . . Agency by estoppel is generally deemed to be closely related to apparent authority. 2A C.J.S. Agency § 157 (1972). Thus, alternatively stated, a principal who clothes his agent with apparent authority is estopped to deny such authority. Robertson Coal & Coke Co. v. Rothey, 106 Pa.Super. 463, 162 A. 332 (1932); Fay v. Deady, 82 Pa. Super. 187 (1923).