Director of the County Tax Claim Bureau has never been officially titled either a tax collector or delinquent tax collector. But neither can it be disputed that the position occupied first by Jerry Robbins and then by Patricia Santafemia was commonly referred to as that of the delinquent tax collector. This is made clear both by the affidavit of Robbins to this effect and the legislative scheme of the Real Estate Tax Sale Law administered by the Director of the Tax Claim Bureau which law revised and consolidated the laws relating to delinquent taxes. 72 P.S. § 5860.101 et seq., 1947, July 7, P.L. 1368. It is also apparent that the County knew of the title for the position because the Public Official Bond purchased to provide separate coverage for Robbins explicitly described him as a "delinquent tax collector."
In resolving a dispute concerning the scope of coverage under fidelity bonds, we are guided by general contract principles in our efforts to discern the intent of the parties based on the written agreement between them. Fidelity bonds are a form of insurance subject to the rules applicable to insurance contracts generally. And if the words of an insurance policy contract are clear and unambiguous, they are to be given their plain and ordinary meaning. St. Paul Fire and Marine Ins. Co. v. United States Fire Insurance Co., 655 F.2d 521 (3rd Cir. 1981). The Court's duty is to ascertain the intent of the parties as manifested in the language of the agreement. Mohn v. American Cas. Co. of Reading, 458 Pa. 576, 326 A. 2d 346 (1974). Moreover, the court should read such provisions to avoid ambiguities, if the plain language of the contract permits. Pennsylvania Manufacturers' Assoc. Ins. Co. v. Aetna Casualty & Surety Ins. Co., 426 Pa. 453, 457, 233 A.2d 548 (1967). The ambiguity of a written contract is a matter of law to be decided by the court. Clayman v. Goodman Properties, Inc., 171 U.S. App. D.C. 88, 518 F.2d 1026 (D.C. Cir. 1973); BBCI, Inc. v. Canada Dry Delaware Valley Bottling Co., 393 F. Supp. 299 (E.D. Pa. 1975); Magill v. Westinghouse Elec. Corp., 327 F. Supp. 1097 (E.D.Pa. 1972). The construction and legal effect of an unambiguous writing is for the court and not for a jury. Goldinger v. Boron Oil Co., 375 F. Supp. 400 (W.D.Pa. 1974). If an ambiguity does exist, and the insurer wrote the policy, the ambiguity is generally resolved in favor of the insured and against the insurer. Hionis v. Northern Mutual Ins. Co., 230 Pa. Super. 511, 327 A. 2d 363, 365 (1974). If there is more than one permissible inference as to the intent to be drawn from the language employed, the question of the parties' actual intention is a triable issue of fact. Bear Brand Hosiery Co. v. Tights, Inc. 605 F.2d 723, 726 (4th Cir. 1979). But conflicting conclusions as to the interpretation of a written contract which is clear and unambiguous as to its terms will not create a material issue of fact to bar disposition by summary judgment. Goldinger, 375 F. Supp. at 413.
Accordingly, it is incumbent upon the Court to determine first, whether the language of the exclusion, ". . . tax collectors by whatever title known," is clear and unambiguous; second, if unambiguous, whether the words of exclusion when given a meaning consistent with the intent of the parties apply only to elected tax collectors required by law to furnish a separate fidelity bond; third, if not so limited whether the words of exclusion can be applied to the Director of the Tax Claim Bureau; and fourth, whether the insured knew the nature or scope of any exclusion found to exist under the bonds.
American States argues that the language of the exclusion is clear and unambiguous. We agree. The insurer chose to use precise language, agreed to by the insured, which excluded from the definition of employee under the bond ". . . tax collectors by whatever title known." It is difficult to imagine language that could more plainly state a desire to exclude from the reach of the bond those officials who function as tax collectors regardless of their title. Finding no ambiguity, the rule that such contracts are to be construed strictly against the insurer does not apply. Eastern Associated Coal v. Aetna Cas. & Ins., 632 F.2d 1068, 1077 (3d Cir. 1980).
We must next determine whether the exclusion is limited to elected tax collectors as the plaintiff contends, or more precisely, whether a factual issue exists as to whether such a limitation was intended by the use of the language. Plaintiff relies upon the affidavit of an insurance consultant and authorized agent for American States who states, that within the insurance industry the words "Tax Collector" when used in a fidelity bond refers to elected tax collectors who obtain their own separate fidelity bonds. As previously noted, Santafemia served by appointment. Plaintiff concludes that Santafemia was not a Tax Collector within the meaning of the exclusion.
There is no evidence that the parties intended the limitation suggested by the plaintiff's expert. Absent evidence that the parties intended, or relied upon, such a qualified meaning for the words "Tax Collector", we cannot interject an ambiguity in the words agreed upon by the parties to create an ambiguity where none exists. There is no evidence that the County was guided by the definition of a Tax Collector as that term is used in the insurance industry. It is more likely that the County was guided by the definition of the term as used in the Pennsylvania Tax Collector Law. 72 P.S. § 5511.2 (1983 Supp.) The statute encompasses both elected and appointed tax collectors, both of whom are required to furnish a bond. Not knowing what the parties relied upon in the use of this clause, and in the absence of any evidence that they intended a limited definition for the term "Tax Collector", we must look to the intention of the parties as manifested in the agreement between them when the language used therein is given its plain and ordinary meaning. We find the evidence unrebutted that the parties intended the exclusionary language to apply to both elected and appointed tax collectors. First, as we have noted, the language used is unambiguous. Had the parties wished to exclude from coverage only elected tax collectors while providing coverage to all others, we think they would have found the words to do so. On the other hand, it would be difficult to find words suitable to exclude both elected and appointed tax collectors by use of language other than that adopted by the parties here. Second, the language of the exclusionary clause indicates that the parties intended to exclude both elected and appointed tax collectors. The portion of the definitional section of the bond which gives rise to the exclusion bears repeating in relevant part:
'Employee' as used in Insurance Agreements 3 and 4 means a person . . . who is not required by law to furnish an Individual Bond to qualify for office . . . but does not mean any Treasurer or Tax Collector by whatever title known.