Plaintiff has moved for partial summary judgment as to one cause of action of its multiple count complaint. Partial summary judgment is interlocutory in nature, it is not final unless certified by the court as such under Fed.R.Civ.P. 54(b), and does not terminate the action as to any of the claim or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of the parties.
With respect to Fed.R.Civ.P. 56(d) it is provided that with respect to a case where judgment is not rendered on the whole case or for all the relief asked and a trial is necessary ". . . [The court] shall thereupon make an order specifying the facts that appear without substantial controversy and directing such further proceedings as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."
The motion for partial summary judgment is based on an allegation of breach of a specific provision of an oil and gas lease between the parties, which is one of plaintiff's causes of actions pleaded.
The construction of the terms of a written contract is a matter solely for determination by the court. Community College of Beaver County v. Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977); Goldinger v. Boron Oil Co., 375 F. Supp. 400 (W.D. Pa. 1974). Where the parties to an instrument have put their agreement in writing, all the prior negotiations, terms and conditions are merged into the writing and its meaning must be determined solely by its contents. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982); St. Paul Fire and Marine Insurance Co. v. United States Fire Insurance Co., 655 F.2d 521 (3d Cir. 1981); County of Erie v. American States Insurance Co., 573 F. Supp. 479 (W.D. Pa. 1983). E.C. Ernst, Inc. v. Koppers Company Inc., 520 F. Supp. 830 (W.D.Pa. 1981); Bakery and Confectionary Workers, International Union, Local No. 1213 v. The Great Atlantic and Pacific Tea Company, Inc., 357 F. Supp. 1322 (W.D. Pa. 1973), affd. 491 F.2d 748 (3d Cir. 1974). The court's duty is to ascertain the intent of the parties as manifested in the language of the agreement. Mohn v. American Casualty 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 Association Insurance Co. v. Aetna Casualty & Surety Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967).
The parol evidence rule, still alive and applicable despite its ancient lineage, bars the introduction of extrinsic evidence in aid of its construction unless an ambiguity in the terms is found. The existence of an ambiguity in a written contract is a matter of law to be determined by the court. BBCI, Inc. v. Canada Dry Delaware Valley Bottling Co., 393 F. Supp. 299 (E.D. Pa. 1975); Magill v. Westinghouse Electric Corp., 327 F. Supp. 1097 (E.D. Pa. 1972).
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 (4th Cir. 1979), but conflicting conclusions as to the interpretation of a written contract which is clear and ambiguous as to its terms will not create a material issue of fact to bar disposition by summary judgment. Goldinger, supra, at p. 413.
The provision of the contract to be construed is contained in the lease as follows:
2. The Lessee is required to drill at least nine (9) oil wells within one (1) year from the date of this lease to a depth to test the Bradford third sand, and have said wells in production within two years from the date hereof. In the event that any of said wells do not produce or continue to produce in paying quantities, then each remaining producing oil well will hold by production twelve (12) acres and each producing gas well will hold thirty (30) acres. The said acreage to be held is to be measured as nearly as possible in the form of squares around said well or wells with lines of said squares paralleled to the lease lines.