Lotz v. City of McKeesport ( 1982 )

Opinion by

President Judge Crumlish, Jr.,

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.¹ Conley was informed, by letter, of tbe termination of tbe contract twenty-seven days² before tbe anniversary date.

Following Conley’s suit in assumpsit, tbe City moved for judgment on tbe pleadings, wbicb was granted.³ Tbe court concluded, as a matter of law, tbat tbe time delay was reasonable and tbat to bold otherwise would cause an unconscionable result.

To succeed on Motion for Judgment on tbe Pleadings, tbe moving party’s right to prevail must be so clear tbat trial would be a fruitless exercise. Keil v. Good, 437 Pa. 37, 355 A.2d 768 (1976). Tbe contract is an exhibit attached to tbe pleadings to be read with tbe pleadings. Because of tbe nature of tbe clause, tbe 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 tbe previously-held principle in Pennsylvania tbat, absent circumstances tbat would except tbe general rule,⁴ time is of tbe essence in an option contract. If time were of tbe essence, any delay — in this ease, a tbree-day delay — would not be reasonable. This question alone is sufficient to make tbe granting of tbe City’s Motion for Judgment on tbe Pleadings inappropriate.

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.

1 Paragraph 13 of the contract states that:

This contract shall remain in full force and effect until March 23, 1976 and shall renew itself automatically thereafter, from year to year, for additional periods of one (1) year each, unless either party shall have given written notice of desire to change or abrogate the contract thirty (30) days in advance of the March 23rd expiration date in any year.

2 The contract’s anniversary date was March 23, 1980. The notice was sent out by the City on February 26, 1980', and. received by Conley on February 27,1980.

3 Rule 1034. Motion for Judgment on the Pleadings.

(a) After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

(b) The court shall enter such judgment or order as shaU be proper on the pleadings.

Pa. R.C.P. No. 1034.

4 E.g., if the clause had been waived either by agreement or conduct of the parties. Western Savings, 285 Pa. Superior Ct. at 193, 427 A.2d at 178.