plaintiffs have failed to allege that they acted in reliance upon defendant's statement and were or will be injured if defendant is not estopped from denying ownership. Commonwealth v. Moltz, 10 Pa. 527, 51 Am.Dec. 499; Nocatee Fruit Co. v. Fosgate, 5 Cir., 12 F.2d 250.
The only averments of the complaint relevant to Jacob Friedman appear in Paragraph 2 thereof as follows:
'Said added Defendants have alleged that for various periods of time Clarence Coal Mining Company operated as a partnership with the said added Defendants (of which Jacob Friedman is one) as partners therein'.
It is nowhere averred that Jacob Friedman was at any time a partner in Clarence Coal Mining Company and later on in the same paragraph it is averred as follows:
'The periods of time during which Clarence Coal Mining Company operated as a corporation, as a partnership or was operated on an individual basis by one or more of the said added Defendants are unknown to Plaintiffs'.
It is not averred that Clarence Coal Mining Company operated at any time as a partnership or that it was operated by Jacob Friedman as an individual at any time. The defendant, Jacob Friedman, presented the affidavit above referred to.
While the sufficiency of the complaint does not control, the burden was upon the plaintiffs to sufficiently disclose what the evidence will be to show that there is a genuine issue of fact to be tried and this the plaintiffs have failed to do. Wilkinson v. Powell, 5 Cir., 149 F.2d 335; Christianson v. Gaines, 85 U.S.App.D.C. 15, 174 F.2d 534.
The allegations of plaintiffs in their affidavit are not controverted by defendant and therefore the Court may apply the appropriate rule of law to the facts.
Jacob Friedman has met the burden of showing the absence of a genuine issue of a material fact as to his liability under the contracts between Clarence Coal Mining Company and the United Mine Workers of America.
For the reasons set forth in this opinion, the motion for summary judgment will be granted and judgment will be entered for the defendant Jacob Friedman.
An appropriate order will be entered herewith.
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