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ALLEN v. CARR (09/26/67)

decided: September 26, 1967.

ALLEN, APPELLANT,
v.
CARR



Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1953, No. 937, in case of James Allen, administrator of estate of Willie Allen, deceased, v. Quincy Carr, Robert Witlin and Modern Auto Leasing Corp.

COUNSEL

R. Goldstein, with him Louis Goldhirsh, and Goldhirsh & Goldstein, for appellant.

Michael Shekmar, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this dissenting opinion.

Author: Per Curiam

[ 426 Pa. Page 597]

Judgment affirmed.

Disposition

Judgment affirmed.

Dissenting Opinion by Mr. Justice Roberts:

This case presents to our Court a matter which for us, although not for the federal courts, is one of first impression. Rule 1035(b) governing summary judgments, effective May 9, 1966 and applicable to actions pending at that time, adopts verbatim the following sentence from Rule 56(c) of the Federal Rules of Civil Procedure: "The judgment sought shall be rendered . . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to

[ 426 Pa. Page 598]

    judgment as a matter of law." The appellee moved for summary judgment under Rule 1035 and was successful in the court below, the Court of Common Pleas of Philadelphia County. I believe that summary judgment should not have been granted.

Appellant's complaint alleged that on September 8, 1962, at approximately 11:50 p.m., appellee Robert Witlin parked a 1961 Chevrolet on 21st Street between St. James Street and Locust Street. The automobile, which Witlin had leased from appellee Modern Auto Leasing Corp., was allegedly driven by one Carr in a negligent manner striking appellant's decedent. Appellees Witlin and Modern Auto filed an answer denying that the automobile had been left unlocked with the ignition in a position to be ...


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