Appeal from order of Court of Common Pleas of Allegheny County, July T., 1964, No. 2488, in case of Michigan Bank, National Association, v. Robert D. Steensen.
Frank Reich, with him Emil W. Herman, and Rothman, Gordon, Foreman & Reich, for appellant.
David M. Harrison, with him Harrison & Louik, for appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Jacobs, J.
[ 211 Pa. Super. Page 405]
This is an appeal from summary judgment granted by the lower court to appellee on appellee's motion under
[ 211 Pa. Super. Page 406]
Pa. R. C. P. No. 1035. We can sustain such summary judgment only "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 a judgment as a matter of law." Pa. R. C. P. No. 1035(b). In making such determination "the court must take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, thereby placing the burden of proving the absence of any factual issue on the movant."*fn1
In this case only pleadings and answers to interrogatories were filed of record. We have examined them with the aforementioned principles in mind and are persuaded that material facts are in controversy, barring the entry of summary judgment.
The appellant, Michigan Bank, sued appellee on a note. Appellee admits signing the note and an accompanying chattel mortgage, but asserts failure of consideration. Appellant's pleadings and answers to interrogatories allege (1) that the loan was secured by an airplane purchased from Aero Enterprises, Inc.; (2) that the proceeds of the loan paid the purchase price of the airplane; (3) that the appellee signed a chattel mortgage wherein he covenanted that the appellant should have a first lien on the airplane; (4) that appellee gave no express instructions as to who should receive the proceeds of the loan; (5) that upon checking Federal Aviation Agency records, the appellant discovered an existing lien by Aero Enterprises, Inc. in
[ 211 Pa. Super. Page 407]
favor of Appliance Buyers Credit Corp.; (6) that because of their agreement that the appellant should have a first lien and in accord with "usual procedure", the appellant sent the proceeds of the loan to Appliance Buyers Credit Corporation, by check payable to Appliance and Aero jointly, to pay off this prior lien.
Appellee insists, however, that he purchased the plane outright and paid the purchase price. He neither admits nor denies the existence of the prior lien. He insists that he instructed the bank to send the loan proceeds to him. Such instructions are unsupported allegations which in view of ...