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MCKENNA ET AL. v. ART PEARL WORKS (09/19/73)

decided: September 19, 1973.

MCKENNA ET AL., APPELLANTS,
v.
ART PEARL WORKS, INC.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, No. 1436, in case of Elizabeth M. McKenna and Francis P. McKenna v. Art Pearl Works, Inc. c/o Herman Golden, registered agent, Bernard Dorfmann and Adelphia Button Company.

COUNSEL

Elizabeth M. McKenna, in propria persona, for appellants.

Saul Levit, with him Abrahams & Loewenstein, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 225 Pa. Super. Page 363]

Appellants contend that the trial court erred in granting appellees' motion for summary judgment on the amended complaint.

The instant suit arose out of an accident occurring on December 10, 1969, in which the wife-appellant sustained injuries while operating a punch press in the course of her employment at the Adelphia Button Company. The punch press had been purchased from the Art Pearl Works, Inc., through its authorized agent

[ 225 Pa. Super. Page 364]

Bernard Dorfmann. Appellants filed their Complaints in Trespass and Assumpsit against the appellees, Art Pearl Works, Inc., and Bernard Dorfmann individually. Appellees' motion for summary judgment as to appellants' second amended complaints, was granted on January 30, 1973, by the Honorable Ned L. Hirsh of the Court of Common Pleas of Philadelphia, who based his decision on the deposition of the individual appellee, appellees' affidavit, and the pleadings. Appellants appeal to this Court questioning only those portions of the lower court's order granting summary judgment in favor of the appellees on the second amended complaint in trespass.

A summary judgment may be sustained 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. 1035(b). "The burden of demonstrating that no genuine issue of material facts exists is on the moving party and the record must be examined in the light most favorable to the nonmoving party. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). . . . In passing upon a motion for summary judgment, the trial court's function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." McFadden v. American Oil Co., 215 Pa. Superior Ct. 44, 48-49, 257 A.2d 283 (1969).

The issue, therefore, is whether the appellants raised any genuine issues of material fact to negate the propriety of summary judgment on their amended complaint.

Plaintiffs' Complaint in Trespass sets forth with sufficient clarity and ...


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