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RUSSELL J. BOLLINGER ET AL. v. PALMERTON AREA COMMUNITIES ENDEAVOR (06/28/76)

decided: June 28, 1976.

RUSSELL J. BOLLINGER ET AL.
v.
PALMERTON AREA COMMUNITIES ENDEAVOR, INC., APPELLANT



Appeal from the Order dated October 1, 1975, of the Court of Common Pleas, Civil Action, Law, of Carbon County, at No. 21 September Term, 1972. No. 321 October Term, 1976.

COUNSEL

Anthony R. Thompson, Allentown, for appellant.

Richard W. Webb, Palmerton, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 241 Pa. Super. Page 345]

This is an appeal from the order of the court below granting plaintiff-appellee's motion for summary judgment.

[ 241 Pa. Super. Page 346]

On two levels, this is not a case suitable for disposition through summary judgment procedure. We reverse.

Plaintiff-appellee, Bollinger Brothers, was the record owner of a 16-acre tract of land in Carbon County. In December of 1960 said tract of land was conveyed, for no consideration, to defendant-appellant, Palmerton Area Communities Endeavor, Inc., (Palmerton) under an alleged*fn1 express agreement that the tract of land was to be used "only for industrial development purposes."*fn2

[ 241 Pa. Super. Page 347]

On June 7, 1968, Palmerton executed and delivered to the Pennsylvania Power and Light Company a right-of-way agreement.*fn3

Bollinger Brothers' Amended*fn4 Complaint in Assumpsit, filed November 9, 1972, alleged the above facts and further alleged via conclusory pleading that the right-of-way was not "for industrial development purposes," and that the right-of-way "permanently render[ed] a portion of said tract unfit for industrial development as contemplated by the parties and as provided for in the 'Purpose Clause' of the Articles of Incorporation [ see note 2 supra] of the defendant . . . ." Bollinger Brothers demanded judgment against Palmerton in the sum of $19,000.00 with interest from June 7, 1968 (the date of the right-of-way conveyance), said sum representing the consideration paid*fn5 to Palmerton by the Pennsylvania Power and Light Company for the right-of-way.

Palmerton's answer*fn6 denied that the agreement attached as an exhibit to the Bollinger Brothers' complaint,

[ 241 Pa. Super. Page 348]

    reply to New Matter denied the waiver and estoppel defenses, in essence submitting that Palmerton had made no showing that it had been prejudiced by Bollinger Brothers' conduct.

At the close of the pleadings, pursuant to Pa.R.C.P. No. 1035, Bollinger Brothers moved for summary judgment and supported said motion with an affidavit made by Lloyd A. Bollinger, a member of the Bollinger Brothers partnership.*fn9 "When a motion for summary judgment is made and supported as provided in this rule [by affidavit], an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Pa.R.C.P. No. 1035(d) (emphasis added).

Palmerton opposed the motion for summary judgment with an affidavit*fn10 ...


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