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SACHS v. CONTINENTAL OIL CO.

June 15, 1978

Walter S. SACHS
v.
CONTINENTAL OIL COMPANY



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Fed.R.Civ.P. 56(c) provides in pertinent part:

 
[Summary judgment] shall be rendered forthwith 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.

 Thus, in examining the propriety of a motion for summary judgment, the court must first determine whether there is a genuine issue as to any material fact. *fn2" Summary judgment may not be used to deprive a litigant of a full trial of genuine fact issues but may be granted where there are no disputed issues of material fact. Collins v. Pennsylvania Tel. Union, Local No. 1944, 431 F. Supp. 842, 846 (W.D. Pa. 1977); West Virginia Housing Development Fund v. Sroka, 415 F. Supp. 1107, 1115 (W.D. Pa. 1976); Jackson v. Werner, 394 F. Supp. 805, 806 (W.D. Pa. 1975). If there is a genuine issue as to any material fact, the motion for summary judgment will not be granted. Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977); Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951); Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3d Cir. 1942).

 In all summary judgment motions, all doubts as to the existence of material facts should be resolved against the movant. Hicks v. ABT Associates, Inc., 572 F.2d 960 at 967 (3d Cir. 1978); Abdallah v. Caribbean Sec. Agency, 557 F.2d 61, 63 (3d Cir. 1977); Scott v. Plante, 532 F.2d 939, 945 (3d Cir. 1976). In addition, Fed.R.Civ.P. 56(e) provides in relevant part:

 
When a motion for summary judgment is made and supported as provided in this rule, 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.

 General Elec. Co. v. Hol-Gar Mfg. Corp., 431 F. Supp. 881, 884 (E.D. Pa. 1977). If the opposing party does not so respond, summary judgment may appropriately be granted. First National Bank v. Cities Service, 391 U.S. 253, 288, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); Proctor v. State Farm Mutual Automobile Insurance Co., 182 U.S. App. D.C. 264, 561 F.2d 262, 275 (1977).

 At all times during the above transactions, the plaintiff was acting as a consultant to Girard. It was understood between Girard and the plaintiff that if the plaintiff effected a sale of any oil or gas interests plaintiff would be entitled to the customary five percent finder's fee. Plaintiff solicited offers to purchase the remaining one-half interest in Jo-Mill and in January 1975, plaintiff received a bid from Austral Oil Company through its agent, Chandler and Savage, Midland, Texas to purchase Girard's remaining one-half interest for two hundred twenty-three thousand dollars. The plaintiff discussed Austral's bid with Girard and consented to permit Girard to send the bid to the defendant pursuant to Girard's December 26, 1974 agreement with the defendant.

 The defendant was notified in a letter from Girard, dated January 27, 1975, of Austral's bid. *fn3" On February 11, 1975, in a telephone conversation with Austral, the defendant confirmed the authority of Chandler and Savage to make the two hundred twenty-three thousand dollar offer on behalf of Austral, and in that conversation Austral advised defendant that it would be interested in buying defendant's one-half interest in Jo-Mill. Subsequently, defendant, in a letter dated March 3, 1975, declined to exercise its preferential right to purchase Girard's remaining one-half interest in Jo-Mill and instead, on April 14, 1975, conveyed its own interest in Jo-Mill to Austral for two-hundred twenty-three thousand dollars. *fn4" The defendant did not know of any interest or activity of the plaintiff in connection with Girard's sale of the one-half interest to defendant in 1973 nor did it know of any interest or activity of the plaintiff in connection with the sale of the remaining one-half interest by Girard to Austral in 1975. Further, Girard's correspondence with Chandler and Savage does not contain any information concerning the interest or activity of the plaintiff in the transactions.

 A "finder's fee" contract may be defined as an arrangement by which an intermediary (or "finder") finds, introduces, and brings together parties to a business opportunity . . . ." "Finder's Fee" Contract, 24 A.L.R. 3d 1160, 1164 (1969). A finder may be distinguished from a broker by the limited subject matter of a finder's activities and by the respective duties of finders and brokers. The duties of a finder were ...


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