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filed: October 12, 1979.


No. 999 April Term, 1978, Appeal from Order in the Court of Common Pleas of Lawrence County, Civil Division, No. 176 of 1973, C.A., in Assumpsit.


Charles W. Garbett, Ellwood City, for appellant.

George H. Hancher, Zelienople, for appellees.

Price, Hester and Montgomery, JJ.

Author: Hester

[ 270 Pa. Super. Page 421]

Presently before the court is an appeal from the lower court's order granting summary judgment in favor of appellee.

We do not agree. We reverse and remand for proceedings consistent with this opinion.

The facts are as follows: Appellant instituted the within action in assumpsit seeking damages as a result of an alleged breach of an oral contract entered into on or about July 28, 1971 between the parties. Under the terms of said contract, appellee was to supervise, erect and construct a roadside rest building and water supply and sewage disposal systems in Mercer County, Pennsylvania in accordance with

[ 270 Pa. Super. Page 422]

    plans and specifications supplied by the Pennsylvania Department of Transportation (Penn Dot).

The contract price agreed upon was $174,000 less costs of electrical and excavation work in the total amount of $35,342.

Appellant was to advance all funds. In the event the amount actually expended was less than the contract price, the appellant was to pay appellee the difference as profit. If, however, the amounts actually expended by appellant exceeded the contract price, then appellee agreed to pay the difference to appellant at the completion of the project.

In its complaint, appellant alleges that the amount expended by it under the direction and control of the appellee exceeded the contract price in the amount of $59,658; hence this suit for $59,658.

In due course, appellee filed an Amended New Matter wherein it raised the defense of illegality of contract based on the factual assertion that the contract between the parties was a "subcontract" and since it (the appellee) was not "pre-qualified" pursuant to Penn Dot regulations,*fn1 the contract was void and unenforceable and it (appellee) was entitled to judgment against appellant.

The regulations*fn2 hereinabove referred to provide:

[ 270 Pa. Super. Page 423]


A. All contractors proposing to engage in State Highway work as subcontractors must comply with all the foregoing Rules and Regulations in regard to prequalification and classification.

B. No Contractor engaged in State Highway work under a contract with the Department will be permitted to sublet any part of the construction work to be performed under the terms of that contract to a subcontractor who has not been prequalified and classified in conformance with the above Rules and Regulations, except for those types of work excluded under Section 605A 5(a) of the regulations.

Following the taking of the depositions of the parties, appellee filed a Motion for Summary Judgment upon the theory that the contract as alleged was illegal and therefore unenforceable as a matter of law.

By Order of Court dated May 8, 1978, the lower court granted appellee's Motion for Summary Judgment. This appeal followed.

Pennsylvania Rules of Civil Procedure 1035(a) and (b) provide in relevant part:

Rule 1035. Motion for Summary Judgment

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.

(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. 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 a judgment as a matter of law.

[ 270 Pa. Super. Page 424]

In Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1970), we summarized the intent of Pa.R.C.P. 1035:

We are to accept as true all well pleaded facts in the non-moving parties' pleadings, as well as the admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to them; and in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. (219 Pa. Super. at 203, 280 A.2d at 573).

The grant of summary judgment is appropriate only when the case is clear and free from all doubt. Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967). See also Schacter v. ...

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