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WM. B. TENNY v. DAUPHIN DEPOSIT BANK & TRUST CO. (02/24/82)

submitted: February 24, 1982.

WM. B. TENNY, BUILDER AND DEVELOPER, APPELLANT,
v.
DAUPHIN DEPOSIT BANK & TRUST CO.



No. 1835 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Cumberland County, Civil Division, Law, No. 2179 of 1980.

COUNSEL

William B. Tenny, Camp Hill, appellant, in pro. per.

James D. Flower, Carlisle, for appellee.

Cavanaugh, McEwen and Hoffman, JJ.

Author: Hoffman

[ 302 Pa. Super. Page 343]

This is an appeal from an order granting summary judgment because the applicable statutes of limitations had expired. For the following reasons, we affirm as to counts two and three of appellant's complaint, but reverse and remand as to count one.

[ 302 Pa. Super. Page 344]

I.

Summary judgment "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 judgment as a matter of law." Pa.R.Civ.P. 1035(b). The evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. Petraglia v. American Motorists Insurance Co., 284 Pa. Superior Ct. 1, 3, 424 A.2d 1360, 1361 (1981), aff'd mem., 498 Pa. 33, 444 A.2d 653 (1982). Summary judgment can only be granted in the clearest of cases. Id., citing Schachter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). "Moreover, 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." Juarbe v. City of Philadelphia, 288 Pa. Superior Ct. 330, 334-35, 431 A.2d 1073, 1075 (1981), quoting Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Superior Ct. 341, 350, 361 A.2d 676, 680 (1976) (emphasis in original). Applying these principles, we must determine whether the lower court properly concluded that appellant had not timely commenced this action.

II.

In count one, appellant alleged the following facts: Appellee held itself out to the general public as a provider of "competent, experienced, knowledgeable, and trustworthy business advi[ce]," and that its "professional services were available to [him] in consideration for [his banking] business and [his] securing business for [appellee]." (R. 2a-3a.) Appellant "maintained a banking relationship with [appellee], referred bank transactions to [it], and paid in excess of $100.00 interest and other fees to [appellee]." (Id. at 3a.) On June 12, 1972, appellant sought appellee's advice concerning

[ 302 Pa. Super. Page 345]

    the financing of a particular project. One week later, appellee "advised [him] that [it] would give a mortgage loan . . . 'of whatever it takes to complete the work and pay off the existing mortgage' but that [he] should do as much of the work . . . as possible using his own operating money and credit . . . before the mortgage money would be advanced." (Id.) Relying upon that advice, appellant contracted with the project's owner, undertook performance, and, for approximately one year, incurred costs for labor and materials. In July, 1973, the owner requested a $118,000 loan from appellee "to complete the work and pay off the existing mortgage." In late November, 1973, appellant called upon appellee to fulfill its promise by lending the owner $106,000 for the project. On July 16, 1974, appellee refused to grant either request, but, instead, gave the owner an $80,000 mortgage. Because the loan was insufficient, the owner did not pay ...


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