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BARRY J. FRIDAY v. ANGELA D. FRIDAY (01/21/83)

filed: January 21, 1983.

BARRY J. FRIDAY, APPELLANT,
v.
ANGELA D. FRIDAY, APPELLEE



No. 449 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Philadelphia County, at No. 4761 March Term, 1980.

COUNSEL

Mary Bell Hammerman, Philadelphia, for appellant.

Philip B. Korb, Philadelphia, for appellee.

Cercone, President Judge, and McEwen and Beck, JJ. Beck, J., files a concurring and dissenting opinion.

Author: Cercone

[ 311 Pa. Super. Page 18]

Appellant, Barry J. Friday, takes this appeal from the order of the court in equity which granted summary judgment in favor of appellee, Angela D. Friday. Our review of the within matter convinces us that the equity court erred

[ 311 Pa. Super. Page 19]

    in granting summary judgment and we therefore reverse and remand.

Appellant-husband filed this complaint in equity asking for partition of real property which he claimed the parties held as tenants-in-common, and not by the entireties, owing to the parties' recent divorce. Appellee-wife filed a counterclaim to quiet title and also asked the court to order appellant to execute and deliver a deed in recordable form, since appellee claimed to hold a validly delivered deed but one which was not recordable because it was not notarized. Appellant filed an answer to appellee's counterclaim, denying the claim that appellee had made numerous requests for a new deed. Instead, appellant claimed that it was only through his inquiries that he learned that appellee wished to sell the property and donate the proceeds to the Hare Krishna Temple. Appellant further claimed that the parties, prior to their divorce, had entered into an agreement regarding the settlement of the property. Appellant alleged that the essence of this agreement was that the title in the real property would be transferred to appellee, who had custody of the parties' two children, so that the children would have a home and that eventually the property itself or its proceeds would enure to the benefit of the children. It was further claimed that appellee attempted to inculcate the children, who up to that time were being raised as Catholics, into the Hare Krishna Temple, whereupon, in a prior proceeding, appellant filed a habeas corpus petition and was awarded custody of the children. Appellant stated that when the parties entered into this agreement, it was at no time contemplated that appellee would attempt to inculcate their children with another religion while they were being raised in the Catholic religion and were attending Catholic schools, or that appellee would transfer the property or its proceeds to the Hare Krishna Temple, which she was planning to join. Basically, appellant claimed that the transfer of the property to appellee was not an effective transfer because there was a failure of consideration. Appellee then filed a motion for summary judgment. Before

[ 311 Pa. Super. Page 20]

    this motion was ruled upon, appellant filed a petition to amend the caption to include the names of the parties' two adolescent daughters. In due course, the equity court granted summary judgment for appellee and dismissed appellant's petition to amend as moot in view of the court's disposition of the case.

The general rule regarding summary judgments was reiterated by this Court in Petraglia v. American Motorists Ins. Co., 284 Pa. Superior Ct. 1, 3, 424 A.2d 1360, 1361 (1981), wherein we said:

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). Summary judgment can only be granted in the clearest of cases. See e.g., Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). Additionally, the evidence ...


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