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WILLIAM E. FITZPATRICK v. ARLO A. SHAY AND HIS WIFE (05/27/83)

filed: May 27, 1983.

WILLIAM E. FITZPATRICK, APPELLANT,
v.
ARLO A. SHAY AND HIS WIFE, PATRICIA A. SHAY. (TWO CASES)



No. 1349 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Civil Action - Equity, Lebanon County, at No. 19, 1980, No. 1350 Philadelphia 1981, Appeal from the order of the Court of Common Pleas, Civil Action - In Assumpsit, Lebanon County, at No. 1447, 1980.

COUNSEL

Robert Sullivan, Lebanon, for appellant.

Thomas N. Cooper, Lebanon, for appellees.

Johnson, Montemuro and Montgomery, JJ.

Author: Montemuro

[ 314 Pa. Super. Page 453]

On May 16, 1981, the lower court entered two separate orders granting summary judgment against plaintiff-appellant, William E. Fitzpatrick, and in favor of defendant-appellees, Arlo A. Shay and Patricia S. Shay. One order involved a case in equity, and the other order an action at law, in assumpsit. Appellant takes this appeal from both orders.

[ 314 Pa. Super. Page 454]

Appellant and the husband-appellee were stockholders in a Pennsylvania Corporation, Great Oak Enterprises, Inc. (hereinafter Great Oak), which owned as its sole asset a large tract of land in Lebanon County.

At the time of the transactions complained of herein Shay was an officer and director of the corporation. He also owned two-thirds (2/3) of the outstanding stock. Fitzpatrick was an officer of the corporation and owned one-third (1/3) of the outstanding stock.

Between April, 1971 and July, 1977, Great Oak, by deed, granted and conveyed individual tracts of land to the appellees in five separate transactions. Appellant contended that at the time of the transfer of each lot, the appellee, Arlo A. Shay, orally agreed to pay the appellant one-third (1/3) of the fair market value of each of the lots. Appellant asserts that no consideration was ever paid to the corporation, nor were any amounts paid to him in satisfaction of the alleged oral promise. However, each deed contains a recital of consideration and each was signed by the appellant as secretary-treasurer of Great Oak.

The land was developed by appellees and an apartment complex was built. Great Oak was subsequently sold to third parties and neither appellant nor appellees retained any interest in the corporation. This sale took place prior to the commencement of this action.

Summary judgment can only be granted in cases where there is no genuine issue of any material fact, and where the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. In determining whether there is a dispute of material fact, the court must view the evidence most favorably to the non-moving party, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, and thus placing the burden of proving the absence of any factual issue on the moving party. Badami v. ...


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