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ANNE ZIMMERMAN v. IVAN ZIMMERMAN (06/23/83)

submitted: June 23, 1983.

ANNE ZIMMERMAN,
v.
IVAN ZIMMERMAN, APPELLANT



No. 3325 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Monroe County, Civil Division, at No. 34 October Term, 1978.

COUNSEL

Robert W. Kurland, West Chester, for appellant.

Anne Zimmerman, in propria persona.

Brosky, Johnson and Montgomery, JJ.

Author: Brosky

[ 322 Pa. Super. Page 123]

This case is before us following the grant of summary judgment to appellee Anne Zimmerman, the plaintiff below. Mrs. Zimmerman instituted the action to recover sums which she claims are owed to her by virtue of a divorce judgment granted by the Supreme Court of New York. That decree severed the marriage of the parties to this action and directed the payment by appellant to appellee of the sum of $50 per week as alimony and $30 per week for the maintenance of the couple's minor child. Mrs. Zimmerman contends that appellant failed to pay alimony for the period 1975 to April 1, 1978 in the total amount of $7,290.00. She sought summary judgment on that claim as well as claims to medical expenses and a sum to recompense her for her counsel fees which she argues are due her under the terms of a stipulation entered into by the parties.

Appellant filed no response to the motion for summary judgment, but in New Matter filed in response to appellee's complaint, he denied liability on the grounds that his obligations to his former wife had been discharged by reason of his having been declared bankrupt.

The lower court rejected this argument finding that the debt to Mrs. Zimmerman lies in the nature of alimony, maintenance or support and was therefore non-dischargeable pursuant to the terms of the Bankruptcy Act, 11 U.S.C. ยง 523(a)(5).

[ 322 Pa. Super. Page 124]

The sole issue before us is whether the lower court erred in finding that there is no genuine issue of material fact as to appellant's liability. Because we believe that the lower court did not have before it sufficient information to determine the nature of appellant's obligation, we reverse and remand for further proceedings.*fn1

It is well settled that summary judgment is to be entered only in the clearest of cases where there is no doubt as to the absence of a triable issue of fact. William J. Heck Builders, Inc. v. Martin, 315 Pa. Super. 395, 462 A.2d 253 (1983); Dippold v. Amherst Insurance Co., 290 Pa. Super. 206, 208, 434 A.2d 203, 204 (1981). The burden of demonstrating that there exists no genuine issue of material fact rests on the moving party. William J. Heck Builders, Inc. v. Martin, supra; Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977). The record is to be read in the light most favorable to the non-moving party. William J. Heck Builders, Inc. v. Martin, supra.

Pa.R.C.P. 1035(d) provides that

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. If he ...


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