No. 2805 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Lycoming County, Civil, at No. 82-2872.
Norman Lubin, Williamsport, for appellants.
Susan R. Ferrell, Williamsport, for appellee.
Del Sole, Montemuro and Hoffman, JJ.
[ 330 Pa. Super. Page 84]
This is an appeal from the order of the Court of Common Pleas of Lycoming County granting summary judgment in favor of the defendant below, Marilyn Bailey, and against the plaintiffs below, George and Marie Skowronski. The Skowronskis (appellants) contend that summary judgment was improper inasmuch as there existed genuine issues of
[ 330 Pa. Super. Page 85]
material fact which should have been submitted to the jury. They further assert that the lower court erred in favorably assessing the credibility of the deposition testimony of appellee, Marilyn Bailey, in deciding to grant her summary judgment motion. We agree.
Under the Rules of Civil Procedure, Pa.R.C.P. 1035(b), a party shall be entitled to summary judgment 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. In Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977), the court explained:
The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in a light most favorable to the nonmoving party. (citations omitted). In McFadden v. American Oil Co., 215 Pa. Super. 44, 48-49, 257 A.2d 283, 286 (1969), this court noted:
"In passing upon a motion for summary judgment, the trial court's function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party . . . . Finally, a summary judgment should be granted only when the case is clear and free from doubt."
Id., 249 Pa. Superior Ct. at 245, 376 A.2d at 249-50.
The appellants' cause of action arose out of an incident wherein appellant, Marie Skowronski, was riding her bicycle along Heshbon Road in Old Lycoming Township. As she rode past appellee's house, a dog owned by appellee ran into the street and collided with ...