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ORMOND E. PELUSO v. WAYNE WALTER (07/25/84)

submitted: July 25, 1984.

ORMOND E. PELUSO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF NOELLE MARIE PELUSO, DECEASED, APPELLANT,
v.
WAYNE WALTER, JOSEPH A. PRATO AND ANN L. PRATO, T/D/B/A JOEY'S PLACE, AND RICHARD E. GRIGGS AND JANE D. GRIGGS, T/D/B/A DIAMOND-LITE STEAK HOUSE AND COCKTAIL LOUNGE



No. 00859 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas of Lycoming County, at No. 81-2876.

COUNSEL

Richard J. Callahan, Williamsport, for appellant.

David R. Bahl, Williamsport, for Walter, appellee.

Michael J. Casale, Jr., Williamsport, for Prato, etc., appellees.

Clifford A. Rieders, Williamsport, for Griggs, appellees.

Cirillo, Montemuro and Cercone, JJ.

Author: Montemuro

[ 334 Pa. Super. Page 610]

Ormond E. Peluso, individually and as administrator of the estate of Noelle Marie Peluso, deceased (hereinafter appellant), the plaintiff below, has appealed from the order of the Court of Common Pleas of Lycoming County per the Honorable Robert J. Wallet, granting summary judgment in favor of Joseph A. Prato and Ann L. Prato, trading and doing business as Joey's Place (hereinafter appellees). We reverse.

[ 334 Pa. Super. Page 611]

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 the light most favorable to the non-moving 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 ...


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