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WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION v. MARC D. STEIN AND SANDRA S. STEIN (09/29/86)

filed: September 29, 1986.

WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION
v.
MARC D. STEIN AND SANDRA S. STEIN, HIS WIFE, APPELLANTS



Appeal from the Order of the Court of Common Pleas, Civil Division, of Washington County, No. 276 March Term 1985 A.D.

COUNSEL

Edwin W. Robey, Washington, for appellants.

David S. Posner, Washington, for appellee.

Rowley, Wieand and Del Sole, JJ.

Author: Rowley

[ 357 Pa. Super. Page 288]

OPINION OF THE COURT

This is an appeal from a summary judgment entered in favor of Washington Federal Savings and Loan Association (Association), appellee, against Marc D. and Sandra S. Stein, appellants, in a mortgage foreclosure action. The Steins argue that 1) there are disputed issues of material fact to be decided and therefore summary judgment should not have been granted, and 2) their counterclaim was appropriate in a mortgage foreclosure action and raises issues of fact that preclude the entry of summary judgment. Having reviewed the record and considered the arguments advanced on behalf of the parties, we affirm the summary judgment of mortgage foreclosure.

"A motion for summary judgment may properly be granted only '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.' Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa. Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa. Super. 121, 123, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa. Super. 479, 480-482, 460 A.2d 288, 289-290 (1983). It is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa. Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 334, 421 A.2d 747, 750

[ 357 Pa. Super. Page 289]

(1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa. Super. 372, 378, 380 A.2d 826, 829 (1971)." Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109-110 (1983). However, parties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. Pfaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa. Super. 445, 410 A.2d 340 (1979). The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted. Pfaff v. Gerner, supra.

Considered in light of the foregoing principles, the record discloses the following facts. On May 29, 1980, the Steins executed and delivered to the Association a thirty-year mortgage in the amount of $55,000. The real estate covered by the mortgage was a tract of land situate in Nottingham Township, Washington County. The mortgage was payable in monthly installments and granted the Association the right to accelerate the entire balance due during any default by the Steins. The mortgage and its accompanying note also provided for the payment, in the event of an action to collect the balance due, of a "reasonable" attorney's fee. The Steins failed to make the payments required by the mortgage and note, however. On December 21, 1982, the principal balance due the Association was in

[ 357 Pa. Super. Page 290]

    excess of $55,000. As a result, the Association filed its first mortgage foreclosure action against ...


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