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NICHOLAS BABICH v. GEORGE KARSNAK (06/29/87)

filed: June 29, 1987.

NICHOLAS BABICH, APPELLANT,
v.
GEORGE KARSNAK, JOAN KARSNAK, HIS WIFE, COLUMBIA CHASE CORP., COLUMBIA FLUIDIZED COAL ENERGY, INC., COLUMBIA CHASE COMBUSTION DIVISION, EDWARD L. CHASE, FRANCIS M. CHASE, SURFTEX COMPANY, INC., AND L. SHELDON DALY (TWO CASES)



Appeal from the Order entered May 22, 1986, Court of Common Pleas, Westmoreland County, Civil Division at No. 3845 of 1985. Appeal from the Order entered June 11, 1986, Court of Common Pleas, Westmoreland County, Civil Division at No. 3845 of 1985.

COUNSEL

Lindsley W. Love, Pittsburgh, for appellant.

David E. Tungate, Pittsburgh, for Columbia Chase Corp., Columbia Fluidized Coal Energy, Inc., Columbia Chase Combustion Div., Edward L. Chase, Francis M. Chase, Surftex Co., Inc., and L. Sheldon Daly, appellees.

Brosky, Johnson and Montgomery, JJ.

Author: Johnson

[ 364 Pa. Super. Page 559]

This case arises from an amended complaint filed by plaintiff-appellant Nicholas Babich against several corporate and individual defendants. The complaint sets forth

[ 364 Pa. Super. Page 560]

    claims of fraud, breach of contract and fiduciary duty, restitution, unjust enrichment and emotional distress against George Karsnak, Joan Karsnak and Surftex Company. It also alleges unjust enrichment and breach of fiduciary duty against appellees Columbia Chase Corporation (CCC), Columbia Chase Combustion Division (CCCD), Columbia Fluidized Coal Energy, Inc. (CFCE), Edward Chase, Francis Chase and Sheldon Daly. Following the deposition of Mr. Babich, the Columbia companies collectively moved for summary judgment, arguing that they owed no fiduciary duty to Babich and received no money or benefit from him. The trial court granted the motion on May 22, 1986 and dismissed the complaint as to the corporate appellees. The individual appellees, Edward Chase, Francis Chase and Sheldon Daly, filed preliminary objections challenging the trial court's personal jurisdiction over them. The objections were sustained on June 11, 1986 and the complaint was dismissed as to the Chases and Daly. Nicholas Babich brings these consolidated appeals from the May 22 and June 11 orders.

Appellant's first contention is that the trial court improperly granted summary judgment in the face of factual questions concerning (1) whether the defendant corporations owed him a fiduciary duty as the creditor of an insolvent corporation and (2) whether the defendant corporations were unjustly enriched at his expense. Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment may be properly rendered "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 judgment as a matter of law." Pa.R.C.P. 1035(b).

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to

[ 364 Pa. Super. Page 561]

    the non-moving party, giving that party the benefit of all reasonable inferences. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt.

Pennsylvania Gas and Water Co. v. Nenna & Frain, Inc., 320 Pa. Super. 291, 298, 467 A.2d 330, 333 ...


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