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MARIE T. BIGGINS v. MURRAY J. SHORE AND ANGELO D. GUERRA (07/27/87)

filed: July 27, 1987.

MARIE T. BIGGINS
v.
MURRAY J. SHORE AND ANGELO D. GUERRA, INDIVIDUALLY AND T/A SHORE & GUERRA REALTORS, APPELLANTS



Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 85-4830.

COUNSEL

John J. Yannacone, Media, for appellants.

Richard M. Bockol, Philadelphia, for appellee.

Popovich, Johnson and Hester, JJ.

Author: Popovich

[ 365 Pa. Super. Page 239]

This is an appeal by defendants-appellants, Murray J. Shore and Angelo D. Guerra, individually and trading as Shore and Guerra Realtors, from an order entered in the Delaware County Court of Common Pleas granting plaintiff-appellee's, Marie T. Biggins' motion for summary judgment. We affirm.

On April 10, 1985, appellee filed a complaint in assumpsit against appellants. In her complaint, appellee asserted that she was a third-party beneficiary of a contract between her

[ 365 Pa. Super. Page 240]

    late husband, Robert A. Biggins, and the appellants, concerning the purchase by appellants of Mr. Biggins' partnership in Biggins, Shore and Guerra. On June 25, 1985, appellants answered appellee's complaint and raised new matter explaining that the original agreement had been modified pursuant to a subsequent agreement entered into by Robert A. Biggins and the appellants. On July 11, 1985, appellee filed a reply to appellant's new matter, arguing that the modification was ineffective.

Appellee filed a motion for summary judgment on March 5, 1986. On September 19, 1986, an order granting appellee's motion for summary judgment was entered by the Honorable William R. Toal, Jr., of the Court of Common Pleas of Delaware County, and this appeal followed.

Appellant presents three issues for our review on appeal: (1) whether the trial court erred in concluding that appellants' power of acceptance under an option contract was terminated upon the death of the offeror; (2) whether the trial court erred in failing to conclude that Robert Biggins' grant of an option contract to the appellants, entitled an "Award of Options", constituted a valid gift inter vivos; and, (3) whether the trial court erred in granting appellee's motion for summary judgment since there is a genuine issue as to several material facts.

Pennsylvania Rule of Civil Procedure 1035(b) provides that a motion for summary judgment may only be granted:

[I]f the pleadings, depositions, answers to interrogatories, 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 Waldman et al. v. Shoemaker et al., 367 Pa. 587, 589, 80 A.2d 776, 777 (1951), the Pennsylvania Supreme Court ruled that a motion for summary judgment on the pleadings should be granted only in a case that is clear and free from doubt. In ruling on a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a

[ 365 Pa. Super. Page 241]

    general issue of material fact must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970).

Viewed in the light most favorable to the appellants, as the non-moving parties in the instant case, the record shows the following:

On October 26, 1979, Robert A. Biggins, appellee's late husband, entered into a written agreement with appellants, Murray J. Shore and Angelo D. Guerra, setting out the details concerning the purchase by the appellants of Biggins' ...


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