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HERBERT E. WRIGHT v. NORTH AMERICAN LIFE ASSURANCE COMPANY (03/14/88)

filed: March 14, 1988.

HERBERT E. WRIGHT, ROBERT S. WRIGHT, AND KENNETH E. WRIGHT, APPELLANTS,
v.
NORTH AMERICAN LIFE ASSURANCE COMPANY, A CORPORATION, AND TONER INSURANCE CONSULTANTS OF WESTERN PENNSYLVANIA, INC. T/D/B/A COORDINATED FINANCIAL SERVICES, AND JAMES MONTEVERDE INDIVIDUALLY AND T/D/B/A COORDINATED FINANCIAL SERVICES, APPELLEES



Appeal from the Judgment Entered September 26, 1986 in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 84-11479.

COUNSEL

John J. Braszo, Pittsburgh, for appellants.

Patricia-Liptak McGrail, Pittsburgh, for North American, appellee.

James W. Harvey, Pittsburgh, for Monteverde, appellee.

Rowley, Johnson and Montgomery, JJ.

Author: Montgomery

[ 372 Pa. Super. Page 274]

This appeal arises from a judgment entered in the lower court following an order granting summary judgment to the Defendant-Appellees. The action was filed by the Plaintiff-Appellants, seeking refunds of insurance premiums, as well as damages, in a dispute involving several insurance policies. Recovery was sought on several legal theories.

In Harris by Harris v. Easton Publishing Co., 335 Pa. Super. 141, 152, 483 A.2d 1377, 1382-83 (1984), our Court stated the following rules regarding the review of an appeal involving the question of the propriety of summary judgment:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact

[ 372 Pa. Super. Page 275]

    and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the nonmoving party and any doubts must be resolved against the entry of judgment. Id. In doing so, we accept as true all well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

In its order granting summary judgment, the lower court commented that there were no unresolved issues of fact because Plaintiffs had not filed any opposing affidavits. In the opinion which the lower court subsequently filed in this case, it again noted that Plaintiffs neither filed nor presented any counter-affidavits in opposition to affidavits presented by Defendants. In light of these pronouncements, it is appropriate that we point out that a party opposing a motion for summary judgment may file affidavits in opposition if desired, but the failure to file affidavits, depositions, or other materials in opposition to the moving party's motion for summary judgment does not guarantee that the motion will be granted.*fn1 Sustaining such a motion is only appropriate if there is no genuine issue of material fact, and the applicable law entitles the moving party to judgment. See Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971). Further, it should be pointed out that while the Appellants filed no counter-affidavits in the lower court in direct opposition to the ...


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