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ALBERT OVERLY AND ELLEN MAE OVERLY v. SUZANNE L. KASS AND DAVID M. KASS (03/01/89)

filed: March 1, 1989.

ALBERT OVERLY AND ELLEN MAE OVERLY, HIS WIFE,
v.
SUZANNE L. KASS AND DAVID M. KASS, APPELLANTS



Appeal of from the Order and Judgment of the Court of Common Pleas of Westmoreland County, Pennsylvania, No. 1493 of 1987, Civil Division, entered in this matter on November 30, 1987, on the Opinion and Order of said Court filed November 30, 1987.

COUNSEL

William F. Caruthers, Greensburg, for appellants.

Francis R. Murrman, Meadville, for appellees.

Brosky, Johnson and Melinson, JJ.

Author: Melinson

[ 382 Pa. Super. Page 110]

Appellants, Suzanne L. and David M. Kass [hereinafter "Kasses"], appeal from the Order of the Court of Common Pleas of Westmoreland County, Pennsylvania, granting Appellees', Albert and Ellen Mae Overly [hereinafter "Overlys"], Motion for Summary Judgment.

[ 382 Pa. Super. Page 111]

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the "pleadings, depositions, answers to interrogatories, admissions and affidavits 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. Rule 1035(b); Driscoll v. Carpenters District Page 111} Counsel of Western Pennsylvania, 370 Pa. Super. 295, 536 A.2d 412 (1988); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986); Langan v. Harleysville Ins. Co., 376 Pa. Super. 372, 374, 546 A.2d 75, 76 (1988); Helinek v. Helinek, 337 Pa. Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa. Super. 614, 493 A.2d 760 (1985). "However, summary judgment may only be entered in those cases which are clear and free from doubt." Consumer Party of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331; Langan, 546 A.2d at 76; Weiss v. Keystone Mack Sales, 310 Pa. Super. 425, 456 A.2d 1009 (1983); Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 489 A.2d 828 (1985). We must determine whether there exists any genuine issue of triable fact. Driscoll, 370 Pa. Super. 295, 536 A.2d 412. The moving party has the burden of proving that no genuine issue exists as to the material facts, and the record must be examined in the light most favorable to the non-moving party. Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988); Knecht v. Citizens and Northern Bank, 364 Pa. Super. 370, 528 A.2d 203 (1987).

In making this determination, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson, 370 Pa. Super. 115, 535 A.2d 1177; Knecht, 364 Pa. Super. 370, 528 A.2d 203. Furthermore, we shall not disturb the trial court's decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion. Dume v. Elkcom Co., Inc., 368 Pa. Super. 280, 533 A.2d 1063 (1987).

Parties seeking to avoid the entry of summary judgment against them may not rest upon averments contained in their pleadings; rather, they are required to show, by depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial, and the court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in

[ 382 Pa. Super. Page 112]

    opposition to a motion for summary judgment and to those allegations in pleadings that are uncontroverted. Pa.R.C.P. Rule 1035(d); Washington Federal Savings & Loan v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). "The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings." Id. 357 Pa. Super. at 289, 515 A.2d at 981, citing Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973) and Younginger v. Heckler, 269 Pa. Super. 445, 410 A.2d 340 (1979).

A brief synopsis of the facts of this case is requisite for disposition of this issue. Those facts have been succinctly ...


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