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CATHERINE M. LILES v. PAUL W. BALMER (09/25/89)

submitted: September 25, 1989.

CATHERINE M. LILES, APPELLANT,
v.
PAUL W. BALMER, JR. AND MARY BALMER, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Bradford County, No. 87 CV 000140.

COUNSEL

John S. Hollister, Jr., Troy, for appellant.

W. Marshall Dawsey, Towanda, for appellees.

Brosky, Wieand and Melinson, JJ.

Author: Wieand

[ 389 Pa. Super. Page 453]

This is an appeal from an order entering summary judgment in favor of the defendants. The trial court's order was based upon its belief that the plaintiff would be unable to produce admissible evidence that the accident occurred as alleged in her complaint. This is a close question. After careful review of the pre-trial record, however, we conclude that the plaintiff-appellant must be given an opportunity to prove her claim at trial. Therefore, we reverse and remand for further proceedings.

A motion for summary judgment may properly be granted "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). See also: Craddock v. Gross, 350 Pa. Super. 575, 577-578, 504 A.2d 1300, 1301 (1986); Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 38, 482 A.2d 1067, 1068-1069 (1984); Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 140, 476 A.2d 928, 930 (1984). When a motion for summary judgment is made and supported as provided in Rule 1035, the non-moving party may not rest upon the mere allegations and denials of his pleadings. To avoid summary judgment the non-moving party must set forth specific facts by way of

[ 389 Pa. Super. Page 454]

    affidavit, or as otherwise provided in [Rule 1035], demonstrating that a genuine factual issue exists. Phaff v. Gerner, 451 Pa. 146, 149, 303 A.2d 826, 829 (1973); Ressler v. Jones Motor Co., Inc., 337 Pa. Super. 602, 609, 487 A.2d 424, 428 (1985). The inquiry in deciding a motion for summary judgment "is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case or defense." In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir.1983), cert. denied, 481 U.S. 1029, 107 S.Ct. 1955, 95 L.Ed.2d 527 (1987). See also: Rose v. Food Fair Stores, Inc., 437 Pa. 117, 262 A.2d 851 (1970) (summary judgment properly entered where averments of complaint could not be proved because of parol evidence rule). Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.

Catherine M. Liles sustained head injuries when she fell from the moped which she was operating on a public street in front of a residence owned and occupied by Paul and Mary Balmer. Contending that the accident had occurred when the moped had been chased by the Balmers' dog, Liles commenced an action against the Balmers for damages. She relied upon the Dog Law of December 7, 1982, P.L. 784, No. 225, Art. III, § 101 et seq., 3 P.S. § 459-305, which provided in relevant part:

It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either (1) confined within the premises of the owner, or (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured, or (3) under the reasonable control of some person, or when engaged in lawful hunting or field training accompanied by an owner or handler.

A prima facie case of negligence can be established by evidence that a dog has been allowed to run without restraint in violation of the Dog Law. ...


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