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filed: October 31, 1989.


Appeal from the Order entered November 22, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4189 Jan. 1986.


J. Craig Currie, Philadelphia, for appellant.

Dean F. Murtagh, Philadelphia, for Spencer Roofing, appellee.

Beck, Johnson and Hoffman, JJ.

Author: Hoffman

[ 388 Pa. Super. Page 362]

This appeal is from an order below granting appellee's motion for summary judgment in a contribution action. Appellant had instituted this action after a judgment of 140,000 dollars had been entered against it in a previous lawsuit. On appeal, appellant contends that the trial court erred in concluding that appellee was entitled to summary judgment based on collateral estoppel.*fn1 For the reasons that follow, we agree and, accordingly, we reverse the order of the trial court and remand for proceedings consistent with this opinion.

[ 388 Pa. Super. Page 363]

In January of 1986, appellant, Kaller's, Inc. ("Kaller's") filed the present action for contribution and/or indemnification against appellee, John J. Spencer Roofing, Inc. ("Spencer"), the Celotex Corporation, and J. Edward Lauders. Kaller's sued for the amount of a judgment that was entered against it on March 24, 1983 in the case of Manor Junior College v. Kaller's, Inc. & John J. Spencer Roofing, Inc., No. 1632 Philadelphia, May Term, 1979.*fn2 In the underlying case, Manor Junior College ("the College") hired Kaller's to construct a roof on one of its buildings. Kaller's, in turn, subcontracted with Spencer for certain roofing work. The College later brought an action against both Kaller's and Spencer for damages allegedly sustained as a result of faulty workmanship in the installation of the roof. Kaller's responded by filing a cross-claim against the College alleging breach of contract. In addition, Kaller's and Spencer filed cross-claims against each other for contribution and indemnification. Prior to trial, the court ruled that the College had failed to state a claim in negligence against Spencer, and ordered that it proceed against Spencer on its contract claim only. The case then went to trial. After the close of testimony, the court granted Spencer's motion for a non-suit on the College's contract claim,*fn3 and thereafter, counsel for Spencer and Kaller's withdrew their respective cross-claims. Because Spencer was no longer a party to the underlying lawsuit, the only claim presented to the jury was whether Kaller's or the College breached the contract. The jury found in favor of the College and awarded damages in the stipulated amount of 140,000 dollars.

On August 17, 1988, a year and seven months after Kaller's filed the present action, Spencer filed a motion for summary judgment contending that Kaller's was barred from proceeding against it on the grounds of collateral estoppel and res judicata. By order dated November 22,

[ 388 Pa. Super. Page 3641988]

and filed December 1, 1988, the trial court granted appellee's motion based on collateral estoppel.*fn4 This timely appeal followed.


The issue presented for review is whether the trial court erred in granting Spencer's motion for summary judgment. A motion for summary judgment may properly be granted when 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. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass'n, 362 Pa. Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa. Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987). Moreover, in summary judgment proceedings, the court's function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Serv., 377 Pa. Super. 366, 372, 547 A.2d 411, 414 (1988). Thus, an order granting a motion for summary judgment will ...

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