514 A.2d 938 | Pa. Super. Ct. | 1986
Lead Opinion
Boyertown Oil Company, Inc. (Boyertown) recovered a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. After the expiration of the appeal period, Boyertown issued execution on its judgment. Osan then attempted to stay the execution until liability for a fourth delivery of oil had been adjudicated. The trial court denied Osan’s request, and this appeal followed. We affirm.
The action had been commenced by Boyertown to recover the agreed price of oil delivered to Osan on four separate occasions. After discovery proceedings had been completed, Boyertown filed a motion for partial summary judgment on the basis of admissions made by Osan’s president that his corporation owed Boyertown the prices charged for the first three deliveries. The trial court granted the motion and caused judgment to be entered for Boyertown in the amount of $10,666.69. No appeal was filed from the entry of this judgment. After the appeal period had expired, Boyertown issued execution against its judgment debtor. Osan then filed a petition in the trial court asking the court to “clarify” the summary judgment by determining whether it was enforceable before there had been an adjudication of the dispute regarding liability for the fourth delivery and Osan’s counterclaim arising out of the fourth delivery. By order dated June 26, 1985, the trial court held that Boyer-town’s judgment could be enforced and refused to stay execution until after the remaining claim had been adjudicated.
Many years ago the legislature in Pennsylvania provided that a court should have the power to enter judgment in an amount which a defendant has admitted to be due. See: Act of May 31, 1893, P.L. 185, 12 P.S. § 736, suspended by 42 Pa.C.S. § 1722(a)(1); Practice Act of 1915,
In the instant case, Boyertown’s complaint stated not a single claim but four distinct claims arising out of four
Moreover and in any event, no appeal was ever filed from the summary judgment entered by the trial court in this case. Therefore, the judgment became final after the expiration of thirty days. See: Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 243-45, 504 A.2d 335, 337 (1986); Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 229-230, 500 A.2d 490, 491 (1985). Any objection to the validity of the judgment was waived by Osan when it failed to take a timely appeal therefrom.
“Executions are within the equitable control of the court from which they are issued.” Fedun v. Mike’s Cafe, Inc., 204 Pa.Super. 356, 360, 204 A.2d 776, 779 (1964), aff'd, 419 Pa. 607, 213 A.2d 638 (1965). See: Sinking Fund of Commissioners of Philadelphia v. Philadelphia, 324 Pa. 129, 135, 188 A. 314, 317-318 (1936). A court’s decision to grant or stay execution will not be disturbed absent an abuse of that discretion. Id. Generally, a “court may permit the issuance of an execution on a judgment entered on an admission of the defendant as to a part of the claim of the plaintiff ... even where there is no standing rule of court which authorizes such execution.” 12 Std.Pa.Prac.2d § 72:9.
In Sterling Electric & Furniture Co. v. Peterson, 409 Pa. 435, 187 A.2d 285 (1963), the plaintiff had obtained a judgment by confession in the amount of $6,650 pursuant to authorization contained in a judgment note which had been executed in blank by defendants. Although defendants admitted owing plaintiff $1,752 on the note, they filed a petition to open the entire judgment on the ground that plaintiff had fraudulently overstated the amount owed. Based on defendants’ admission, the plaintiff petitioned the trial court for leave to proceed with execution for the undisputed amount. The trial court denied plaintiff’s petition for execution and opened the entire judgment. In reversing, the Supreme Court said:
This action of the Court cannot be sustained. When a debtor solemnly acknowledges the existence of a certain amount due under a judgment note, no purpose is served in refusing execution to the creditor of that amount, merely because the debtor alleges that he does not owe another amount.
*442 The defendants have admitted, under oath, that they owe the plaintiff $1,752; there is no contest as to this sum. They should therefore pay it. Paying this amount in no way impedes the exercise of justice and fairness in the opening of the judgment as to the difference between $1,752 and the amount of the judgment note as filed.
Id., 409 Pa. at 438, 187 A.2d at 287. See also: Nisenbaum v. Farley, 380 Pa. 257, 110 A.2d 230 (1955) (where the validity of a judgment is not at issue, it is erroneous to refuse execution on the undisputed amount).
The reasoning of the Court in Sterling Electric is controlling of the case sub judice. Where, as here, the defendant has “solemnly acknowledged” the validity of a portion of the plaintiffs claim and judgment has been entered in the amount admitted to be due, requiring the defendant to pay the judgment immediately does not impair the defendant’s right to litigate the remainder of the plaintiff’s claim. Indeed, to delay execution on a judgment, which is a recognized, vested property right, may well be contrary to notions of “due process.” See: Sinking Fund Commissioners of Philadelphia v. Philadelphia, supra 324 Pa. at 133-134, 188 A. at 317.
Once again, it is helpful to examine Boyertown’s right to execute in light of the fact that it has recovered on three causes of action which are separate and distinct from the fourth. These separate causes of action might have been stated in separate complaints. If Boyertown had recovered summary judgments in three separate actions, its right to enforce those judgments would have been clear. The right to enforce the judgment recovered in this case for moneys due in three separate transactions is equally unassailable.
We hold, therefore, that the trial court did not commit an error of law or abuse its discretion when it refused to stay execution on Boyertown’s judgment.
Order affirmed.
. The author of the dissenting opinion concludes that Pa.R.C.P. 1035(c) prohibits the entry of partial summary judgment under any circumstances. To support this conclusion, the dissent relies upon interpretations of the federal counterpart to Rule 1035(c). Such reliance, however, is misplaced. Although Pa.R.C.P. 1035(c) is a verbatim duplication of Rule 56(d) of the Federal Rules of Civil Procedure, Federal Rule 56(d) is only one of several provisions within the Federal Rules which delineate the circumstances under which summary judgments may be entered. Other provisions specifically empower federal courts to enter partial, summary relief. See: Fed.R. Civ.P. 54(b) and 56(a). Recognizing that these provisions have endowed the federal judiciary with the power to enter partial summary
The Pennsylvania rules operate in a similar manner. Rule 1035(c) neither proscribes nor specifically authorizes summary judgment for parts of claims admitted by a party to be due and owing. When read with other rules authorizing the entry of judgment, however, it is clear that a final judgment may be entered as to one or more, but fewer than all, claims asserted in the complaint.
Dissenting Opinion
dissenting:
Boyertown Oil Company, Inc. (Boyertown) was awarded a partial summary judgment against Osan Manufacturing Company, Inc. (Osan) for the price of oil delivered to Osan on three separate occasions. The majority holds that Boyertown may enforce this partial judgment despite the fact that the amount due for a fourth delivery is in dispute and Osan’s counterclaim against Boyertown for damages has not been fully and finally litigated. I respectfully dissent.
This is an appeal from an order entered by the Court of Common Pleas of Berks County whereby appellee, Boyer-town Oil Company (hereinafter “Boyertown”), was permitted to enforce, prior to trial, a money judgment gained by partial summary judgment against appellant, Osan Manufacturing Company (hereinafter “Osan”). Osan appeals averring that the trial court erred in permitting Boyertown to execute on a partial summary judgment before a final judgment was entered upon the remaining contested issues.
In this appeal, we are presented with an issue of first impression: whether a court which grants a “partial summary judgment” pursuant to Pa.R.Civ.P. 1035(c) may enter and enforce that judgment prior to trial on the merits of the claims still in "substantial controversy, or must merely enter an order specifying that the facts existing without substantial controversy are deemed established for trial. After a careful review of the record and applicable law, I would find that a party should be precluded from executing upon a “partial summary judgment” entered in his favor prior to disposition at trial of the contested issues which remain. Accordingly, I would reverse.
Appellant-Osan and appellee-Boyertown have engaged in numerous business transactions with each other over a
Subsequently, appellee filed a motion for summary judgment. Osan admitted owing Boyertown for the three oil shipments it received in late 1982. However, Osan contested Boyertown’s assertion that it owed Boyertown for the January, 1983 shipment. Not only did Osan deny this portion of Boyertown’s claim but Osán filed a counterclaim against Boyertown for damages in an amount in excess of that claimed by Boyertown. The trial court granted a “partial summary judgment” for the first three oil deliveries for which Osan did not dispute owing Boyertown. Thirty days after the entry of this order, Boyertown levied upon Osan’s personal property. Osan then petitioned the trial court to clarify its order granting summary judgment. Osan requested clarification as to whether or not the money judgment granted was enforceable by Boyertown prior to the trial on the remaining issues raised in the complaint and counterclaim. The court entered an order stating that “partial summary judgment” was enforceable prior to trial on the merits of the complaint and counterclaim. This timely appeal followed the clarification order.
On appeal, appellant submits that the term “partial summary judgment” is a misnomer. Appellant argues that a partial summary judgment is not dispositive of all issues
The trial court determined that Pa.R.Civ.P. 1035(c) empowers it to enter a partial summary judgment such as the one entered in the case sub judice and that under this provision once such a judgment is entered it may be executed upon. This rule of procedure provides:
If on a motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
Pa.R.Civ.P. 1035(c) (emphasis provided).
This rule is written clearly and is not subject to a variety of interpretations. It specifically states that in those situations where a summary judgment is “not rendered upon the whole case or for all the relief requested,” the trial court is authorized to “ascertain what material facts exist without substantial controversy.” Pa.R.Civ.P. 1035(c) (emphasis provided). The trial court simply determines which items are not disputed. Nothing in this provision empowers the trial court to enter a judgment as to a portion of the claim before it.
Both parties and the trial court frequently referred to Fed.R.Civ.P. 56. Rule 1035 of the Pennsylvania rules adopted, for the most part, the language present in the Federal rule on summary judgment. Based on the identical language of Fed.R.Civ.P. 56(d) and Pa.R.Civ.P. 1035(c), the trial court turned to the federal courts for guidance in interpreting the Pennsylvania rule. Mangino v. Steel Contracting, 427 Pa. 533, 235 A.2d 151 (1967); Michigan Bank v. Steensen, 211 Pa.Super. 405, 236 A.2d 565 (1967).
While a review of federal cases interpreting subsection (d) of Rule 56 offers guidance for Pennsylvania courts charged with the task of interpreting subsection (c) of Rule 1035, such cases are not controlling. This is especially true in light of the fact that when Fed.R.Civ.P. 56 and Pa.R. Civ.P. 1035 are read in their entirety the identical nature of subsections (d) and (c) of the respective rules loses its importance. The Federal rule clearly contemplated situations when a partial summary judgment would be necessary or desirable. See Fed.R.Civ.P. 56(a) (a party seeking to recover upon a claim, counterclaim, or cross-claim ... may
The Pennsylvania rule on summary judgments has no provisions which correspond to subsections (a) and (b) of Rule 56 of the Federal rules. It is patently obvious that by failing to adopt these subsections as it did subsection (d) of Rule 56, the drafters of the Pennsylvania rule effectively precluded the granting of a summary judgment for a portion of a claim.
Those Federal cases which do not permit the entry of a partial summary judgment under subsection (d) of Rule 56 do so in reliance on subsection (d) alone. Biggins v. Oltmer Iron Works, 154 F.2d 214 (7th Cir.1946); Bethlehem Steel Corp. v. Tishman Realty and Construction, 72 F.R.D. 33 (S.D.N.Y.1976). Under these cases, “all that [Boyertown] was entitled to was an order (not a judgment) fixing the amount of his claim no longer in dispute, which, under proper procedure would have ripened into a judgment only upon the ultimate disposition of the whole of his claim. It follows that the [trial] court at that stage of the proceeding was without authority to enter a judgment.” Biggins, 154 F.2d at 216.
Applying a purely common sense approach, there appear to be very few reasons to refuse to allow a party in Boyertown’s situation to wait for the conclusion of a trial on the remaining issues to collect a sum of money that Osan
In addition, allowing a party who has successfully moved for a “partial summary judgment” to execute upon it immediately would discourage parties, such as Osan, from acquiescing to part of their opponent’s claim. The effect of an order entered pursuant to Rule 1035(c) is to simplify those issues which will proceed to trial. It is not intended to subject the losing party to a demand for immediate payment of the admitted debt. “Primarily, its purpose seems to be to salvage some results from the judicial effort involved in the denial of the motion for summary judgment.” Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co., 3 F.R.D. 440, 441 (S.D.N.Y.1944) (applying Fed.R. Civ.P. 56(d)).
Under subsection (c) of Rule 1035, the trial court is empowered to enter an order specifying the facts that appear without substantial controversy including the extent to which the amount of damages or other relief is not in controversy. The order is in the nature of a pre-trial adjudication, not a final judgment. In the case sub judice, the fact that Osan owed Boyertown $10,669.69 for the undisputed oil deliveries made in the latter part of 1982 will be deemed established pursuant to Pa.R.Civ.P. 1035(c), and the trial shall be conducted accordingly. Boyertown is not
Accordingly, I dissent. I would reverse the order of the trial court permitting Boyertown to enforce the partial judgment it has recovered against Osan.
. Boyertown contends that Osan’s appeal is untimely because it was filed more than 30 days after the entry of the “partial summary judgment.” I disagree. Osan is appealing from the June 26th order in which the court permitted Boyertown to execute immediately upon the March 11th “partial summary judgment.” Osan filed this appeal on July 12th which was well within the 30-day requirement of Pa.R.A.P. Rule 902.
. In its counterclaim, Osan claims it was damaged when Boyertown failed to deliver a sufficient amount of oil to Osan in January, 1982. As a result of these allegedly inadequate deliveries, Osan submits that it suffered damage to its oil burner and was forced to get a new burner and to close its plant for one day.
