25 Mass. App. Ct. 910 | Mass. App. Ct. | 1987
This language, it is settled, means that the appeal vacates the judgment. The whole case is considered open and the previous judgment immaterial. See Derick v. Taylor, 171 Mass. 444, 445-446 (1898); Donnelly v. Montague, 305 Mass. 14, 15-16 (1940); Amari v. Rent Control Bd. of Cambridge, 21 Mass. App. Ct. 598, 600 n.5 (1986). See also Costarelli v. Commonwealth, 374 Mass. 677, 681 (1978).
Since the prima facie rule of G.L. c. 231, § 102C, is inapposite, and since the judgment of the District Court is vacated by the appeal, the plaintiffs may not rest on the decision of the District Court judge to support their motion for summary judgment. To be sure, a transcript of portions of the testimony in that court could serve as support for the motion, see Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310, 313-314 (1986), but a transcript was not here supplied.
We look to the plaintiffs’ affidavit to see if it, without benefit of the decision of the District Court, may sustain the judgment. That affidavit claims that the defendants, in breach of the lease, failed to make the five required alterations. On the other hand, the defendants’ affidavit specifically lists those five obligations, and states that the defendants have fully performed them. Had specific facts been sworn to by the plaintiffs or had the decision of the District Court judge been entitled to prima facie effect, the defendants’ mere conclusions that they had complied with each of the five stated obligations would not have alleged specific facts to establish a genuine issue of fact. The statements could have been disregarded by the judge, and the error, if any, in striking the defendants’ affidavit would have been harmless. See Community Natl. Bankv. Dawes, 369 Mass. 550,558 (1976); Madsen v. Erwin, 395 Mass. 715, 722 (1985).
Here, however, the statements contained in the plaintiffs’ affidavit were no more specific than those in paragraph 23 of the defendants’ affidavit. In these circumstances, it was error to strike the defendants’ entire affidavit. Not only did the motion to strike fail to specify, as it should have, the grounds for each objection to the affidavit, but the judge should have disregarded “only the inadmissible portions of [the] challenged affidavit and [should have] considered] the rest of it.” 10A Wright & Miller, Federal Practice and Procedure § 2738, at 509 (2d ed. 1983). Lee v. National Life Assur. Co., 632 F.2d 524, 529 (5th Cir. 1980). At trial, a judge would “not strike the entire testimony of a witness merely because a portion of his testimony is incompetent. The same mle is to be applied to supporting affidavits.” Dickheiser v. Pennsylvania R.R., 5 F.R.D. 5, 9 (E.D. Pa.), aff’d, 155 F.2d 266 (3d Cir. 1946), cert. denied, 329 U.S. 808 (1947).
The plaintiffs urge that the affidavit of the defendant Piccicuto is not made on personal knowledge. Since he was the owner-operator of Sheehan’s, it may be inferred that he has personal knowledge of the facts concerning the repairs.
In sum, on the materials before the Superior Court judge, it was error to allow the motion for summary judgment. Accordingly, the judgment is reversed and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.