*1 ty. parties entered into a contract of sale and appel- $8,500 lants tendered hand money. Afterwards, appellants stopped check, payment on the later admitting they changed their minds and decided not to purchase the property. 15(a) Paragraph agreement states the seller shall retain the earnest money deposit upon buyer’s default.
Accordingly, we find the evidence sufficient to support the trial verdict, court’s Sipowicz Olivieri, v. 174 Pa.Super. 549, 102 A.2d 175
Order affirmed. POPOVICH, J., joins TAMILIA, J., and also files a concurring statement.
POPOVICH, Judge, concurring. Although I join the opinion of the I majority, write separately to note my concern over the lack of uniformity legal procedure within our Unified System. Judicial I be- lieve something as legal basic as notice of a trial should be governed by rules, uniform state-wide local determi- However, nation. until such a time comes when the state has a “true” Uniform Judicial System, the law will remain as cited by the majority with which I join. Marycellis Garcia,
David Appellants, GARCIA and M.
v. David J. SAVAGE David Corporation, J. t/d/b/a
v. PENNSYLVANIA HOUSE.
Superior Pennsylvania. Court of
Argued Oct. 1990. Filed Feb. 1991. *2 Wilkison, for Sunbury, appellant. P. Robert appellee. Cassimatis, Harrisburg, Savage, E. Gregory HOFFMAN, JJ. OLSZEWSKI, BECK Before BECK, Judge: issue is whether had may
where the moving party supports his motion depo- with the sition allegedly disinterested witnesses and the the movant himself.
We hold that proper application of
rule
announced in
Nanty-Glo Borough
Co.,
v. American
Surety
(1932),
This case arose out of an accident that April occurred on premises House, of Pennsylvania a manu- facturing Lewisburg. facility Pennsylvania House con- with tracted Beery Building Components (“Beery”) to replace the facility. roof on the Beery subcontracted job (“Laird”). roofing Roofing Laird On the set for day commence, job Laird found that it did not have *3 enough available workers to send to the Pennsylvania House project. Beery appellee, Savage, contacted David who business, owned a small construction and asked Savage could send some of its workmen to assist the Pennsylvania House project. Savage sent three of his workmen to the job. Garcia,1
Appellant, David was employed by Laird and was assigned the Pennsylvania House project. He and the three began workmen from Savage job the roof by remov ing the old roof and insulation under it. after Shortly lunch, while roof, Garcia was on working he stepped onto area an where he thought roof was still intact. fact, the steel already roof had been removed from the section where he stepped and all that remained was the insulation that had been under the steel. fell Garcia through insulation to the concrete floor feet thirty below, sustaining personal severe injuries.
Garcia brought a compensation workmen’s claim against his Beery, alleging Beery that was statutory employer. He did bring Laird, not his against claim direct employer, joined wife, appeal by 1. is Marycellis Garcia his Garcia. com- he had been informed that Laird’s workmen’s because no in effect at the time of longer insurance was pensation claim, Laird later in the Although joined was the accident. an ultimately compen- received award workmen’s Garcia against Beery alone. sation benefits 13, 1986, by this action was commenced On November only Savage. The defendant was Garcia writ summons. the negligence his resulted from alleged that fall removing the steel roof without Savage three workmen the insulation underneath it. This removing simultaneously the steel and the negligent to be because alleged was removing the same color so that allegedly were insulation not insulation created the risk that some- the steel and insulation, steel, thinking on it was step one would complaint alleged that as did Garcia. through, fall employees of his on Savage negligence liable for the theory. respondeat superior Pennsylvania Laird and joined Beery, thereafter Beery and Laird were
House as additional defendants. order dated December summary granted judgment by Savage for filed 1988. Motions discovery After further Pennsylvania House were denied. sought summary judgment. depositions, Savage again via under his three workers had been He since contended during House Pennsylvania Laird and Beery, the control House, liability he had no at Pennsylvania their work his Savage supported factual day. on that their actions his control his were under allegation that workers *4 to by deposition reference day of the accident themselves, they who had stated that workers by three deposition that day, supervised by Savage not were to Savage himself the same Laird and Beery, of January order entered granted by This motion was effect. of 31, grant appeals 1990. Garcia Savage. in favor of The entered. lightly is to be
Summary judgment seeking summary party met aby that must be standard 328
judgment is We exacting. have most recently stated it as follows: judgment
Summary may properly be entered if only “the pleadings, depositions, answers to interrogatories file, and admissions on together affidavits, with the any, that show there is no genuine issue as any to material fact and that the moving is party entitled to judgment aas matter of 1035(b). law.” Pa.R.C.P. moving party has the burden of persuading the court that genuine no issues exist as to the material facts. Sum- mary judgment may be entered only where the is case free from doubt. Hower v. Associates, 371 Whitmak 443, 445, 524, Pa.Super. 525, 538 A.2d denied, allocatur 584, (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any must doubt be resolved against the moving party. French v. Service, United Parcel 377 366, Pa.Super. 371, 411, 547 A.2d (1988); Thorsen v. 414 Bank, Iron and Glass 135, 328 Pa.Super. 140-41, 476 928, (1984); A.2d Chorba v. Davlisa Enterprises, 930 Inc., 497, 500, 303 Pa.Super. 36, 450 (1982). A.2d 38 Laventhol & Horwath v. Dependable Insurance Associ- ates, Inc., 553, 388, 396 Pa.Super. A.2d (1990). 390
Because the burden establish the absence of a genuine of issue fact material is squarely movant, on the Rule 1035 imposes requirement no response by the non-moving party. Failure to answer a motion for sum judgment, mary through the filing counter-affidavits or otherwise, does not constitute a waiver of issues necessary to decide the motion. Gates, Moore v. 398 Pa.Super. A.2d If the moving party has failed support his motion adequately, summary judgment must denied, if the opposing even party responded. has not
The issue in this case is whether Savage as the moving adequately party supported his motion for summary judg- ment on his relying deposition own testimony that Beery, Laird and the three workmen. argues Garcia
329 Nanty-Glo is the rule of incompetent under Co., Surety v. American A. Borough 163 523 Nanty-Glo, sued the sure- plaintiff borough In the borough’s tax that had issued a the company bond ty had misappropriated the tax collector for amounts collector the company The tax surety joined from the borough. trial, At the borough defendant. as an additional collector defendant, the of the additional tax the testimony used and a collector, misappropriation, to the of testified who to notice of timely the fact clerk who testified county surety company. The given had to the the claim been contradicting no this testi- evidence company offered surety binding motion for granted plaintiff’s The trial court mony. a for the The plaintiff. verdict instructions directed that even company argued company appealed. surety testimony contradicting the had produced any it though on, relied plaintiff the oral of the witnesses jury had to submitted to the since the case nevertheless to those witness- it them to decide whether believe was for Id., 237-38, Supreme A. 524. The Pa. 163 at es. at entered the that had been judgment agreed, Court reversed for a the case new and remanded on the directed verdict trial. The Court held: instructions, binding for motion granting plaintiff’s tax collector trial assumed judge [the do, right to This he had no to be true.
and the ... clerk] In the words though was uncontradicted. even it SHARSWOOD, indisputa- clear and “However JUSTICE testimony, on oral depends when it may proof ble be the decide, under jury to province it is nevertheless court, to the applicable to the law as instructions from of the court facts, salutary power subject deem the verdict they should new trial award con- ____The credibility weight to the evidence.” trary testimony plaintiff witnesses, whose without of these recovered, the jury---- not have could Id., A. 238, 163 at 524. Pa. at
Although with
itself was concerned
motions for
applied to
verdict,
been
equally
it has
directed
applied
and is now most
commonly
House,
the latter
situation.2
Penn
See
Center
Inc. v.
*6
171,
Hoffman,
(1989). Thus,
520 Pa.
2. The
for
summary
standard
whether a
is entitled to
judgment
long
equated
deciding
has
been
with that for
whether that
party would be entitled to a directed verdict at trial. See Bremmer v.
Co.,
494, 497,
785,
Mutual
Protected Home
Ins.
436 Pa.
260 A.2d
Life
(1970).
786
exception
3. There
proposition.
is one well-established
to this
Where
moving party supports
the
summary judgment by using
his
motion
opposing party,
though
the
al,
of the
they
admissions
even
witnesses,
are testimoni-
opposing party’s
or of
Nanty-Glo
the
own
does not
situation,
entry
summary judgment.
forbid the
may grant
testimony,
of
In such a
the court
determining
credibility
the motion without
the
of the
by
for it is an
opposing
"unconditional surrender”
the
party,
Pa.
Allison,
he
to which must be held.
Rivoli
See
Theatre Co.v.
396
343,
(1959).
A.2d
152
449
rule,
Despite
long-standing
Nanty-Glo
this
exception to the
we note
very
panel
suggested
that in a
recent
decision of this court it is
that
although Nanty-Glo
originally
only
apply
intended to
to the
witnesses,
testimony
the
the
expanded by
of movant or his
the rule was
House,
171,
Supreme
Hoffman,
Court in Penn Center
Inc. v.
(1989),
Nanty-Glo on the manner in which the Supreme Court had
described the
rule in
the case of Curran v.
Philadelphia
Inc.,
Newspapers
(1981). There, the Court stated that the Nanty-Glo rule
prohibited summary judgment based solely on the oral
testimony of the moving
or
party
Id.,
“his witnesses.”
Pa. at
We find no support whatsoever for this interpretation of *8 Nanty-Glo, either in that case or in any other that has construed applied or it. Nanty-Glo prohibited itself the direction of a plaintiff, verdict for the who presented had evidence from its representative, own i.e. clerk, the county and from a party on the case, other side of the i.e. the tax himself, collector who was a defendant in the action. See discussion of Moreover, Nanty-Glo, supra. early cases decided not long after Nanty-Glo make no distinction be- tween the oral testimony of interested and disinterested witnesses. For example, in MacDonald v. Pennsylvania Co., R.R. 348 Pa. (1944), 36 A.2d 492 the Supreme the rule that where at trial a party Court reiterated he is testimony, his own interested entitled to have presents though to the even his evidence is jury, the case submitted disinterested testimony contradicted the of witnesses for by opposing testimony The mere fact that the the other side. did not from the from disinterested witnesses remove was judging credibility traditional function of the of their jury the court cited Importantly, those witnesses. The clear is that implication
the course of this discussion. determine, for the solely jury is an issue credibility of an interested or a disinter- credibility it the whether be ested witness. Nan- addition, directly applying of cases analysis close an reversing improper grant summary judg-
ty-Glo that in such cases the courts have not distin- ment reveals sup- the motion was between situations where guished or disinterested of interested wit- ported by v. Protected Home Bremmer For example, nesses. Co., (1970), the Mutual Ins. Life to the defendant granted summary judgment trial court had to the had denied benefits benefi- company insurance which life insurance on her deceased husband’s ciary plaintiff alleged that the deceased company The insurance policy. insurance, for the life application had filed a fraudulent The deceased circulatory problem. failed to having reveal doctors with problem of this two allegedly knew because for the insurance prior applying he had consulted whom sup- company The insurance diagnosed problem. had deposi- with the summary judgment its motion for ported Plaintiff no produced of the two doctors. tion Nevertheless, testimony. contradicting evidence summary judgment grant reversed Supreme Court of the two credibility under Nanty-Glo, finding Id., Pa. by jury. must judged doctors’ that the two doctors 498-99, A.2d at 787. The fact at in the of the case interested outcome any way were not impact the court and did not mentioned even entry its decision to reverse under Nanty-Glo. *9 in the of the light foregoing precedent,
Viewed the Su- prohib- Court’s statement Curran that preme Nanty-Glo its on the oral of either testimony moving party reliance inject exception or his witnesses cannot be read to an to the Nanty-Glo testimony rule for of disinterested witness- moving es. When the Curran court referred to the party’s witnesses, clearly nothing it meant more than those wit- nesses testimony produces support whose movant facts, his version of the whether those witnesses an have interest in the outcome of the lawsuit or not. The court clearly did not mean to limit the rule Nanty-Glo only to testimony of those witnesses who were interested in the moving party’s success. Such a radical in the change law cannot be assumed from the Curran court’s mere use of phrase “his witnesses”.
Thus, we find that there is not nor has now there exception ever been an to the rule which allows summary judgment based on the of disinterested testimony witnesses. This conclusion leads to the inexorably reversal of the trial court’s grant Savage this case. relied on his own and on deposition witnesses, including admis any opposing party, produced sions no documentary in support evidence of his motion. He sought to show that he had no control over his workmen on the day through instant accident oral solely testimony. credi bility of these witnesses’ this crucial factual question should not accepted by have been the trial court. believed, or not are they Whether to be no matter what lawsuit, their interest or lack thereof in this is for a jury decide.
The order of the trial court is The case is reversed. remanded for further consistent proceedings opin- with this ion. is relinquished. Jurisdiction
HOFFMAN, concurring J. files a statement.
HOFFMAN, Judge, concurring. *10 join
I in the excellent and Opinion well-reasoned by Judge Beck, with the exception in discussion footnote 3 concerning Troy Kampgrounds, v. and the scope of our Supreme Penn Center House v. Hoff- Court’s decision I was a man. Troy panel, and I member joined Judge Ford expression Elliott’s careful in that case. The in this not require facts case do a reexamination of the Troy; accordingly, approach I Opinion offer no at this time Troy. question vitality of all other I respects, Beck’s join Judge Opinion thorough without reservation. Pennsylvania
COMMONWEALTH of v. RIZZI, Appellant.
Michael Superior Court of Pennsylvania.
Argued Oct. 1990.
Filed Feb. 1991.