23 F.R.D. 32 | E.D. Pa. | 1958
This is a motion for summary judgment. A similar motion was refused when it was considered before by Judge Leahy sitting specially.
“Such a judgment is only available when there is no genuine issue of fact presented. Moreover, such judgment is granted only where there is certainty plaintiff is not entitled to relief under any stated facts which may be proved in support of such plaintiff’s claim. Plaintiff here alleges an oral agreement to pay her not only salary but a percentage of profits. She claims she was dismissed without justification. These present factual issues. Any doubt as to existence of a material fact issue must be decided against the party moving for summary judgment.
“Summary judgment is denied. A full trial will better bring out the disputed facts "as to plaintiff’s employment, its tenure, and what happened between the parties.” (Emphasis supplied.)
Since that decision, defendant has taken plaintiff’s deposition and now renews his request.
Although the introduction of depositions is sometimes proper on a motion for summary judgment, we are of the opinion that in a case where the terms of an oral contract are complex and involved, the matter should be tried in its entirety and not merely upon questions and answers which have been highlighted by defendant’s counsel. The pleadings and the inherent nature of this suit make it apparent that genuine and material is
For the reasons given, as well as those given by the very learned and able Judge Leahy, this motion must be denied. It is so ordered.
Tagtmeier v. Smith, D.C.E.D.Pa., 167 F.Supp. 292.
