Penn Center House, Inc. v. Hoffman

• Decision Date: 30 January 1989
• Citation: 553 A.2d 900,520 Pa. 171
• Parties: PENN CENTER HOUSE, INC. Appellee, v. Sylvia Goldberg HOFFMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 900

553 A.2d 900

520 Pa. 171

PENN CENTER HOUSE, INC. Appellee, v. Sylvia Goldberg HOFFMAN, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 27, 1988.

Decided Jan. 30, 1989.

[520 Pa. 172] Robert J. Sugarman, Philadelphia, for appellant.

Paul Ribner I.P.P., Philadelphia for amicus--ad hoc Animal Committee.

Craig E. Ziegler, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION OF THE COURT

LARSEN, Justice.

Appellant, Sylvia Goldberg Hoffman (Hoffman), appeals from an order of the Superior Court affirming the lower court's order granting summary judgment in favor of appellee, Penn Center House, Inc. (Penn Center House), 368 Pa.Super. 650, 531 A.2d 40. The lower court found there was no genuine issue as to any material fact and held that Penn Center House was entitled to judgment as a matter of law. The Superior Court agreed that based upon the pleadings, a deposition of Hoffman, and cross affidavits filed by Penn Center House and Hoffman, no genuine issue as to any material fact existed and affirmed the lower court's judgment. Upon review of the record in this case, we disagree and now reverse.

The appellee, Penn Center House, is a cooperative housing corporation in the City of Philadelphia. Appellant Hoffman is a shareholder and resident of Penn Center House. In August, 1985 Penn Center House filed a complaint in equity against Hoffman alleging that Hoffman was violating a written occupancy agreement and house rules by keeping a pet dog in her apartment. The complaint sought an injunction enjoining Hoffman from violating the alleged occupancy agreement and house rules and ordering her to remove her dog from the premises without delay.

Hoffman filed an answer to the complaint denying that her residency at Penn Center House was pursuant to a written occupancy agreement. Further, she averred that if there is a house rule pertaining to pets which she is allegedly violating, such rule was not duly enacted or promulgated and, in any event, it does not apply to her. She averred that she was not in violation of any rule or agreement applicable to her, and the alleged rule was unreasonable, illegal and unconstitutional. Additionally, Hoffman raised new matter alleging: (1) that she resided at Penn Center House for some time prior to the adoption of any rules or regulations; (2) that any rule or regulation purportedly passed during her residency was in direct contravention of an implied agreement between her and Penn Center House relating to the ownership and possession of pets; (3) that Penn Center House agreed to permit her to own and possess a pet; and (4) that the efforts to enforce a rule to bar her pet dog from the premises are patently discriminatory in that other residents are permitted to own and keep pets without interference from Penn Center House management.

Penn Center House replied to Hoffman's new matter by averring: (a) that the relevant rules and regulations were in effect long before Hoffman became a resident; (b) that Hoffman began her residency at Penn Center House with full knowledge of the rules and regulations applicable to residents; (c) that on or about March 1, 1983 Penn Center House learned that Hoffman was keeping a pet dog in her apartment; (d) that because of the dog's advanced age, she was permitted to keep that particular dog on the condition that it would not be replaced; (e) that Hoffman is now keeping a dog on the premises in violation of that express condition; (f) that Penn Center House is unaware of any other pets being kept by others; (g) that the house rules are enforced in a fair and non-discriminatory fashion; and (h) that the rules and regulations pertaining to pets are not vague, illegal or unconstitutional.

On April 28, 1986 the appellant Hoffman was called for a pre-trial deposition. She appeared before a court reporter, was sworn, and, among other things, testified that prior to receiving a letter from Penn Center House dated March 1, 1983,¹ she was unaware of any house rule pertaining to the keeping of pets on the premises. She was asked and responded as follows:

Q. What, if anything, did you do after you received this letter:

A. Nothing.

Q. Did any representative of Penn Center House speak to you about the problems raised by this letter?

A. No.

Deposition testimony of Sylvia Goldberg Hoffman, p. 8 R.R. p. 36a.

Following the taking of Hoffman's deposition upon oral examination, Penn Center House filed a motion for summary judgment averring, inter alia, that there was no genuine issue as to any material fact. In support of its motion, a transcript of Hoffman's deposition testimony and the affidavit of Samuel Cohan were filed. In his affidavit, Samuel Cohan, after identifying himself as the current manager of Penn Center House and defining part of his responsibilities as enforcement of house rules, substantially restates that which was alleged in the complaint and in Penn Center House's reply to Hoffman's new matter. Appellant Hoffman filed a counter-affidavit which focused upon her allegations of discriminatory enforcement of house rules.

A motion for summary judgment is governed by Pa.R.Civ.P. Rule 1035 which, in pertinent part, provides:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

"The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions." Goodrich-Amram. 2d § 1035.1, p. 423. "That trial by testimonial affidavit is prohibited 'cannot be emphasized too strongly'." Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981) citing Goodrich-Amram 2d § 1035(d): 1 at p. 455. In considering a motion for summary judgment, the lower court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Goodrich-Amram, supra., § 1035(b): 3, p. 432.

In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.

" 'However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence': Reel v. Elder, 62 Pa. 308."

309 Pa. at 238, 163 A. at 524. The Nanty-Glo rule means that:

"Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury."

Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp. 434-35.

The appellant Hoffman argues that the lower court in entering summary judgment and the Superior Court in affirming that judgment ignored the long standing Nanty-Glo Rule that summary judgment cannot be granted merely upon testimonial affidavits. Hoffman also contends that the summary judgment granted here is improper in that it is contra to the requirement that there be no genuine issue of any material fact. We agree.

The summary judgment motion came before the lower court on the pleadings, cross affidavits, and the deposition testimony of Hoffman. The only documents presented were two letters from Penn Center House to Hoffman, each giving notice of an alleged violation of house rules. The letters dated March 1, 1983² and January 25, 1985³ were Exhibits P-1 and P-2 to Hoffman's deposition testimony. A fair consideration of the pleadings, Hoffman's testimony and the cross affidavits reveals that there are genuine issues of fact that must be resolved by a hearing on the merits.

In the affidavit of Samuel Cohan he states: that the House Rule concerning pets was enacted in 1961; that the rule is not enforced arbitrarily, capriciously or discriminatorily; that in 1983 Penn Center House management learned that Hoffman and another resident were each keeping a dog on the premises; that both were notified of the violation and asked to correct same; that Penn Center House agreed to "grandfather" Hoffman's dog and the one other dog owned by another resident, and Hoffman and the other resident agreed not to replace these dogs; that in early 1985, Penn Center House management learned that Hoffman's original "grandfathered" dog had died and she was keeping a new pet dog in her apartment; and that Penn Center House is not aware of any dogs kept in the building other than Hoffman's pet and the other "grandfathered" dog which was still living. These are substantially the same allegations that are set forth in Penn Center House's reply to new matter.

Hoffman, in her deposition testimony and in her affidavit does not deny that she replaced her original pet dog with a second pet after the first one died. She, however, denies that there was an agreement not to replace the original pet. In her...