Phaff v. Gerner

• Decision Date: 16 March 1973
• Citation: 303 A.2d 826,451 Pa. 146
• Parties: Samuel PHAFF, Appellant, v. George GERNER and Dorothy Gerner, his wife, Appellees.
• Court: Pennsylvania Supreme Court

Page 826

303 A.2d 826

451 Pa. 146

Samuel PHAFF, Appellant, v. George GERNER and Dorothy Gerner, his wife, Appellees.

Supreme Court of Pennsylvania.

March 16, 1973.

Rehearing Denied May 11, 1973.

Edward Unterberger, Gold, Bowman & Korman, Philadelphia, for appellant.

Arsen Kashkashian, Jr., Simons, Kashkashian, Nissenbaum & Kellis, Philadelphia, for appellees.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

MANDERINO, Justice.

The appellant, Samuel Phaff, appeals from a decree granting summary judgment to the appellees, George Gerner and Dorothy Gerner. The appellant was the proposed purchaser and the appellees were the proposed sellers of real estate located at 9218 Ashton Road in Philadelphia, Pennsylvania. The agreement between the parties provided for payments totaling $5,000 prior to the settlement date, and for payment of the balance of the $53,000 at the time of settlement. The $5,000 was paid by the appellant to the appellees. Settlement, originally scheduled for December 4, 1970, was rescheduled by mutual agreement and was to take place on or before January 18, 1971. Time was of the essence of the agreement.

January 15, 1971 at 1:00 P.M., was eventually set as the settlement time and date at the office of the Commonwealth Land Title Insurance Company in Philadelphia, Pennsylvania. Settlement, however, did not occur.

Appellant's complaint in equity alleged the above facts and further alleged that appellant Presented to the title officer at settlement funds sufficient to meet the balance due. Appellees' answer denied that the appellant presented the balance due at the time of settlement. The answer further alleged that the appellant was not present at settlement and did not deposit the balance due with the title officer.

Thus, the pleadings raised a genuine issue of fact as to whether the appellant timely met his obligation to tender the balance due at the time of settlement. Appellees then moved for summary judgment and filed the supporting affidavit of the title officer present at the settlement. The appellant did not present any supporting affidavits in response to appellees' motion for summary judgment.

The title officer's affidavit stated that 'At no time did Samuel Phaff appear, deposit any monies as required by Arsen Kashkashian's letter of instructions, or complete settlement in any way.' Arsen Kashkashian was appellee's attorney, and the letter referred to was attached to, and a part of, the title officer's affidavit. That letter dated January 14, one day prior to settlement, instructed the title officer to deliver the appellees' executed deed for the property to the grantee, Samuel Phaff, upon receipt of the balance due. The letter stated '. . . said sum must be given to you unconditionally and be in the form of cash or a certified check . . .' The letter further requested that the appellees' deed be returned if the required consideration was not received by the title officer.

The lower court accepted the facts contained in the title officer's affidavit as true and concluded that the appellant failed to proceed in accordance with the contract and, thus, breached the contract. Appellees' motion for summary judgment was granted.

The entry of summary judgment by the lower court was proper. The facts contained in the title officer's affidavit were not disputed by any opposing affidavit filed by the appellant. In the absence of any such opposing affidavit, the lower court was bound under Rule 1035 of the Pennsylvania Rules of Civil Procedure, 12 P.S. Appendix, to conclude that there was no genuine issue as to any of the material facts contained in the title officer's affidavit filed by the appellees.

The allegation in appellant's complaint that the balance due was presented at the time of settlement did not properly raise a genuine issue of material fact. Once a motion for a summary judgment is made, a party may not rely on the controverted allegations of the pleadings.

Rule 1035(d) provides:

'. . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. . . .'

The above rule specifically prohibited the appellant from relying on any allegations in the complaint. The purpose of a motion for summary judgment under Rule 1035 is to expedite the trial of a matter. Controverted facts that appear in the pleadings can be verified by either side by persons who would be competent to testify at the trial of the matter. Supporting affidavits, after a motion for summary judgment, are acceptable as proof of facts. Pleadings are not. Thus, under Rule 1035(d) there are strict requirements concerning affidavits which are used in support of a motion for summary judgment. That Rule provides:

'. . . Supporting and opposing affidavits shall be made on Personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' . . . (Emphasis supplied.)

The very strict requirements for an affidavit which supports a summary judgment are not the requirements that control a pleading. Under Rule 1023 of the Pennsylvania Rules of Civil Procedure, allegations contained in a pleading are made according to the '. . . knowledge, information and belief' . . . of the person signing the complaint. A pleading may be signed by a person who does not have personal knowledge of the facts, and who would not be competent to testify concerning the facts in the pleading.

In considering a motion for summary judgment under Rule 1035, a court may rely on the pleadings for uncontroverted facts but must ignore the pleadings as to controverted facts. Rule 1035(d) of the Pennsylvania Rules of Civil Procedure was taken verbatim from Federal Rules of Civil Procedure 56(e). The Advisory Committee on the Federal Rule commented as follows on the purposes of the last two sentences of the Rule:

'. . . A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. . . . The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The . . . doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. . . .'...