Popovich v. Empire Beauty Schools, Inc., Civ. A. No. 82-5741.

• Decision Date: 22 July 1983
• Docket Number: Civ. A. No. 82-5741.
• Citation: 567 F. Supp. 1440
• Parties: Mary POPOVICH v. EMPIRE BEAUTY SCHOOLS, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

567 F. Supp. 1440

Mary POPOVICH
v.
EMPIRE BEAUTY SCHOOLS, INC.

Civ. A. No. 82-5741.

United States District Court, E.D. Pennsylvania.

July 22, 1983.

567 F. Supp. 1441

Krank, Gross & Casper, Lancaster, Pa., for plaintiff.

Richard L. Caplan, Pottsville, Pa., for defendant.

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

Plaintiff instituted this action for injuries which she allegedly sustained while receiving a permanent wave and other special hair treatments from defendant, Empire Beauty Schools, Inc. (Empire). Specifically, plaintiff alleges that as a result of defendant's negligent use of various chemicals, she suffered burning and blistering of the scalp, loss of hair, other specified physical maladies and emotional distress. Moving to dismiss, Empire argues that plaintiff's execution of a release prior to her receipt of the permanent bars this action. We agree and grant the motion.

Empire's motion, although captioned as a motion to dismiss under Fed.R.Civ.P. 12(b)(6), is supported by an affidavit and a copy of the release executed by plaintiff. Appending such documents to a motion to dismiss converts the motion to one for summary judgment. Nasser v. City of Homewood, 671 F.2d 432, 434 (11th Cir.1982); Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir.1982); DeTore v. Local # 245 Jersey City Public Employees Union, 615 F.2d 980, 983 (3d Cir.1980), Fed.R.Civ.P. 12(b)(6). Plaintiff also apparently considers the motion as one for summary judgment. Her brief argues that various "questions of fact" preclude the Court from granting the motion. Under the circumstances at bar wherein a "motion to dismiss" is supported by affidavit testimony, a copy of a release executed by the plaintiff is submitted and plaintiff argues in summary judgment terms, courts properly consider the motion as one seeking summary judgment. Dickun v. United States, 490 F.Supp. 136, 137 (W.D. Pa.1980).

To prevail upon a motion for summary judgment, movant must demonstrate that there are no genuine issues as to any material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e). It may make this showing through depositions, affidavits, admissions, answers to interrogatories or other pleadings. Burke v. Leader Dogs for The Blind, 516 F.Supp. 1374, 1375 (E.D.Pa.1981). Once this showing has been made, the party resisting the motion must adduce specific facts which show that there is a need for trial. Id. In

567 F. Supp. 1442

determining whether the...