U.S. Pipe & Foundry Co. v. Pfotzer

Citation6 Conn.Cir.Ct. 625,292 A.2d 265
Decision Date24 March 1972
Docket NumberNo. CV,CV
CourtCircuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
PartiesUNITED STATES PIPE AND FOUNDRY COMPANY v. Edmund PFOTZER et al. 1-703-18061.

Edmund Pfotzer and E. John Pfotzer, pro se.

John A. Mottalini, Norwalk, for appellee (plaintiff).

DEARINGTON, Judge.

The sole question is whether the court erred in rendering a summary judgment on the ground that there was no genuine issue as to any material and triable fact.

The action was commenced by a common counts writ. The bill of particulars alleges that the defendants were indebted to the plaintiff for pipe material funished to them. The defendants answered by way of a general denial. The record contains a plethora of pleadings requiring the efforts of six judges. After those pleadings were filed, the named defendants, hereinafter referred to as the Pfotzers, brought a cross action impleading the city of Norwalk. See Practice Book § 78A. In their complaint against Norwalk the Pfotzers, as third-party plaintiffs, alleged that Norwalk was indebted to them for the cost of the pipe material and for other materials, work, labor and services furnished by them in connection with work performed by them at the Norwalk sewage treatment plant, that these pipes were sold to them by the plaintiff, and that Norwalk owed them for the cost of the pipes.

The plaintiff moved for a summary judgment against the Pfotzers, and they in turn moved for a summary judgment against Norwalk. The court denied both motions on the ground that a genuine issue of fact existed. The plaintiff moved to reargue the denial of its motion for summary judgment and the motion was granted. Thereafter, a hearing was held at which the Pfotzers appeared, and after the hearing a summary judgment was rendered in favor of the plaintiff. Prior to the rendering of that judgment, the Pfotzers had replied to the plaintiff's motion for disclosure of defense by setting forth their action against Norwalk and alleging that Norwalk owed them money for the construction work performed by them at the sewage treatment plant. At no time did they file an opposing affidavit. 'In order to oppose successfully a motion for summary judgment, the opposing party must recite facts in accordance with Practice Book § 300 which contradict those offered by the moving party.' Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22, 23. The credibility of the plaintiff's affidavit was not an issue, and no adverse inferences helpful to the Pfotzers could be drawn from it.

While the Pfotzers have assigned several errors, their principal assignment appears to be the claim that the trial court erred in not considering their motion for a summary judgment against Norwalk at the same time as it rendered judgment for the plaintiff. At the hearing before this Appellate Division, they admitted the plaintiff's claim but countered by arguing that they could not pay the plaintiff until Norwalk paid them. Thus, the issue raised here does not relate to the validity of the summary judgment rendered but rather to whether that judgment could be rendered without also acting on the Pfotzers' motion for a summary judgment against Norwalk.

Procedure in Connecticut for the impleading of a third-party defendant is governed by ...

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