Zdrok v. Deutsch

• Decision Date: 02 May 1988
• Docket Number: Civ. A. No. 87-5693.
• Citation: 684 F. Supp. 129
• Parties: Vladimir N. ZDROK v. Cherie DEUTSCH.
• Court: U.S. District Court — Eastern District of Pennsylvania

684 F. Supp. 129

Vladimir N. ZDROK v. Cherie DEUTSCH.

Civ. A. No. 87-5693.

United States District Court, E.D. Pennsylvania, Civil Division.

May 2, 1988.

Alexander Zdrok, Philadelphia, Pa., for plaintiff.

Francis F. Quinn, Matthew D'Annunzio, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

This matter is a diversity action arising out of an automobile accident on September 12, 1985. It is before me on MOTION TO DISMISS PLAINTIFF'S COMPLAINT filed by defendant on January 26, 1988. Defendant's motion does not specify whether it is a motion to dismiss under Fed.R. Civ.P. 12 or a motion for summary judgment under Fed.R.Civ.P. 56. Because defendant has raised matter not in the pleadings, and has supported her allegations with affidavits and exhibits, I will treat this as a motion for summary judgment.

Fed.R.Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals 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." This rule provides the court with a useful tool when the critical facts are undisputed, facilitating the resolution of a pending controversy without the expense and delay of conducting a trial made unnecessary by the absence of factual dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir.1982); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. 106 S.Ct. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative", summary judgment may be granted. Id.

In a summary judgment action, the moving party bears the initial burden of identifying for the court those portions of the record which it believes demonstrate the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Following such a showing in a case where the non-moving party is the plaintiff and therefore bears the burden of proof, it must, by affidavits or by the depositions and admissions on file, "make a showing sufficient to establish the existence of every element essential to that party's case." Id., 106 S.Ct. at 2552-53; Anderson, supra, 106 S.Ct. 2514; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Fed.R. Civ.P. 56(e).

As the court said at page 694-695 in Childers v. Power Line Equipment Rentals, Inc., 842 F.2d 689 (3d Cir.1988):

"Where a party opposing a motion for summary judgment has the burden of persuasion, and the moving party has identified sufficient facts of record to demonstrate that no genuine issue of material fact remains, the nonmoving party is obliged to identify those facts of record which would contradict the facts identified by the movant. See First Nat'l. Bank of Pa. v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir.1987) (nonmoving party with burden of persuasion may not rest on mere denials to withstand motion for summary judgment); Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141 at 144 (3d Cir.1987) (nonmoving party with burden of persuasion must make showing of record evidence sufficient to withstand motion for summary judgment); see also Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53; Fed.R.Civ.P. 56(e).

We realize that the rule of law announced here can be interpreted as an extension of Celotex. We believe, however, that allowing a nonmoving party opposing a motion for summary judgment to rest on mere denials where there are unidentified facts of record which may contradict the facts identified by the movant would be an unworkable and illogical rule. It would require the district judge to search through an often voluminous written record for facts which might support the nonmovant's claim, and would require this Court to review the district judge's search to insure that no facts were missed. It would permit the party to present facts, and argument based on those facts, to the Court of Appeals where that party had not identified those facts to the district court. We also believe that any other holding would misread the requirement of Rule 56(e) that the nonmoving party `set forth specific facts showing that there is a genuine issue for trial.' Fed.R.Civ.P. 56(e)."

In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the nonmoving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S.Ct. at 2513.

The defendant in her motion to dismiss has raised a release dated September 8, 1987, signed by plaintiff, which was accompanied by a settlement letter dated September 8, 1987, signed by plaintiff's counsel who, judging by a letterhead, is the plaintiff's law partner, and a settlement check dated September 18, 1987, in the amount of $12,500, which was endorsed by plaintiff and his counsel, for Zdrok & Zdrok, and deposited on September 21, 1987. The question of the settlement and any possible defenses to it are not raised in the complaint, even though the date of the settlement, September 8, 1987, preceded the filing of the complaint on September 11, 1987, one day before the statute of limitation would have run on the action. Plaintiff claims that the settlement was contingent upon his receiving a copy of defendant's insurance policy and limits on coverage. If plaintiff had any reservations about the settlement, he should have stated them in writing, but did not do so. The release, which was the basis for issuance of the settlement check, was on a form apparently furnished by the plaintiff, in that it was on a form printed by John C. Clark, 1326 Walnut St., Phila., not what one would expect from an insurance company located in Woodbury, New York. It was...