Opinion
Action based on oral agreement to pay plaintiff not only salary but a percentage of profits wherein plaintiff claimed that she was dismissed without justification. On defendant's motion for summary judgment, the United States District Court for the Eastern District of Pennsylvania, Egan, J., held that although introduction of depositions is sometimes proper on motion for summary judgment in view of complex nature of the contract, and because pleadings and inherent nature of the action made it apparent that genuine and material issues of fact were in controversy, motion would be denied.
Motion denied.
Samuel Diamond, Newman & Master, Philadelphia, Pa., for plaintiff.
James F. McMullan, Clark, Ladner, Fortenbaugh & Young, Philadephia, Pa., for defendant.
EGAN, District Judge.
This is a motion for summary judgment. A similar motion was refused when it was considered before by Judge Leahy sitting specially. At that time, among other things, he said:
Tagtmeier v. Smith, D.C.E.D.Pa., 167 F.Supp. 292.
‘ Such a judgment is only available when there is no genuine issue of fact presented. Moreover, such there is certainty plaintiff is not entitled to relief under any stated entitled to relief under any stated facts which may be proved in support of such plaintiff's claim. Plaintiff here alleges an oral agreement to pay her not only salary but a percentage of profits. She claims she was dismissed without justification. These present factual issues. Any doubt as to existence of a material fact issue must be decided against the party moving for summary judgment. ‘ Summary judgment is denied. A full trial will better bring out the disputed facts as to plaintiff's employment, its tenure, and what happened between the parties.’ (Emphasis supplied.)
Since that decision, defendant has taken plaintiff's deposition and now renews his request.
Although the introduction of depositions is sometimes proper on a motion for summary judgment, we are of the opinion that in a case where the terms of an oral contract are complex and involved, the matter should be tried in its entirety and not merely upon questions and answers which have been highlighted by defendant's counsel. The pleadings and the inherent nature of this suit make it apparent that genuine and material issues of fact are in controversy. Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A., offers no short cut in this type of case.
For the reasons given, as well as those given by the very learned and able Judge Leahy, this motion must be denied. It is so ordered.