Appeals — Final or interlocutory order — Order refusing motion for summary judgment — Pa. R.C.P. 1035 — Issues raised as to material facts.
In this case, the issue as framed by the pleadings in the court below was whether an insurer may reduce its liability under the uninsured motorist provision of its contract of insurance by payments made or to be made under the medical payments provision of the same contract of insurance. Plaintiff moved for summary judgment pursuant to Pa. R.C.P. 1035. After hearing, the lower court concluded that the policy provision in question led to conflicting inferences of fact and, finding genuine issues raised as to material facts and concluding that these issues should be placed before the trier of fact to determine the intention of the parties, denied the motion for summary judgment.
It was Held on appeal by plaintiff that the trial court's ruling denying his motion for summary judgment was not either in form or in effect a final judgment from which an appeal would lie. The appeal was quashed and the case remanded.
JACOBS, J., would affirm.
Argued September 21, 1971.
OPINION BY HOFFMAN, J., November 11, 1971:
This is an appeal from the order of the lower court denying plaintiff's motion for summary judgment brought pursuant to Rule 1035 of the Pennsylvania Rules of Civil Procedure.
The issue as framed by the pleadings in the court below was whether an insurer may reduce its liability under the uninsured motorist provision of its contract of insurance by payments made or to be made under the medical payments provision of the same contract of insurance.
After hearing, the lower court concluded that "the aforementioned policy provision leads to conflicting inferences of fact. If the interpretation of an agreement may depend upon the intention of the parties, or if conflicting inferences of fact are permissible, there are genuine issues of fact and summary judgment cannot be entered, Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). Reading the entire record in the light most favorable to the non-moving party, we find genuine issues raised as to material facts and conclude that these issues should be placed before the trier of fact to determine the intention of the parties."
Accordingly, the trial court's ruling denying plaintiff's motion for summary judgment was not either in form or in effect a final judgment from which an appeal would lie. See Epstein v. Kramer, 374 Pa. 112, 96 A.2d 912 (1953).
This appeal is quashed and the case is remanded to the trial court.
JACOBS, J., would affirm.