concurring.
I would frame the issue differently than does the majority. I would state the question to be whether the filing of exceptions, coupled with the interrogatory responses in this case, permit the defendants to insist upon a trial by jury as to damages. The property owners concede that despite the filing of exceptions, if discovery discloses that there is no disagreement as to the values contained in the appraisers’ report, summary judgment might be appropriate. Appellees’ Brief at 7. They do not claim, as held by the majority, that eminent domain cases are wholly immune from summary judgment proceedings merely because exceptions have been filed and not withdrawn. In any event, in my view, summary judgment may or may not be appropriate, depending upon the circumstances.
I do agree with the majority with respect to the burden placed upon the party moving for summary judgment. The mere assertion that there is no genuine issue of fact plus the absence of a clear cut factual dispute does not demonstrate that the moving party is entitled to summary judgment. That scenario does not place upon the non-moving party the burden to demonstrate a genuine issue. If the moving party has not by more than mere assertion shown that there is no issue, the non-moving party has no evidentiary burden in order to defeat a summary judgment. Here, the interrogatory responses reflected that the issue was still in formation. The Town therefore failed to pass the first hurdle in the summary judgment process.
For this reason, I concur.