Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1965, No. 670, in case of Elizabeth Mallesky, Michael Mallesky, her husband, Michael Mallesky et al. v. Ernest A. Stevens and Andrew Hritz, Jr.
Herbert B. Lebovitz, with him Lebovitz & Lebovitz, for appellant.
James F. Manley, with him Burns, Manley & Little, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Roberts.
In the Court of Common Pleas of Allegheny County, Elizabeth Mallesky and Michael Mallesky, her husband (Malleskys), instituted a trespass action against Ernest A. Stevens (Stevens) for personal injuries sustained by Elizabeth Mallesky and property damage inflicted on the Mallesky home, allegedly, as the result of a motor vehicle, owned and operated by Stevens, striking the Mallesky home in the early morning of October 9, 1964. Stevens then filed a complaint to bring upon the record, as an additional defendant, Andrew
Hritz, Jr. (Hritz) who, allegedly, also struck the Mallesky home with his motor vehicle in the early morning of October 9, 1964. Hritz, after taking certain depositions, moved for a summary judgment under Pa. R. C. P. Rule 1035. The court below granted this motion for summary judgment and dismissed Hritz from the proceedings. From the judgment so entered the instant appeal was taken.
Rule 1035, in pertinent part, provides as follows:*fn1 "(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits, if any.
"(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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."
It is Hritz's theory that the Mallesky-Stevens action is based upon a cause of action different from the cause of action in the Stevens-Hritz action. According to the complaint in the Mallesky-Stevens action, at the time and place of the accident the Stevens motor vehicle left the highway and struck the Mallesky home and, according to the complaint in the Stevens-Hritz action, Hritz's motor vehicle left the highway and struck the Mallesky home. The record indicates that, if the Mallesky home was struck by the Stevens motor vehicle, such event took place prior to the striking of the Mallesky home by the Hritz vehicle, if the latter did strike the Mallesky home.
Elizabeth Mallesky was deposed and, in her deposition, stated that she saw the Hritz motor vehicle "came around the turn on Green Springs Avenue, he come down and through the yard, about the same course as the first car did" but she stated that the Hritz motor vehicle did not strike her home. Stevens, although empowered to do so under Rule 1035 (b), supra, did not take any depositions or serve any opposing affidavits. The court below, pursuant ...