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KENT v. MILLER (09/19/72)

decided: September 19, 1972.

KENT
v.
MILLER, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1971, No. 1246, in case of Gustave Kent and Linda Kent v. Abner Miller.

COUNSEL

James J. McCabe, Jr., with him David C. Toomey, and Duane, Morris & Heckscher, for appellant.

John F. Naulty, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.

Author: Cercone

[ 222 Pa. Super. Page 391]

This is an appeal from a summary judgment granted in favor of plaintiffs-appellees under Rule 1035 of the Pennsylvania Rules of Civil Procedure*fn1 by the Court of Common Pleas of Philadelphia.

The plaintiffs filed an action in trespass for recovery of damages for physical injuries sustained by plaintiff-wife arising out of an automobile accident which occurred on the New Jersey Turnpike on the afternoon of June 28, 1970. At the time of the accident the plaintiff-wife was a passenger in an automobile driven by the defendant. Defendant's automobile was proceeding in a southerly direction on the turnpike when it suddenly veered onto the paved shoulder of the highway and struck a police car that was parked on the shoulder. The operator of the police car had

[ 222 Pa. Super. Page 392]

    stopped his vehicle on the shoulder of the road to render assistance to a brother police officer who in another police car had stopped a speeding motorist. The paved shoulder of the road where the accident occurred was twelve feet wide. The police car of the arresting officer and the speeding motorist's vehicle were both parked off the shoulder and on the grass berm of the road. There is some dispute as to whether the flashers on the police vehicle which was struck were on, plaintiffs alleging that the flashers were on, and defendant contending that they were not.

There was no readily apparent explanation for defendant's vehicle leaving the main surface of the roadway and striking the police vehicle. The accident occurred during daylight hours and the weather conditions were favorable. Defendant, in his deposition, testified that there was a lot of play in the steering wheel causing his vehicle to veer to the right and onto the shoulder of the roadway.

After depositions were taken from the two police officers present at the scene of the accident, a third police officer who investigated the accident, and the defendant, the plaintiffs moved for summary judgment. Defendant's request for oral argument was denied and the court granted plaintiffs' motion for summary judgment. Defendant appeals.

Summary judgment is to be rendered only 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." Pa. R. C. P. 1035(b). The burden of proof that there is no genuine issue of material fact and that one is entitled to judgment as a matter of law ...


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