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LEHNIG ET AL. v. FELTON ET AL. (06/24/75)

decided: June 24, 1975.

LEHNIG ET AL., APPELLANTS,
v.
FELTON ET AL.



Appeal from order of Court of Common Pleas of Washington County, May T., 1972, No. 454, in case of Ella Mae Lehnig, Executrix of the Estate of Alfred H. Lehnig, deceased, and Glasgow, Inc. v. Howard Felton, C. E. Karns, Jr., Albert Santucci, Van Harris, Peter Sweady, Bruno Spotti, and Paul Martin.

COUNSEL

John F. Ploeger, with him William D. Phillips, and Truel & Ploeger, for appellants.

Richard J. Mills, with him James A. Mollica, and Meyer, Darragh, Buckler, Bebenek & Eck, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 235 Pa. Super. Page 101]

This case was brought as wrongful death and survival actions in trespass on behalf of Ella Mae Lehnig, Executrix

[ 235 Pa. Super. Page 102]

    of the Estate of Alfred H. Lehnig, deceased. Glasgow, Inc., also instituted suit against the defendants to recover approximately $50,000 worth of damages caused to their equipment as a result of the accident. The lower court granted summary judgment in favor of all defendants and this appeal followed.

There is no dispute between the parties as to the facts. On June 28, 1971, Alfred H. Lehnig was hauling heavy equipment on a tractor-trailer outfit owned by Glasgow, Inc. Lehnig was proceeding west on Interstate Route 70, South Strabane Township, Washington County, Pennsylvania. The vehicle struck a "pot-hole," went through the guard rails, and crashed over an embankment. Lehnig died as a result of injuries sustained in the accident. Appellants brought this suit against the appellees, who are employees of the Commonwealth, personally. The complaint alleged that at the time of the accident, appellee, Howard Felton, was the superintendent of maintenance in Washington County for the Pennsylvania Department of Transportation (PennDOT); that appellee, C. E. Karns, was the principal assistant superintendent of District 120 of PennDOT; that appellee, Albert Santucci was the district maintenance engineer for District 120 of PennDOT; and that appellees, Van Harris, Peter Sweady, Bruno Spotti, and Paul Martin, were foremen for PennDOT. The Commonwealth was not a party to the suit.

Appellants contend that the accident resulted from the negligence of the appellees in failing to properly maintain the highway and in failing to properly warn the decedent of conditions existing on the highway. The appellants allege only ordinary negligence on the part of the employees.

When determining the propriety of the grant of summary judgment, "'the court must take that view of the evidence most favorable to the party against whom the

[ 235 Pa. Super. Page 103]

    motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, thereby placing the burden of proving the absence of any factual issue on the movant.' Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 406 (1967)." Moore v. Zimmerman, 221 Pa. Superior Ct. 359, 360-361, 292 A.2d 458, 459 (1972). Using this standard and ...


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