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AMMERMAN v. LUSH (09/22/75)

decided: September 22, 1975.

AMMERMAN, APPELLANT,
v.
LUSH, ET AL.



Appeal from order of Court of Common Pleas of Tioga County, No. 421 of 1973, in case of Calvin Ammerman v. Frank D. Lush, and Lush Brothers, Inc.

COUNSEL

John Kocsis, and Dowd & Kocsis, for appellant.

John D. Lewis, Robert F. Cox, and Cox, Wilcox, Owlett & Lewis, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Cercone, J. Hoffman, J., joins in this concurring opinion. Dissenting Opinion by Spaeth, J.

Author: Price

[ 236 Pa. Super. Page 232]

This appeal questions the propriety of the entry of a summary judgment in favor of appellees, Frank D. Lush and Lush Brothers, Inc. The case was instituted by appellant, Calvin L. Ammerman, following a collision between his car and that of appellees. As a result of the accident, appellant suffered severe injuries to his throat, larynx, trachea and esophagus as well as to his head and legs. The injuries have prevented appellant from performing any heavy work, and have created damages in excess of $10,000.

Following the close of the pleadings, appellees moved for summary judgment, alleging that there was no genuine issue of material fact, that appellees were entitled to judgment as a matter of law, and that appellant's complaint and deposition contained statements which

[ 236 Pa. Super. Page 233]

    proved him contributorily negligent. The lower court granted the motion. Appellant now takes the position that his complaint is contradicted by evidence, adduced during the deposition, concerning the lane in which the accident occurred. We agree. Where the collision took place is a disputed, material fact in the instant case. Under normal circumstances, a driver may not drive to the left side of the center lane. See The Vehicle Code, Act of April 29, 1959, P.L. 58, § 1004, as amended Act of Dec. 12, 1973, P.L. 393, No. 139, § 1 (75 P.S. § 1004) et seq. Therefore, proof of the location of the accident will be an important element for the jury to consider in assessing the negligence of the parties.

It is settled law in the Commonwealth that one who moves for a summary judgment has the burden of showing that there is no genuine issue as to any material fact. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). The court should accept as true all well pleaded facts and any admissions on file, but should resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Schacter v. Albert, supra. On appeal from a summary judgment, this court must examine the record in a light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Company, 222 Pa. Superior Ct. 261, 295 A.2d 143 (1972).

The following facts are relevant to the instant case: On May 19, 1972, at approximately 8:30 a.m., appellant was driving his car in a westerly direction on Pennsylvania Route 362. At the same time and on the same road, appellee Lush was operating a station wagon owned by Lush Brothers, Inc., in an easterly direction. As he approached an intersection, appellant observed a pickup truck backing out into the westbound lane in which appellant was traveling. So as to avoid a collision, appellant came to a complete stop, then proceeded around the truck at about 5 miles per hour. It is undisputed that the collision occurred while appellant was going around the

[ 236 Pa. Super. Page 234]

    truck. The material fact at issue is in which lane, eastbound or westbound, the collision occurred.

Appellant's complaint contains the following averments:

"10. At the time and place aforesaid, the unidentified vehicle proceeded to back into the westbound lane of traffic of Pennsylvania Route 362 forcing the plaintiff to enter into the eastbound lane of traffic.

11. At the time and place aforesaid, the vehicle operated by the plaintiff came into violent collision with the vehicle operated by the defendant, Frank D. Lush."

If the complaint were the only evidence of where the accident occurred, we would be constrained to agree that appellant negligently crossed the center line and himself precipitated a collision in the eastbound lane of traffic. However, there is testimony by the appellant, taken at a deposition, which contradicts the averments of the complaint. Mr. Ammerman testified as follows:

"Q. In your complaint you have alleged that this truck was on the shoulder of the westbound lane and proceeded to back into the westbound lane of traffic forcing you to enter into the eastbound lane of traffic. Is that correct?

A. It had back-up lights on coming toward me.

I think he was trying to get out of the way of Mr. Lush.

Q. You have also alleged that this truck backed on to the westbound lane and into your lane of traffic.

A. It was in my lane of traffic.

Q. It was in your lane of traffic and this forced you to enter on the eastbound lane?

A. No, I stopped and this man was in the truck and looked out and seen me and I pulled out around him and Mr. Lush came up and pulled around to not hit the truck and hit me.

Q. Where did you see Mr. Lush?

[ 236 Pa. Super. Page 235]

A. Right at the point of impact. Right in front of the truck on the same side of the road and he hit me.

Q. On your side of the road?

A. Yes.

Q. When you alleged in your complaint which you have sworn to that you entered into the eastbound lane of traffic you are now saying it was not true?

A. I did say that.

Q. If this is the complaint you had prepared by your attorney . . . you are now saying you did not enter into the eastbound lane of traffic?

A. No sir, I may have been over the line a little in passing that truck, I could have had two wheels six inches over the line but I was not completely in no left or ...


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