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decided: April 22, 1976.


Appeal from order of Court of Common Pleas of Lawrence County, No. 731 of 1972, in case of Judy Just and Lewis Just, her husband v. Sons of Italy Hall.


Joseph D. Talarico, with him Anthony V. DeCello, and DeCello, Bua & Manifesto, for appellants.

William R. Balph, Jr., with him Elmer D. O'Neill, and Chambers, O'Neill, Nicolls, Balph & Paul, for appellee.

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

Author: Jacobs

[ 240 Pa. Super. Page 418]

This is an appeal from the order of the court below granting defendant-appellee's motion for summary judgment on the ground that the plaintiff-appellant, Judy Just, was contributorily negligent as a matter of law. Mindful that a ". . . court 'can declare as a matter of law that a certain state of facts amounts to contributory negligence on the part of a plaintiff only in cases so clear that there is no room for fair and sensible men to differ on their conclusions from the available data.' Cooper v. Heintz Manufacturing Co., 385 Pa. 295, 306; Coulton v. Eyre & Co., 330 Pa. 335, 390." Denver v. Sharpless, 191 Pa. Superior Ct. 554, 558-59, 159 A.2d 7, 10 (1960), we affirm. The pertinent facts follow a review of the controlling legal principles relating to the disposition of a motion for summary judgment.

In Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 285, 247 A.2d 629, 631 (1968), this Court stated: "It is well established that we can sustain a summary judgment 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); Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 236 A.2d 565 (1967). The record must be examined in the light most favorable to the nonmoving party. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968). The court must accept as true all well-pleaded facts in the plaintiff's pleadings, giving the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Id. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Mallesky v. Stevens, 427 Pa. 352, 235 A.2d 154 (1967)." Instantly, only the

[ 240 Pa. Super. Page 419]

    plaintiffs' complaint, the depositions of the plaintiffs, the defendant's motion for summary judgment and the plaintiffs' answer to the motion for summary judgment are of record; the plaintiffs did not oppose the motion for summary judgment with affidavits, additional depositions, or interrogatories of their own which might show a genuine issue of fact. In Pape v. Smith, 227 Pa. Superior Ct. 80, 323 A.2d 856 (1974), a trespass action where the plaintiff did not oppose the defendant's motion for summary judgment with affidavits, depositions, or interrogatories of his own, we stated: "Failing this, unless such issue is present within the defendant's supporting affidavit and depositions, plaintiff is precluded from relying on any allegations in his complaint in an effort to propound the existence of a genuine issue of fact. Pa.R.C.P. 1035(d); Phaff v. Gerner, 451 Pa. 146 (1973)." Id. at 84-85, 323 A.2d at 858.*fn1

Applying the foregoing principles to the instant case the court below correctly required that "the instant summary judgment be wholly supported by the facts appearing in the deposition of the wife-plaintiff and that we ignore the facts alleged in opposition thereto that are set forth only in the plaintiffs' brief."

[ 240 Pa. Super. Page 420]

The facts as developed by the depositions taken of the plaintiffs are as follows: On April 3, 1971, the plaintiffs, residents of Pittsburgh, Pennsylvania, were guests at a wedding reception held at the defendant's hall in Ellwood City which is about fifty miles from Pittsburgh. The wife-plaintiff had not been in the hall before and was unfamiliar with the surroundings. About one hour after their arrival the wife-plaintiff needed to use the restroom facilities. Seeing no signs on the premises indicating the location of the ladies' restroom, the wife-plaintiff asked her niece, a resident of Ellwood City, where the ladies' restroom was located. The niece pointed to a doorway on the other side of the hall from where the plaintiffs were seated and said "through that doorway and to the right." Printed Record at 27a. (the wife-plaintiff testified as to the niece's directions; the niece was deceased at the time of the deposition.)

The following testimony, found in the deposition given by the wife-plaintiff, establishes all the pertinent facts relating to the wife-plaintiff's attempt to find the ladies' restroom. "Q. I wonder then if you would please describe in your own words this trip to the ladies' room? A. Yes. That unfortunate trip. I do not like to think of. O.K. I got up from the table, I walked across the hall. I went into an entrance way. It was quite black,*fn2 there wasn't any lights at all. It was very dark. I bore to my right and went to go into the restroom and I kept on going that is the last thing I remember. It just happened very quickly . . . . Q. You mentioned that you went through an entrance way? A. Yes. Q. Were there doors in the entrance way? A. To open any doors, no, nothing. Q. Do you recall, you do not recall seeing any doors at all? A.

[ 240 Pa. Super. Page 421]

No. I just recall a black hallway that I went into and I have been told that is where the restroom was and as I turned right there is where I went down. . . . Q. You proceeded through this entrance way? A. Yes. Q. And took a right? A. Took a right. Q. And then fell? A. Yes. I went to push, hoping this was a door, then, I pushed because they said to the right and the next thing I knew I was going head first and it was pitch black down there. I could not see at all. . . . Q. You mentioned you went through an entry way and it was pitch black? A. Yes. It was black. Q. And this was your first trip to the ladies' room? A. Yes, sir. Q. Were there any lights at all in this area? A. No, sir. Not at all. Q. Is it fair to call it pitch black? A. Yes, sir . . . . Q. When you started towards the ladies' room, did you see a sign above the entry way indicating ladies' room or ladies? A. No. Q. And you do not recall, as I understand it, the existence of swinging doors at all open or closed? A. No. There was not any open. There was not any swinging doors at all that I saw. It was too black. I could not see if there was. Q. It was pitch black? A. Yes. Q. And you have already indicated you are totally unfamiliar with the place? A. I have never been there before and I wish I'd never gone." (Emphasis added).

As the court below concluded, "[r]eading the entire deposition in the light most favorable to the plaintiffs' side of the case, as we are required to do in a summary judgment proceedings [sic], it is apparent that there is no dispute concerning the following: that there were no doors on the entrance way and that wife-plaintiff encountered no doors prior to falling down the stairs; that she found herself in a hallway in total darkness upon proceeding through the entrance way; that she nevertheless proceeded in confidence relying solely upon the instructions of her niece, and bore to the right; that she fell down the stairs when she: 'went to push, hoping this was a door;' and that she pushed because her niece said through the entrance way and to the right."

[ 240 Pa. Super. Page 422]

The plaintiffs-appellants in their argument generally and in their citation to decisional law have stressed the negligence of defendant. However, the negligence of the defendant is not in issue. The plaintiffs' characterization of the wife-plaintiff as a "business invitee" and their argument relating to the standard of care owed by the defendant to the wife-plaintiff as a consequence of the wife-plaintiff's status as a "business invitee" is of no moment. The focus in this case is solely on the contributory negligence of the wife-plaintiff. The ". . . plaintiff cannot recover if [her] own negligence, ...

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