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MICHAEL AMABILE AND ROSE AMABILE v. AUTO KLEEN CAR WASH (06/29/77)

decided: June 29, 1977.

MICHAEL AMABILE AND ROSE AMABILE, APPELLANTS,
v.
AUTO KLEEN CAR WASH, EDWIN B. MCCOY, EDWARD M. KAPLAN AND ANN KAPLAN, ERWIN ADLER AND BELLE ADLER, J. D. CATHCART, DEFENDANTS, AND GENERAL MOTORS CORP. AND SHIRLEY JANE MESSICK, ADDITIONAL DEFENDANTS



Appeal from the Order of the Court of Common Pleas, Trial Division, Law, Philadelphia County, No. 2435 of February Term, 1973.

COUNSEL

Wilbur Greenberg, Philadelphia, for appellants at No. 1448.

Mark D. Seltzer, Philadelphia, for appellants at No. 682.

Leonard S. Lipson, Philadelphia, for appellees at No. 1448.

Joel Feldscher, Philadelphia, for appellees at No. 682.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Price, J., concur in the result. Van der Voort, J., dissents.

Author: Cercone

[ 249 Pa. Super. Page 243]

Appellants, Michael and Rose Amabile, appeal from orders granting summary judgment in favor of defendant-appellees. Appellants contend that the court below erred in granting the motions for summary judgment under Rule 1035 of the Pennsylvania Rules of Civil Procedure*fn1 because material issues of fact clearly existed on the record.

On March 10, 1971, plaintiff-appellant, Michael Amabile had his car washed at the Auto Kleen Car Wash in Philadelphia, and then parked it in the vacuum area, provided by appellee, Auto Kleen, for the use of its patrons. As he was leaning over the trunk drying his back window and rear section of his car, he was struck by another automobile driven by Shirley Jane Messick, an additional defendant, causing injuries which form the damages in the instant action. Immediately preceding the accident Ms. Messick had also driven her automobile through the car wash.

On June 25, 1971 the Amabiles filed suit only against Ms. Messick; but, on February 20, 1973, appellants filed a second action against appellees which forms the basis of the instant appeal. The defendants in this action, now the appellees, are Auto Kleen Car Wash; Edwin B. McCoy, owner and operator of Auto Kleen Car Wash; Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, owners of real estate on which the car wash was built; and J. D. Cathcart, designer of Auto Kleen Car Wash and the vendor of equipment installed therein. In their complaint, appellants pleaded causes of action in assumpsit, trespass and strict liability in tort against appellee-McCoy trading as Auto Kleen while the other appellees, Edward M. Kaplan, Ann Kaplan, Erwin

[ 249 Pa. Super. Page 244]

Adler, Belle Adler, and J. D. Cathcart were sued in trespass only.

Appellants' complaint alleged the above facts and further alleged that appellee-Auto Kleen failed to provide appellant with a safe place to wash his motor vehicle, exposed appellant to danger about which it knew or should have known, failed to take adequate precautions for appellant's safety, and misrepresented the safety and effectiveness of its establishment. As to appellees Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, appellant alleged that these appellees, as the owners of the real estate on which the car wash was built, knew or should have known that the operation and construction of the car wash was hazardous to patrons, so that they permitted the car wash to be designed, constructed and operated in a careless manner without due care to the safety of appellant. As to appellee, J. D. Cathcart, appellant alleged that, as the designer of Auto Kleen Car Wash and the vendor of equipment installed therein, Cathcart knew or should have known that the design and operation of the car wash was hazardous to patrons. Appellees filed answers denying all material allegations in the complaint.

I.

At the close of the pleadings, pursuant to Pa.R.C.P. 1035, Auto Kleen, its owner, and the owners of the real estate on which it is located, moved for summary judgment and supported the motion with depositions of Shirley Jane Messick, Edwin B. McCoy, the owner and operator of Auto Kleen Car Wash, and police officer Joseph Lemerise.*fn2 Appellants filed an answer to the motion but did not support their answer by either affidavit or deposition. On ...


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