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SAAYBE v. PENN CENT. TRANSP. CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 20, 1977

HAROLD SAAYBE, JR. and BRENDA SAAYBE, h/w
v.
PENN CENTRAL TRANSPORTATION COMPANY: ROBERT W. BLANCHETTE, RICHARD C. BOND, JOHN H. McARTHUR, Trustees of Penn Central Transportation Company v. MINNESOTA MINING AND MANUFACTURING COMPANY

The opinion of the court was delivered by: BECHTLE

MEMORANDUM OPINION

 BECHTLE, J.

 Presently before the Court is a motion of defendants Penn Central Transportation Company ("Penn Central"), Robert W. Blanchette, Richard C. Bond and John H. McArthur, trustees of the property of Penn Central, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Jurisdiction is based upon diversity of citizenship, 28 U.S.C. ยง 1332(a), and the amount in controversy is alleged to exceed $10,000, exclusive of interest and costs. This Memorandum Opinion supports our Order of June 29, 1977, denying in part Penn Central's motion for summary judgment.

 On or about January 29, 1974, plaintiff Harold Saaybe, Jr. ("Saaybe"), was injured when the motor vehicle he was driving in an easterly direction on state highway No. 13 in Bristol, Pennsylvania, collided with a train being operated by Penn Central. In his complaint, *fn1" Saaybe alleges that the collision occurred as a result of the willful, wanton, reckless and intentional conduct of Penn Central. In response to supplemental interrogatories *fn2" propounded by Penn Central, Saaybe stated in effect that, on the basis of his investigation to date, his theory of liability was based upon Penn Central's violation of its duty to make the railroad crossing in question safe when it knew that the view of the railroad crossing was extremely restricted, and also upon Penn Central's violation of Pennsylvania Public Utility Commission ("PPUC") application docket number 80312 and order of March 1, 1954 ("docket 80312"). In his pretrial memorandum, *fn3" Saaybe repeats his allegation that the collision was caused by Penn Central's gross negligence and reckless disregard of Saaybe's rights, in failing to warn Saaybe of the existence of the railroad track and in failing to erect certain warning and protective devices.

 In support of its motion for summary judgment, Penn Central makes the following arguments: (1) that Saaybe's response to Penn Central's supplemental interrogatories and his pretrial memorandum limit him to a theory of liability based upon Penn Central's violation of docket 80312, that docket 80312 does not apply to the crossing in question, and that Penn Central is, therefore, entitled to the entry of summary judgment in its favor as a matter of law; and (2) that, even if Penn Central did violate applicable PPUC regulations or orders, said violations would constitute negligence, which Saaybe did not allege in his complaint, and not willful, wanton, reckless or intentional conduct, and that Penn Central is, therefore, entitled to summary judgment as a matter of law.

  To prevail upon a motion for summary judgment, *fn4" Penn Central must conclusively demonstrate to the Court that there is no genuine issue as to any material fact and that it is entitled to a judgment in its favor as a matter of law. Barron v. Honeywell, Inc., Micro Switch Div., 69 F.R.D. 390, 391 (E.D.Pa. 1975). In ruling upon a motion for summary judgment, the Court must liberally construe the pleadings in favor of the party opposing the motion, and give the opposing party the benefit of all reasonable doubts and inferences in determining whether a genuine issue exists in fact which should be preserved for trial. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 n. 15, 158-159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Barron v. Honeywell, Inc., Micro Switch Div., supra, 69 F.R.D. at 391-392. The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue as to any material fact. Adickes v. S. H. Kress & Co., supra, 398 U.S. at 159-160; Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974). Until the movant has met this burden, his opponent is under no obligation to present any contradictory evidence to the court. Adickes v. S. H. Kress & Co., supra, 398 U.S. at 159-161; Gray v. Greyhound Lines, East, 178 U.S. App. D.C. 91, 545 F.2d 169, 174 (D.C.Cir. 1976). Once the proponent has met his burden of showing that no material issue of fact exists, the opponent may not rest upon the mere allegations of his pleadings but must set forth countervailing evidence, by a Fed.R.Civ.P. 56(e) affidavit, or otherwise, which demonstrates that there is a genuine issue for trial. Adickes v. S. H. Kress & Co., supra, 398 U.S. at 160 n.22; Gray v. Greyhound Lines, East, supra, 545 F.2d at 174.

 Applying the above standard to Penn Central's first argument, and after careful consideration of the pleadings, exhibits and affidavits submitted in support thereof, we hold that: (1) docket number 80312 does not apply to the railroad crossing in question; (2) PPUC application docket 61441 ("docket 61441") does apply to the railroad crossing in question; and (3) Saaybe has not limited himself to a theory of liability based solely upon Penn Central's violation of docket 80312.

 Penn Central attached to its motion, inter alia, copies of docket 61441 (see Exhibit "B"), docket 80312 (see Exhibit "G"), and the affidavit of Stafford C. Walker (see Exhibit "H") which states that docket 61441, and not docket 80312, applies to the crossing in question. Saaybe has filed no evidence or documentation which disputes this factual assertion. On the basis of the uncontested documents submitted by Penn Central in support of its motion, we find that Penn Central has met its burden of conclusively demonstrating the fact that docket 61441, and not docket 80312, applies to the railroad crossing in question. Partial summary judgment in favor of Penn Central on the issue of the applicable PPUC docket will, therefore, be granted.

 However, we decline to hold that by his qualified response to supplemental interrogatories numbered 25 and 40, or his pretrial memorandum, Saaybe has limited himself to a theory of liability based solely upon Penn Central's violation of docket 80312. Saaybe's complaint *fn5" states three separate causes of action against Penn Central. The complaint does not enumerate the PPUC docket number upon which his causes of action against Penn Central are based. Saaybe's qualified response to a supplemental interrogatory does not abrogate the well-pleaded allegations of his complaint. Because we find that Saaybe is not limited to a theory of liability against Penn Central based solely upon a violation of docket 80312, we find that Penn Central is not entitled to a judgment in its favor as a matter of law.

  Finally, we hold that Penn Central's argument that an alleged violation of docket 61441, which applies to the crossing in question, would amount to negligence and not to willful, wanton, reckless or intentional conduct is without merit. The conduct of Penn Central which resulted in this accident could be found by a jury to constitute willful, wanton, reckless or intentional conduct *fn6" and is a material issue of fact in this case. The evidence presented by Penn Central in support of its motion does not conclusively demonstrate that there is no material issue of fact as to whether the railroad's conduct was intentional, *fn7" or whether its conduct was willful, wanton or reckless under the circumstances of this case. *fn8" Since Penn Central has not carried its burden of proving conclusively that no material issue of fact exists, Saaybe is under no duty to present countervailing evidence. Having found that this issue presents a material issue of fact which must be preserved for the jury, Briach v. Pennsylvania R.R., 462 F.2d 266, 268 (3d Cir. 1972); Fugagli v. Camasi, supra, 229 A.2d at 736, we will, accordingly, deny Penn Central's motion for summary judgment.

 Appropriate Orders will be entered.

 ORDER

 AND NOW, TO WIT, this 20th day of July, 1977, IT IS ORDERED that Penn Central Transportation Company's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the issue of the applicable Pennsylvania Public Utility Commission ("PPUC") application docket to the railroad crossing in question is granted. The Court holds that PPUC application docket 61441 applies to the railroad crossing in question, and that PPUCc application docket 80312 and order of March 1, 1954, do not apply to the railroad crossing in question.

 LOUIS C. BECHTLE, J.


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