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EDITH M. LEGRAND v. LINCOLN LINES (04/13/78)

decided: April 13, 1978.

EDITH M. LEGRAND, APPELLANT,
v.
LINCOLN LINES, INC.



No. 169 April Term, 1977 No. 170 April Term, 1977, Appeals from the Orders entered September 30, 1976 and October 18, 1976, of the Court of Common Pleas of Butler County, Civil Division - Law, at C.P. No. 76-1505, Book 175, Page 49, A.D. No. 75-1114, Book 106, Page 193, and C.P. No. 76-1414, Book 175, Page 19, A.D. No. 75-1114, Book 106, Page 193.

COUNSEL

Norman D. Jaffe, Butler, Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, Butler, for appellant.

William C. Robinson, Butler, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 253 Pa. Super. Page 21]

Appellant contends that the lower court erred in granting appellee's motion for summary judgment because appellant presented material issues of fact for the jury. We agree and, therefore, reverse the order of the lower court.

On November 22, 1975, appellant filed a complaint in trespass in the Court of Common Pleas of Butler County which alleged the following facts: On March 3, 1975, appellant, a woman about seventy years old, wearing a patch over one eye and carrying a purse and suitcase, boarded appellee's bus in Glenshaw, Pennsylvania. The bus was en route to Butler, Pennsylvania, approximately thirty miles from Glenshaw. Appellant alleged that after boarding the bus, she showed the driver her Medicare and Social Security cards. The driver, without looking at the cards, immediately started the bus moving forward with a "jerk" before appellant was either seated or supported. Appellant maintains that the forward movement of the bus threw her backwards and caused injuries to her back and legs. On December 15, 1975, appellee filed an answer denying negligence.

In depositions, appellant's granddaughter, who helped appellant board the bus, and her thirteen year old great-granddaughter, who observed the events, stated that the bus

[ 253 Pa. Super. Page 22]

"lurched" forward before appellant was seated or supported. Appellee's bus driver stated in a deposition that it was neither his nor the company's procedure to wait until passengers were seated before starting the bus. Appellee filed a motion for summary judgment which the lower court granted on September 30, 1976. The lower court based its grant of summary judgment on its conclusion that, as a matter of law, appellee's bus driver did not breach the duty of care owed to appellant. This appeal followed.

The law on summary judgment is well-settled. "Summary judgment is made available by Pa.R.C.P. 1035, 12 P.S.Appendix when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment." (Citations omitted). Husak v. Berkel, Inc., 234 Pa. Super. 452, 458, 341 A.2d 174, 177 (1975). See also Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977); Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). The moving party bears the burden of demonstrating clearly that there is no genuine issue of material fact. Prince v. Pavoni, 225 Pa. Super. 286, 302 A.2d 452 (1973); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968).

Appellant contends that a material issue of fact existed in the instant case: did appellee's employee violate the duty of care owed to appellant by setting the bus in motion before appellant was seated or supported. In order to determine the merit of appellant's contention, we must examine ...


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