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KATHRYN L. MIGYANKO v. EDWARD F. THISTLETHWAITE HARRY LITTEN GERALDINE LITTEN AND JACK LITTEN (01/18/80)

filed: January 18, 1980.

KATHRYN L. MIGYANKO, EXECUTRIX OF THE ESTATE OF PHILLIP ALEXANDER MIGYANKO, DECEASED, ON BEHALF OF THE NEXT OF KIN OF PHILLIP ALEXANDER MIGYANKO, DECEASED; AND KATHRYN L. MIGYANKO, EXECUTRIX OF THE ESTATE OF PHILLIP ALEXANDER MIGYANKO, DECEASED, ON BEHALF OF THE ESTATE OF PHILLIP ALEXANDER MIGYANKO, DECEASED, AND KATHRYN L. MIGYANKO, INDIVIDUALLY, AND AS PARENT AND NATURAL GUARDIAN OF STEVEN C. MIGYANKO AND RONALD J. MIGYANKO, MINORS, APPELLANTS,
v.
EDWARD F. THISTLETHWAITE; HARRY LITTEN; GERALDINE LITTEN AND JACK LITTEN, INDIVIDUALLY AND D/B/A LITTEN SERVICE STATION; CENTER INDEPENDENT OIL COMPANY; AND THE BOROUGH OF JEFFERSON, AND MARTIN A. NIVERTH AND NELLIE NIVERTH, INDIVIDUALLY AND D/B/A STONEY POINT INN; AND HAROLD MITCHELL



COUNSEL

William D. Phillips, Washington, for appellants.

Joseph M. George, Uniontown, for Center Independent Oil Co., appellee.

William M. Radcliffe, Uniontown, did not file a brief on behalf of Edward F. Thistlethwaite, appellee.

Philip T. Warman, Uniontown, did not file a brief on behalf of the Borough of Jefferson, appellee.

Price, Hester and Montgomery, JJ. Hester, J., files a dissenting statement.

Author: Price

[ 275 Pa. Super. Page 502]

The instant appeal is from the order of the trial court granting the summary judgment motion of Center Independent Oil Company (Center), the sole appellee. For the reasons stated herein, we reverse the order of the trial court.

The facts pertinent to Center's motion for summary judgment arose out of an incident on February 21, 1977, in which appellant's decedent, Phillip Alexander Migyanko, was struck and killed by a vehicle driven by defendant, Edward F. Thistlethwaite. The decedent and his wife, appellant, were operating separate vehicles in the Borough of Jefferson in Greene County. While traveling through Jefferson along Route 188, the Migyankos decided to purchase gasoline at the Litten Service Station. The station consisted of two small buildings. The three pumps, in the fashion of bygone days, are located directly at the curb along Route 188. Although the deposition testimony is unclear, it appears from photographs entered into evidence that Route 188 is a four-lane undivided roadway, the two center lanes being utilized for travel with a single parking lane on either side. Vehicles utilizing the pumps at the Litten station received service by stopping at the curb in the parking lane on the west-bound side of the roadway.

At or about 8:45 p. m. on the evening of February 21, 1977, the decedent pulled his vehicle up to the unleaded gasoline pump at the Litten station. After filling his tank, he drove his vehicle several feet further up the street and parked it along the curb. He exited his vehicle and walked back along the curb to the unleaded pump where appellant had parked her vehicle and was in the process of receiving gasoline from an employee of the station. The gasoline tank on appellant's vehicle was in the rear, on the driver's side, thus requiring the attendant to stand in the parking lane near the west-bound lane of travel of Route 188. The decedent was also in the rear at the driver's side of the vehicle, conversing with the attendant. While so engaged, the decedent and the attendant were struck by defendant Thistlethwaite's vehicle, which had been traveling on the

[ 275 Pa. Super. Page 503]

    opposite side of Route 188 in an easterly direction. Thistlethwaite had apparently been drinking, lost control of his vehicle, and crossed the center line of the roadway over into the west-bound lane and into the adjoining parking lane. Decedent was killed by the impact of the collision, and the attendant was severely injured.

Appellant brought suit against appellee and various other parties for, inter alia, the wrongful death of her husband. In her complaint against appellee, appellant alleged three theories of negligence: (1) that appellee was vicariously responsible for the negligent acts of the Littens; (2) that appellee was solely liable for supplying the Littens with defective gasoline pumps; and (3) that appellee was solely responsible for "maintaining" the gasoline pumps in a dangerous manner. The trial court entered summary judgment on the basis of the first two theories, but did not address the applicability of the third. Appellant appeals from the summary judgment and alleges that the deposition evidence was sufficient to raise a triable issue regarding appellee's liability for "maintaining" the pumps at the Litten station. To understand the legitimacy of appellant's contention, it is necessary to expand upon the relationship between appellee and the Littens.

In or about November of 1960, Harry Litten purchased the gasoline station in question and on November 15, 1960, entered into an agreement with appellee to lease two gasoline pumps and other items of equipment generally associated with the maintenance of a service station. The testimony did not establish whether the pumps were installed by appellee at that time, or whether they had been installed for the benefit of the previous owner of the station. Total consideration for the lease was $1.00 and it provided that "[t]he said equipment shall at all times be and remain the property of [appellee]." Although the lease further provided that Harry Litten would maintain and repair the pumps ...


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