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ELOINA JUARBE AND ELOINA JUARBE v. CITY PHILADELPHIA AND DUKE DAVIS (07/02/81)

filed: July 2, 1981.

ELOINA JUARBE AND ELOINA JUARBE, ADMINISTRATRIX OF THE ESTATE OF MIGUEL ANGEL JUARBE, APPELLANT,
v.
CITY OF PHILADELPHIA AND DUKE DAVIS, IND. & T/A DUKE'S EXXON, EXXON COMPANY



No. 1933 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, at No. 3371 April Term, 1975

COUNSEL

R. Elliott Toll, Philadelphia, for appellant.

Stephen H. Skale, Philadelphia, did not file a brief on behalf of City of Philadelphia, appellee.

Edward F. Chacker, Philadelphia, did not file a brief on behalf of Davis, appellee.

John M. Phelan, Philadelphia, for Exxon Co., appellee.

Brosky, Watkins and Montgomery, JJ.

Author: Montgomery

[ 288 Pa. Super. Page 333]

This appeal arises from the lower court's Order granting a Motion for Summary Judgment filed by the Defendant-Appellee, Exxon Company (hereinafter referred to as "Exxon"). The action arose in the lower court as a result of an incident which allegedly took place on March 29, 1974, when the Plaintiff-Appellant, Eloina Juarbe, slipped and fell on an accumulation of petroleum products present on the sidewalk of an Exxon station operated by one William Davis. Mrs. Juarbe, who was pregnant at the time, claimed that as a result of the fall she prematurely gave birth to a child, who subsequently died as a result of causes associated with his premature birth.

The procedural history of the case shows that the Appellant filed this action individually and as administratrix of the estate of her deceased child. Her Complaint in trespass named Exxon, the City of Philadelphia, and Davis, both individually and trading as Duke's Exxon, as defendants. Each of the defendants filed Answers to the Complaint denying liability to the Appellant. Extensive pre-trial discovery took place, including interrogatories, request for documents and admissions, and the appropriate responses thereto. In addition, depositions were taken and affidavits were submitted by the parties. After the Appellant filed a certificate with the court indicating that the case was ready for

[ 288 Pa. Super. Page 334]

    trial, Exxon filed its Motion for Summary Judgment. After considering oral argument and the available evidence, the lower court granted Exxon's Motion.

On this appeal, the Appellant contends that it was error for the lower court to find that there was no basis for possible liability on the part of Exxon in connection with the negligent acts alleged by Appellant in her Complaint. Appellant offers three basic arguments, which were also presented to the lower court. First, she argues that at the time of the incident in issue, Davis was a servant of Exxon, and therefore Exxon was liable for his torts under the theory of respondeat superior. Second, the Appellant contends that Exxon had constructive notice of the defect which allegedly caused the harm which is the subject of the suit, and was itself negligent in not correcting the defect. Finally, the Appellant claims that Exxon should not have been dismissed from the action because it held Davis out as its agent and cloaked him with apparent authority to act on its behalf, thereby making it liable for his negligent acts.

In our review of this appeal from the grant of summary judgment, our judicial role has been clearly defined. It was well-stated by Judge Jacobs in Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Super. 341, 350, 361 A.2d 676, 680 (1976):

[ 288 Pa. Super. Page 335]

"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. The record must be examined in the light most favorable to the nonmoving party. 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. Finally, a summary judgment should be granted only when the case is clear and free from doubt. Moreover, in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact Page 335} but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment." (emphasis in original; citations omitted)

See also Pennsylvania Rule of Civil Procedure 1035, 42 Pa.C.S.A., on the subject of summary judgments.

With those concepts in mind, we must also recognize other legal principles applicable to the Appellant's initial contention which is that Exxon should be held liable for torts committed by William Davis under the theory of respondeat superior, on the premise that Davis was allegedly the servant of Exxon. While the Appellant describes Davis as both an agent and a servant in its argument, it is proper to recognize the legal distinction between those terms. A principal and agent can be in the relationship of a master and servant, or simply in the status of two independent contractors. See Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Turley v. Kotter, 263 Pa. Super. 523, 398 A.2d 699 (1979). If a particular agent is not a servant, the principal is not considered a master who may be held vicariously liable for the negligent acts of the agent. Smalich v. Westfall, supra; Turley v. Kotter, supra. A servant is an agent whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master; that is, a master controls not only the results of the work, but the manner in which the work is to be performed. Smalich v. Westfall, supra; Turley v. Kotter, supra. If the facts as to the relationship are in dispute, a jury question is presented as to the nature of the relationship between the parties. Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299, 300-301 (1950). If the facts are not in dispute, the question of the relationship between the parties is one which is properly determined by the court. Feller v. New Amsterdam Casualty Co., Id. It is evident that in order to resolve the question of whether the lower court was correct in granting summary judgment on the issue of the Appellant's contention that Exxon had potential liability

[ 288 Pa. Super. Page 336]

    under the theory of respondeat superior, we must review all facts available to the lower court, with all reasonable inferences to be drawn therefrom, in a light most favorable to the Appellant. If the available facts create any dispute as to the exact nature of the relationship ...


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