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BENJAMIN F. HARVEY AND KATHLEEN HARVEY v. ELMER F. HANSEN (05/14/82)

filed: May 14, 1982.

BENJAMIN F. HARVEY AND KATHLEEN HARVEY, HIS WIFE, APPELLANTS,
v.
ELMER F. HANSEN, JR., BARBARA AIKENS, CHARLES AIKENS, BUCKS COUNTY AND NEW BRITAIN TOWNSHIP



No. 1416 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action - Law Division, Bucks County, at No. 77-1225-09-2.

COUNSEL

Alan D. Williams, Doylestown, for appellants.

Gordon Erdenberger, Doylestown, for Hansen and Bucks County, appellees.

Glenn David Hains, Morrisville, for Aikens, appellees.

Henry F. Huhn, Cornwells Heights, for New Britain Tp., appellee.

Spaeth, Cavanaugh and Montemuro, JJ. Cavanaugh, J., files a concurring statement.

Author: Montemuro

[ 299 Pa. Super. Page 476]

On February 1, 1975, Kathleen Harvey, appellant, was driving her automobile in a southerly direction on Upper State Road. Defendant/appellee, Barbara Aikens, was driving her automobile in an easterly direction on County Line Road. The two vehicles collided at the intersection of Upper

[ 299 Pa. Super. Page 477]

State Road and County Line Road, and as a consequence, the appellant sustained serious personal injuries.*fn1 The defendant/appellee, Elmer F. Hansen, Jr., was the owner of a tract of land located at the northwest corner of this intersection. In count 2 of her complaint, appellant alleged that defendant-appellee Hansen (hereinafter Hansen) was negligent because he maintained his property "in such a manner as to allow to exist thereon trees, bushes, shrubs, grasses and other plant growth" which obstructed the lateral view of appellant as she attempted to cross County Line Road. Additionally, appellant alleges that Hansen was negligent in failing to remove the obstructions to eastbound traffic on County Line Road and in failing to warn motorists of the hazardous condition created by the existence of the obstructions.*fn2

After the pleadings were closed, Hansen filed a motion for summary judgment pursuant to Pa.R.C.P. 1035*fn3 on the theory that there was no genuine issue as to any material fact with regard to appellant's claim against him and therefore Hansen was entitled to judgment as a matter of law. On April 22, 1981 the lower court made a finding that no issue of material fact existed and that Hansen would prevail as a matter of law. The court granted Hansen's motion for

[ 299 Pa. Super. Page 478]

    summary judgment and this appeal followed. We agree with appellant that this was error.

In Yaindl v. Ingersoll-Rand Co. Etc., 281 Pa. Super. 560, 565, 422 A.2d 611, 613 (1981) our court again set forth the well-established principles to be applied in deciding whether to grant a motion for summary judgment.

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 (Filed June 29, 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).

The lower court, relying primarily on Haldeman v. Mercer, 30 D. & C.2d 435 (1963), granted Hansen's motion for summary judgment on the theory that an owner of land owes no duty to persons not on his property, and specifically the appellant herein, to prevent visual obstruction caused by natural conditions on his land.*fn4 Slip op. at 2. The court also

[ 299 Pa. Super. Page 479]

    distinguished Section 363(2), Restatement (Second) of Torts and ...


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