No. 2199 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 77-18406
James Wormer, Philadelphia, for appellants.
Sean James J. O'Callaghan, Philadelphia, for appellees.
Wieand, McEwen and Popovich, JJ.
[ 308 Pa. Super. Page 181]
Michael Breslin, a minor pedestrian, was struck by a vehicle owned by Robert Ridarelli and operated by his wife, Camille Ridarelli, in Wildwood, New Jersey. The owner was not present in the car at the time of the accident. An action for the minor's injuries was commenced against Camille Ridarelli and also against Robert Ridarelli. The trial court entered summary judgment in favor of the owner, Robert Ridarelli; and the minor, by his father and natural guardian, appealed. We affirm.
Paragraph four of appellants' complaint averred that Michael Breslin sustained injuries as a result of "the carelessness, recklessness and negligence of defendant, Camille Ridarelli, as the agent or servant of defendant, Robert Ridarelli . . . ." Appellees' answer to the complaint specifically denied that Camille Ridarelli was the agent or servant of Robert Ridarelli at any time relevant to the instant action and averred that she was acting on her own behalf at the time of the accident.
Extensive discovery proceedings disclosed no factual support for the averment that Camille Ridarelli had been acting as either the agent or servant of her husband when the accident occurred. Therefore, Robert Ridarelli served upon appellants a supplemental interrogatory asking for the facts upon which the complaints' averment of such relationship was based. After objections had been dismissed by the court, appellants answered:
[ 308 Pa. Super. Page 182]
"The defendant, Camille Ridarelli, was coming from Philadelphia to Wildwood to rejoin her husband with her daughter. Her coming to Wildwood was a family benefit as well as a benefit to her husband. She was driving her husband's car at the time of the accident and was going to meet him. We were informed that she was bringing various items of her husband's clothing with her as well as various items for the house in Wildwood."
Thereafter, a motion for summary judgment was filed on behalf of the owner. A decision was deferred by the court, which, on July 9, 1980, directed appellants to file one or more affidavits setting forth the facts relied upon to support the averment that an agency or master-servant relationship existed at the time of the accident. In response to this order, Charles Breslin, the minor's father, stated under oath that on the day of the accident and on the day following the accident he had spoken by telephone with Camille Ridarelli, who told him "that she was driving her husband's car; that she was coming from Philadelphia to meet him; that she was bringing him clothing and other personal items; and that she was bringing other items for the family house in Wildwood." On September 16, 1980, the court denied the motion for summary judgment but "without prejudice to [appellee] to reapply for summary judgment following the taking of a deposition of the plaintiff, Charles Breslin."*fn1
Depositions of Charles Breslin were scheduled for November 26, 1981; Breslin's counsel, however, sought to prevent the depositions by protective order. His motion for protective order was denied on January 21, 1981, and the trial court ordered Breslin to appear for depositions within sixty (60) days. The order ...