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MICHAEL N. JOHNSON v. GLENN SAND AND GRAVEL (12/17/82)

filed: December 17, 1982.

MICHAEL N. JOHNSON, APPELLANT,
v.
GLENN SAND AND GRAVEL, AND WALTER W. SIMPSON



No. 478 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Jefferson County at No. 420 of 1979.

COUNSEL

Kent S. Pope, Clarion, for appellant.

John R. Gavin, Oil City and Dennis St. J. Mulvihill, Pittsburgh, for appellees.

Montgomery, Hoffman and Van der Voort, JJ. Hoffman, J., files a dissenting opinion.

Author: Montgomery

[ 308 Pa. Super. Page 24]

On July 4, 1978, plaintiff-appellant was severely injured in a collision between his motorcycle and a pickup truck owned by defendant-appellee Glenn Sand and Gravel, and operated by defendant-appellee Walter Simpson, an employee of Glenn Sand and Gravel. Appellant filed a complaint in trespass against both Simpson and Glenn Sand and Gravel. The complaint alleged negligence on the part of Simpson in the operation of the truck. It also alleged that Simpson was the "agent, servant and employee" of Glenn Sand and Gravel which was, therefore, liable for the injuries sustained by appellant. The answer filed by Glenn Sand and Gravel denied that Simpson was their "agent, servant and employee." Simpson failed to file an answer and a default judgment was entered against him. Simpson thereafter moved to open the default judgment, which motion was granted by the lower court. The pleadings completed and the depositions of appellant Johnson and appellee Simpson taken, Glenn Sand and Gravel filed a motion for summary judgment supported by an affidavit. Following the granting of that motion, appellant Johnson filed this appeal.

Appellant alleges that the facts gave rise to a presumption of an agency relationship, which issue should have been submitted to a jury. He, therefore, claims that the order granting summary judgment was in error. In order to determine the validity of appellant's claim, we will list the uncontroverted facts relating to the issue of agency as they were at the time the motion for summary judgment was granted.

The deposition taken of appellee Walter Simpson evinced the following:

[ 308 Pa. Super. Page 25]

(1) The truck involved in the accident was owned by Glenn Sand and Gravel;

(2) Simpson was and is an employee of Glenn Sand and Gravel;

(3) Simpson drove the truck on business for Glenn Sand and Gravel on ...


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