No. 10 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 81-18427
Michael J. Seymour, Pittsburgh, for appellant.
Richard L. Rosenzweig, Pittsburgh, for Haus, appellees.
Elmer G. Klaber, Pittsburgh, for Thomas, appellees.
Brosky, Johnson and Montgomery, JJ. Brosky, J., filed a concurring opinion.
[ 313 Pa. Super. Page 481]
The instant appeal by the Plaintiff-Appellant arises following the lower court's granting of a motion for summary judgment which was filed by the Defendant-Appellees Robert S.S. Haus, Sr., his wife Mary R. Haus, and A.H. Casey.*fn1 The Appellant contends that the lower court erred in granting summary judgment, because the record allegedly established the existence of material facts which precluded the entry of such a judgment. Moreover, the Appellant maintains the record was devoid of facts entitling the Appellees to summary judgment as a matter of law.
Our review in this case must be conducted in light of Pennsylvania Rule of Civil Procedure 1035, which governs summary judgments. It provides, in pertinent parts:
(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered 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. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.
In Schacter v. Albert, 212 Pa. Super. 58, 61-2, 239 A.2d 841, 843 (1968), this Court thoroughly explained the proper
[ 313 Pa. Super. Page 482]
approach to be taken with regard to a request for summary judgment:
"The language of Rule 1035, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of Rule 1035 can be aided by reference to the cases decided under the Federal rule, which establish the following criteria. On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record . . . One who moves for summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact . . . The Court must consider both the record actually presented and the record potentially possible at the time of trial . . . . A hearing on a motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact . . . The court is to accept as true all well pleaded facts in the plaintiff's pleadings, as well as the admissions on file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom . . . The record must be examined in the light most favorable to the nonmoving party . . . . In passing upon a motion for summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. 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 . . . . A party should not be deprived of an adequate opportunity to fully develop (sic) his case by witnesses and a trial, when the issues involved make such procedure the appropriate one . . . . It is often the case that although the basic facts are not in dispute, the parties in good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts . . . Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment." (citations omitted)
[ 313 Pa. Super. Page 483]
We examine the record with these concepts in mind. It shows that this trespass action was filed in July, 1981, seeking a recovery from the Defendants under the wrongful death and survival statutes. After expected prefatory paragraphs including those identifying the parties, the Complaint, in the first count, alleged that the Plaintiff's decedent was killed in July, 1979 when scaffolding on which he stood collapsed, causing him to fall and suffer injuries which caused his death two days later. At the time of this accident, it was asserted, the decedent was at work as a roofer on a residence in Mt. Lebanon, Pennsylvania. The Plaintiff next stated that the residence was owned, leased, operated, maintained, controlled and supervised by the Defendants Haus and Casey, their agents, servants and employees, and that the roofing work was being performed and supervised by the same defendants, their agents, servants, employees and contractors. Next, the Plaintiff asserted that the death of the decedent resulted from the negligence of Defendants Haus and Casey, whose lack of due care was purported to have occurred in the following particulars:
(a) In employing in the operation, management, control, maintenance and supervision of said premises agents, servants, employees and contractors who were negligent, careless and reckless in the performance of their duties assigned to them and so known by the Defendants to be on and for a long period of time prior to July 21, 1979;
(b) In causing and allowing the aforementioned premises and site to have erected thereon scaffolding in such a dangerous and defective manner so as to constitute a danger and trap the life and limbs of Edward J. Wilk, Jr., Plaintiff's Decedent herein;
(c) In causing and allowing the aforementioned dangerous scaffolding to be and remain in such a dangerous condition, all of which the Defendants knew or in the exercise of ordinary and prudent care should have known, on and for a long period of time prior to July 21, 1979;
[ 313 Pa. Super. Page 484]
(d) In failing to furnish Edward J. Wilk, Jr., Plaintiff's decedent a safe place to work;
(e) In failing to secure or otherwise prevent the scaffolding from collapsing, all of which was known or should have been known by the Defendants herein;
(f) In causing and allowing Edward J. Wilk, Jr., Plaintiff's decedent herein to work on the aforementioned property and site when the Defendants knew or in the exercise of ordinary and prudent care should and ought to have known that the aforementioned scaffolding would collapse causing the serious injuries and subsequent death;
(g) In failing to give Edward J. Wilk, Jr., Plaintiff's decedent herein, any notice or warning of the dangerous ...