No. 2942 Philadelphia 1980, No. 2943 Philadelphia 1980, Appeal from the Orders of the Court of Common Pleas, Civil Division, of Philadelphia County at Nos. 1083 November Term 1974 and 3825 August Term 1975.
Robert S. Forster, Jr., Philadelphia, for appellant.
Denise Rae Scott, Assistant City Solicitor, Philadelphia, for appellees.
Spaeth, Wickersham and Cirillo, JJ. Spaeth, J., did not participate in the decision or consideration of this case.
[ 315 Pa. Super. Page 44]
This is an appeal from summary judgment entered in a suit which arose out of an explosion at the place of business of Selma and Theodore Isaacson.
Theodore and Selma Isaacson ran a food service business in the City of Philadelphia. Their employees drove food trucks which made regular stops each day during breakfast and lunch hours. Each truck had a propane gas system which provided hot water for coffee. The Isaacsons operated their business out of a rented garage. On June 21, 1973, Lester Stark, who drove one of the Isaacsons' trucks, made his usual round selling food. At about 1:30 in the afternoon he had the propane tanks on the truck filled at Mobil Propane and returned to the garage. Before he left for the day, Stark turned on the propane pilot on his truck, to insure an adequate supply of hot water for making coffee the next day. As it happened, Lester Stark, the Isaacsons and their daughter Linda left the garage at the same time that day. There was an explosion, Theodore Isaacson was momentarily unconscious, Selma Isaacson was seriously injured by falling debris and Lester Stark was burned on the face and arms.
On November 12, 1974, the Isaacsons filed a complaint in trespass against Mobil Propane Corporation, appellant herein, alleging that Mobil Propane's negligence in filling the tank caused the explosion. An assumpsit suit against Mobil
[ 315 Pa. Super. Page 45]
Propane was brought by Lester Stark on August 28, 1975 to recover for injuries he suffered in the same explosion. These two cases were consolidated for the purpose of this appeal.
Mobil Propane joined the City of Philadelphia (hereinafter City) alleging that the City inspected, regulated or licensed or that the City had a duty to inspect, regulate or license the trucks and premises of the Isaacsons' business.
Discovery was conducted. The City thereafter filed a motion for summary judgment against plaintiffs, defendant and various co-defendants; Mobil Propane was the only party who opposed the motion. The Honorable Murray C. Goldman granted summary judgment in favor of the City against plaintiffs, defendant and co-defendants on December 16, 1980 and Mobil Propane's appeal timely followed.
Mobil Propane's first issue is:
Does a genuine issue of material fact exist as to whether or not appellee was obligated to inspect completely the trucks and garage and facilities of Plaintiffs, including the propane systems and the use and storage of propane?
Mobil Propane argues that the lower court incorrectly ruled that the City inspected the Isaacsons' trucks merely for the purpose of sanitation and that the City therefore had no duty to inspect the propane systems on the Isaacsons' trucks. "Appellant maintains that the inspections actually undertaken by [the City] were more extensive . . . and therefore, at least a question of material fact exists as to whether or not [the City] was obligated to inspect the propane system on the Isaacsons' trucks." Brief for Appellant at 14.
Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party ...