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CHARLES SCOTT THOMAS v. DUQUESNE LIGHT COMPANY (11/15/85)

filed: November 15, 1985.

CHARLES SCOTT THOMAS, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS, CHARLES FREDERICK THOMAS, JR. AND JUDITH THOMAS, AND CHARLES FREDERICK THOMAS, JR. AND JUDITH THOMAS, HUSBAND AND WIFE, IN THEIR OWN RIGHT, APPELLANTS,
v.
DUQUESNE LIGHT COMPANY, PITTSBURGH CHARTIERS & YOUGHIOGHENY RAILWAY COMPANY, THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY, KENNY WATSON, NORMAN COUSINS, AND MAE LUNARDI, D/B/A DARIO'S DISTRIBUTOR, A/K/A DARIO'S BEER DISTRIBUTORS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD83-16967

COUNSEL

Frank E. Little, Pittsburgh, for appellants.

Richard A. Porach, Pittsburgh, for P & LE, appellees.

Olszewski, Popovich and Montgomery, JJ.

Author: Montgomery

[ 347 Pa. Super. Page 495]

The Plaintiff-Appellants file the instant appeal from an order of the lower court which granted summary judgment in favor of the Defendant-Appellee, The Pittsburgh and Lake Erie Railroad Company (hereinafter referred to as "P & LE"). After a careful review of the record, we find that summary judgment was properly entered by the lower court in this case, and affirm that result.

The Plaintiffs instituted this trespass action on October 7, 1983 against several defendants, including P & LE, for damages arising out of severe injuries suffered by their minor son. The boy was injured when he apparently touched an electric line and fell from an electrical tower owned by the Defendant Duquesne Light Company. The tower was on land owned by the Defendant Pittsburgh, Chartiers & Youghiogheny Railway Company (hereinafter referred to as "PC & Y"). Just prior to climbing the tower, the boy and some companions were engaged in a drinking party on the PC & Y land which abutted the Ohio River. In order to reach this site, the minor Plaintiff and his friends had to trespass across property owned by the Appellee P & LE.

In the Plaintiffs' Amended Complaint, they asserted several types of alleged negligent conduct on the part of P & LE as the basis for their claims for damages against it. However, a review of the Appellants' brief to this Court in support of the instant appeal clearly shows that the most significant substantive basis upon which they maintain they have rights to recover against P & LE is if it is established that P & LE owns the land on which the electric tower was located. In that regard, there is no question that the lower court had ample support for granting summary judgment in favor of the Appellee.

Before reaching the substantive merits of the lower court's order, we must examine several procedural claims raised by the Appellants. In connection with such contentions,

[ 347 Pa. Super. Page 496]

    the record shows that on August 2, 1984, P & LE filed its Motion for Summary Judgment and supporting brief, which asserted that it did not own the land upon which the accident took place and its mere status as an adjoining landowner created no basis for imposing liability on it for the minor Plaintiff's injuries. The Plaintiffs filed a responsive brief on August 23, 1984, one day before the date on which the lower court had scheduled argument on the Appellee's motion. The next day, August 24, 1984, respective counsel for the Appellants and Appellee appeared before the lower court to argue the motion. At the hearing, counsel for P & LE provided both the court and Plaintiffs' counsel with a supplement to the Motion for Summary Judgment and an attached Affidavit. These matters had not yet been filed with the Prothonotary, but were filed by P & LE immediately following the hearing. The Affidavit, by an official of P & LE, denied its ownership of the land in question. The lower court accepted the supplemental motion and affidavit at the hearing and offered the Plaintiffs' counsel the opportunity to file a counter-affidavit. However, Plaintiffs' counsel specifically declined that offer. Upon review of the matters then of record as well as the supplement to Motion for Summary Judgment and Affidavit, the lower court verbally indicated that summary judgment would be granted in favor of P & LE. However, the clerk of the lower court inadvertently prepared and entered an Order dated August 24, 1984 dismissing the Motion for Summary Judgment. After discovery of the error, the lower court issued a new Order, dated August 31, 1984, signed by both Judges who considered this matter, which rescinded the Order entered erroneously on August 24, 1984, and granted summary judgment in favor of P & LE, thereby dismissing P & LE from the lawsuit. Such lower court judges filed a Supplemental Opinion on June 6, 1985, fully explaining that the original order had been entered in error.

Plaintiffs first contend on appeal that the Order of August 24, 1984, denying P & LE's Motion for Summary Judgment, was correct ...


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