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VIRGINIA K. HOWER v. WHITMAK ASSOCIATES AND KRAVCO (01/29/88)

filed: January 29, 1988.

VIRGINIA K. HOWER, APPELLANT,
v.
WHITMAK ASSOCIATES AND KRAVCO, INC. V. R & R PAVING CO., INC. AND THOMAS J. RUTZ



Appeal from the Order of the Court of Common Pleas, Civil Division, of Lehigh County at No. 85-C-2045.

COUNSEL

Richard D. Director, Allentown, for appellant.

James M. Patrick Turner, Jr., Philadelphia, for Whitmak, appellee.

James M. Brogan, Philadelphia, for R & R Paving, appellee.

Beck, Kelly and Popovich, JJ.

Author: Popovich

[ 371 Pa. Super. Page 445]

This is an appeal from an order of the Court of Common Pleas of Lehigh County, later reduced to judgment, entering summary judgment against the plaintiff/appellant, Virginia K. Hower. We reverse.

In making our assessment of the case at bar, we are guided by the following standards of review; to-wit: Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). Since the moving party has the burden of proving that no genuine issues exist as to the material facts, the record must be examined in a light most favorable to the non-moving party; in doing so all well-pleaded facts in the non-moving party's pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982).

The record reveals that the plaintiff filed a complaint seeking damages for injuries sustained when "her automobile was struck in the rear by an automobile being driven by

[ 371 Pa. Super. Page 446]

Thomas J. Rutz" while she was at rest at a stop sign waiting to exit the Whitehall Mall.

Because of ice and snow which had accumulated on the exit ramps leading from the Whitehall Mall, Rutz supposedly lost control of his vehicle and struck the plaintiff. Further, the plaintiff alleged that the negligence of the owner of the Mall (defendant/Whitmak Associates) and its manager (defendant/Kravco, Inc.,), in failing to remove the ice and snow, close off the exit ramp in question or give notice to the plaintiff of its condition, rendered them liable for the injuries she sustained and entitled her to damages in excess of $20,000.

In response, the defendants filed an Answer with New Matter denying liability. They asserted that the damages were caused by the negligence of R & R Paving Co. or Thomas J. Rutz. Therefore, a complaint was filed by the defendants joining R & R Paving Co. and Thomas J. Rutz as additional defendants. Therein, the defendants contended that R & R Paving Co. had breached its contract with them in failing to clear the ice and snow from the defendants' premises or that Rutz's negligence in the operation of his vehicle rendered the additional defendants solely, jointly or severally liable.

What ensued from December 6, 1985, until February 19, 1986, was the filing of a series of interrogatories, requests for the production of documents and pleadings. Of interest to us is the content of paragraph 12 of Rutz's Answer and New Matter, wherein he alleged that by virtue of a General Release executed by the plaintiff on May 9, 1984, and in consideration of $5,500, ...


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