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GEORGE F. SMITHBOWER v. SOUTHWEST CENTRAL RURAL ELECTRIC COOPERATIVE (05/25/88)

filed: May 25, 1988.

GEORGE F. SMITHBOWER, ADMINISTRATOR OF THE ESTATE OF TIMOTHY W. SMITHBOWER, DECEASED, ON BEHALF OF THE NEXT OF KIN OF TIMOTHY W. SMITHBOWER, DECEASED AND GEORGE F. SMITHBOWER, ADMINISTRATOR OF THE ESTATE OF TIMOTHY W. SMITHBOWER, DECEASED, ON BEHALF OF THE ESTATE OF TIMOTHY W. SMITHBOWER, DECEASED AND CATHY S. SMITHBOWER, ADMINISTRATRIX OF THE ESTATE OF GEORGE A. SMITHBOWER, DECEASED, ON BEHALF OF THE NEXT OF KIN OF GEORGE A. SMITHBOWER, DECEASED, AND CATHY S. SMITHBOWER, ADMINISTRATRIX OF THE ESTATE OF GEORGE A. SMITHBOWER, DECEASED, ON BEHALF OF THE ESTATE OF GEORGE A. SMITHBOWER, DECEASED, AND CATHERINE F. BOLAND, ADMINISTRATRIX OF THE ESTATE OF GREGORY J. BOLAND, DECEASED, ON BEHALF OF THE NEXT OF KIN OF GREGORY J. BOLAND, DECEASED, AND CATHERINE F. BOLAND, ADMINISTRATRIX OF THE ESTATE OF GREGORY J. BOLAND, DECEASED, ON BEHALF OF THE ESTATE OF GREGORY J. BOLAND, DECEASED, APPELLANTS,
v.
SOUTHWEST CENTRAL RURAL ELECTRIC COOPERATIVE, INC., PENNSYLVANIA ELECTRIC COMPANY, A CORPORATION AND CRESSON FEED MILL, INC., T/D/B/A HINES EQUIPMENT, A CORPORATION, APPELLEES, V. NEW IDEA FARM EQUIPMENT, A DIVISION OF AVCO CORPORATION, APPELLEE, V. SPEED KING MANUFACTURING COMPANY, APPELLEE



Appeal from the Judgment entered August 27, 1987, in the Court of Common Pleas of Cambria County, Civil Division, at No. 1984-2505.

COUNSEL

Raymond J. Zadzilko, Edensburg, for appellants.

Louis C. Long, Pittsburgh, for Pennsylvania Elec. Co., appellee.

McEwen, Del Sole and Johnson, JJ.

Author: Del Sole

[ 374 Pa. Super. Page 48]

This is an appeal from Judgment entered August 27, 1987, in the Court of Common Pleas of Cambria County, Civil Division.*fn1 We affirm.

The instant case was filed by and on behalf of the estates and the next of kin of Timothy W. Smithbower, George A. Smithbower and George J. Boland, who were electrocuted and died when a portable grain auger (elevator) which they were moving came into contact with a high voltage overhead distribution power line. The accident occurred September 21, 1982, at the Robert C. Varner farm located in East Carroll Township, Cambria County, Pennsylvania.

[ 374 Pa. Super. Page 49]

Appellants filed suit against: Southwest Central Rural Electric Cooperative, (hereinafter referred to as "Southwest Central"), whose distribution line the grain auger touched; Pennsylvania Electric Co., (hereinafter referred to as "Pennsylvania Electric"), which sold the electricity to Southwest Central; and Cresson Feed Mill, Inc., t/d/b/a Hines Equipment, the company which sold the auger to Robert Varner. New Idea Farm Equipment, a Division of AVCO Corporation, and Speed King Manufacturing Co., distributor and manufacturer of the auger, were later joined in the suit as additional defendants.

Pennsylvania Electric filed a motion for summary judgment which was granted. This appeal followed.

The bases of liability asserted against Pennsylvania Electric are: (1) absolute liability, Restatement (Second) of Torts §§ 519, 520 (1977); (2) strict liability in tort, Restatement (Second) of Torts § 402 A (1965); and (3) negligence.

Summary judgment may be granted under Pa.R.C.P. 1035(b) which provides, in pertinent part:

The judgment sought shall be rendered if the pleadings, depositions, answer 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 in entitled to a judgment as a matter of law.

See also Ferguson v. King, 362 Pa. Super. 543, 524 A.2d 1372 (1987).

In the court's determination of whether a motion for summary judgment should be granted, the following principles have application:

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to

[ 374 Pa. Super. Page 50]

    the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Bertani v. Beck, 330 Pa. Super. 248, 251-52, 479 A.2d 534, 535-36 (1984). See also, Ferguson v. King, supra.

Initially, Appellant contends that the supplying as well as the transmission of high voltage electric current is an abnormally dangerous activity which exposes Pennsylvania Electric, the supplier of electrical current, to strict liability for ...


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