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JOSEPH T. SVETIK AND ROSE SVETIK v. JOSEPH T. SVETIK AND MICHAEL R. MARTINO (09/19/88)

filed: September 19, 1988.

JOSEPH T. SVETIK AND ROSE SVETIK, HIS WIFE, APPELLANTS,
v.
JOSEPH T. SVETIK AND MICHAEL R. MARTINO, JR., A PARTNERSHIP



Appeal from the Judgment entered September 15, 1987, in the Court of Common Pleas of Carbon County Civil Division, No. 85-1070.

COUNSEL

William P. Coffin, Easton, for appellants.

Jeffrey R. Dimmich, Allentown, for appellees.

Rowley, Wieand and Montemuro, JJ.

Author: Rowley

[ 377 Pa. Super. Page 497]

This is an appeal from the trial court's entry of summary judgment in favor of the appellee partnership. The question presented is whether a general partner (Joseph T. Svetik) has a cause of action against his partnership for negligence resulting in personal injuries sustained by him as he examined the partnership premises. We hold that, under the facts of this case and the present state of the law in Pennsylvania, appellant has no such cause of action.

The facts are as follows. Joseph T. Svetik, an appellant herein,*fn1 and Michael R. Martino, Jr. entered into a written agreement to form a partnership. On the same day the agreement was executed the partners acquired, as tenants in common, certain real estate known as 66 Broadway, Jim Thorpe, Pennsylvania.*fn2 The stated purpose of the partnership was to operate and rent the property. The partnership agreement stated that the duties of Michael Martino were primarily "to collect rents, pay bills, handle all repairs, complaints of tenants, etc." The duties of appellant were primarily "to prepare all tax returns and handle all relations with attorneys, real estate agents regarding the purchase and sale of the property, and to handle questions and matters that arise concerning the financing of the property."

In spite of the foregoing provisions establishing primary duties in the agreement, Svetik had just completed painting a gate on the property when an iron arch fell, striking him

[ 377 Pa. Super. Page 498]

    and causing him personal injuries.*fn3 He and his wife instituted this negligence action against the partnership, to recover damages for his injuries. The record is clear, and there is no dispute, that this action was instituted against the partnership and not against Mr. Martino as an individual. Specifically, plaintiffs aver in the complaint that "an ornate arch . . . attached to a fence post and building situate at 66 Broadway Street" fell on, and broke, Svetik's legs.*fn4

The partnership filed a motion for summary judgment. The evidence before the trial court, when it considered the motion, consisted, inter alia, of: the complaint; defendant's answer and new matter; plaintiffs' reply to new matter; an affidavit by defense counsel with an attached partnership agreement, fictitious name registration, and deed to the premises; and plaintiffs' reply to defendant's request for production of documents, which included photographs of the premises. The motion for summary judgment was granted by the trial court and the action was dismissed.*fn5 This appeal followed.

We note, initially, that the party who moves for summary judgment, in this case the partnership, "has the burden of showing that there is no genuine issue as to any material fact and must submit affidavits or other evidence in support of the motion." Billman by Billman v. Pennsylvania Assigned Claims Plan, 349 Pa. Super. 448, 453, 503 A.2d 932, 935 (1986). Our scope of review of a summary judgment

[ 377 Pa. Super. Page 499]

    was set forth in Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 288-90, 515 A.2d 980, 981 (1986):

In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983). It is not 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. Wilk v. Haus, [313 Pa. Super. 479,] 482, 460 A.2d [288], 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa. Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa. Super. 372, 378, 380 A.2d 826, 829 (1971).

Appellant presents two arguments in support of his assertion that the trial court erred in granting summary judgment. First, he asserts that Pennsylvania Rule of Civil Procedure 2129 specifically permits an action sounding in negligence by one partner against the partnership for injuries sustained by him. Alternatively, he argues that Pennsylvania ...


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