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ALTHEA OSWALD v. CYNTHIA L. HAUSMAN (10/04/88)

filed: October 4, 1988.

ALTHEA OSWALD, EXECUTRIX OF THE ESTATE OF ARTHUR F. UNANGST, DECEASED AND ALTHEA OSWALD, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SURVIVORS OF ARTHUR F. UNANGST, APPELLANT,
v.
CYNTHIA L. HAUSMAN, ELVA E. HAUSMAN, HERBERT F. HAUSMAN, RONALD WERLEY, LILLIAN WERLEY, RALPH H. KRESSLEY, PAULINE A. KRESSLEY AND LOWHILL TOWNSHIP, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division of Lehigh County No. 85-C-1089,

COUNSEL

Richard P. Focht, Allentown, for appellant.

John W. Ashley, Allentown, for Werley, appellee.

Mark S. Sigmon, Bethlehem, for Kressley, appellee.

Denise G. Ryan, Orefield, for Lowhill, appellee.

Cavanaugh, Wieand and Del Sole, JJ.

Author: Wieand

[ 378 Pa. Super. Page 248]

At or about 4:30 p.m. on January 28, 1984, Arthur Unangst, age 74, arose from his rocking chair, left his home in Allentown, and went for a drive through rural Lehigh County. He did not return to his home that night and was reported missing on the following day by the female companion who shared his home. Unangst was found dead on January 31, 1984. His death had been caused by hypothermia. He had frozen to death as he sat behind the wheel of his car on the snow-covered, unpaved portion of a private driveway leading from Legislative Route 39048 in Lowhill Township, Lehigh County, to a farmhouse. Apparently, the vehicle had been immobilized by ice and snow, and Unangst had been unable to extricate it. For reasons which do not clearly appear, but possibly because of poor respiratory health, Unangst elected to remain in his automobile rather than walk an approximate city block to a nearby home.

Althea Oswald, the executrix of Unangst's estate, commenced wrongful death and survival actions against Lowhill Township and various property owners whose lands abutted the private roadway or who had an interest therein. She alleged generally that the roadway had been maintained negligently and specifically that the private roadway had been inadequately marked to inform motorists of a dangerous condition which had been created by the snow-covered driveway.

The private roadway was paved for a short distance after leading away from the township road with which it intersected. The paved part of the private roadway was 33 feet in width, and all snow had been removed therefrom by plowing. Lillian Werley and Elva and Herbert Hausman owned lands adjacent to the paved and snow-free portion of the private road. They also had an easement over the entire length of the road. Cynthia Hausman owned the land at the end of the paved roadway. Here, the roadway became a dirt road which narrowed gradually to a twelve (12') feet wide lane as it crossed her land to the farm of Ralph and Pauline Kressley, who also had a right of way over the entire roadway. These parties were named as

[ 378 Pa. Super. Page 249]

    defendants in the instant action. Also named as a defendant was Ronald Werley, who resided elsewhere, but who allegedly owned an undivided one-half (1/2) interest, together with his sister, Elva Hausman, in the fee underlying the roadway.*fn1 There was no evidence of an express agreement among the various abutting land owners regarding the duty of maintaining the private roadway. The paved portion had been blacktopped during the 1960s by Clayton Werley, who had been the common grantor, and had been repaved by him and also by Lillian Werley. There were no warning signs to alert travelers that the roadway was private or that the roadway had no outlet. However, there was a "No Trespassing" sign which had been posted at the end of the paved portion of the roadway on property owned by Cynthia Hausman.

The trial court entered summary judgment in favor of all defendants; and the plaintiff appealed.

The law pertaining to summary judgments was stated in Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984) as follows:

A motion for summary judgment may properly be granted only "if the pleadings, depositions, answers 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 is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most ...


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