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TINA MARIE BURNATOSKI v. BUTLER AMBULANCE SERVICE COMPANY ET AL. (12/26/89)

decided: December 26, 1989.

TINA MARIE BURNATOSKI, ADMINISTRATRIX OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED, ON BEHALF OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED AND TINA MARIE BURNATOSKI, ADMINISTRATRIX OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED, ON BEHALF OF THE NEXT OF KIN OF THOMAS P. BURNATOSKI, JR., DECEASED, APPELLANT,
v.
BUTLER AMBULANCE SERVICE COMPANY ET AL., APPELLEES. PEGGY L. FREED, ADMINISTRATRIX OF THE ESTATE OF RICHARD FREED, DECEASED, ON BEHALF OF THE ESTATE AND NEXT OF KIN OF RICHARD FREED, DECEASED, AND PEGGY L. FREED IN HER OWN RIGHT V. BUTLER AMBULANCE SERVICE COMPANY, CITY OF BUTLER, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CARLOS SEGER, CECIL R. GOLD, ARMCO STEEL CORPORATION, FORD MOTOR COMPANY AND AMERICAN COACHES, INC. APPEAL OF FORD MOTOR COMPANY, PEGGY L. FREED, ADMINISTRATRIX OF THE ESTATE OF RICHARD FREED, DECEASED, ON BEHALF OF THE ESTATE AND NEXT OF KIN OF RICHARD FREED, DECEASED, AND PEGGY L. FREED IN HER OWN RIGHT, APPELLANT, V. BUTLER AMBULANCE SERVICE COMPANY, CITY OF BUTLER, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, CARLOS SEGER, CECIL R. GOLD, ARMCO STEEL CORPORATION, FORD MOTOR COMPANY AND AMERICAN COACHES, INC., APPELLEES. TINA MARIE BURNATOSKI, ADMINISTRATRIX OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED, ON BEHALF OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED AND TINA MARIE BURNATOSKI, ADMINISTRATRIX OF THE ESTATE OF THOMAS P. BURNATOSKI, JR., DECEASED, ON BEHALF OF THE NEXT OF KIN OF THOMAS P. BURNATOSKI, JR., DECEASED, V. BUTLER AMBULANCE SERVICE COMPANY ET AL. APPEAL OF FORD MOTOR COMPANY, A CORPORATION



Appeal from Common Pleas Court, Butler County; Honorable Floyd A. Rauschenberger, Jr., Judge.

COUNSEL

Irving M. Portnoy, with him, Charles E. Evans, Evans, Rosen, Portnoy, Quinn & Donohue, Pittsburgh, for Burnatoski and Freed.

Nancy R. Winschel, with her, John Edward Wall and Alyson J. Kirleis, Dickie, McCamey & Chilcote, Pittsburgh, for appellant/appellee, Ford Motor Co.

Donald D. Graham, with him, Thomas W. King, III, Dillon, McCandless & King, Butler, for appellee, City of Butler.

Doyle, Palladino and Smith, JJ.

Author: Smith

[ 130 Pa. Commw. Page 266]

Tina Marie Burnatoski, Peggy L. Freed and Ford Motor Company (Appellants) appeal from orders of the Court of Common Pleas of Butler County sustaining the motions for summary judgment filed by the City of Butler (City).*fn1 The trial court's orders are affirmed.

These cases arise out of an accident which occurred on July 17, 1983 in which an ambulance operated by Cecil R. Gold crossed over into oncoming traffic and collided with a vehicle driven by Carlos L. Seger. Thomas P. Burnatoski, Jr. and Richard Freed, passengers in the ambulance, both died as a result of injuries suffered in the accident. Negligence

[ 130 Pa. Commw. Page 267]

    actions were filed by Tina Marie Burnatoski and Peggy L. Freed in their capacities as Administratrices of their husbands' estates (and by Peggy L. Freed in her own right) against the City, Butler Ambulance Service Company (Butler Ambulance), the Pennsylvania Department of Transportation, Carlos Seger and Cecil R. Gold. Ford Motor Company and American Coaches, Inc. were subsequently joined as additional defendants on products liability theories.*fn2 Upon motions filed by the City, the trial court granted summary judgment on the premise that no liability could be imposed under Section 8542(b)(1) of the Judicial Code, 42 Pa.C.S. ยง 8542(b)(1) because the City was not in possession or control of the ambulance at any time.

The issue presented on appeal is whether the trial court improperly granted summary judgment because a material issue of fact exists as to whether the City had possession or control of the ambulance thus subjecting it to liability under Section 8542(b)(1). Appellants further contend that a question of fact exists as to whether or not Butler Ambulance was an agent of the City and that the jury should have been allowed to resolve both of these disputed issues.*fn3

Summary judgment is only appropriate in cases where no material facts are in dispute. "[C]courts must not try disputed issues of fact but must determine whether such issues, in fact, exist." Kozura v. A. & J. Quality Shoppe, Inc., 117 Pa. Commonwealth Ct. 9, 12, 542 A.2d 637, 638 (1988). Any doubts as to the existence of a genuine issue of fact must be resolved against the moving party and the court must examine the record in the light most favorable to the ...


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