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September 1, 1994

JERRY F. SMITH, Plaintiff

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 September 1, 1994


 On October 6, 1992, plaintiff Jerry F. Smith initiated this action by filing a complaint which alleges negligence on the part of each of the defendants arising from a motor vehicle accident which occurred on July 8, 1992. Defendant Leroy Johnson was the operator of a tractor-trailer which was involved in the accident and in which Smith was a passenger. Defendant DeWitt Trucking Co. was the lessee of the truck and the company for which Johnson was driving the truck. Defendant Champ Enterprises was the lessor of the truck. Third-party defendant Academy Tours and Travel Center, Inc., is the owner of the bus which defendants contend caused the accident.

 Before the court are: (1) a motion by Johnson for summary judgment; (2) a motion by Smith for summary judgment concerning a number of affirmative defenses raised by DeWitt and Champ; (3) a motion for summary judgment filed by DeWitt; and (4) a motion by Smith to strike affidavits.


 Prior to the accident, Smith was employed as a truck driver, but lost his commercial driver's license because of a requirement that all outstanding traffic tickets be paid before the license could be renewed. In order to earn income, Smith would accompany Johnson, a licensed driver, on his route. Upon arrival, Smith would act as a "lumper," a person hired solely to unload the truck. Smith at times would do some of the driving for Johnson, but was paid only for his role as lumper. Johnson would pay Smith, but would be reimbursed by DeWitt.

 Johnson was an employee of Champ at the time of the accident, but had previously been an employee of DeWitt. Champ provided Johnson to DeWitt to drive the tractor-trailer which Champ leased to DeWitt. Johnson's route was between Florida and Buffalo, New York.

 On July 8, 1992, Smith was riding with Johnson in the Champ truck as it headed north on Pennsylvania Route 15 in Tioga County. Smith was in the sleeper bunk behind the cab while Johnson was driving. At a bridge on the road ahead, traffic had come to a standstill, perhaps because a bus owned by Academy had stopped to allow traffic to clear the bridge, fearing a sideswipe of oncoming traffic. As the truck came over the crest of a hill, it came upon the traffic which had stopped before the bridge. The truck driven by Johnson struck another tractor-trailer in the northbound lane, then crossed over into the southbound lane and struck two more tractor-trailers. Smith claims to have been injured in the accident.



 The motion to strike affidavits will be addressed as an initial matter because the affidavits in question were submitted in support of DeWitt's motion for summary judgment.

 Smith's motion to strike argues that DeWitt is precluded from submitting the affidavits by Local Rule 401.7, since renumbered to Local Rule 7.7, which reads:

Three (3) copies of a brief in reply to matters argued in respondent's brief may be filed by the moving party within ten (10) days after service of the respondent's brief. No further briefs may be filed without leave of court.

 Smith argues that Rule 7.7 does not permit the movant to submit further documentation with its reply brief. However, Rule 7.7 does not specifically prohibit documentation accompanying the reply brief, nor should a movant be expected to anticipate (and therefore provide a reply and documentation for) every argument or factual assertion made by the respondent in the respondent's brief in opposition to the motion. If the non-movant needs to respond to the additional documentation, Rule 7.7 allows the non-movant to seek leave of court to do so. The motion to strike will be denied.


 Summary judgment is appropriate 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 judgment as a matter of law." Fed.R.Civ.P. 56(c) (emphasis added).

. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323, 325.

 Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).


 Defendant Johnson's motion for summary judgment is based upon the Pennsylvania Workmen's Compensation Act, 77 Pa. Stat. Ann. §§ 1 et seq., the title since having been amended to the Pennsylvania Workers' Compensation Act. See 77 Pa. Stat. Ann. § 1, as amended, Pub. L. 190, No. 44, § 1 (July 2, 1993). Johnson points out that Smith's claims for damages are barred by his eligibility for Workers' Compensation benefits. 77 Pa. Stat. Ann. § 481(a).

 Under the Workers' Compensation Act, an employer is liable for compensation for personal injury to an employee which occurs "in the course of his employment," with certain exceptions. 77 Pa. Stat. Ann. § 431. The parties argue over whether Smith was an employee of Champ and DeWitt, making him a co-employee of Johnson. ...

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