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09/05/97 STEPHANIE A. LONG v. DEAN YINGLING

September 5, 1997

STEPHANIE A. LONG, INDIVIDUALLY STEPHANIE LONG, ADMINISTRATRIX OF THE ESTATE OF VINCENT ROBERT LONG, DECEASED, APPELLANTS
v.
DEAN YINGLING, INDIVIDUALLY AND DEAN YINGLING T/D/B/A DEAN YINGLING USED CARS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Blair County, Civil Division, No. 397 CP 1994. Before CALLAN, J.

Before: Kelly, Saylor, and Eakin, JJ. Opinion BY Kelly, J.

The opinion of the court was delivered by: Kelly

OPINION BY KELLY, J.:

Filed: September 5, 1997

In this appeal, appellant, Stephanie Long, asks us to determine whether the Blair County Court of Common Pleas erred in denying her motion for summary judgment and granting appellee's, Dean Yingling's, motion for summary judgment. We hold that the trial court properly denied appellant's motion for summary judgment. We further hold that the trial court erred in granting summary judgment in appellee's favor. Accordingly, we affirm in part, reverse in part, and remand this matter to the trial court for further proceedings.

The relevant facts and procedural history this appeal are as follows. On October 29, 1992, appellant and her husband, Vincent Long ("decedent"), visited appellee's use car lot for the purpose of looking at and possibly purchasing a used car. After speaking with appellant and the decedent, appellee gave the couple a 1982 Plymouth Reliant ("vehicle") to take for test drive. The decedent took the driver's seat and appellant at in the front passenger seat. The couple left appellee's used car lot in the vehicle and traveled west on Closson Road. As they were traveling west on Closson Road, the vehicle went through a stop sign protecting State Route 36 and collided with a pick-up truck that was traveling north on State Route 36. As a result of the collision, the decedent was killed and appellant sustained severe injuries to her head and pelvis.

On February 17, 1994, appellant's attorney and his expert, Neil Maines, visited Donaldson's Salvage Yard where the vehicle was taken after the accident. At this time, Mr. Maines inspected the vehicle and saw that the master cylinder *fn1 was intact. The owner of the salvage yard, however, would not allow Mr. Maines to purchase, borrow, or inspect the master cylinder because appellee still owned the vehicle.

Thereafter, appellant filed a writ of summons and a petition for discovery asking that the master cylinder be made available for inspection and held for safekeeping until the Conclusion of this case. On March 1, 1994, appellant served the petition for discovery, along with a Rule Returnable ordering that the master cylinder be preserved, on appellee and the salvage yard owner. On May 19, 1994, appellant's agent went to the salvage yard to secure the master cylinder for testing. At this time, however, the master cylinder was missing from the vehicle.

On August 30, 1994, appellant filed a complaint in the Common Pleas Court of Blair County alleging that the collision was the result of appellee's negligence in allowing the vehicle to be test driven with a defective master cylinder and brake system. On October 13, 1994, appellant amended her complaint to include a claim of strict liability for permitting the vehicle to be driven in an unreasonably dangerous condition.

Thereafter, the parties engaged in extensive discovery. Appellant testified at her deposition that as she and the decedent approached the intersection of State Route 36, the decedent attempted to apply the brakes and the pedal went right to the floor. The decedent then stomped on the brakes two or three times and the vehicle traveled through the stop sign protecting State Route 36 and collided with a truck. Appellant also testified that as they entered the intersection, the decedent attempted to hold her back by putting his arm in front of her. Appellant further testified that the last thing she remembered was the decedent being thrown on top of her from the force of the collision.

Additionally, appellant filed two sworn affidavits in which two experts testified that the cause of the accident was a failure of the brake system of the vehicle, specifically caused by a defect in the master cylinder. Furthermore, the investigating police officer, Robert Clark, testified at his deposition that there were no signs of skid marks made by either vehicle involved in the collision prior to impact. Trooper John Wasicki, who was also one of the investigating officers, testified that after inspecting the vehicle, he determined that there was no defect in the brake system. Trooper Wasicki, however, did testify that he observed damage to the master cylinder which he believed had been caused by the collision.

The record also contains the deposition testimony of appellee's mechanic, Michael Long, who testified that he had inspected the vehicle prior to the accident and did not notice any damage to the master cylinder. Additionally, Mr. Long testified that he had driven the vehicle prior to the accident and did not experience any problems with the brake system. Furthermore, Laurie Harrison testified at her deposition that she had test driven the vehicle approximately two days prior to the accident and did not experience any problems with the brake system. The record also establishes that the vehicle had passed state inspection.

At the close of discovery, appellee filed a motion for summary judgment on August 21, 1996, and appellant filed a motion for partial summary judgment on August 28, 1996. Based upon the aforementioned facts, the trial court, by order dated October 23, 1996, denied appellant's motion and granted appellee's motion for summary judgment. Appellant now brings this timely appeal.

Appellant raises the following issues for our review:

A. DID THE COURT BELOW ERR IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED ON SPOLIATION?

B. DID THE COURT BELOW ERR IN DENYING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IN THIS ...


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