Amabile v. Auto Kleen Car Wash

• Decision Date: 29 June 1977
• Citation: 376 A.2d 247,249 Pa.Super. 240
• Parties: Michael AMABILE and Rose Amabile, Appellants, v. AUTO KLEEN CAR WASH, Edwin B. McCoy, Edward M. Kaplan and Ann Kaplan, Erwin Adler and Belle Adler, J. D. Cathcart, Defendants, and General Motors Corp. and Shirley Jane Messick, Additional Defendants.
• Court: Pennsylvania Superior Court

376 A.2d 247

249 Pa.Super. 240

Michael AMABILE and Rose Amabile, Appellants, v. AUTO KLEEN CAR WASH, Edwin B. McCoy, Edward M. Kaplan and Ann Kaplan, Erwin Adler and Belle Adler, J. D. Cathcart, Defendants, and General Motors Corp. and Shirley Jane Messick, Additional Defendants.

Superior Court of Pennsylvania.

June 29, 1977

Argued June 16 and Sept. 17, 1976.

Wilbur Greenberg, Philadelphia, for appellants at No. 1448.

Mark D. Seltzer, Philadelphia, for appellants at No. 682.

Leonard S. Lipson, Philadelphia, for appellees at No. 1448.

Joel Feldscher, Philadelphia, for appellees at No. 682.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE Judge:

Appellants Michael and Rose Amabile, appeal from orders granting summary judgment in favor of defendant-appellees. Appellants contend that the court below erred in granting the motions for summary judgment under Rule 1035 of the Pennsylvania Rules of Civil Procedure ^[1] because material issues of fact clearly existed on the record.

On March 10 1971, plaintiff-appellant, Michael Amabile had his car washed at the Auto Kleen Car Wash in Philadelphia, and then parked it in the vacuum area, provided by appellee, Auto Kleen, for the use of its patrons. As he was leaning over the trunk drying his back window and rear section of his car, he was struck by another automobile driven by Shirley Jane Messick, an additional defendant, causing injuries which form the damages in the instant action. Immediately preceding the accident Ms. Messick had also driven her automobile through the car wash.

On June 25, 1971 the Amabiles filed suit only against Ms. Messick; but, on February 20, 1973, appellants filed a second action against appellees which forms the basis of the instant appeal. The defendants in this action, now the appellees, are Auto Kleen Car Wash; Edwin B. McCoy, owner and operator of Auto Kleen Car Wash; Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, owners of real estate on which the car wash was built; and J. D. Cathcart, designer of Auto Kleen Car Wash and the vendor of equipment installed therein. In their complaint, appellants pleaded causes of action in assumpsit, trespass and strict liability in tort against appellee-McCoy trading as Auto Kleen while the other appellees, Edward M. Kaplan, Ann Kaplan, Erwin Adler, Belle Adler, and J. D. Cathcart were sued in trespass only.

Appellants' complaint alleged the above facts and further alleged that appellee-Auto Kleen failed to provide appellant with a safe place to wash his motor vehicle, exposed appellant to danger about which it knew or should have known, failed to take adequate precautions for appellant's safety, and misrepresented the safety and effectiveness of its establishment. As to appellees Edward M. Kaplan, Ann Kaplan, Erwin Adler and Belle Adler, appellant alleged that these appellees, as the owners of the real estate on which the car wash was built, knew or should have known that the operation and construction of the car wash was hazardous to patrons, so that they permitted the car wash to be designed, constructed and operated in a careless manner without due care to the safety of appellant. As to appellee, J. D. Cathcart, appellant alleged that, as the designer of Auto Kleen Car Wash and the vendor of equipment installed therein, Cathcart knew or should have known that the design and operation of the car wash was hazardous to patrons. Appellees filed answers denying all material allegations in the complaint.

I.

At the close of the pleadings, pursuant to Pa.R.C.P. 1035, Auto Kleen, its owner, and the owners of the real estate on which it is located, moved for summary judgment and supported the motion with depositions of Shirley Jane Messick, Edwin B. McCoy, the owner and operator of Auto Kleen Car Wash, and police officer Joseph Lemerise. ^[2] Appellants filed an answer to the motion but did not support their answer by either affidavit or deposition. On December 11, 1975, the court below entered an order granting the motion for summary judgment and dismissing the complaint.

Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment is to be rendered 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." The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968); Kent v. Miller, 222 Pa.Super. 390, 294 A.2d 821 (1972). In McFadden v. American Oil Co., 215 Pa.Super. 44, 48-49, 257 A.2d 283, 286 (1969), this court noted:

"In passing upon a motion for summary judgment, the trial court's function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. . . . Finally, a summary judgment should be granted only when the case is clear and free from doubt." (Citations omitted.)

In the instant case, Auto Kleen, et al., supported their motion for summary judgment with depositions. Once a motion for summary judgment is made in this manner, the non-moving party may not rely on the controverted allegations of the pleadings. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Pa. R.C.P. 1035(d) provides, in pertinent part, that:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, should be entered against him."

Therefore, if the non-moving party does not oppose a properly supported motion for summary judgment with affidavits, depositions, or the like, he may not rely upon his pleadings to controvert those facts presented by the moving parties' depositions. As our Supreme Court noted in Phaff v. Gerner, supra, "(s) upporting affidavits, after a motion for summary judgment, are acceptable as proof of facts. Pleadings are not." 451 Pa. at 150, 303 A.2d at 829.

The rationale for requiring affidavits in opposition to a motion for summary judgment can be better understood after examining the reasons for permitting such a motion. Pa.R.C.P. 1035(d) was taken verbatim from the Federal Rules of Civil Procedure 56(c), and an examination of the Advisory Committee comments is helpful in understanding the reasoning behind the Rule:

"A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue. . . . The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The . . . doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. . . ." Federal Rules of Civil Procedure, Rule 56, Notes of Advisory Committee on 1963 Amendment, 28 U.S.C.A. p. 416. (Emphasis added.)

Therefore, although the pleadings may sufficiently state a genuine issue of material fact, a motion for summary judgment "was designed to remedy the situation where there is a sufficiently pleaded but factually improper claim or answer. . . ." Ritmanich v. Jonel Enterprises, Inc., 219 Pa.Super. 198, 203, 280 A.2d 570, 571 (1971).

However, merely because a party does not oppose by affidavit, deposition or the like, a factually supplemented motion for summary judgment, it does not follow that the motion must be granted. The last sentence of Pa.R.C.P 1035(d) provides that if the non-moving party "does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis added.)

Even though the facts presented in depositions in support of a motion for summary judgment must be taken as true when no opposing affidavits, depositions or the like are filed, granting a defendant's motion for summary judgment is never appropriate when depositions filed in support of such motion do not either 1) refute a material allegation in plaintiff's complaint, thus destroying the prima facie case or 2) present a complete defense to the action. As our Supreme Court noted in Marchese v. Marchese, 457 Pa. 625, 630, 326 A.2d 321, 323 (1974):

"The mere fact that a party fails to submit counter-affidavits does not automatically render summary judgment appropriate under Rule 1035(d) or Phaff. It is preliminarily imperative that the moving party's affidavit evidence clearly dispel the existence of any genuine factual issue as required by Rule 1035(b)."

In the case at bar, the motion for summary judgment was supported by three depositions. However, we conclude that the depositions filed do not controvert the allegation, contained in appellant's pleadings that the vacuum machines were negligently placed in an area which exposed appellant to unreasonable danger. The relevant...