Migyanko v. Thistlethwaite
| Decision Date | 29 July 1980 |
| Citation | 419 A.2d 12,275 Pa.Super. 500 |
| Parties | Kathryn L. MIGYANKO, Executrix of the Estate of Phillip Alexander Migyanko, Deceased, on behalf of the next of kin of Phillip Alexander Migyanko, Deceased; and Kathryn L. Migyanko, Executrix of the Estate of Phillip Alexander Migyanko, Deceased, on behalf of the Estate of Phillip Alexander Migyanko, Deceased, and Kathryn L. Migyanko, Individually, and as parent and natural guardian of Steven C. Migyanko and Ronald J. Migyanko, minors, Appellants, v. Edward F. THISTLETHWAITE; Harry Litten; Geraldine Litten and Jack Litten, Individually and d/b/a Litten Service Station; Center Independent Oil Company; and The Borough of Jefferson, and Martin A. Niverth and Nellie Niverth, Individually and d/b/a Stoney Point Inn; and Harold Mitchell. |
| Court | Pennsylvania Superior Court |
William D. Phillips, Washington, for appellants.
Joseph M. George, Uniontown, for Center Independent Oil Co., appellee.
William M. Radcliffe, Uniontown, did not file a brief on behalf of Edward F. Thistlethwaite, appellee.
Philip T. Warman, Uniontown, did not file a brief on behalf of the Borough of Jefferson, appellee.
Before PRICE, HESTER and MONTGOMERY, JJ.
The instant appeal is from the order of the trial court granting the summary judgment motion of Center Independent Oil Company (Center), the sole appellee. For the reasons stated herein, we reverse the order of the trial court.
The facts pertinent to Center's motion for summary judgment arose out of an incident on February 21, 1977, in which appellant's decedent, Phillip Alexander Migyanko, was struck and killed by a vehicle driven by defendant, Edward F. Thistlethwaite. The decedent and his wife, appellant, were operating separate vehicles in the Borough of Jefferson in Greene County. While traveling through Jefferson along Route 188, the Migyankos decided to purchase gasoline at the Litten Service Station. The station consisted of two small buildings. The three pumps, in the fashion of bygone days, are located directly at the curb along Route 188. Although the deposition testimony is unclear, it appears from photographs entered into evidence that Route 188 is a four-lane undivided roadway, the two center lanes being utilized for travel with a single parking lane on either side. Vehicles utilizing the pumps at the Litten station received service by stopping at the curb in the parking lane on the west-bound side of the roadway.
At or about 8:45 p. m. on the evening of February 21, 1977, the decedent pulled his vehicle up to the unleaded gasoline pump at the Litten station. After filling his tank, he drove his vehicle several feet further up the street and parked it along the curb. He exited his vehicle and walked back along the curb to the unleaded pump where appellant had parked her vehicle and was in the process of receiving gasoline from an employee of the station. The gasoline tank on appellant's vehicle was in the rear, on the driver's side, thus requiring the attendant to stand in the parking lane near the west-bound lane of travel of Route 188. The decedent was also in the rear at the driver's side of the vehicle, conversing with the attendant. While so engaged, the decedent and the attendant were struck by defendant Thistlethwaite's vehicle, which had been traveling on the opposite side of Route 188 in an easterly direction. Thistlethwaite had apparently been drinking, lost control of his vehicle, and crossed the center line of the roadway over into the west-bound lane and into the adjoining parking lane. Decedent was killed by the impact of the collision, and the attendant was severely injured.
Appellant brought suit against appellee and various other parties for, inter alia, the wrongful death of her husband. In her complaint against appellee, appellant alleged three theories of negligence: (1) that appellee was vicariously responsible for the negligent acts of the Littens; (2) that appellee was solely liable for supplying the Littens with defective gasoline pumps; and (3) that appellee was solely responsible for "maintaining" the gasoline pumps in a dangerous manner. The trial court entered summary judgment on the basis of the first two theories, but did not address the applicability of the third. Appellant appeals from the summary judgment and alleges that the deposition evidence was sufficient to raise a triable issue regarding appellee's liability for "maintaining" the pumps at the Litten station. To understand the legitimacy of appellant's contention, it is necessary to expand upon the relationship between appellee and the Littens.
In or about November of 1960, Harry Litten purchased the gasoline station in question and on November 15, 1960, entered into an agreement with appellee to lease two gasoline pumps and other items of equipment generally associated with the maintenance of a service station. The testimony did not establish whether the pumps were installed by appellee at that time, or whether they had been installed for the benefit of the previous owner of the station. Total consideration for the lease was $1.00 and it provided that "(t)he said equipment shall at all times be and remain the property of (appellee)." Although the lease further provided that Harry Litten would maintain and repair the pumps when necessary, in actuality, appellee repaired the pumps whenever requested to do so. Harry Litten operated the station from 1960 until 1975, and in 1975 leased the station to his son and daughter-in-law, Jack and Geraldine Litten, for a consideration of $100.00 per month. Besides the original $1.00 paid for the lease of the pumps and other equipment, appellee's only interest in the station was the profit it derived from the sale of gasoline and oil products to the Littens. 1 Appellee had no control over the management of the station. In 1977, Jack Litten requested that appellee install a third pump to permit the dispensing of unleaded gasoline. The unleaded pump was installed by appellee along the curb line of Route 188 adjacent to the two existing pumps, and the two pumps were replaced as part of normal maintenance.
In consideration of the above facts which were established through deposition testimony, the trial court entered summary judgment on behalf of appellee. On appeal, appellant has chosen not to challenge the judgment of the court that the pumps at the Litten station were not defective and that appellee may not be held responsible for any negligence on the part of the Littens on the theory of respondeat superior. Instead, she alleges that the court erred in entering summary judgment on her third theory of liability, which was not addressed by the court, to-wit, that appellee was independently negligent in placing and maintaining the pumps in such a manner as to expose a customer utilizing the pumps to unreasonable risks of harm of the type suffered by appellant's decedent. We agree that a reasonable question exists as to appellee's liability, and therefore, reverse the summary judgment as it relates to this final theory.
When confronted with a motion for summary judgment, a trial court should grant the motion only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. No. 1035(b). Although we do not have the benefit of the trial court's ruling as to appellant's third theory of liability, we do not believe the evidence presented in support of its summary judgment motion establishes as a matter of law that appellee was not independently negligent in installing and maintaining the pump being utilized by the decedent on February 21, 1977.
...
To continue reading
Request your trial
-
Kleinknecht v. Gettysburg College
...plaintiff suffered befell. Alumni Ass'n v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095, 1098 (1987) (citing Migyanko v. Thistlethwaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980) and Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (1928)), aff'd, 524 Pa. 356, 572 A.2d 1209 Even t......
-
Truax v. Tanya P. Roulhac, Wildwood 115, Inc.
...did not have a duty to a particular plaintiff[ ]”), affirmed, 524 Pa. 356, 572 A.2d 1209 (1990), citing Migyanko v. Thistlethwaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980) and Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Summary judgment is inappropriate in pre......
-
Truax v. Roulhac
...did not have a duty to a particular plaintiff[ ]"), affirmed, 524 Pa. 356, 572 A.2d 1209 (1990), citing Migyanko v. Thistlethwaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980) and Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Summary judgment is inappropriate in pre......
-
R.D. v. Shohola, Inc.
...plaintiff suffered befell. Alumni Ass'n v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095, 1098 (1987) (citing Migyanko v. Thistlethwaite, 275 Pa. Super. 500, 419 A.2d 12, 14 (1980) and Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (1928)), aff'd, 524 Pa. 356, 572 A.2d 1209 (Pa.......