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HomeMy WebLinkAbout99-7584 civilDONALD R. WARD IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V, NO. 99-7584 CIVIL TERM HIGHLANDS OF HAMPDEN SQUARE PARTNERSHIP,: SYDNEY J. RUBLE, RICHARD: S. RUBLE, YINGST HOMES, INC., THE BARON GROUP f/k/a PENTAD ENTERPRISES, RICHARD YINGST, JR., CIVIL ACTION - LAW Indiv~'dually and t/a HIGHLANDS : OF HAMPDEN SQUARE PARTNERSHIP, PENNSYLVANIA POWER & LIGHT; BELL ATLANTIC; and RICHARD WHITAKER c/o YINGST HOMES, INC., Defendants JURY TRIAL DEMANDED IN RE: PENNSYLVANIA POWER & LIGHT MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF THE COURT AND NOW, January 18, 2002, upon careful consideration of PP&L's Motion For Summary Judgment, it is hereby ordered that the Motion is granted. By the Court, p.j. William P. Douglas, Esquire Douglas, Douglas & Douglas 27 W. High Street P.O. Box 261 Carlisle, Pa 17013 Attorney for Plaintiff John P. Stengel, Esquire 53 North Duke Street Lancaster, Pa 17602 Attorney for PP&L DONALD R. WARD IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v, NO. 99-7584 CIVIL TERM HIGHLANDS OF HAMPDEN SQUARE PARTNERSHIP, SYDNEY J. RUBLE, RICHARD S. RUBLE, YINGST HOMES, INC., THE BARON GROUP f/k/a PENTAD ENTERPRISES, RICHARD YINGST, JR., CIVIL ACTION - LAW Individually and t/a HIGHLANDS OF HAMPDEN SQUARE PARTNERSHIP, PENNSYLVANIA POWER & LIGHT; BELL ATLANTIC; and RICHARD WHITAKER c/o YINGST HOMES, INC., Defendants JURY TRIAL DEMANDED IN RE: PENNSYLVANIA POWER & LIGHT MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER~ P.J., OLER, J. and GUIDO, J. HOFFER~ P.J.: A brief factual foundation is necessary to understand the complexities of this case. In July of 1995 work was being performed in~ phase V of a development named Highlands of Hampden Square. At the time, plaintiff, Donald R. Ward, was working for Cassel Paving and Excavation at the development when he walked backwards into a utility trench. The fall that the plaintiff sustained occurred on or about July 19, 1995, during the paving of Saffron drive. Plaintiff subsequently commenced this action against all the above named defendants. One defendant, Highland of Hampden Square Partnership, owned the development known as the Highlands of Hampden Square. The defendants included the partnership and partners. The partnership was comprised of the following partners: Yingst Homes, Inc.; The Baron Group; and Sydney and Richard Ruble; Richard Yingst, Jr. as the sole officer and shareholder of Yingst Homes, Inc. was also named as a defendant. The remaining defendants named were Pennsylvania Power and Light (hereinafter "PP&L") and Bell Atlantic. Specifically against PP&L, plaintiff alleges that PP&L owed a duty of care arising from a right of way or easement; retention of control of the property; providing specifications for the trench; approving an application for service that would involve excavation; and/or performed were responsible for and/or entered into a contract with respect to the trench work. PP&L is alleged to be negligent under twenty-one specific allegations. PP&L has since filed a motion for summary judgment. The following will discuss the merits of PP&L's motion for summary judgment. SUMMARY JUDGMENT A party may move for summary judgment consistent with Pa. R.C.P. 1035.2 as follows: After the relevant pleadings are closed, but within such time as not to delay trial, a party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which would be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury would require the issue to be submitted to a jury. The standard for summary judgment in Pennsylvania is well established. Summary judgment is granted properly when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no ge~nuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa. R.C.P. 1035(b). Summary judgment is appropriate only in those cases that are clear and free from doubt. McConnau.qhey v. Bldg. Components, Inc., 536 Pa. 95, 98, 637 A.2d 1331, 1333 (1994) citing Musser v. Vilsmeir Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id_= citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). BUTY Plaintiff alleged that PP&L failed to warn plaintiff at the 8evelopment or otherwise protect plaintiff from the dangerous conditions. The Court must first determine whether PP&L owned a duty to plaintiff and whether that duty was breached. PP&L initially argued that its contract with Richard Yingst, Jr., as the general contractor imposed no duty upon PP&L. The Court agrees. The agreement between PP&L and the general contractor specifically limited PP&L's role. According to the agreement, the applicant for electric service to a development shall conform with the following rules: (b) at its own cost, clear the ground in which the lines and related facilities are to be laid of trees, stumps and other obstructions, provide the excavating and backfilling subject to the inspection and approval of the Company, and rough grade it to within six inches of final grade, so that the Company's part of the installation shall consist only of laying of the lines and installing other service-related facilities. See Agreement between Richard Yingst Jr. and PP&L; See PP&L Tariff Rule 4-c(3) (emphasis added). Thus PP&L's duties were limited to only laying of the lines and installing other service-related facilities, whereas the applicant assumed responsibility for excavation and backfilling. Thus PP&L had no contractual duty to any parties other than laying lines for Yingst. However, this inquiry does not end our inquiry into whether PP&L had a duty to warn or protect the plaintiff. A party to a contract has two duties: a contractual duty and a legal duty to act without negligence towards both the other party to the contract and third parties. Weiser v. Bethlehem Steel Corp 353 Pa. Super 10, 17, 508 A.2d 1241, 1245 (1986) citing Prost v. Caldwell Stores, Inc., 409 Pa. 421,425, 187 A.2d 273, 277 (1963). In order to ascertain the extent of PP&L's legal duty to ihe plaintiff, we must first establish the relationship between the two. Generally, under Pennsylvania law, one who constructs a building or creates a condition on behalf of a possessor of land has the same liability as a possessor of land for physical harm caused to others by the dangerous character of the building or condition while it is in his control. See Restatement § 384; Mckenzie v. Cost Brothers, Inc., 487 Pa. 303, 307-08, 409 A.2d 362,364 (1979). However, the rules applicable to a party who performs work on behalf of a general contractor reflect a recognition of the need to identify a responsible party in those circumstances. When a party performs an activity on behalf of a general contractor, a duty of care is imposed on that party, but only with respect to that particular work entrusted to him. Weiser, 353 Pa. Super at 17, 508 A.2d at 1245 (citing Restatement §384 comment d). Thus PP&L had the liability of a possessor of land with respect to harm done by that portion of work which it had been,subcontracted to p~rform which was laying the lines. The question then arises whether PP&L created a dangerous condition in the performance of its contractual duties. PP&L's duties were confined to installation, which consisted of "only laying of line and installing service-related facilities." In connection with these duties, and accepting as true plaintiff's testimony, PP&L had laid their respective lines, at which time Yingst backfilled the trench to the surface and the final few feet were left open so that the line could be spliced. The laying of the lines did not create the dangerous condition that caused plaintiff's injuries. That condition had already been created by another party and existed both before and after PP&L performed~its contractual duty. Thus Yingst, as the general contractor was charged with duties of care with respect to its activities and the conditions at phase V, not PP&L. In addition to the plaintiff's allegations relating to the failure to warn and/or protect the plaintiff, plaintiff's complaint includes allegations relating to negligence in the installation of the PP&L lines. However, plaintiff has failed to produce any evidence in support of these allegations. Therefore, plaintiff cannot proceed against PP&L under this notion. WHETHER ALLEGATION OF EASMENT IMPOSES ADDITIONAL LEGAL DUTY Plaintiff also alleged in the complaint that PP&L held an easement. However, those allegations do not alter the above analysis, as easements do not create duties which otherwise do not exist. Although an easement is a non- poss.essory interest, sufficient control may exist so as to give rise to liability as the possessor of the easement, and thus an owner of an easement may be treated as a possessor for the purposes of liability. Leichter v. E. Realty Co. 358 Pa. Super 189, 194-95, 516 A.2d 1247 (1986) citing Cooper vl Readinq, 392 Pa. 452, 140 A.2d 792 (1956). However, instantly, the activity with respect to the easement was the laying of the lines. As such, PP&L exercised no control with respect to signing or other protections as it limited itself to the activity defined in the tariff. CONCLUSION The plaintiff in this case has not and cannot adduce any evidence to establish liability on the part of PP&L. There is no genuine issue of material fact that PP&L had any duty to protect the plaintiff. As such, PP&L's motion for summary judgment is granted.