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HomeMy WebLinkAbout99-4508 civilFRANKLIN J. LYNCH, JR., · IN THE COURT OF COMMON PLEAS OF a minor, by his parents and · CUMBERLAND COUNTY, PENNSYLVANIA natural guardians, · DARLENE C. LYNCH · .o and FRANKLIN J. LYNCH, · SR., and DARLENE C. · LYNCH and FRANKLIN · J. LYNCH, SR., in their · own right, ' Plaintiffs · Vo BRIAN L. JOHNSON and JOHN M. DEVINE and JENNIFER L. DEVINE, husband and wife, Defendants · NO. 99-4508 CIVIL TERM · CIVIL ACTION- LAW IN RE- MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS JOHN M. DEVINE AND JENNIFER L. DEVINE BEFORE BAYLEY, GUIDO, J J, AND NOW, this ORDER OF COURT 44~ day of SEPTEMBER, 2000, the motion for summary judgment filed by defendants Devine is GRANTED. By Edward E. Guido, J. Robert Eddins, Esquire For the Plaintiffs Michael Cassiday, Esquire For Defendant Johnson John R. Ninosky, Esquire For Defendants Devine FRANKLIN J. LYNCH, JR., · IN THE COURT OF COMMON PLEAS OF a minor, by his parents and · CUMBERLAND COUNTY, PENNSYLVANIA natural guardians, : DARLENE C. LYNCH : and FRANKLIN J. LYNCH,: SR., and DARLENE C. : LYNCH and FRANKLIN J. LYNCH, SR., in their own fight, Plaintiffs go BRIAN L. JOHNSON and JOHN M. DEVINE and JENNIFER L. DEVINE, husband and wife, Defendants · · NO. 99-4508 CIVIL TERM · CIVIL ACTION- LAW IN RE' MOTION FOR S[IMMARY JUDGMENT OF DEFENDANTS JOHN M. DEVINE AND JENNIFER L. DEVINE BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT On August 4, 2000, defendants John M. Devine and Jennifer L. Devine (hereinafter the Devines) filed the motion for summary judgment currently before us. Plaintiffs have not filed a response as required by Pa. Rule of Civil Procedure 1035.3. The matter was scheduled for argument before this Court on August 30, 2000. The Devines filed a brief in support of their position. Plaintiffs did not. FACTUAL BACKGROUND On October 18, 1997 minor plaintiff was bitten by defendant Johnson's dog at the home of defendant Johnson. Defendant Johnson was in possession of' the home pursuant to a written lease agreement with the owners, defendants Devine. It is undisputed that NO. 99-4508 CIVIL TERM defendants Devine were not in possession of the premises. It is further undisputed that the Devines had no knowledge that the dog in question was anything other than a friendly house pet. Based upon those undisputed facts, we will grant the motion for su..mmary judgment. DISCUSSION Defendant's motion for summary judgment is based upon Pa. Rule of Civil Procedure 1035.2 which provides as follows' After the relevant pleadings are close, but within such time as not to unreasonably delay trial, any 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 could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the 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 trial would require the issues to be submitted to a jury. In determining whether to grant a motion for summary judgment we must examine the record in the light most favorable to the non-moving party. Ertel v. Patriot-News Co., 544 Pa. 93,674 A.2d 1038 (1996). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. Summary judgment may only be granted in cases that are clear and free from doubt. Hoffman v. Brandywine HOSp., 443 Pa. Super. 245, 661 A.2d 397 (1995). The law applicable to a suit against a landlord out of possession for injuries inflicted by a tenant's animal was summarized by our Superior Court in Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871 (1984). As the Court stated: NO. 99-4508 CIVIL TERM Generally, a landlord out of possession is not responsible for attacks by animals kept by his tenant on leased premises where the tenant has exclusive control over such premises. However, a landlord out of possession may be held liable for injuries by animals owned and maintained by his tenant when the lafidlord has knowledge of the presence of the dangerous animal and where he has the fight to control or remove the animal by retaking possession of the premises. (citations omitted) 483 A.2d 873. Applying the law to the facts before us, it is clear that summary judgment is appropriate. ORDER OF COURT AND NOW, this 19TM day of SEPTEMBER, 2000, the motion for summary judgment filed by defendants Devine is GRANTED. By the Court, Robert Eddins, Esquire For the Plaintiffs Michael Cassiday, Esquire For Defendant Johnson John R. Ninosky, Esquire For Defendants Devine 'sld s/s Edward E. Guido Edward E. Guido, J.