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Home My WebLink About97-7065 CivilEARL A. WINDEMAKER, Plaintiff ALAN KREITZER, t/d/b/a SILVER SPRING ANTIQUE AND FLEA MARKET and SILVER SPRING SPEEDWAY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-7065 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND NOW, defendants' motion for summary judgment, accompanying opinion, the motion is denied. BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT this Iff ~ay of November, 1999, a~er careful consideration of and for the reasons stated in the J[~q~sl~y Oler,'Jr.~) ' Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff BY THE COURT, Paul Lancaster Adams, Jr., Esq. RAWLE & HENDERSON, LLP The Widener Building One South Penn Square Philadelphia, PA 19107 Attorney for Defendants :rc EARL A. WINDEMAKER, Plaintiff Vo ALAN KREITZER, t/d/b/a SILVER SPRING ANTIQUE AND FLEA MARKET and SILVER SPRING SPEEDWAY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 97-7065 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT Oler, J., November 15, 1999. In this negligence action for personal injuries, an individual plaintiff has sued an individual and a corporation as the result of an alleged slip and fall on premises in Mechanicsburg, Pennsylvania. For disposition at this time is a motion for summary judgment filed by the defendants. The basis for defendants' motion is that no evidence exists to support the proposition that the area of ground where plaintiff alleges the fall occurred was possessed, managed or controlled by defendants. Argument on defendants' motion was held on August 11, 1999. For the reasons stated in this opinion, defendants motion for summary judgment will be denied. STATEMENT OF FACTS The record in the present case, for purposes of consideration of defendants' motion, l consists of plaintiff's complaint, defendants'answer with new matter, and defendants' motion for summary judgment. Attachments to the motion for summary judgment consist of a copy of plaintiff's complaint, an affidavit of the individual defendant, a letter from a surveyor stating that "[i]t is rather obvious that [plaintiff] fell somewhere off of the Speedway property," and a survey map purporting to show that the fall site was outside the boundary line of the "Silver Spring Speedway." The affidavit stated that the property where plaintiff's fall allegedly occurred was owned by a nonparty, that neither he nor "Silver Springs Speedway" owned this ground, and that he had no property interest in, or maintenance responsibility for, the area. Plaintiff's complaint, in pertinent part, may be summarized as follows: Plaintiff is Earl A. Windemaker, a 65-year-old resident of Carlisle, Pennsylvania. Defendant Alan Kreitzer is the owner of the Silver Spring Antique and Flea Market in Mechanicsburg, Pennsylvania. Defendant Silver Spring Speedway, Inc., is the owner of the property where Mr. Kreitzer conducts business. On December 24, 1995, as a business invitee, plaintiff slipped on ice at the entrance to a parking lot serving the Silver Spring Speedway property, injuring his shoulder. Plaintiff's accident was a result of defendants' improper maintenance, See Pa. R.C.P. 1035.1. 2 negligent inspection, and inadequate warnings with respect to the area where plaintiff fell. Defendants' motion for summary judgment asserts that "[a] sufficient boundary survey was performed by Surveyor Carl Poffenberger and it was determined that the area indicated by plaintiff as the 'approximate fall area' is completely off of the Silver Springs Speedway property.''2 The motion concludes that "Plaintiff cannot produce any evidence that Defendants are liable to him for the injuries he sustained.''3 The survey attached to the motion tends to show that an area where plaintiff thought he had fallen and an area where defendant Kreitzer believed the fall had occurred were both slightly off the premises of "Silver Spring Speedway.''4 Plaintiff argues, in response to the motion, that "Defendant should not b~ granted a summary judgment because ... Defendant holds an easement for ingress, egress, and parking on the land where Plaintiff fell? The existence of such an easement is apparently, in plaintiff's view, to be inferred from the continued use of the adjacent property for the benefit of land directly owned or occupied by defendants. 2 Defendants' motion for summary judgment, paragraph 6. 3 Defendants' motion for summary judgment, paragraph 8. 4 Defendants' motion for summary judgment, Exhibit D. 5 Plaintiff's Brief in Opposition to the Motion Made by Defendant for Summary Judgment, at 4. DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 states as follo~vs with respect to motions for summary judgment: [a]fter the relevant pleadings are closed, 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. "Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party's witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact." Note, Pa. R.C.P. 1035.2; see Pa. R.C.P. 1035.3(b). On a motion for summary judgment, a court "should not attempt to resolve conflicting contentions of fact or conflicting inferences, which may be drawn from such facts .... Summary judgment is an 'eyes-only' procedure, which does not allow for a factual hearing." 6 Standard Pennsylvania Practice 2d, §32:113, at 257 (1998). Where an injury occurs off a defendant's premises, but a legitimate question exists as to whether an easement may have existed for the benefit of the 4 premises, upon which liability of the defendant could be predicated, summary judgment on the theory that defendant had no responsibility for the area where the accident occurred is generally not appropriate. See, e.g., Blackman v. Federal Realtylnvestment Trust, 444 Pa. Super. 411,664 A.2d 139 (1995). In the present case, although it may be that plaintiff will ultimately be unable to prevail on a theory of liability based upon defendants' use of adjoining property for the benefit of the Silver Spring Speedway land, it is believed that a final disposition of the case on that issue at this time would be premature and unsustainable. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 15th day of November, 1999, after careful consideration of defendants' motion for summary judgment, and for the reasons stated in th6 accompanying opinion, the motion is denied. BY THE COURT, Marcus A. McKnight, III, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Paul Lancaster Adams, Jr., Esq. RAWLE & HENDERSON, LLP The Widener Building One South Penn Square Philadelphia, PA 19107 Attorney for Defendants :rc 6