HomeMy WebLinkAbout93-2065 CivilBRAD SLAYBAUGH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
GEORGE FLOOK, JR., :
Defendant : NO. 2065 CIVIL 1993
IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE SHEELY, P.J., HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 2 9~ day of July, 1995, upon careful
consideration of Defendant's Motion for Summary Judgment, as well
as the briefs and oral arguments presented in this matter, the
motion is DENIED.
BY THE COURT,
~ Wesley'Ole~r., J.
P. Richard Wagner, Esq.
2233 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Jeffrey B. Rettig, Esq. ~_
305 North Front Street ~
Harrisburg, PA 17108-0999 -'
Attorney for Defendant : --
BRAD SLAYBAUGH, : IN THE COURT OF COMMON PLEAS OF
Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
GEORGE FLOOK, JR., :
Defendant : NO. 2065 CIVIL 1993
IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE SHEELY, P.J., HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
The present slip-and-fall case arises out of an incident in
which Plaintiff allegedly tripped on a sidewalk. The sidewalk was
located on premises owned by Defendant and his wife as tenants by
the entireties at 207 Norman Road, Camp Hill, 'Cumberland County,
Pennsylvania (Subject Property). Defendant has filed a motion for
summary judgment, contending that Plaintiff has failed to join an
indispensable party, Defendant's wife, within the applicable
statute of limitations, and that Plaintiff's claim is now barred.
The motion is presently before the court for disposition.
STATEMENT OF FACTS
The instant suit was commenced by a praecipe for a writ of
summons filed on June 23, 1993. Plaintiff's complaint, filed June
12, 1994, avers that Plaintiff, Brad Slaybaugh, is an adult
individual currently residing at 421 West Broad Street,
Elizabethville, Dauphin County, Pennsylvania.~ Defendant, George
Flook, Jr., is an adult individual currently residing at 207 Norman
Plaintiff's Complaint, paragraph 1.
NO. 2065 CIVIL 1993
Road, Camp Hill, Cumberland County, Pennsylvania.2 Plaintiff
alleges that on or about June 29, 1991, at approximately 10:00
p.m., while walking on the property owned by the Defendant, the
Plaintiff tripped and fell, sustaining serious injuries in the
process.3
Defendant filed an answer on July 8, 1994, denying ~iability,4
denying that the Subject Property was owned by Defendant, asserting
that it was owned by Defendant and his wife as tenants by the
entireties,~ and asserting by way of new matter that the
Plaintiff's claim was barred by his failure to join an
indispensable party in the person of Defendant's wife.6 Defendant
supported his assertion by attaching to the answer and new matter
a copy of a deed conveying the Subject Property to Defendant and
his wife, as tenants by the entireties.~
The Plaintiff, on July 27, 1994, filed a reply to Defendant's
new matter in which he admitted that the Subject Property was owned
2 Plaintiff's Complaint, paragraph 2; Answer and New Matter
of Defendant, paragraph 2.
3 Plaintiff's Complaint, paragraphs 3-6.
4 Answer and New Matter of Defendant, paragraphs 13-16.
Defendant also raised the defense of contributory negligence by way
of new matter. Id. at paragraphs 17-18.
Answer and New Matter of Defendant, paragraph 5.
Answer and New Matter of Defendant, Exhibit A.
Answer and New Matter of Defendant, Exhibit A.
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NO. 2065 CIVIL 1993
by Defendant and his wife as tenants by the entireties.8 The
Plaintiff averred that Defendant was estopped from asserting that
Defendant's wife was an indispensable party in this action, because
the insurance carrier of the Defendant represented the owner of the
Subject Property to be solely the Defendant.9
On August 4, 1994, Defendant filed a motion~for judgment on
the pleadings based upon the contention that Plaintiff's failure to
join an indispensable party within the applicable statute of
limitations barred Plaintiff's present claim. The motion was
denied because this court found an unresolved issue of material
fact regarding the estoppel claim raised in Plaintiff's reply to
new matter.
On October 4, 1994, Defendant served Plaintiff with
interrogatories, a request for production of documents and a
request for admissions, in an attempt to establish the basis for
Plaintiff's estoppel claim. Plaintiff responded to Defendant's
inquiry by supplying the following materials: (1) checks made
payable to the Plaintiff from the insurance carrier of the
Defendant and correspondence from the insurance carrier of the
Defendant -- all listing only the Defendant as the insured; (2)
correspondence from the insurance company attempting to negotiate
8 Plaintiff's Answer to New Matter, paragraph 14.
9 Plaintiff's Answer to New Matter, paragraph 15. Plaintiff
also denied that he was comparatively negligent. Id., paragraphs
17-18.
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NOo 2065 CIVIL 1993
a settlement of Plaintiff's claim;~° and (3) correspondence from the
insurance carrier ultimately inviting the filing of suit.~
On February 24, 1995, the Defendant filed a motion for summary
judgment, asserting the following:
In Pennsylvania, both spouses who own
property as Tenants by the Entireties are
indispensable partie~ who must be joined
within the two-year statute of limitations in
a cause of action alleging personal injuries
arising from a condition existing on the
entireties' property.~2
The statute of limitations on Plaintiff's
Claim expired June 28, 1993.~3
Because Plaintiff failed to join an
indispensable party, namely [Defendant's
wife], his claim is now barred.TM
Defendant's Motion for Summary Judgment further asserted that
Plaintiff had failed to meet his burden of demonstrating the
elements of estoppel by clear and convincing evidence.
STATEMENT OF LAW
Summary judgment. Pennsylvania Rule of Civil Procedure
1035(b) provides that summary judgment "shall be rendered if the
pleadings, depositions, answers to interrogatories, and admissions
Id.
Id.
Defendant's Motion for Summary Judgment, paragraph 12.
Id. at paragraph 13.
Id. at paragraph 14.
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NO. 2065 CIVIL 1993
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 judgment as a matter of law." In this regard,
"It]he moving party has the burden of proving the non-existence of
any genuine issue of fact." Thompson Coal Co. v. Pike Coal Co.,
488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). ~'A fact is
'material' if its determination could affect the outcome of the
case, and a dispute concerning a material fact is 'genuine' where
the evidence is such that a reasonable jury could return a verdict
for the non-moving party." Barlow Vo Greenridge Oil Co., 744 F.
Supp. 108, 110 (W.D. Pa. 1990), citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Additionally, "[t]he record must be examined in the light most
favorable to the non-moving party." Schacter v. Albert, 212 Pa.
Super. 58, 62, 239 A.2d 841, 843 (1986). "All doubts as to the
existence of a genuine issue of a material fact must be resolved
against the moving party." Thompson Coal CO. v. Pike Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 468-69 (1979). A court should grant
summary judgment "only in the clearest of cases, where the right is
clear and free from doubt." Id.
Failure to Join an Indispensable Party. "By definition an
indispensable party is one whose presence is essential for the
granting of relief." Patwardhan v. Brobant, 294 Pa. Super. 129,
131, 439 A.2d 784, 785 (1982). "[A] party is indispensable where
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NO. 2065 CIVIL 1993
his rights are so connected with the claims of the litigants that
no decree can be made between [the litigants] without impairing
such rights." Powell v. Shepard, 381 Pa. 405, 412, 113 A.2d 261,
265 (1955).
Pennsylvania Rule of Civil Procedure 2227(a) provides that
"[p]ers~ns having only a joint interest in the subject matter of an
action must be joined on the same side as plaintiffs or
defendants." "Failure to join all such persons as plaintiffs or
defendants, as the case may be, permits the defense of nonjoinder
to be raised, and unless the nonjoinder is remedied or otherwise
excused the action cannot proceed." 7 Goodrich Amram 2d,
2227(a):(1) at 10 (1992).
With regard to compulsory joinder in the context of the facts
of the present case, the Superior Court of Pennsylvania has held
that "[w]here ... the plaintiff seeks to proceed against only one
person upon a cause of action involving the alleged negligent
maintenance of real estate owned by two parties as tenants by the
entireties, and where no attempt has been made to amend the
complaint to join the spouse within the period allowed by the
applicable statute of limitations, we find no difficulty in holding
that summary judgment dismissing the complaint is dictated."
Moorehead v. Lopatin, 300 Pa. Super. 81, 85, 445 A.2d 1308, 1311
(1982).
Estoppel. "In order to apply the doctrine of equitable
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NO. 2065 CIVIL 1993
estoppel, the party to be estopped must have (1) intentionally or
negligently misrepresented some material facts; (2) known or had
reason to know that the other party would justifiably rely on the
misrepresentation; and (3) induced the party to act to his or her
detriment based on their justifiable reliance upon the
misrepresented facts. One who asserts estoppel must establish
these elements by clear, precise and unequivocal evidence."
Allegheny County Hous. Auth. v. Morrissey, Pa. Commw. ,
__, 651 A.2d 632, 637 (1994) (citations omitted). "Equitable
estoppel, a doctrine [of fundamental fairness,] acts to preclude
one from doing an act different than the manner in which another
was induced by word or deed to expect." Zitelli v. Dermatology
Educ. and Research Found., 534 Pa. 360, 370, 633 A.2d 134, 139
(1993).
"In order for the doctrine of estoppel to be applied in bar of
the statute of limitations, fraud or concealment must necessarily
be established. However, this does not mean fraud in the strictest
sense encompassing an intent to deceive, but rather fraud in the
broadest sense which includes an unintentional deception. It is
not the intention of the party estopped but the natural effect upon
the other party which gives vitality to an estoppel." Nesbitt v.
Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473, 476 (1964) (citations
omitted).
NO. 2065 CIVIL 1993
APPLICATION OF LAW TO FACTS
Examining the record in a light most favorable to the
Plaintiff, the court believes that summary judgment is
inappropriate in this case. A factual dispute exists herein as to
whether the actions of Defendant's insurance carrier constituted a
misrepresentation of a material fact. Since the court believes
that this is not a case in which Defendant's right to summary
judgment is clear and free from doubt, the following Order will be
entered:
ORDER OF COURT
AND NOW, this ~ ~ ~ day of July, 1995, upon careful
consideration of Defendant's Motion for Summary Judgment, as well
as the briefs and oral arguments presented in this matter, the
motion is DENIED.
BY THE COURT,
J.' ~sley Ole~/Jr., J.
P. Richard Wagner, Esq.
2233 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Jeffrey B. Rettig, Esq.
P.O. Box 999
305 North Front Street
Harrisburg, PA 17108-0999
Attorney for Defendant
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