Garcia v. Savage
Garcia v. Savage
Opinion of the Court
The issue is whether summary judgment may be had where the moving party supports his motion with the deposition testimony of allegedly disinterested witnesses and the testimony of the movant himself.
We hold that proper application of the rule announced in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), forbids entry of summary judgment in these circumstances.
This case arose out of an accident that occurred on April 24, 1986 on the premises of Pennsylvania House, a manufacturing facility in Lewisburg. Pennsylvania House contracted with Beery Building and Components (“Beery”) to replace the roof on the facility. Beery subcontracted the roofing job to Laird Roofing (“Laird”). On the day set for the job to commence, Laird found that it did not have enough available workers to send to the Pennsylvania House project. Beery contacted appellee, David Savage, who owned a small construction business, and asked if Savage could send some of its workmen to assist in the Pennsylvania House project. Savage sent three of his workmen to the job.
Appellant, David Garcia,
Garcia brought a workmen’s compensation claim against Beery, alleging that Beery was his statutory employer. He did not bring a claim against his direct employer, Laird,
On November 13, 1986, this action was commenced by writ of summons. The only defendant was Savage. Garcia alleged that his fall resulted from the negligence of the three Savage workmen in removing the steel roof without simultaneously removing the insulation underneath it. This was alleged to be negligent because the steel and the insulation were allegedly the same color so that removing the steel and not the insulation created the risk that someone would step on the insulation, thinking it was steel, and fall through, as did Garcia. The complaint alleged that Savage was liable for the negligence of his employees on a respondeat superior theory.
Savage thereafter joined Beery, Laird and Pennsylvania House as additional defendants. Beery and Laird were granted summary judgment by order dated December 22, 1988. Motions for summary judgment filed by Savage and Pennsylvania House were denied. After further discovery via depositions, Savage again sought summary judgment. He contended that since his three workers had been under the control of Beery, Laird and Pennsylvania House during their work at Pennsylvania House, he had no liability for their actions on that day. Savage supported his factual allegation that his workers were not under his control on the day of the accident by reference to deposition testimony by the three workers themselves, who had stated that they were not supervised by Savage on that day, and deposition testimony of Beery, Laird and Savage himself to the same effect. This motion was granted by order entered January 31, 1990. Garcia appeals the grant of summary judgment in favor of Savage.
Summary judgment is not to be lightly entered. The standard that must be met by a party seeking summary
Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions 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.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).
Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 579 A.2d 388, 390 (1990).
Because the burden to establish the absence of a genuine issue of material fact is squarely on the movant, Rule 1035 imposes no requirement of a response by the non-moving party. Failure to answer a motion for summary judgment, through the filing of counter-affidavits or otherwise, does not constitute a waiver of issues necessary to decide the motion. Moore v. Gates, 398 Pa.Super. 211, 580 A.2d 1138, 1140 (1990). If the moving party has failed to support his motion adequately, summary judgment must be denied, even if the opposing party has not responded.
The issue in this case is whether Savage as the moving party adequately supported his motion for summary judgment by relying on his own deposition testimony and that of Beery, Laird and the three workmen. Garcia argues that
In granting plaintiff’s motion for binding instructions, the trial judge assumed the testimony of [the tax collector and the clerk] ... to be true. This he had no right to do, even though it was uncontradicted. In the words of JUSTICE SHARSWOOD, “However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.” ____The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury----
Id., 309 Pa. at 238, 163 A. at 524.
Although Nanty-Glo itself was concerned with a directed verdict, it has equally been applied to motions for
In Post, one defendant in a motor vehicle accident case supported his motion for summary judgment with evidence consisting of his own testimony, plaintiff’s testimony and the testimony of an eye witness to the accident who was not a party to the suit. The parties opposing the motion did not produce evidence contradicting the movant’s, but argued that his evidence was incompetent to support summary
The Post court appeared to base this interpretation of Nanty-Glo on the manner in which the Supreme Court had described the Nanty-Glo rule in the case of Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 439 A.2d 652 (1981). There, the Court stated that the Nanty-Glo rule prohibited summary judgment based solely on the oral testimony of the moving party or “his witnesses.” Id., 497 Pa. at 183, 439 A.2d at 662. The Commonwealth Court appears to have interpreted this phraseology to indicate that summary judgment cannot be supported if only based on testimony of witnesses who are somehow aligned with or biased in favor of the moving party.
We find no support whatsoever for this interpretation of Nanty-Glo, either in that case or in any other that has construed or applied it. Nanty-Glo itself prohibited the direction of a verdict for the plaintiff, who had presented evidence from its own representative, i.e. the county clerk, and from a party on the other side of the case, i.e. the tax collector himself, who was a defendant in the action. See discussion of Nanty-Glo, supra. Moreover, early cases decided not long after Nanty-Glo make no distinction between the oral testimony of interested and disinterested witnesses. For example, in MacDonald v. Pennsylvania R.R. Co., 348 Pa. 558, 36 A.2d 492 (1944), the Supreme
In addition, close analysis of cases directly applying Nanty-Glo and reversing an improper grant of summary judgment reveals that in such cases the courts have not distinguished between situations where the motion was supported by the testimony of interested or disinterested witnesses. For example, in Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 260 A.2d 785 (1970), the trial court had granted summary judgment to the defendant insurance company which had denied benefits to the beneficiary plaintiff on her deceased husband’s life insurance policy. The insurance company alleged that the deceased had filed a fraudulent application for the life insurance, having failed to reveal a circulatory problem. The deceased allegedly knew of this problem because two doctors with whom he had consulted prior to applying for the insurance had diagnosed the problem. The insurance company supported its motion for summary judgment with the deposition testimony of the two doctors. Plaintiff produced no evidence contradicting this testimony. Nevertheless, the Supreme Court reversed the grant of summary judgment under Nanty-Glo, finding that the credibility of the two doctors’ testimony must be judged by a jury. Id., 436 Pa. at 498-99, 260 A.2d at 787. The fact that the two doctors were not in any way interested in the outcome of the case was not even mentioned by the court and did not impact on its decision to reverse the entry of summary judgment under Nanty-Glo.
Thus, we find that there is not now nor has there ever been an exception to the Nanty-Glo rule which allows summary judgment based on the testimony of disinterested witnesses. This conclusion leads inexorably to the reversal of the trial court’s grant of summary judgment for Savage in this case. Savage relied on his own testimony and on deposition testimony of witnesses, not including any admissions by the opposing party, and produced no documentary evidence in support of his motion. He sought to show that he had no control over his workmen on the day of the instant accident solely through oral testimony. The credibility of these witnesses’ testimony on this crucial factual question should not have been accepted by the trial court. Whether or not they are to be believed, no matter what their interest or lack thereof in this lawsuit, is for a jury to decide.
The order of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.
. Garcia is joined in this appeal by his wife, Marycellis Garcia.
. The standard for deciding whether a party is entitled to summary judgment has long been equated with that for deciding whether that party would be entitled to a directed verdict at trial. See Bremmer v. Protected Home Mutual Life Ins. Co., 436 Pa. 494, 497, 260 A.2d 785, 786 (1970).
. There is one well-established exception to this proposition. Where the moving party supports his motion for summary judgment by using the admissions of the opposing party, even though they are testimonial, or of the opposing party’s own witnesses, Nanty-Glo does not forbid the entry of summary judgment. In such a situation, the court may grant the motion without determining the credibility of the testimony, for it is an "unconditional surrender” by the opposing party, to which he must be held. See Rivoli Theatre Co. v. Allison, 396 Pa. 343, 152 A.2d 449 (1959).
Despite this long-standing exception to the Nanty-Glo rule, we note that in a very recent panel decision of this court it is suggested that although Nanty-Glo was originally intended to apply only to the testimony of the movant or his witnesses, the rule was expanded by the Supreme Court in Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989), to forbid summary judgment based on oral testimony, no matter what the source, and even if the testimony is an admission of the non-moving party. This suggestion is found in Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 49, 581 A.2d 665, 669-670 (1990).
Although the foregoing interpretation of Nanty-Glo and Penn Center House is set forth in what appears to be dicta in the Troy opinion, we are nevertheless compelled to note our disagreement with it. We do not read the Penn Center House opinion to have made any change in the Nanty-Glo rule.
Summarily stated, the issue in Penn Center House was whether plaintiff, a shareholder in and resident at Penn Center House, a cooperative housing corporation, had violated Penn Center House’s rules by keeping a dog in her apartment. The trial court granted summary judgment to Penn Center House based on the admission of plaintiff in her deposition testimony that she did indeed have a dog and on the affidavit of Penn Center House's manager to the effect that this violated the rules, of which plaintiff had knowledge. The Supreme Court reversed. The court found that Penn Center House had not established the lack of a genuine issue of fact and cited Nanty-Glo.
The panel in Troy interpreted this holding to mean that summary judgment cannot be granted where the moving party relies on the
We note that there is no allegation in the instant case that Garcia ever admitted to the fact at issue, i.e. that the Savage workmen were not controlled by Savage at the Pennsylvania House project.
Concurring Opinion
concurring.
I join in the excellent and well-reasoned Opinion by Judge Beck, with the exception of the discussion in footnote 3 concerning Troy v. Kampgrounds, and the scope of our Supreme Court’s decision in Penn Center House v. Hoffman. I was a member of the Troy panel, and I joined in Judge Ford Elliott’s careful expression in that case. The facts in this case do not require a reexamination of the approach in Troy; accordingly, I offer no Opinion at this time on the question of the vitality of Troy. In all other respects, I join Judge Beck’s thorough Opinion without reservation.
Reference
- Full Case Name
- David GARCIA and Marycellis M. Garcia, Appellants, v. David J. SAVAGE T/D/B/A David J. Savage Corporation, v. PENNSYLVANIA HOUSE
- Cited By
- 51 cases
- Status
- Published