Mallesky v. Stevens
Mallesky v. Stevens
Opinion of the Court
Opinion by
In the Court of Common Pleas of Allegheny County, Elizabeth Mallesky and Michael Mallesky, her husband (Malleskys), instituted a trespass action against Ernest A. Stevens (Stevens) for personal injuries sustained by Elizabeth Mallesky and property damage inflicted on the Mallesky home, allegedly, as the result of a motor vehicle, owned and operated by Stevens, striking the Mallesky home in the early morning of October 9, 1964. Stevens then filed a complaint to bring upon the record, as an additional defendant, Andrew
Rule 1035, in pertinent part, provides as follows:
“(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered 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 a judgment as a matter of law.”
It is Hritz’s theory that the Mallesky-Stevens action is based upon a cause of action different from the cause of action in the Stevens-Hritz action. According to the complaint in the Mallesky-Stevens action, at the time and place of the accident the Stevens motor vehicle left the highway and struck the Mallesky home and, according to the complaint in the Stevens-Hritz action, Hritz’s motor vehicle left the highway and struck the Mallesky home. The record indicates that, if the Mallesky home was struck by the Stevens motor vehicle, such event took place prior to the striking of the Mallesky home by the Hritz vehicle, if the latter did strike the Mallesky home.
We have presented herein a situation in which two separate accidents occurred in one of which Stevens’ motor vehicle was involved and in the other the Hritz motor vehicle was involved and, although the time which elapsed between the happening of each incident was very short, each constituted a separate and distinct incident.
The court below, in entering the summary judgment, relied upon Rodich v. Rodich, 421 Pa. 154, 218 A. 2d 816 (1966). Pa. R. C. P. Rule 2252(a) permits the joinder of “any person not a party to the action who may be alone liable or liable over to him on the cause of action declared upon or jointly or severally liable thereon with him.” (Emphasis added). In Rodich, supra, we said: “In the instant case, two separate incidents occurred and two separate actions are pending for the resolution of the issues arising from the two separate occurrences. Each of the separate defendants should be responsible for damages which resulted from his negligence, if any.” (p. 156) While Malleskys, insofar as the instant record indicates, have not instituted a trespass action against Hritz, it is clear beyond question that the cause of action in Mallesky-Stevens and the cause of action in Mallesky-Hritz are unrelated causes of action and the cause of action declared upon in the instant case is not the same cause as de
• It is well settled that a summary judgment upon the pleadings should not be entered unless the case is clear and free from doubt: Vrabel v. Scholler, 369 Pa. 235, 85 A. 2d 858 (1952). Upon the instant record, it is clear that the causes of action are separate and unrelated and that the entry of a summary judgment by the court below was entirely proper.
Judgment affirmed.
Adopted by this Court on April 18, 1966, to become effective May 9, 1966.
Concurring Opinion
Concurring Opinion by
I agree that summary judgment was properly granted but so conclude for a reason differing from that of the majority. Rule 1035(b) governing summary judgments mandates that such judgment should be granted only if “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” The deposition of Mrs. Mallesky clearly stated that the Hritz vehicle did not strike her home and in fact, to a point some thirty feet in front of her house, tracked. the passage carved by Stevens’ automobile. Simply, no damage was done to the persons or property of the Malleskys by the Hritz automobile.
It is elementary that, no matter how grave a defendant’s negligence, defendant’s conduct must have resulted in damage to plaintiff. Since it is obvious from
Our Rule 1035(b) is in all material particulars identical to Rule 56(c) of the Federal Rules of Civil Procedure. Reference to federal cases is therefore appropriate and clearly supports this result. For a number of years the Third Circuit Court of Appeals followed what Professor Moore has termed the “unfortunate”
Stevens could thus not rely upon allegations in his third-party complaint that Hritz had also caused damage to the plaintiffs and was compelled, upon penalty of summary judgment, to support his allegations by affidavit or otherwise. The trial court was required to conclude that the Hritz vehicle was not responsible for any of the damage claimed in the Mallesky complaint and properly granted summary judgment.
Stevens’ brief states the question here involved as follows: “May an additional defendant in a trespass action be dismissed from the said proceedings and his Motion for Summary Judgment be granted solely on the depositions of the wife-plaintiff, which absolves the additional defendant from liability?” (Emphasis supplied.)
6 Moore, Federal Practice ¶56.15[1.~03] (1985),
Reference
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- Mallesky v. Stevens, Appellant
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