Kitchin v. Farber

20 Pa. D. & C.3d 11, 1981 Pa. Dist. & Cnty. Dec. LEXIS 348
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedFebruary 6, 1981
Docketno. GD 77-07913
StatusPublished

This text of 20 Pa. D. & C.3d 11 (Kitchin v. Farber) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kitchin v. Farber, 20 Pa. D. & C.3d 11, 1981 Pa. Dist. & Cnty. Dec. LEXIS 348 (Pa. Super. Ct. 1981).

Opinion

SILVESTRE, J.,

On October 2, 1976, Travis Camp Kitchin sustained injuries and his wife Helen died as the result of a collision of their vehicle with the vehicle of Kenneth W. Farber. The accident occurred on Interstate 80; the Kitchins were eastbound and Farber was westbound; Farber’s vehicle crossed over into the eastbound lane colliding with the Kitchin vehicle.1

The Kitchins claim, inter aha, as herein relevant, that the Farber vehicle crossed into their lane of traffic because the left rear control arm of the car broke; that on September 18, 1976, two weeks before the collision, Farber’s vehicle was inspected at the service station of Ernest Buterbaugh, who passed the vehicle despite the existence of a dangerously corroded control arm which was not properly corrected and should have been replaced.

The Kitchins further claim that Buterbaugh was the agent servant and/or employe of Texaco, Inc., which Texaco has denied. Upon completion of the pleadings, Texaco filed a motion for summary judgment pursuant to Pa.R.C.R 1035 relying upon the depositions and interrogatories of record; Kitchin has filed an affidavit which sets forth the radio advertisements of Texaco during 1974 and 1975.2

Plaintiffs directed interrogatories to Texaco which were answered and the answers, as herein relevant, are set forth below.

[13]*13Texaco does have some retail outlets who have a contractual relationship with it which imposes certain obligations upon the retailer relative to the use of the Texaco name, logo or mark; there are other service stations who obtain Texaco products from a wholesaling intermediary and Texaco obligates its wholesalers to sell the products purchased from Texaco under Texaco brand names (interrogatory 1). Buterbaugh’s service station was not selected by Texaco to use the Texaco name or logo, but he did sell certain Texaco products which apparently were obtained from Bi-Rite Oil Company (interrogatory 2). There were no agreements or understandings between Texaco and Buterbaugh relative to the use by Buterbaugh of Texaco’s name or any logo or mark (interrogatory 5). As there was no contractual relationship between Texaco and Buterbaugh, Texaco did not police or inspect Buterbaugh’s service station (interrogatory 7). Penn Glenn Oil Company, with whom Texaco has a distributor agreement for Texaco products, has a supply arrangement for Texaco products with Bi-Rite Oil Company and Bi-Rite supplies Buterbaugh with Texaco products (interrogatory 12). No persons in the employ of Texaco sold or distributed Texaco products to Buterbaugh during the period of time relative to the events in the complaint (interrogatory 13). Texaco did no advertising either in the Pittsburgh area or nationally of its name, logos or marks in connection with the repair and/or inspection of motor vehicles (interrogatories 14 and 17).

Ernest Buterbaugh’s deposition was taken on March 21,1978, and as herein relevant, establishes the following.

Buterbaugh owns a service station and garage at 1031 Perry Highway which is also a Pennsylvania State inspection station. Buterbaugh acquired the property in 1970 at which time he began selling [14]*14Texaco products. Prior to 1970, it was Citgo and then Fleet Wing station (Transcript 4, 5). Buterbaugh stocks and sells product other than Texaco products, e.g. Kendall Oil, Quaker State Oil, Goodyear tires, generator and repair parts (Transcript 6); the service station and garage is one business (Transcript 7) and he inspects only automobiles and light trucks (Transcript 8). On September 18, 1976, Butterbaugh inspected the vehicle of Kenneth Farber (Transcript 8); he did not inspect Father’s vehicle at any time prior to September 18,1976 (Transcript 9,15). Buterbaugh has a “big light” Texaco sign at the end of the building, on a pole about 20 feet high, and a Texaco sign above the entrance door (Transcript 16, 18) and on the “pumps” (Transcript 51). There are no other Texaco signs (Transcript 18). The Texaco signs were put up by Bi-Rite Oil Company, who is Buterbaugh’s distributor out of Monroeville and is independent of Texaco; the signs were provided by By-Rite free of charge (Transcript 18). In addition to performing a state inspection on Farber’s vehicle, Buterbaugh greased the vehicle and changed the oil and filter (Transcript 19). In the course of the State inspection, Buterbaugh did inspect the right rear control arm (Transcript 22). Buterbaugh is not employed by Texaco (Transcript 29) nor does he honor any “specials” which Texaco may promote since he is an independent dealer and not affiliated with Texaco. Texaco representatives never call on him (Transcript 30). Texaco never inspected Buterbaugh’s facilities, nor did they even ask to do so; nor have they been on his premises (Transcript 36, 37), nor has he ever had any correspondence with Texaco (Transcript 38); Buterbaugh has never done any business in connection with Texaco except through Bi-Rite (Transcript 39); Buterbaugh is not [15]*15listed in the phone book under Texaco stations (Transcript 40). Texaco has never asked Buterbaugh to become an official inspection station (Transcript 49). The (Texaco) gasoline and oil products which Buterbaugh purchases from Bi-Rite are for resale at prices that he establishes (Transcript 64). The state inspection permit is issued in Buterbaugh’s name; Texaco has no say whatsoever in the operation of the inspection station or inspection activities nor does it receive any proceeds therefrom (Transcript 64, 65, 66). Buterbaugh did not use any forms in his business that had the name Texaco on them (Transcript 73), although he did honor Texaco credit cards (Transcript 73, 74). Buterbaugh had no advertising arrangements with Texaco (Transcript 75). Texaco was not aware that Buterbaugh was performing state inspections and repairs on motor vehicles during the period of time relevant to the events in the complaint (interrogatory 4). Texaco has never suggested nor has Buterbaugh requested of them any help relative to tools or equipment to be used in the inspection of vehicles (Transcript 78, 79).

• The deposition of Kenneth W. Farber was taken on September 4, 1979 and, as herein relevant, establishes the following.

Farber was the owner and operator of a 1976 Pontiac automobile which was involved in the accident with the Kitchins on October 2, 1976 (Transcript 7). He never went to any one particular place to have his car inspected; he usually went to a gas station to have it inspected and serviced but never dealt with any place steadily (Transcript 13). Farber had his vehicle inspected a year, year and a half before at an Amoco station on Perrysville Avenue near where he lived, which was a “handy” place to take it (Transcript 15). It was inspected [16]*16again at the same Amoco afterwards and, “There was one that the gas station ain’t even there any more (Phillips 66 on Babcock Boulevard) and Butterbaugh’s was the last one.” (Transcript 24, 58). Farber went to Buterbaugh’s for an oil change and a grease job because he was getting ready to go deer hunting,". . . and while I was there, he wasn’t busy and I asked him to inspect it. I said, ‘Do you have time to inspect it?’ and he said, ‘Yes,’ I usually don’t deal with them either. I know them. The(y) work trucks, but I never knew him or anything.” (Transcript 25). Farber’s employer takes his trucks to Buterbaugh for gas (Transcript 60); Farber further testified as follows:

By Mr. Kirshner:
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stevens v. Parke, Davis & Co.
507 P.2d 653 (California Supreme Court, 1973)
Taylor v. Costa Lines, Inc.
441 F. Supp. 783 (E.D. Pennsylvania, 1977)
Revere Press, Inc. v. BLUMBERG
246 A.2d 407 (Supreme Court of Pennsylvania, 1968)
Girard Trust Bank v. Sweeney
231 A.2d 407 (Supreme Court of Pennsylvania, 1967)
Apex Financial Corp. v. Decker
369 A.2d 483 (Superior Court of Pennsylvania, 1976)
Universal Computer Systems, Inc. v. Medical Services Ass'n
474 F. Supp. 472 (M.D. Pennsylvania, 1979)
Capetola v. Orlando
463 F. Supp. 498 (E.D. Pennsylvania, 1978)
B. P. Oil Corp. v. Mabe
370 A.2d 554 (Court of Appeals of Maryland, 1977)
Moore v. Zimmerman
292 A.2d 458 (Superior Court of Pennsylvania, 1972)
Passarelli v. Shields
156 A.2d 343 (Superior Court of Pennsylvania, 1959)
Granthum v. Textile Machine Works
326 A.2d 449 (Superior Court of Pennsylvania, 1974)
Drexel v. Union Prescription Centers, Inc.
582 F.2d 781 (Third Circuit, 1978)
First National Bank of Commerce v. United States
404 U.S. 828 (Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
20 Pa. D. & C.3d 11, 1981 Pa. Dist. & Cnty. Dec. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitchin-v-farber-pactcomplallegh-1981.