Oswald v. Hausman

47 Pa. D. & C.3d 498, 1987 Pa. Dist. & Cnty. Dec. LEXIS 143
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedSeptember 4, 1987
Docketno. 85-C-1089
StatusPublished

This text of 47 Pa. D. & C.3d 498 (Oswald v. Hausman) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oswald v. Hausman, 47 Pa. D. & C.3d 498, 1987 Pa. Dist. & Cnty. Dec. LEXIS 143 (Pa. Super. Ct. 1987).

Opinion

McGINLEY, J.,

The matter before the court are motions for summary judgment by all defendants. For the following reasons, we grant summary judgment in favor of all defendants.

On January 28, 1984, at approximately 4:30 p.m., Arthur Unangst, 74 years old, for reasons which will never be known, got up from his rocking chair and abruptly drove off in his car, leaving his home at 939 Cedar Street, Allentown, Pa., where he had resided since 1963 with his companion, Althea Oswald. Mr. Unangst, who was suffering from emphysema, did not tell Miss Oswald where he was going, although he usually did not make trips without her company. Mr. Unangst did not return from his trip, and on Sunday, January 29, 1984, Miss Oswald reported him missing.

On Tuesday, January 31, 1984, Harold "Wenner was snowmobiling on the property owned by defendant Cynthia Hausman. The property of defendant Cynthia Hausman is located along a private, rural road off Legislative Route 39048 in Lowhill Township, Lehigh County, Pennsylvania. Mr. Wenner found the body of Mr. Unangst behind the wheel of his automobile which was parked along the road at a point where it goes through Cynthia Hausman’s property. The state police were summoned and the body was removed that day. Evidence suggested that decedent’s vehicle had be[500]*500come stranded on the snow-covered road and that he was unable to extricate himself. A pathologist’s report indicates that the actual date of death was January 28, 1984, due to overexposure (hypothermia). Decedent was found approximately a city block in distance from the home of Cynthia Hausman. '

Plaintiff alleges a cause of action against defendants for the breach of various alleged duties relating to the private road on which Arthur F. Unangst died. Plaintiff alleges that Mr. Unangst’s untimely death due to hypothermia was caused by the lack of proper warnings, the lack of maintenance, and general negligence of defendants with respect to the road. The specific legal allegations against the individual defendants vary.

The road on which decedent was found is an easement which passes from Legislative Route 39048 to land belonging to Ralph Kressley and Pauline Kressley. The deeds of those who reside along the road contain language establishing “a permanent 33 foot road leading from Legislative Route 39048 to the premises of the grantee thereby giving full ingress and egress to said grantees.” The road is paved as it leaves Legislative Route 39048 and passes over the property of defendants Lillian Werley and Elva Hausman and Herbert Hausman. On property owned by defendant Cynthia Hausman, the roadway becomes a dirt road and then a narrow pathway which runs onto the property of defendants Ralph Kressley and Pauline Kressley.

Cynthia Hausman’s property was being rented at the time of Mr. Unangst’s death by one David Drummer, who is not a party to this action. It was on this portion of the roadway that decedent was found.

[501]*501Defendant Ronald Werley, the son of defendant Lillian Werley and the late Clayton Werley, does not live along the roadway. As earlier noted, this private roadway is located in Lowhill Township, Pennsylvania for which reason the suit was brought against defendant township.

While no agreement existed concerning the maintenance of the roadway, the paved portion was originally blacktopped in the 1960’s by the late Clayton Werley, though all parties who lived along the roadway were asked to contribute. Thereafter, the paved portion of the roadway was resurfaced twice without reimbursement, once by Clayton Werley and once by Lillian Werley. During the winter months Harold Wenner, who lived along the paved portion, voluntarily removed snow from the roadway. Mr. Drummer had responsibility of removing snow from the pathway on' the Cynthia Hausman property.

In the afternoon of Sunday, January 29, 1984, defendant, Lillian Werley, observed a vehicle, later identified as decedent’s, going in the direction of the home owned by Harold R. Wenner (on the paved portion of the road in the direction of the unpaved portion.) It had recently snowed, and the paved portion had been plowed by Mr. Wenner, but the unpaved portion which extended beyond the Wenner home was not plowed. In addition to Lillian Werley, JoAnne Hess, who resided with her husband Robert Hess along the road, observed decedent’s vehicle pass the front of her home on Sunday afternoon, January 29, 1984.

The unpaved pathway where the vehicle was found was marked at the time of the incident by a “No Trespassing” sign identifying the private property of Cynthia Hausman. This solitary sign was [502]*502placed on a tree approximately 15 feet to 18 feet to the right of the unpaved portion of the road.

Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). Since the moving party for summary judgment has burden of proving that no genuine issues exist as to material facts, the record must be examined in the light most favorable to the non-moving party; in so doing, all well-pleaded facts in the non-moving party’s pleadings are accepted as true and that party is given benefit of all reasonable inferences to be drawn therefrom. Spain v. Vincente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment shall be granted if pleadings, depositions, answers to interrogatories and admissions on file together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982).

Defendant Lowhill Township claims entitlement to summary judgment based on the fact that the unpaved road on which decedent was found was not owned or cared for by Lowhill Township in January of 1984. Therefore, at all times relevant to plaintiff’s cause of action, the place where decedent and his vehicle were discovered was under the care, custody, possession and control of the do-defendant, Cynthia Hausman, or her tenant, David Drummer.

Plaintiff counters that, while it is true that the road in question is not owned by Lowhill Township, certain activities conducted by the township created duties owed to plaintiffs decedent. These activities were the township’s approval of a zoning variance of the location of a patio at the Werley home, with reference to the center line of the roadway in question, [503]*503and the fact that the township had placed a warning sign which read “Not Plowed or Cindered” on a township road similar in appearance to and approximately one-half mile from the road in question.

Where the governmental unit does not own, supervise, possess or care for property at issue, such entity does not owe a duty of care for any dangerous conditions arising on the property. Hayes v. Philadelphia Electric Co., 92 Pa. Commw. 205, 498 A.2d 1019 (1985).

Under the reasoning of Mindala v. American Motors Corp., 90 Pa. Commw. 366, 495 A.2d 644 (1985), App. gr.

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Jones v. Three Rivers Management Corp.
394 A.2d 546 (Supreme Court of Pennsylvania, 1978)
Weiss v. Keystone MacK Sales, Inc.
456 A.2d 1009 (Superior Court of Pennsylvania, 1983)
Williams v. Pilgrim Life Insurance
452 A.2d 269 (Superior Court of Pennsylvania, 1982)
Fanning v. Apawana Golf Club
82 A.2d 584 (Superior Court of Pennsylvania, 1951)
Spain v. Vicente
461 A.2d 833 (Supreme Court of Pennsylvania, 1983)
Pravlik v. City Deposit Bank & Trust Co.
34 A.2d 510 (Supreme Court of Pennsylvania, 1943)
Rachmel v. Clark
54 A. 1027 (Supreme Court of Pennsylvania, 1903)
Engel v. Parkway Co.
266 A.2d 685 (Supreme Court of Pennsylvania, 1970)
Mindala v. American Motors Corp.
495 A.2d 644 (Commonwealth Court of Pennsylvania, 1985)
Hayes v. Philadelphia Electric Co.
498 A.2d 1019 (Commonwealth Court of Pennsylvania, 1985)

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Bluebook (online)
47 Pa. D. & C.3d 498, 1987 Pa. Dist. & Cnty. Dec. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oswald-v-hausman-pactcompllehigh-1987.