author: WARMAN, J.,

text:
    Estate of Mickens v. Stevenson

      February 21, 2002
    C.P. of Fayette County,
    no. 1112 of 1999 G.D.

      Brian Cox, for plaintiffs.

      David Reiss, for defendants.
   WARMAN, J.,

Presently before this court for disposition is a motion for summary judgment filed on behalf of defendant, Rose Faidley, t/d/b/a The Showboat. Defendant avers that there are no genuine issues of material fact in dispute and that she is entitled to judgment as a matter of law to the claims contained in Counts m, IV, and V of plaintiffs’ complaint. She further claims that she should be dismissed as an additional defendant because her joinder is derivative of plaintiffs’ cause of action. Plaintiffs argue that defendant’s motion for summary judgment is premature and should be denied because a genuine issue of material fact may be established by additional discovery and the production of an expert toxicology report. After oral argument, full consideration of the record, applicable law, briefs and submissions of counsel, and for reasons more fully discussed herein, defendant’s motion for summary judgment is Granted.

BACKGROUND

The facts and procedural history of this case are as follows. During the late evening hours of July 18,1997, defendant Vaughn Stevenson went to the Showboat bar located in Connellsville, Fayette County, Pennsylvania, where he met Lisa Mickens, a former acquaintance. As the Showboat was closing, defendant Stevenson, Lisa Mickens, and several other individuals decided to go to the American Legion Post no. 762, located a short distance from Connellsville, in Trotter.

During the early morning hours of July 19,1997, at or about 3 a.m., defendant Stevenson and Lisa Mickens, the only remaining patrons, left the American Legion. Defendant Stevenson shot and killed Lisa Mickens in the parking lot. She was found in the driver’s seat of her vehicle with a gunshot wound that entered and passed through her right arm, chest cavity, both lungs, and the pericardial sac of the heart before exiting through the left arm. The victim, Lisa Mickens, was dead at the scene.

Plaintiffs William Mickens and JoAnn Mickens are the parents of Lisa Mickens. On or about January 25, 1999, they were appointed the administrators of her estate by the register of wills of Fayette County, Pennsylvania, at no. 2699-00074. On or about June 8, 1999, an eight-count complaint was filed on their behalf in the Court of Common Pleas of Fayette County, Pennsylvania, against defendants Vaughn Stevenson, American Legion no. 762, a corporation t/d/b/a American Legion, and Rose Faidley, t/d/b/a The Showboat. The American Legion filed an answer and new matter joining Rose Faidley as additional defendant pursuant to Pa.R.C.P. 2252(d). On or about October 16, 2001, the motion for summary judgment now before this court was filed on defendant’s behalf, and on November 28,2001, we heard oral argument thereon.

DISCUSSION

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, if any, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000); Davis v. Resources for Human Development Inc., 770 A.2d 353 (Pa. Super. 2001).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id. The non-moving party must adduce sufficient evidence on issues essential to its case on which he bears the burden of proof such that a jury could return a verdict in its favor. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996) 117 S.Ct. 512, 136 L.Ed.2d 401 (1996); O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa. Commw. 1999). If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001).

The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). For summary judgment purposes, a “material fact” is one that directly affects the outcome of the case. Kuneyr v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Kenney v. Jeanes Hospital, 769 A.2d 492 (Pa. Super. 2001), allocatur denied, 567 Pa. 726, 786 A.2d 988 (2001). In passing on a motion for summary judgment, the court must examine the record in a light most favorable to the nonmovant and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999), allocatur denied, 561 Pa. 660, 747 A.2d 902 (1999); Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), allocatur granted in part, 563 Pa. 125, 758 A.2d 166 (2000), affirmed, 564 Pa. 264, 767 A.2d 548 (2001).

The moving party has the burden of proving the nonexistence of any genuine issue of material fact; the non-moving party must demonstrate that there is a genuine issue for trial. Davis v. Resources of Human Development Inc., supra. The party moving for summary judgment may not rely solely on its own testimonial affidavits or depositions or those of its witnesses to establish the non-existence of a genuine issue of material fact. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992). With the above rules in mind, we will now consider defendants’ motion for summary judgment to plaintiffs’ complaint.

We will first consider defendant’s motion for summary judgment to Counts III and IV of plaintiffs’ complaint. Count III is a wrongful death action that sounds in negligence. Count IV is a survival action that sounds in negligence. Plaintiffs allege in said counts that defendant was negligent in various respects and as a result thereof, they have sustained injuries.

To state a prima facie cause of action for negligence, a plaintiff must allege: (1) a legal duty or obligation to conform to a certain standard of conduct; (2) a failure to conform to that standard; (3) a reasonably close causal connection between the conduct and resulting injury; and (4) actual damage or loss. Williams v. Syed, 782 A.2d 1090 (Pa. Commw. 2001).

“Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time.” Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994) quoting Morena v. South Hills Health System, 501 Pa. 634, 642 n.5, 462 A.2d 680, 684 n.5 (1983). (emphasis in original) Where there is no duty of care, there can be no cause of action based on negligence. Maxwell v. Keas, 433 Pa. Super. 70, 639 A.2d 1215 (1994). See also, Boyce v. United States Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971); Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2d 1332 (1985).

In Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 8, 564 A.2d 1244, 1248 (1989), the Supreme Court stated:

“Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if no care is due, it is meaningless to assert that a person failed to act with due care. Certain relations between parties may give rise to such a duty. Although each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act.” (emphasis in original)

Under common law there is no duty to control the conduct of a third party to protect another from harm, except where a defendant stands in some special relationship with either the person whose conduct needs to be controlled or in a relationship with the intended victim of the conduct which gives the intended victim a right to protection. Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 720 A.2d 1032 (1998). Thus, an exception has been carved out for those instances where a special relationship exists between the defendant and the actor or between the defendant and the foreseeable victim of the actor’s conduct. Dunkle v. Food Service East Inc., 400 Pa. Super. 58, 64, 582 A.2d 1342, 1345 (1990), citing Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976).

These general principles parallel the law as set forth in section 315 of the Restatement (Second) of Torts which provides:

“There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

“(b) a special relation exists between the actor and the other which gives to the other a right to protection.” Restatement (Second) of Torts §315.

Therefore, “[a]s a general rule, a person is not liable for the criminal conduct of another in the absence of a special relationship imposing a pre-existing duty.” Elbasher v. Simco Sales Service Pennsylvania, 441 Pa. Super. 397, 399, 657 A.2d 983, 984 (1995), citing Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984).

Section 314A of the Restatement (Second) of Torts lists the following special relations which give rise to a duty to act affirmatively to protect another:

“Special relations giving rise to duty to aid or protect

“(1) A common carrier is under a duty to its passengers to take reasonable action

“(a) to protect them against unreasonable risk of physical harm, and

“(b) to give there first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

“(2) An innkeeper is under a similar duty to his guests.

“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

“(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.” Restatement (Second) of Torts §314A.

Here, the record reveals that when Vaughn Stevenson shot and killed Lisa Mickens, they were nowhere near defendant’s establishment, but rather in the parking lot of the American Legion located in Trotter. Applying the facts of this case to the law, we believe that the record fails to disclose the existence of any special relationship between defendant and Lisa Mickens which would impose upon defendant a duty to protect Lisa Mickens from the actions of Vaughn Stevenson. Therefore, because defendant had no duty to protect Lisa Mickens from the actions of Vaughn Stevenson, even if the allegations contained in plaintiffs’ complaint were true, no cause of action based on negligence exists. Accordingly, in consideration of our foregoing discussion, and after examining the record in a light most favorable to plaintiffs, and resolving all doubts in their favor, we find that there are no genuine issues of material fact in dispute, and that defendant is entitled to judgment as a matter of law to the negligence claims contained in Counts IH and IV of plaintiffs ’ complaint.

We note that plaintiffs’ claim that defendant’s motion for summary judgment is premature and must be denied because there are outstanding discovery requests is without merit. We have found that defendant owed no duty to protect Lisa Mickens from the actions of Vaughn Stevenson. Thus, further discovery on this matter is of no consequence as there can be no liability for negligence in the absence of duty.

We will next consider defendant’s motion for summary judgment to the claims contained in Count V of plaintiffs’ complaint wherein they allege a violation of the Dram Shop Act. Defendant argues that although plaintiffs have made the requisite allegations in their complaint that employees or agents of defendant served alcoholic beverages to Vaughn Stevenson while he was visibly intoxicated, they have failed to adduce even a shred of evidence in support of said allegation. At best, defendant claims that the record establishes nothing more than the fact that Vaughn Stevenson was drinking alcoholic beverages at the Showboat. Defendant, therefore, claims that she is entitled to judgment as a matter of law to the claims contained in Count V of plaintiffs’ complaint.

Plaintiffs argue that defendant’s motion for summary judgment is premature and should be denied because there is outstanding discovery. In support of their position and argument that defendant’s motion for summary judgment is premature, plaintiffs submitted to this court an affidavit in opposition to defendant’s motion and indicated therein that they have scheduled the deposition of Vaughn Stevenson and have written to Charles H. Winek Ph.D., D.A.B.F.T., D.A.T.S., for the purpose of securing an expert report evidencing his opinion regarding Vaughn Stevenson’s blood alcohol content at various points in time throughout the evening in question and his opinion as to whether Vaughn Stevenson would have been visibly intoxicated based upon his blood alcohol content.

The Pennsylvania Dram Shop Act contains two pertinent provisions. Section 4-493 of the Liquor Code sets forth the duties associated with the service of alcohol. It reads, in pertinent part, as follows:

“It shall be unlawful for any licensee or the board, or any employee, servant agent of such licensee or of the board, or any other person, to sell, furnish, or give any liquor or malt or brewed beverages, or permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated . . . 47 P.S. §4-493(1).

This section clearly imposes a duty on those parties identified to refrain from selling liquor to a visibly intoxicated individual.

“47 P.S. §4-493 — Liability of licensees provides:

“No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.” 47 P.S. §4-497.

“A violation of the Dram Shop Act is negligence per se.” See Holpp v. Fez Inc., 440 Pa. Super. 512, 517, 656 A.2d 147, 148 (1995). However, in order to recover under the Dram Shop Act, it is not enough for an injured plaintiff to produce evidence that alcoholic beverages were served to patrons, as civil liability is only imposed upon a tavern keeper who served alcoholic beverages to a patron when the patron was visibly intoxicated and, as a consequence, another patron or person has been injured. Id. “Even if patron is intoxicated at the time that he or she is injured or causes injury to another, the tavern keeper who served alcoholic beverages to the patron will not be held civilly liable unless the patron was served at a time when he or she was visibly intoxicated.” Id.

As to the proper meaning of “visibly intoxicated” our Superior Court has stated:

“[I]n defining the violation as the dispensation of alcoholic beverages to a person ‘visibly intoxicated,’ the statute displays considerable logic in placing stress upon what can be seen. The law does not hold a licensee or its agent responsible on any basis, such as blood alcohol level of a patron, which would not be externally apparent; instead, the law decrees that the alcoholic beverage dispenser shall not provide more alcohol when the signs of intoxication are visible. The practical effect of the law is to insist that the licensee be governed by appearances, rather than by medical diagnoses.” Johnson v. Harris, 419 Pa. Super. 541, 551, 615 A.2d 771, 776 (1992) (emphasis in original) quoting Laukemann v. Commonwealth of Pennsylvania, 82 Pa. Commw. 502, 475 A.2d 955 (1984).

However, a mere breach of the statutory duty to refrain from serving alcohol to visibly intoxicated persons does not alone establish liability, as plaintiff must also show that the breach was the proximate cause and cause in fact of an injury. Id. Thus, in order for an injured plaintiff to recover under the Dram Shop Act provision prohibiting service of alcohol to visibly intoxicated persons, the following two things must be proven: (1) that the plaintiff was served alcoholic beverages while visibly intoxicated, and (2) that the violation proximately caused injuries. See Johnson v. Harris, 419 Pa. Super. 541, 550, 615 A.2d 771, 775 (1992). See also, Fandozzi v. Kelly Hotel Inc., 711 A.2d 524 (Pa. Super. 1998), allocatur denied, 558 Pa. 601, 735 A.2d 1269 (1999).

In the context of Dram Shop cases, a blood alcohol test is relevant circumstantial evidence of intoxication only when used in conjunction with other independent evidence which bears on the question of whether an individual was visibly intoxicated. Suskey v. Loyal Order of Moose Lodge No. 86, 325 Pa. Super. 94, 472 A.2d 663 (1984) see also, Cusatis v. Reichert, 267 Pa. Super. 247, 406 A.2d 787 (1979). However, a plaintiff can rely solely on circumstantial evidence to prove Dram Shop liability in the absence of direct eyewitness evidence that an individual was served alcohol while visibly intoxicated. See Fandozzi v. Kelly Hotel Inc., 711 A.2d 524, 527 (1998), allocatur denied, 558 Pa. 601, 735 A.2d 1269 (1999). Our Superior Court, however, has refused to find the existence of a material issue of fact with respect to visible intoxication solely on the basis of expert “relation back” testimony. See Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771 (1992).

Here, plaintiffs have indicated their intent to secure an expert report with respect to Vaughn Stevenson’s blood alcohol content at various points in time throughout the evening in question and to the issue of whether he would have been visibly intoxicated based thereon. Even assuming that plaintiffs’ expert would offer an opinion in support of their position that Vaughn Stevenson was served alcoholic beverages while visibly intoxicated at the defendant’s establishment, this evidence standing alone is insufficient to establish the existence of a genuine issue of material fact with respect to visible intoxication. Plaintiffs have offered no additional evidence, circumstantial or direct, in support of their position concerning the visible intoxication issue.

Contrary to plaintiffs’ position, a review of the record reveals that there is nothing whatsoever to indicate that Vaughn Stevenson was served alcohol while visibly intoxicated at the defendant’s establishment. Quite the contrary is true. Each of the four witnesses who provided deposition testimony as to their observations of Vaughn Stevenson while he was at the defendant’s establishment on the evening of July 18, 1997, indicated that they observed no signs of visible intoxication whatsoever. Their testimony was consistently supportive of the absence of visible intoxication.

We, therefore, find that plaintiffs have failed to adduce sufficient evidence to establish that Vaughn Stevenson was served alcoholic beverages at defendant’s establishment while he was visibly intoxicated such that a jury could return a verdict in their favor. We further find that there are no genuine issues of material fact in dispute with regard to the issue of visible intoxication and that defendant is, therefore, entitled to judgment as a, matter of law to the claims contained in Count V of plaintiffs’ complaint.

We again note that plaintiffs’ claim that defendant’s motion for summary judgment is premature and must be denied because there are outstanding discovery requests is without merit. Based on our foregoing discussion, we believe that the outstanding discovery requests would produce no information supportive of plaintiffs’ position in opposition to defendant’s motion for summary judgment.

Accordingly, we Grant defendant’s motion for summary judgment to all claims contained in plaintiffs’ complaint and also Dismiss defendant as an additional defendant.

ORDER

And now, February 21, 2002, upon consideration of the motion for summary judgment filed on behalf of defendant Rose Faidley, t/d/b/a The Showboat, and upon further consideration of the record, applicable law, briefs, arguments and submissions of counsel, it is hereby ordered and decreed that defendant’s motion for summary judgment to all claims is granted.


source: Caselaw Access Project

author: MILLER, J.,

license: Public Domain

text:
    Breen v. Eagle Valley Homes Inc.

      January 15, 2002
    C.P. of Monroe County,
    no. 7731 Civil 1998.

      Barry J. Cohen, for plaintiffs.

      John W. Ashley, for defendant Sobczak.

      Paul G. Lees, for defendant Eagle Valley Homes.
   MILLER, J.,

At approximately 6:30 p.m. on December 2, 1996, Kevin Breen, a volunteer firefighter with the West End Fire Company, responded to a call from the Monroe County Control Center to extinguish an “unsupervised controlled bum” located on property owned by defendant Henry Sobczak at 166 Rocky Mountain Drive South, Chestnut Hill Township, Monroe County, Pennsylvania. Defendant Eagle Valley Homes, Inc. was constructing a single family home for defendant Sobczak at the site. Upon Breen’s arrival at the premises, he walked in front of the partially constructed home and across a plank which covered a large open hole located directly in front of the main entrance of the home. He observed an excavation pit filled with construction debris which was burning and smoldering without anyone’s supervision or control. Then, Breen walked diagonally across the front of the premises rather than back over the plank, since another firefighter slipped and fell on the plank’s muddy surface. He was going to direct the driver of the fire truck to move the truck to a better response location. Shortly thereafter, Breen fell into an unmarked trench approximately six feet deep by two and one-half feet wide suffering serious injuries.

On November 25, 1998, Kevin Breen and his wife, Jennifer Breen, filed a complaint against Eagle Valley Homes and Henry Sobczak alleging negligence for failing to warn or to set barricades around the unmarked trench, to provide lighting around the construction site knowing that the excavation trench was present, and for creating and abandoning the “unsupervised controlled bum” thereby requiring the appearance of fire personnel from the West End Fire Company.

Defendant Eagle Valley Homes moved for summary judgment on October 4, 2001, asserting that the record contains insufficient evidence of facts necessary to make out a prima facie cause of action for negligence against them, entitling them to judgment as a matter of law. Following review of the briefs and memoranda of law submitted by the parties and oral argument, we are ready to dispose of this motion.

A motion for summary judgment may be granted if, after completion of discovery relevant to the motion, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense that, in a jury trial, would require issues to be submitted to jury. Pa.R.C.P. 1035.2 (2001).

The function of the summary judgment proceedings is to avoid an unnecessary trial but it is not, and cannot be, used to provide for trial by affidavits or trial by depositions. In considering a motion for summary judgment, we must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. Pa.R.C.P. 1035 (2001). Following a thorough examination of the record, we must determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. Id.

In determining the existence or nonexistence of a genuine issue of a material fact, we are bound by the rule of Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony. Despite how clear and indisputable the proof may be, 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. Id.

Here, defendant sets forth three arguments in support of its motion for summary judgment. First, defendant argues that a volunteer firefighter cannot pursue a claim against it based upon an allegation of negligence in creating a fire which required the attendance of the fire company. Next, defendant asserts that plaintiffs failed to put forth evidence establishing its duty to warn, to set barricades around the excavation pit or to provide lighting around the construction site. Specifically, defendant maintains that the excavation pits were both open and obvious, thus eliminating any duty to warn plaintiff of their existence. Lastly, defendant claims that plaintiff assumed the risk of injury since he knew that the fire was located on a construction site at night and chose not to employ readily available means of illumination such as a flashlight.

We are guided on the first issue in this case by our Superior Court’s decision in Mull v. Kerstetter, 373 Pa. Super. 228, 540 A.2d 951 (1988). In Mull, the plaintiff, a volunteer firefighter, responded to a fire located on the defendant’s premises. Upon his arrival at the scene, plaintiff began hosing the fire when he stepped into an open window well, which was unguarded, unmarked and unprotected. As a result of this fall, the plaintiff sustained serious bodily injuries. The plaintiff brought a negligence suit against the defendant for his failure to illuminate the property, to warn about the holes or to keep the plaintiff from falling into the dangerous pit or well. The issue before our Superior Court was whether the “fireman’s rule” is law in Pennsylvania, and, if so, whether it precludes a volunteer firefighter from recovering for injuries sustained on the defendant’s property while extinguishing a fire. The “fireman’s rule” bars lawsuits for acts of ordinary negligence which create the occasion for the presence of a firefighter or a police officer at the place where he is injured. See Berko v. Freda, 93 N.J. 81, 459 A.2d 663 (1983). The rule is based solely on the status of a firefighter or police officer as a licensee, requiring the duty owed by a landowner or occupier of land to refrain from wantonly or willfully injuring him. Ultimately, the Mull court concluded that the “fireman’s rule” is not applicable in Pennsylvania regardless of whether firefighters assume the risk of injuries that may befall them while on duty or whether the rule extends only to negligence which brings a firefighter to the scene. Instead, the court held the appropriate analysis is one of ordinary negligence. Id. at 234, 540 A.2d at 954. The Superior Court reached this decision after considering our Pennsylvania Supreme Court’s decision in Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943), where the court refused to conclusively base a land possessor’s duty of care on the status of the injured party.

In Ruhl, the decedent, a firefighter, was directed by his superior to stand on the opposite side of the street from where a fire was located and to remain there until further instruction. The location was considered to be safe. However, an explosion occurred in the premises situated behind the decedent causing his death. In concluding that the decedent was not guilty of contributory negligence and did not assume the risk of injury by his status as a firefighter, our Supreme Court held that “[i]t is what a firefighter is doing at the time he is hurt that matters,” not his mere status as a firefighter. Id. at 220, 29 A.2d at 786-87.

Thus, following the rule in Mull and Ruhl, we find that the plaintiffs are not barred from bringing a negligence suit against the defendant. As delineated above, the “fireman’s rule” does not preclude a volunteer firefighter from recovering for injuries sustained on property owned or occupied by another while extinguishing a fire.

To recover under a claim of negligence, the plaintiffs must prove that the defendant had a duty of care, the defendant breached that duty, the breach resulted in injury, and as a result they suffered an actual loss or damage. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). Whether a duty exists under a particular set of facts is a question of law. A duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others. When considering the question of duty, it is necessary to determine whether the defendant is under any obligation to the particular plaintiff. Id. Unless there is a duty upon the defendant to the plaintiff that has been breached, there can be no cause of action based upon negligence. Defendant’s second argument is that they did not owe a duty to plaintiff.

The duty of care an owner or occupier of land owes to one who enters upon the land depends upon whether the latter is a trespasser, licensee or invitee. Palange v. Philadelphia Law Dept., 433 Pa. Super. 373, 640 A.2d 1305 (1994). These are not self-defining terms, and in applying them we are guided by the definitions in the Restatement (Second) of Torts §§328-343 (1965), which have been adopted in Pennsylvania.

A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise. Rossino v. Kovacs, 553 Pa. 168, 718 A.2d 755 (1998). In Pennsylvania, a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct. Id. at 172, 718 A.2d at 757, citing Engel v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970). A licensee, on the other hand, is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent. Id., citing Restatement (Second) of Torts §330 (1965). Consent to enter or remain on another’s land may be implied from conduct on the part of the possessor which justifies others in believing that they are permitted to enter or remain on the premises. Wiegand by Wiegand v. Mars National Bank, 308 Pa. Super. 218, 454 A.2d 99 (1982). A possessor of land is subject to liability to a person privileged to enter for bodily harm caused to them by any dangerous condition thereon, whether natural or artificial, if the possessor knows or has reason to anticipate that the privileged person is or may be on the land and that he will be endangered by the state of the land. Rossino, 553 Pa. at 172, 718 A.2d at 757. However, such liability is not imposed if the person privileged to enter knows of a dangerous condition and realizes the risks presented. Id. An invitee can be defined as either business or public. A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land. Updyke v. BP Oil Co., 717 A.2d 546 (Pa. Super. 1998). “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Updyke, 717 A.2d at 549. In order to attain the status of public invitee the individual must “enter the premises upon invitation and ‘for a purpose for which the land is held open to the public.’ ” Palange, 433 Pa. Super. at 379, 640 A.2d at 1308, quoting Restatement (Second) of Torts §322(2). (emphasis in original)

Here, the parties agreed, at the time of oral argument, that Breen was not a trespasser when he entered the land occupied by the defendant in his official capacity and in response to a call to West End Fire Company for assistance. Therefore, Breen was either an invitee or a licensee.

Comment b to section 322 of the Restatement distinguishes between permission and invitation which is central to a determination of whether an entrant is an licensee or an invitee. “Permission is conduct which justifies others in believing that the possessor is willing that they shall enter if they so desire.” Updyke, 717 A.2d at 549. “An invitation differs from mere permission in that it is conduct which justifies others in believing that the possessor desires them to enter the land.” Id. “Although invitation does not in itself establish the status of an invitee, it is essential to it.” Id. Mere permission, by contrast, is sufficient to establish the status of licensee.

The jurisdictions are split as to whether a firefighter or police officer is to be labeled an invitee or a licensee for tort liability purposes. In this Commonwealth, a firefighter or police officer that enters upon another’s land in his official capacity and in response to a call for assistance is generally considered a licensee. Holpp v. Fez Inc., 440 Pa. Super. 512, 656 A.2d 147 (1995).

In the present case, we find that the undisputed facts demonstrate as a matter of law that Breen was a licensee. Breen entered the premises in his official capacity as a firefighter with the West End Fire Company and in response to a call. He was performing his duties as a firefighter at the time of his injuries. Defendant knew of the existence of the excavation trench on the premises, and, therefore, had a duty to exercise reasonable care to make the premises safe or to warn Breen of the risks presented. Thus, we hold that the issue of whether the defendant breached its duty is a question of fact to be resolved by a jury.

Finally, defendant asserts that Breen, as a matter of law, assumed the risk of injury, since he knew that the fire was located on a construction site at night and chose not to use a flashlight. In support of this assertion, defendant points us to the deposition testimony of the plaintiffs and Christopher Eckert, chief of the West End Fire Company. Breen testified that upon arriving at the fire scene he recognized that it was obviously a construction site. He also testified that it was dark, there was no light in the vicinity other than that provided by the headlights on vehicles of fire personnel and that the ground was uneven. Mrs. Breen testified that upon arriving at the fire scene she too recognized that the fire was located on a constmction site. Unlike her husband, though, she chose to use a flashlight while walking around the property because it was dark and also because she had observed another firefighter slip off a plank covering a large open hole in front of the home. Additionally, Chief Eckert testified that he observed that the fire was located on a construction site. Moreover, Chief Eckert testified that fire personnel usually try to establish illumination upon arriving at a construction site at night to avoid tripping hazards and fall hazards and so people can see. Based on the testimony of the plaintiffs and Chief Eckert, defendant maintains that the risk of injury was assumed by Breen, and therefore, it is entitled to judgment as a matter of law. We disagree.

Our Superior Court has held that firefighters do not assume the risk of on-duty injuries as a matter of law. Mull, 373 Pa. Super. at 234, 540 A.2d at 954. A voluntary assumption of risk requires knowledge of the existence of a dangerous condition and appreciation of the risks presented by the condition. Rossino, 553 Pa. at 172, 718 A.2d at 757, citing Restatement (Second) of Torts §330 (1965). The question of whether a danger was known or obvious is generally a question for the jury unless reasonable minds could not differ as to the conclusion. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993).

In this case, we do not find as a matter of law that Breen, as a firefighter, assumed the risk of falling into an excavation trench while officially attending to a fire which was allegedly created by the negligence of the defendant. Defendant merely offered the oral testimony of the plaintiffs and Chief Eckert in support of its motion for summary judgment. As previously stated, in reviewing this motion, we are bound by the Nanty-Glo rule which provides that a court may not summarily enter a judgment where the evidence depends upon oral testimony alone. Therefore, we find that a question of fact exists as to whether Breen showed want of care under the facts of this case.

Accordingly, we enter the following order.

ORDER

And now, January 15, 2002, based on the reasons set forth in the foregoing opinion, defendant Eagle Valley Homes Inc.’s motion for summary judgment is denied.

      . An “unsupervised controlled burn” is a fire presumably set intentionally to bum materials in a controlled environment.


author: HERRON, J.,

text:
    Greiner v. Erie Insurance Exchange

      June 26, 2001

      Dianne M. Nasi and Joseph F Roda, for plaintiff.

      Jeffrey A. Less and Paul E. Beck, for defendant.

      . While plaintiff Brenda L. Poultz has been substituted for Carol Greiner, the original named plaintiff in this action, the parties have not filed a praecipe to change the caption in this matter.

   HERRON, J.,

Additional defendants TYC Brother Industrial Co. Ltd. and Genera Corporation have filed preliminary objections to the joinder complaint of defendants Erie Insurance Exchange and Erie Insurance Company. In addition, plaintiff Brenda L. Foultz has filed a motion to dismiss the joinder complaint or to sever Erie’s claims against the additional defendants from this case. For the reasons set forth in this opinion, the court is ordering discovery on TYC’s objection to personal jurisdiction. All other objections are overruled, and the motion to dismiss or sever is denied.

BACKGROUND

On August 29, 1999, the plaintiff was involved in an automobile accident. At that time, the plaintiff’s vehicle was covered by an Erie insurance policy, which states that Erie:

“[Wjill pay the actual cash value for loss to stolen or damaged property, but no more than:

“(1) What it would cost to repair or replace the property with other of like kind and quality; or

“(2) The stated amount that may be shown in the declarations.

“Actual cash value reflects fair market value, age and condition of the property at the time of the loss.” Policy a^8.

Erie inspected the plaintiff’s vehicle and prepared an estimate of repair costs based on the use of at least five parts that were not original equipment manufacturer parts. Ultimately, the repairs were made using the non-OEM parts, which the plaintiff’s first amended complaint alleges may be cheaper than, and inferior in quality to, OEM parts and may also be defective. The use of non-OEM parts allegedly is an undisclosed Erie policy that diminishes the value of the vehicle while failing to restore the insured vehicle to its pre-loss condition and fair market value.

The plaintiff brought a class action suit against Erie based on its alleged breach of the policy, violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law and bad faith. In response to Erie’s preliminary objections, the court struck the plaintiff’s demands for a jury trial but allowed her to proceed on her causes of action.

Erie subsequently joined Genera and TYC, the manufacturers of the non-OEM parts used to repair the plaintiff’s vehicle, as additional defendants. According to the joinder complaint, the additional defendants represented that their parts were as good as OEM parts and that they were not defective, inferior or substandard. As a result, Erie contends, they are solely liable to the plaintiff, jointly and severally liable with Erie or liable over to Erie on the plaintiff’s claims.

In response to the joinder complaint, the additional defendants have filed the objections, in which they assert that they have been improperly joined. TYC has also asserted that the court does not have personal jurisdiction over it. In addition, the plaintiff has filed a motion to dismiss or sever, asking that the joinder complaint be dismissed or that Erie’s claims against the additional defendants be severed from the class action suit.

DISCUSSION

Because there are outstanding factual issues as to whether the court has personal jurisdiction over TYC, the court is ordering TYC and Erie to take depositions as to those issues and to file additional briefs. The joinder complaint’s allegations support joining the additional defendants, and the plaintiff has failed to establish that allowing the joinder complaint claims to proceed in tandem with the class action will be inconvenient or cause her prejudice. As such, the motion to dismiss or sever is denied, and the remaining objections are overruled.

I. Erie’s Joinder of the Additional Defendants Is Valid

Pennsylvania Rule of Civil Procedure 1706.1 sets forth the conditions under which an additional defendant may be joined in a class action:

“Any defendant or additional defendant may only join as an additional defendant any person, whether or not a party to the action, who may be

“(1) solely liable on the plaintiff’s cause of action; or

“(2) liable over to the joining party on the plaintiff’s cause of action, or

“(3) jointly or severally liable with the joining party on the plaintiff’s cause of action.” Pa.R.C.P. 1706.1.

No Pennsylvania appellate court decisions address Rule 1706.1. However, as stated in the note accompanying Rule 1706.1, “[t]he three bases of joinder provided by this rule are identical to the bases of joinder provided by Pa.R.C.P. 2252(a)(1) through (3) governing the joinder of additional defendants generally.” Accordingly, the court will look to cases addressing Rule 2252(a)(1), (2) and (3) for guidance.

A. The Complaint and the Joinder Complaint Are Based on the Same Cause of Action

When a party seeks to join a defendant on the basis of Rule 2252(a)(1), (2) or (3), “the only substantive limitation placed upon the right to join an additional defendant on any of these grounds is that liability must be premised upon the same cause of action alleged by the plaintiff in his or her complaint.” Gordon v. Sokolow, 434 Pa. Super. 208, 214, 642 A.2d 1096, 1099 (1994) (quoting Svetz for Svetz v. Land Tool Co., 355 Pa. Super. 230, 235, 513 A.2d 403, 405-406 (1986), alloc. denied, 515 Pa. 584, 527 A.2d 544 (1987). (quotation marks removed) Pennsylvania courts have defined “cause of action” broadly:

“‘Cause of action’ has been defined as

“[t]he fact or facts which give a person a right to judicial relief. The legal effect of an occurrence. A situation or state of facts which would entitle party to sustain action and give him right to seek a judicial remedy in his behalf.

“Black’s Law Dictionary (5th ed. 1979). The words ‘cause of action’ as used in the rule must be construed ‘to mean “damages or injuries.” ’ Staub v. Southwest Butler County School District, 263 Pa. Super. 413, 421, 398 A.2d 204, 207 (1979), aff’d, 489 Pa. 196, 413 A.2d 1082 (1980). See 8 Goodrich-Amram 2d §2252(a):6.” Svetz, 355 Pa. Super. at 235, 513 A.2d at 406. See also, Incollingo v. Ewing, 444 Pa. 263, 290, 282 A.2d 206, 221 (1971) (the term “cause of action” “may not be taken too literally. So long as the additional defendant’s alleged liability is related to the original claim which plaintiff asserts against the original defendant, the third party complaint is within bounds.”); Hileman v. Morelli, 413 Pa. Super. 316, 332, 605 A.2d 377, 385 (1992) (“the plaintiffs’ cause of action is to be defined as the harm of which the plaintiff complains”).

In the instant matter, the plaintiff’s cause of action, as the term is used in Rule 2252, includes the following injuries:

“Diminished vehicle value;

“Reduced effectiveness of the manufacturer’s vehicle warranty;

“Impairment of the vehicle’s structural integrity;

“Detrimental effects on the vehicle’s performance;

“Reduction in the vehicle’s resale value; and

“Failure to restore the vehicle to its pre-loss condition and fair market value.” Complaint at ¶15.

According to the joinder complaint, these injuries are attributable to the additional defendants’ misconduct. Joinder complaint atf][15,21. This supports Erie’s argument that its claims against the additional defendants arise from the plaintiff’s cause of action.

The additional defendants rely heavily on Gordon, in which the plaintiffs’ claim against their former attorneys for legal malpractice arose from the attorneys’ alleged negligence in failing to alert the plaintiff to a specific contract provision that operated to the plaintiff’s detriment. The attorneys attempted to join the seller in the original transaction, alleging that the seller had fraudulently inserted the harmful language and failed to notify the plaintiffs or their attorneys that it had been inserted. The Pennsylvania Superior Court concluded that these claims did not arise from the same cause of action:

“The plaintiffs in the original complaint commenced the action against appellants for legal malpractice. The appellant attorneys in turn allege in their complaint to join additional defendants that Empire and William Nolan committed fraud or intentionally and/or negligently misrepresented the contents of the agreement of sale to plaintiffs. The plaintiffs’ action alleged failure to provide proper legal advice; whereas the joinder complaint alleged failure to disclose changes in the contract. The claims raised in the joinder complaint are separate from the plaintiffs’ cause of action against the attorneys for professional negligence.” Gordon, 434 Pa. Super. at 215, 642 A.2d at 1100.

The instant case is distinguishable from Gordon. In Gordon, the central question in the original complaint was the attorneys’ inaction in violation of their responsibilities to their clients, while the primary issue in the joinder complaint was the insertion of language into the relevant contract. Here, in contrast, both the complaint and the joinder complaint focus on the same issue: the quality of the non-OEM parts used in repairing the plaintiff’s vehicle and the harm to the plaintiff as a result of their use. Cf. Moscatiello v. Pittsburgh Contractors Equipment Co., 407 Pa. Super. 378, 389, 595 A.2d 1198, 1203 (1991) (allowing joinder and stating that it was of “no consequence” that the original complaint and the joinder complaint were based on two different contracts). As a result, the plaintiff’s claims against Erie and Erie’s claims against the additional defendants arise from the same cause of action.

B. The Joinder Complaint Alleges Complete Claims for Sole Liability, Indemnification and Contribution Against the Additional Defendants

Because the additional defendants’ alleged liability is attributed to the plaintiff’s cause of action, the joinder complaint is permitted if it alleges one of the following:

(1) The additional defendants are solely liable;

(2) The additional defendants are liable over to Erie through indemnification; or

(3) The additional defendants are jointly or severally liable with Erie through joint tort-feasor contribution. The joinder complaint alleges facts to support the additional defendants’ liability on each of these bases.

1. Sole liability

Under Rule 2252(a)(1), a party may be joined as an additional defendant if it is solely liable on the plaintiff’s cause of action. Erie alleges that the additional defendants may be solely liable to the plaintiff because of their breach of implied warranties, UTPCPL violations or manufacture and/or distribution of a defective product.

Under the Uniform Commercial Code, as adopted by Pennsylvania, a contract may include an implied warranty of merchantability and an implied warranty that the goods are fit for a particular purpose:

“The implied warranty of merchantability, as set forth in the UCC, is ‘a warranty that the goods will pass without objection in the trade and are fit for the ordinary purposes for which such goods are used. ’ Moscatiello v. Pittsburgh Contractors Equipment Company, 407 Pa. Super. 363, 368, 595 A.2d 1190, 1193 (1991), citing 13 Pa.C.S. §2314, appeal denied, 529 Pa. 650, 602 A.2d 860 (1992). Such a warranty ‘serves to protect buyers from loss where the goods purchased are below commercial standards.’ Hornberger v. General Motors Corporation, 929 F. Supp. 884 (E.D. Pa. 1996). The Superior Court has observed that ‘this warranty is so commonly taken for granted that its exclusion from a contract is recognized as a matter threatening surprise and therefore requiring special precaution.’ Moscatiello, 407 Pa. Super. at [368-69], 595 A.2d at 1193, citing comment 11 to 13 Pa.C.S. §2314. The implied warranty that goods shall be fit for a particular purpose exists, under the UCC, where the seller at the time of contracting has reason to know of such purpose and of the buyer’s reliance upon the seller’s skill or judgment to select or furnish goods that are suitable for such purpose. See 13 Pa.C.S. §2315.” Borden Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa. Super. 1997).

Claims for breaches of each of these warranties, whether for property or economic damage, may be asserted by the ultimate consumer against the product’s manufacturer or distributor. Spagnol Enterprises Inc. v. Digital Equipment Corp., 390 Pa. Super. 372, 568 A.2d 948 (1989). See also, Moscatiello, 407 Pa. Super. at 389-90, 595 A.2d at 1203-1204 (allowing joinder of manufacturer based on potential sole and direct liability for breach of implied warranties).

By supplying inferior, defective and substandard parts, Erie contends, the additional defendants’ actions violated the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. Joinder complaint at ¶¶9-10, 13, 17. If this is correct, the additional defendants could be held solely liable to the plaintiff on her cause of action, and the objections to the sole liability count in the joinder complaint must be overruled.

2. Indemnification

Indemnity is a common-law remedy that “shifts the entire loss from one defendant to another.” Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 456, 467 A.2d 615, 622 (1983). The right to indemnification arises “only when a person or entity secondarily liable has been compelled, by reason of some legal obligation, to pay damages occasioned by the negligence of the party which should be primarily liable.” Automatic Time and Control Co. Inc. v. ifm Electronics, GmBh, 410 Pa. Super. 437, 439, 600 A.2d 220, 222 (1991) (noting further that “ ‘[p]rimary’ liability can only rest upon a fault by the person or entity primarily responsible for a defect or a dangerous condition in the product”), (emphasis in original) Specifically, Pennsylvania courts have applied the “mere conduit” theory to hold that a seller is entitled to indemnification from the manufacturer of a defective product for economic losses resulting from a breach of contract. Moscatiello v. Pittsburgh Contractors Equipment Co., 407 Pa. Super. 378, 595 A.2d 1198 (1991).

According to the complaint, the additional defendants manufactured or distributed the non-OEM parts that were used in repairing the plaintiff’s vehicle and represented that these parts “were as good as OEM parts, and that they were not defective, inferior or substandard.” Joinder complaint at ¶¶9, 10, 13. In addition, Erie incorporates the plaintiff’s allegation that the parts used in repairing her vehicle were “defective, inferior and substandard.” Id. at ¶15. On this basis, the court concludes that Erie may be entitled to indemnification from the additional defendants on the plaintiff’s cause of action.

3. Contribution for joint and several liability

In Pennsylvania, contribution based on joint and several liability is governed by statute and is available only among joint tort-feasors. Kemper National P & C Cos. v. Smith, 419 Pa. Super. 295, 309, 615 A.2d 372, 380 (1992). The term “joint tort-feasors” is defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 42 Pa.C.S. §8322. In the objections, the additional defendants argue that, because they are not liable in tort on the plaintiff’s claims, they cannot be joint tort-feasors and Erie’s claim for contribution must be dismissed. As noted supra, the additional defendants may be liable for breach of implied warranty. While there is no Pennsylvania appellate decision on whether a claim for breach of implied warranty sounds in tort, at least one Pennsylvania common pleas court judge has addressed this issue. After recognizing that a claim for contribution must be based on a tort, the court in Woolf v. Dinbokowitz Marine Inc., 22 D.&C.4th 545 (Lehigh Cty. 1993), held that a claim for breach of implied warranty was an action in tort on which a claim for contribution could be premised:

“We first note that the Pennsylvania Superior Court, in Salvador v. Atlantic Steel Boiler Co., 224 Pa. Super. 377, 386, 307 A.2d 398, 403 (1973), affirmed, 457 Pa. 24, 319 A.2d 903 (1974), cited a learned treatise of Dean Prosser as follows:

“The action for breach of warranty was originally one . . . sounding in tort and closely allied to deceit; and it was not until 1778 that the contract action was held to lie at all. . . The conclusion from all this is obvious. If warranty is a matter of tort as well as contract, and if it can arise without any intent to make it a matter of contract, then it should need no contract; and it may arise and exist between parties who have not dealt with one another. This was the same reasoning applied in Debbis v. Hertz Corp., 269 F. Supp. 671 (D. Md. 1967), wherein the court stated: While breach of an implied warranty is basically a contract rather than a tort action, it, nevertheless, has roots which spring essentially from a tort background. ...

“The Superior Court in Svetz [v. Land Tool Company, 355 Pa. Super. 230, 513 A.2d 403 (1986)], also cited with approval the case of Wolfe v. Ford Motor Company, 386 Mass. 95, 434 N.E.2d 1008 (1982), which held that a statute granting the right of contribution among joint tortfeasors should be read to include tort-like liability for breach of implied warranty of merchantability. The Massachusetts Supreme Court held that the term ‘hable in tort’ as used in their contribution statute, a statute similar to Pennsylvania’s, ‘is broad in scope and not suitable language for implying a narrow or restricted range of application within the framework of potential tort defendants.’

“The court of Special Appeals of Maryland has also spoken to this issue. Citing Dean Prosser’s colorful language that a claim under implied warranty is ‘a freak hybrid bom of the illicit intercourse of tort and contract,’ this court held that such claim is a ‘claim in tort’ under the Uniform Contribution Among Tort-Feasors Act. Loh v. Safeway Stores Inc., 47 Md. App. 110, 422 A.2d 16 (1980). We agree with the reasoning of these appellate courts and the commentary of Dean Prosser, therefore concluding that a claim for contribution may be made under breach of implied warranty theory.” 22 Pa. D.&C.4th at 547-50. (footnote omitted)

In addition to the courts in the opinions cited in this excerpt, other courts are in accord with the position taken in Woolf. See e.g., In re Jones, 804 F.2d 1133, 1141-42 (10th Cir. 1986) (a defendant liable for breach of implied warranty is liable in tort for purposes of contribution); Western Tankers Corp. v. United States, 387 F. Supp. 487, 491 (S.D.N.Y. 1975) (allowing claim for contribution based on breach of implied warranty under maritime personal injury law); State University Constr. Fund v. United Tech. Corp., 432 N.Y.S.2d 653, 654 (N.Y. App. Div. 1980) (breach of warranty claim allows corresponding claim for contribution). See also, 18 Am. Jur. 2d Contribution §46 (“[i]t is generally agreed that for the purposes of the Uniform Contribution Among TortFeasors Act, a suit for the breach of an implied warranty can be a ‘claim in tort’ allowing a plaintiff to claim the role of an injured person under the Act”).

Although the court’s decision in Woolf is not binding, its logic and reasoning, along with the numerous cases in agreement with its conclusions, are persuasive and convince the court that an action for breach of warranty may be considered an action in tort for the purposes of contribution. Thus, Erie’s claim for contribution against the additional defendants is proper, and the substantive objections must be overruled.

II. TYC’s Objection To Personal Jurisdiction Requires Additional Factual Development Before It Can Be Resolved

TYC also claims that the court does not have personal jurisdiction over it. Erie counters that the court’s exercise of personal jurisdiction over TYC comports with the constraints imposed by the United States Constitution and Pennsylvania statute. Because this objection raises questions of fact, additional information is required before a determination is possible. As a result, the court is ordering Erie and TYC to take depositions and to file briefs on this issue, as outlined in the order.

In evaluating an objection to personal jurisdiction, the objecting party initially bears the burden of proof. Barr v. Barr, 749 A.2d 992, 994 (Pa. Super. 2000); Grimes v. Wetzler, 749 A.2d 535, 538 (Pa. Super. 2000); King v. Detroit Tool Co., 452 Pa. Super. 334, 339, 682 A.2d 313, 315 (1996) (the objecting party must “meet its burden of showing jurisdictional infirmities that are ‘clear and free from doubt’ ”). However, “[ojnce the moving party supports its objections to personal jurisdiction, the burden of proving personal jurisdiction is upon the party asserting it.” Barr, 749 A.2d at 994. See also, Grimes, 749 A.2d at 538 (“[ojnce the movant has supported its jurisdictional objection, ... the burden shifts to the party asserting jurisdiction to prove that there is statutory and constitutional support for the court’s exercise of in personam jurisdiction”).

In order for a Pennsylvania court to exercise jurisdiction over a non-resident defendant, (1) the Commonwealth’s long-arm statute must authorize jurisdiction and (2) the exercise of jurisdiction must satisfy constitutional principles of due process. Graham v. Machinery Distribution Inc., 410 Pa. Super. 267, 269-70, 599 A.2d 984, 985-86 (1991). Because the long-arm statute allows for personal jurisdiction “to the fullest extent allowed under the Constitution of the United States,” any discussion of personal jurisdiction must focus on consitutional due process constraints. Temtex Products Inc. v. Kramer, 330 Pa. Super. 183, 194, 479 A.2d 500, 505-506 (1984).

Under the United States Constitution, a court “may exercise two types of personal jurisdiction over out-of-state defendants, (1) specific jurisdiction ■..., based upon the specific acts of the defendant which gave rise to the cause of action, and (2) general personal jurisdiction..., based upon a defendant’s general activity within the state.” McCall v. Formu-3 International Inc., 437 Pa. Super. 575, 578, 650 A.2d 903, 904 (1994). (citations omitted)

For a court to exercise specific jurisdiction, “(1) the non-resident defendant must have sufficient minimum contacts with the forum state and (2) the assertion of in personam jurisdiction must comport with fair play and substantial justice. . . . The determination of whether this standard has been met is not susceptible of any talismanic jurisdictional formula: the facts of each case must always be weighed in determining whether jurisdiction is proper.” Kubik v. Letteri, 532 Pa. 10, 17, 614 A.2d 1110, 1114 (1992) (citing Burger King Corp. v. Rudze wicz, 471 U.S. 462, 485-86, 105 S.Ct. 2174, 2189, 85 L.Ed.2d 528, 549 (1985)). (emphasis added)

The minimum contacts requirement is not satisfied by contacts “that are ‘random,’ ‘fortuitous’ or ‘attenuated’ ” or by “unilateral activity in the fomm by others who claim some relationship with the defendant.” Id., 532 Pa. at 18, 614 A.2d at 1114 (citing Burger King, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542). Rather, it must be shown that the “defendant’s conduct and [its] connection with the forum state are such that [it] should reasonably anticipate being haled into court there.” Id., 532 Pa. at 17, 614 A.2d at 1114 (quoting Burger King, 471 U.S. at 474, 105 S.Ct. at 2183, 85 L.Ed.2d at 542). This requires that a court make “the determination that the defendant purposefully directed [its] activities at residents of the forum and purposefully availed [itself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws.” Id., 532 Pa. at 18, 614 A.2d at 1114. In addition, “the cause of action must arise from defendant’s activities within the forum state.” Id., 532 Pa. at 19, 614 A.2d at 1115.

A court’s exercise of specific jurisdiction must also conform to notions of fair play and substantial justice. In reviewing whether an exercise of jurisdiction meets this requirement, a court should consider: “(1) the burden on the defendant, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and (5) the shared interest of the several states in furthering fundamental substantive social policies.” Id., 532 Pa. at 18, 614 A.2d at 1114 (citing Burger King, 471 U.S. at 477, 105 S.Ct. at 2184, 85 L.Ed.2d at 543).

Even where specific jurisdiction is not proper, “Pennsylvania courts may still be able to exercise general personal jurisdiction if the defendant has carried on a continuous and systematic part of its general business within the Commonwealth.” McCall, 437 Pa. Super. at 578-79, 650 A.2d at 904. Such jurisdiction is valid “regardless of whether the cause of action is related to the defendant’s activities in Pennsylvania, as long as the [corporate] defendant’s activities in this Commonwealth are ‘continuous and substantial.’ ” Garzone v. Kelly, 406 Pa. Super. 176, 183, 593 A.2d 1292, 1296 (1991).

The documents submitted by TYC and Erie contain conflicting factual assertions as to TYC’s activities in Pennsylvania. Erie, on the one hand, contends that TYC has established a distribution system in Pennsylvania and has had “pervasive control over additional defendant Genera, such that they are not independent of one another.” Erie’s memorandum at 11. TYC, in contrast, has set forth a list of conduct it has not undertaken in Pennsylvania. TYC’s memorandum at 11.

Factual disputes, such as these, are to be resolved through interrogatories, depositions or an evidentiary hearing. American Housing Trust III v. Jones, 548 Pa. 311, 319-20, 696 A.2d 1181, 1185 (1997); Luitweiler v. Northchester Corp., 456 Pa. 530, 535, 319 A.2d 899, 902-903 (1974). See also, Scoggins v. Scoggins, 382 Pa. Super. 507, 514, 555 A.2d 1314, 1318 (1989) (if there are disputed material facts “as to the scope of a defendant’s activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth, and the court must permit the taking of the deposition before ruling on the preliminary objections”). While affidavits may be used if the facts are clear and specific, “[t]his is not a recommended procedure,” and it is “preferable to proceed by depositions or written interrogatories.” Slota v. Moorings Ltd., 343 Pa. Super. 96, 100, 494 A.2d 1, 2 (1985). See also, Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 13-14, 602 A.2d 864, 869 (1992) (recognizing that resolving objections to personal jurisdiction by the “[sjubmission of evidence by affidavit is not a recommended procedure” and requiring a trial court to resolve a factual dispute “through interrogatories, depositions or an evidentiary hearing”).

Here, Erie has specifically requested that it be allowed to take depositions as to TYC’s activities in Pennsylvania. Erie’s memorandum at 19. Accordingly, the court is ordering that Erie and TYC take depositions regarding those acts that would allow the court to exercise personal jurisdiction over TYC. These depositions are to be completed within 45 days of the issuance of this opinion and in accordance with Pa.R.C.P. 4007.1. Once this has been accomplished and within 60 days of the issuance of this opinion, the parties are to file briefs addressing the issue of personal jurisdiction and referencing the depositions and any other relevant evidence. In the interim, TYC’s objections to personal jurisdiction will be held under advisement.

III. The Court May Not Grant the Plaintiff’s Motion To Sever

As a secondary argument, the plaintiff has requested that the claims against the additional defendants be severed from the plaintiff’s class action claim. The court cannot grant the plaintiff’s motion to sever at this time.

Pa.R.C.P. 213(b) permits a court to sever a party’s claims:

“The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, setoff, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, setoffs, cross-suits, or issues.” Pa.R.C.P. 213(b).

Application of Rule 213(b) is “strongly encouraged where separation of issues facilitates the orderly presentation of evidence and judicial economy.” Pascale v. Hechinger Co. of Pa., 426 Pa. Super. 426, 438, 627 A.2d 750, 756 (1993).

While the plaintiff cogently, if not convincingly, argues against the propriety of joining the additional defendants in this matter, the portion of her motion urging the severance of Erie’s claims comes almost as an afterthought and does not address convenience or prejudice in any substantial manner. Erie’s response, in contrast, sets forth a litany of harms it would suffer if the plaintiff’s motion to sever were granted. Erie’s response to plaintiff’s motion at 27-30. Accordingly, the court cannot grant the plaintiff’s motion to sever based on the information currently before it. Cf. Didio v. Philadelphia Asbestos Corp., 434 Pa. Super. 191, 203, 642 A.2d 1088, 1094 (1994) (affirming severance of defendant’s cross-claims where they “were most likely a delay tactic which would only serve to unduly prolong [plaintiff’s] action”).

CONCLUSION

The joinder complaint is proper, and the plaintiff’s motion to sever must be denied. TYC’s objections to personal jurisdiction require additional facts before they can be resolved and will be held under advisement while TYC and Erie engage in discovery.

ORDER

And now, June 26, 2001, upon consideration of the preliminary objections of additional defendants TYC Brother Industrial Co. Ltd. and Genera Corporation to the joinder complaint of defendants Erie Insurance Exchange and Erie Insurance Company, plaintiff Brenda L. Foultz’ motion to dismiss or sever and the defendants’ responses thereto and in accordance with the memorandum opinion being filed contemporaneously with this order, it is hereby ordered and decreed as follows:

(1) TYC Brother Industrial Co. Ltd.’s preliminary objections asserting lack of personal jurisdiction will be held under advisement for 60 days, so that within 45 days, depositions pursuant to Pa.R.C.P. 4007.1 may be taken to resolve the factual questions regarding personal jurisdiction over TYC Brother Industrial Co. Ltd.;

(2) After the 45th day but on or before the 60th day, TYC Brother Industrial Co. Ltd. and the defendants shall file with this court, briefs offering any further argument and referencing the depositions or other relevant evidence on the issue of personal jurisdiction over TYC Brother Industrial Co. Ltd.;

(3) The remaining preliminary objections are overruled;

(4) The motion to dismiss or sever is denied; and

(5) Genera Corporation is directed to file an answer to the joinder complaint within 20 days of this order.

      . 73 Pa.CS. §§201-1 — 201-9.3.

      . Originally, the plaintiff also demanded a declaration of rights and permanent injunction ordering Erie to abide by the terms of its contracts, but this claim has since been dismissed.

      . Erie also joined Wheels to the World, LLC and Smeals Inc., although both have since been dismissed from the instant action.

      . Pa.R.C.P. 2252 will be referred to as “Rule 2252.”

      . It is unclear whether Pennsylvania law allows a plaintiff to oppose a defendant’s joinder complaint, even in the form of a motion to dismiss. See Rule 2255(b)(1) (limiting pleadings between additional defendants and the joining party); Martinelli v. Mulloy, 223 Pa. Super. 130, 136, 299 A.2d 19, 21-22 (1972) (“[t]he rules were not intended to enable a plaintiff who has no control over litigation between the defendant and the additional defendant, to effectively prevent an adjudication of their rights”). See also, Somers v. Gross, 393 Pa. Super. 509, 512 n.2, 574 A.2d 1056, 1057 n.2 (1990) (noting that “the proper challenge to joinder is by way of preliminary objection to the joinder complaint”). Because the plaintiff’s substantive arguments against the joinder complaint are encompassed within those raised by the additional defendants, however, the court will address them in that posture and avoid entangling itself in the sticky question of the plaintiff’s right to concern itself with the joinder complaint.

      . This comports with the general policy of interpreting Rule 2252 broadly:
      “Generally applicable to all the rules of civil procedure is Rule 126 which provides that ‘[t]he rules shall be liberally constructed [sic] to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.’ Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. Martinelli v. Mulloy, 223 Pa. Super. 130, 299 A.2d 19 (1972). This court has favored the policy of broadly interpreting Rule 2252 ‘not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.’ Martinelli v. Mulloy, supra, 223 Pa. Super. at 135, 299 A.2d [at] 21.

        “Ragan v. Steen, 229 Pa. Super. 515, 525-26, 331 A.2d 724, 730 (1974).” Svetz, 355 Pa. Super. at 235-36, 513 A.2d at 406. See also, Snoparsky v. Baer, 439 Pa. 140, 145, 266 A.2d 707, 710 (1970) (noting that Rule 2252 is “designed to avoid an unnecessary multiplicity of suits”).

      . Although Erie’s claim that the additional defendants are solely liable is based on legal theories different from those proposed by the plaintiff, this is of no import. As noted supra, the broad definition of “cause of action” allows the joining party to proceed on causes of action distinct from those in the original complaint.

      . Because the joinder complaint alleges facts to support sole liability based on breach of implied warranties, the court need not consider whether the additional defendants may be solely liable for violations of the UTPCPL and products liability laws.

      . The determination of degrees of liability rests on the following:
      ‘To evaluate primary as against secondary liability courts have focused on factors such as active or passive negligence and knowledge of or opportunity to discover or prevent the harm. .. .
      “The Restatement of Restitution also addresses indemnity in a chain of distribution case:
      “Where a person has supplied to another a chattel which because of the supplier’s negligence or other fault is dangerously defective for the use for which it is supplied and both have become liable in that to a third person injured by such use, the supplier is under a duty to indemnify the other for expenditures properly made in discharge of the claim of the third person, if the other used or disposed of the chattel in reliance upon the supplier’s case and if, as between the two, such a reliance was justifiable.” Moran v. G. & W.H. Corson Inc., 402 Pa. Super. 101, 124, 586 A.2d 416, 427-28 (1991).

      . While it is not clear from Pennsylvania law that Erie would qualify as a “seller,” the joinder complaint allows the inference that Erie may have been a conduit through whom the non-OEM parts in question passed. At the least, the allegations in the joinder complaint support the conclusion that the additional defendants had a greater “opportunity to discover or prevent the harm” that befell the plaintiff and thus may be primarily liable.

      . In determining whether parties are joint tort-feasors, courts generally consider the following factors: “the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential, responsibility of the defendants for the same injuria as distinguished from damnum.” Harka v.

        Nabati, 337 Pa. Super. 617, 622, 487 A.2d 432, 434 (1985). See also, Lasprogata v. Qualls, 263 Pa. Super. 174, 179 n.4, 397 A.2d 803, 805 n.4 (1979) (quoting Black’s Law Dictionary, 4th ed., for the position that, “to be a joint tort-feasor, ‘the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury’ ”).

      . The additional defendants’ arguments regarding the specifics of the plaintiff’s claims must also be rejected. First, it is clear that the plaintiff’s allegations are based, at least in part, on the use of non-OEM headlamp lenses and housing. Complaint at ¶10. In addition, a court examining preliminary objections to a class action complaint, and, presumably, preliminary objections to a joinder complaint prior to certification, should concern itself with the allegations and claims of the individual plaintiffs only. Sherrer v. Lamb, 319 Pa. Super. 290, 294, 466 A.2d 163, 165 (1983). See also, Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 128, 451 A.2d 451, 454 (1982) (“[a] court may not make the initial class action determination until after the close of pleadings to ensure that the class proponent is presenting a non-frivolous claim capable of surviving preliminary objections”). As such, the court is hesitant to look beyond the plaintiff’s cause of action to class issues at this stage.

      . 42 Pa.C.S. §§5321-5329.

      . When trial courts have failed to follow this rule, appellate courts have been unrestrained in expressing their displeasure. See Delaware Valley Underwriting Agency Inc. v. Williams & Sapp Inc., 359 Pa. Super. 368, 518 A.2d 1280 (1986) (remanding the case to the lower court with instructions to follow the “current version” of the law); Luria v. Luria, 220 Pa. Super. 168, 170, 286 A.2d 922, 923 (1971) (reprimanding the lower court for making factual determinations without ordering the taking of depositions or the filing of interrogatories or both).