Guy Militello, v. Lowe’s Home Centers, LLC, Lowe’s Companies, Inc., Lowe’s Home Improvement Warehouse, Lowe’s of Lebanon, Lowe’s, and Joseph Panza

Guy Militello, v. Lowe’s Home Centers, LLC, Lowe’s Companies, Inc., Lowe’s Home Improvement Warehouse, Lowe’s of Lebanon, Lowe’s, and Joseph Panza

 

Civil Action-Law-Negligence-Property Damage-Roof Collapse-Forklift Collision-Support Beam-Barn-Partial Summary Judgment-Genuine Issue of Material Fact-Nanty Glo Rule

 

Guy Militello (“Plaintiff”) filed a Complaint in Negligence seeking damages for the collapse of the roof of his barn on the basis that a delivery truck driver employed by Lowe’s, Joseph Panza, struck a temporary support beam with a forklift he was operating while attempting to remove items that were being returned to Lowe’s from the barn, which caused the roof of the barn partially to collapse.  It is alleged that after a snowstorm that occurred later that evening, the roof of the barn collapsed entirely.  Plaintiff filed a Motion for Partial Summary Judgment on the issue of liability.

 

1. Summary judgment may be granted only in those cases that are clear and free from doubt.

 

2. In reviewing a motion for summary judgment, the record must be reviewed in the light most favorable to the non-moving party, and all doubts must be resolved against the entry of summary judgment.

 

3. In determining the existence of a genuine issue of material fact, courts are bound to adhere to the holding of Nanty–Glo v. American Surety Co., 163 A. 523 (Pa. 1923), that a court summarily may not enter a judgment where the evidence depends upon oral testimony.

 

4. While it is undisputed that Joseph Panza struck the barn beam with the forklift, a dispute of material facts exists as to where fault lies with regard to the striking of the beam in light of the fact that evidence was presented that Plaintiff had been helping to guide the forklift.

 

5. A question of fact exists as to whether the damage to the roof was caused solely by the forklift striking the temporary support beam or was caused, at least in part, by a weakened state of the roof due to previous damage and the condition of the barn during renovations and/or the heavy, wet snow that fell the same evening.

 

6. Since the evidence supporting the Motion for Partial Summary Judgment primarily is comprised of Plaintiff’s own deposition testimony, this oral testimony alone, even if uncontradicted, generally is insufficient to establish the absence of genuine issues of material fact warranting the entry of partial summary judgment.

 

L.C.C.C.P. No. 2018-00494, Opinion by John C. Tylwalk, President Judge, March 4, 2022.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

GUY MILITELLO,                                     :         NO. 2018-00494

Plaintiff                          :

:

1. :

:

LOWE’S HOME CENTERS, LLC,              :

LOWE’S COMPANIES, INC.,          :

LOWE’S HOME IMPROVEMENT            :

WAREHOUSE, LOWE’S OF LEBANON,  :

LOWE’S, and JOSEPH PANZA,                 :

Defendants                     :

 

APPEARANCES:

 

DANIEL W. BALLARD, ESQUIRE                  FOR PLAINTIFF

MERLIN LAW GROUP

 

CAPRI STEVENS, ESQUIRE                  FOR DEFENDANTS

DAVID COHEN, ESQUIRE

MINTZER, SAROWITZ, ZERIS,

  LEDVA & MEYERS, LLP

 

OPINION, TYLWALK, P.J., MARCH 4, 2022.

 

The Complaint in this action alleges that on February 8, 2017, Defendant Joseph Panza, a Lowe’s delivery driver, was using a forklift in an attempt to remove some items being returned to Lowe’s from inside a barn owned by Plaintiff Guy Militello (“Militello”) on Awol Road in Jonestown, Lebanon County.   Panza was accompanied to the location by another Lowe’s employee, Mike Wolfe.  The materials had been ordered from the local Lowe’s store located in Lebanon for an ongoing remodeling project in the barn.  It is alleged that Panza struck a temporary support beam with the forklift, causing the barn roof to partially collapse.  Militello alleges that he and Panza jacked up the roof enough to reinstall the column, but were unable to restore it to its prior position.  MIlitello alleges that he requested that Lowe’s send supplies and personnel back to the barn to secure the roof when Panza and Wolfe left but that Lowe’s failed to do so and did nothing to help remediate the situation.  After a snowstorm that evening, the roof totally collapsed the next day, February 9, 2017.  Militello alleges that Lowe’s negligence was the cause of the damage to the barn.

Militello has filed a Motion for Partial Summary Judgment on the issue of liability.  We conducted Oral Argument on the Motion on December 3, 2022, both parties have filed Briefs, and the matter is now before us for disposition.

Pennsylvania Rule of Civil Procedure 1035.2 provides, in part:

Rule 1035.2. Summary Judgment

(2)  After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law if, after the completion of discovery relevant to the motion, including the production of expert reports, 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 which in a jury trial would required the issue to be submitted to a jury.

 

Pa.R.C.P. No. 1035.2(2).  Summary judgment is granted only in those cases which are clear and free from doubt.  Lapio v. Robbins, 729 A.2d 1229 (Pa. Super. 1999).  In reviewing a motion for summary judgment, the record must be reviewed in the light most favorable to the non-moving party, and all doubts must be resolvled against the entry of summary judgment.  Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218 (Pa. 2002).  In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932), which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.  Penn Center House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989).

Militello contends that there is no dispute as to the facts material to the issue of Lowe’s negligence:  that Panza struck the column, that a portion of the barn roof collapsed shortly thereafter, that Panza and Wolfe were aware of the vulnerable condition that the initial collapse caused to the remainder of the barn roof, and that Lowe’s failed to act to protect the property from further damage.  Lowe’s counters that there are multiple disputed issues of material facts with regard to Lowe’s liability.  After considering the pleadings along with the items submitted by the parties, we agree with Lowe’s that there remain various genuine issues of material fact to be resolved by the factfinder which preclude the entry of partial summary judgment.

We first note that it is undisputed that Panza struck the beam with the forklift as he was maneuvering through a tight area in the barn while attempting to pick up the items being returned to Lowe’s.  However, there remains a dispute as to where the fault lies for the forklift hitting the beam.

There is evidence that Militello had been helping to guide the forklift through the barn prior to the forklift hitting the column.  The deposition testimony of both Panza and Wolfe reveal that immediately prior to the forklift hitting the beam, Wolfe was walking behind the forklift and Militello and his helper were walking in front to guide Panza through the area.  (Panza Dep. at 14-15, 18-19; Wolfe Dept. at 15, 18-19)  Wolfe noted that Militello was the only one with a clear view of the beam from the front.  (Wolfe Dep. at 19)  Wolfe further testified that immediately prior to the forklift striking the beam, Panza was inching along and had stated the forklift would not make it through the area where Militello was directing him to go; however, Militello insisted that he could make it and instructed him to keep coming forward.  (Wolfe Dep. at 19)  In his own deposition, Militello admitted that he was watching Panza’s progress and he was walking along with the forklift and giving instructions to Panza.  (Miilitello Dep. at 42)  This testimony raises the question of whether the forklift striking the beam was the result of Panza’s actions or whether, at least in part, Militello’s own conduct caused or contributed to the incident.

In his Complaint, Militello also charges that Lowe’s failed to take any measures to remediate the problem to prevent further damage despite his request for help.  There is also conflicting testimony regarding this allegation.  In his deposition, Militello claims that when Panza and Wolfe left to return to Lowe’s, he told them to have Lowe’s send personnel and supplies back out to the site immediately to shore up the roof.  (Militello Dep. at 46)  However, Panza could not recall Militello making such a request (Panza Dep. at 26) and Wolfe testified that no such request was made.  (Wolfe Dep. at 26)  Militello’s conduct also raises a question as to the cause of the second collapse as Panza, Wolfe, and Militello all testified that Panza helped Militello hoist the beam back up, but that it was Militello who positioned it in place.  (Panza Dep. at 21; Wolfe Dep. at 21; Militello Dep. at 20-21)

Militello also claims that Panza and Wolfe failed to comply with a Lowe’s policy which required them to inspect the premises beforehand to ensure that the forklift could be safely maneuvered through the barn.  However, Wolfe testified that he had been to the site twice in the month prior to this incident, that he had checked to make sure the forklift would fit with the other deliveries, and that there had been no issues with using the forklift to deliver materials inside the barn during those visits.  (Wolfe Dep. at 8, 16)  Panza also testified that he had walked through the pathway where he was to take the forklift on February 8, 2017 and saw no problem with it fitting through the area. (Panza Dep. at 17)

The condition of the structure at the time of this incident also raises the question of whether the forklift hitting the beam was the cause of the roof collapse.  Wolfe described the state of the barn on February 8, 2017 as being “pretty chopped up” and “you could tell he was working on the place.”  (Wolfe Dep. at 9)  He noted that the beams were cut and it looked like Militello was trying to raise the roof up and make the barn taller.  (Wolfe Dep. at 10)  He noticed three beams that were “just sitting there.”  (Wolfe Dep. at 20)  The beams were propped up but not attached to anything.  (Wolfe Dep. at 20)  Wolfe noted that the roof had to have been drooping prior to this incident as it had been collecting water which began to come in immediately after the beam came out of place.  (Wolfe Dep. at 30)  He also recalled Militello telling him that he was replacing multiple wooden panels because the horses had been chewing up the wood.  (Wolfe Dep. at 13)  Wolfe noted that with the state of the barn, the heavy snow that fell that evening would have been a concern.  (Wolfe Dep. at 30)  Panza also noted that things looked out of place in the barn and had made statement about its disheveled condition.  (Panza Dep. at 21, 35)

Militello admitted that he was in the process of remodeling and renovating the barn and that he had cut and tied all of the supporting posts. (Militello Dep. at 36)  He had taken down the wooden walls which ran the entire length of an apartment in the barn, had removed the sheetrock, put up the temporary columns, and removed the studs. (Militello Dep. at 38)  He explained that he could not secure the temporary columns to the floor due to the radiant heating so he had drilled holes in the columns and bolted them together. (Militello Dep. at 39)  Militello estimated that at least five inches of heavy, wet snow fell the evening of February 8, 2017. (Militello Dep. at 47-49)  Militello also acknowledged that there had been an incident in 2012 when a horse struck a center support column which had caused significant structural damage, including a roof collapse.  (Militello Dep. at 70-72)

We believe this raises a question as to causation: was the damage caused solely by the forklift hitting the column or was it due, at least in part, to a weakened state of the roof due to previous damage and the condition of the structure during renovations.  Moreover, the collection of water on the roof and the heavy, wet snow that fell that evening could have been a potential cause of the damage.

We believe these matters are material to the issue of Lowe’s liability in this matter and must be left for determination by the trier of fact at trial.  We also note that the only evidence put forth in support of Militello’s contentions is, for the most part, based on his own deposition testimony.  A movant cannot obtain summary judgment based on affidavits and depositions of his own witnesses:  “oral testimony alone, either through testimonial affidavits or depositions of the moving party or the moving parties’ witnesses even if uncontradicted is generally insufficient to establish the absence of genuine issues of material facts.”  Pa.R.C.P. No. 1035.3 – Comment, citing Nanty-Glo v. American Surety Co., 163 A. 532 (Pa. 1932).  For these reasons, we will deny Militello’s Motion for Partial Summary Judgment.

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

GUY MILITELLO,                                     :         NO. 2018-00494

Plaintiff                          :

:

1. :

:

LOWE’S HOME CENTERS, LLC,              :

LOWE’S COMPANIES, INC.,          :

LOWE’S HOME IMPROVEMENT            :

WAREHOUSE, LOWE’S OF LEBANON,  :

LOWE’S, and JOSEPH PANZA,                 :

Defendants                     :

 

ORDER OF COURT

 

AND NOW, this 4th day of March, 2022, upon consideration of Plaintiff’s Motion for Partial Summary Judgment, Defendants’ response thereto, the Briefs submitted by the parties, and after Oral Argument conducted on December 3, 2021, it is hereby Ordered that said Motion is DENIED.

BY THE COURT:

 

                                                          ____________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Daniel W. Ballard, Esquire/Merlin Law Group/125 Half Mile Road, Suite

            201/Red Bank, NJ  07701

        Capri Stevens, Esquire/David Cohen, Esquire/Mintzer, Sarowitz, Zeris Ledva

           & Meyers, LLP/Centre Square, West Tower/1500 Market Street, Suite

            4100/Philadelphia, PA  19102

        Judith Huber, Esquire/Law Clerk