1

 Summary judgment is appropriate where no genuine issue exists as to any material

fact and the moving party is entitled to judgment as a matter of law. Romero v. SmithKline

Beecham, 309 F.3d 113, 117 (3rd Cir.2002). All facts and reasonable inferences must be viewed

favorably to the non-moving party. Curley v. Klem, 298 F.3d. 271, 276 (3d. Cir. 2002).

2 Movant defendants are Henkels and McCoy, Inc., PECO Energy Company and Exelon

Communications. The non-movant defendants are City of Philadelphia Water and Sewer

Department, Danella Construction Company, Level 3 Communications, Verizon, ABC

Partnership, XYZ Corporation, and John Doe. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHY L. OAKES : CIVIL ACTION

:

 v. :

:

:

HENKELS and McCOY, et al. : No. 02-2749

MEMORANDUM-ORDER

AND NOW, this 10th day of December, 2002, the motion for summary

judgment of defendants Henkels and McCoy, Inc., PECO Energy Company and Exelon

Communications is granted. Fed. R. Civ. P. 56(c). 1 Jurisdiction is diversity. 28 U.S.C.

§ 1332. 

The complaint alleges that, on April 6, 2000, plaintiff Kathy L. Oakes fell while

walking in the intersection of 19th and Market Street in an area where construction work

had been performed by defendants. Complaint, ¶ ¶ 1-37; plaintiff’s Opposition to

Motion for Summary Judgment of Defendants Henkels & McCoy, Inc., PECO Energy

Company and Exelon Communications at 1. 

The three movant defendants contend that there is no evidence they “created the

condition [that] allegedly caused plaintiff to fall.” Motion for Summary Judgment of

Defendants Henkels & McCoy, Inc., PECO Energy Company and Exelon

Communications at 3. 2

Case 2:02-cv-02749-EL Document 44 Filed 12/11/2002 Page 1 of 3
3

 At deposition, Richard Adler, a PECO representative, produced a list evidencing that

PECO performed work near 19th and Market on 11/0/96, 1/16/97, 3/9/98, 4/29/02 and 3/5/02

and testified that PECO had not done any excavation at any time.

4

 Henkels and McCoy proffered time sheets and schematics in support of its position. 

According to defendants PECO and Exelon, they had completed their work at the

intersection two years prior to the incident. 3

 Defendant Henkels and McCoy, a

subcontractor of Exelon Communications, the parent company of PECO, submitted

documentation that it completed its installation of fiber optic cable at the intersection in

February 2000 and that the work did not involve the quadrant of the intersection where

plaintiff fell. 4

Plaintiff filed an affidavit from an investigator, Joseph C. O’Donovan, Jr., stating

that he had a telephone conversation with “Romona,” an employee of PECO - who

refused to give her last name - in which she said that on or about March 27, 2000 the

company had installed fiber optic cable at the intersection in question. Movants argue

that O’Donovan’s statement is hearsay and therefore should not be considered on this

motion. 

To succeed against a summary judgment motion, the nonmoving party must go

beyond the pleadings and by competent affidavits, depositions, answers to

interrogatories, or admissions, designate specific facts that present a genuine issue for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Glenn Distributors Corp. v.

Carlisle Plastics, Inc., 297 F.3d 294, 299 (3d. Cir. 2002). 

Hearsay may be enough to enable an action to survive a summary judgment

motion unless that evidence would unquestionably be inadmissible at trial. Riding v.

Kaufmann's Dept. Store, 220 F.Supp.2d 442, 452 n. 2 (W.D.Pa.2002). 

Case 2:02-cv-02749-EL Document 44 Filed 12/11/2002 Page 2 of 3
-3-

Here, however, if the hearsay in the investigator’s affidavit were put on the

summary judgment balance scale, its weight is flimsy and it is plainly inadmissible. For

those reasons, it is insufficient to raise a triable issue and does not withstand summary

judgment. 

____________________

Edmund V. Ludwig, J.

Case 2:02-cv-02749-EL Document 44 Filed 12/11/2002 Page 3 of 3