IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

BOB BOLUS, : Civ. No. 3:22-CV-1244 

 : 

 Plaintiff, : 

 : 

v. : (Chief Magistrate Judge Bloom) 

 : 

LOWE’S HOME CENTERS, LLC, : 

 : 

Defendant. : 

 

MEMORANDUM OPINION 

 

I. Introduction 

This case is presently before us for consideration of a motion for 

summary judgment filed by the defendant, Lowe’s Home Centers, LLC. 

(“Lowe’s”) (Doc. 29). The action was initiated by the plaintiff, Bob Bolus, 

alleging negligence and breach of contract by Lowe’s. (Doc. 1). Bolus 

alleges that Lowe’s agents damaged his property by driving tractor 

trailers negligently in a manner that tore up his artificial turf and 

damaged an underground drainage system. (Doc. 1 ¶¶ 22-36). He claims 

$673,880 in damages. (Id. ¶ 52). Bolus further alleges that, by failing to 

pay for that damage, Lowe’s has breached their contract. (Id. ¶¶ 37-57). 

Lowe’s has moved for summary judgment arguing that the undisputed 

facts cannot establish Lowe’s liability for the acts complained of, nor any 

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breach of their contract, entitling Lowe’s to judgment as a matter of law. 

(Doc. 29-1). After consideration, we will grant the motion. 

II. Background 

 

The dispute here arises from an April 24, 2021 contract between 

Bolus and Lowe’s. (Doc. 1 ¶ 7). The contract allowed Lowe’s to park and 

remove trailers on Bolus’s property at Lot 7, Senator Bob Mellow Drive, 

in Jessup, Pennsylvania. (Id., ¶¶ 3, 14). Bolus alleges that three 

different tractors were driven by agents of Lowe’s in a negligent manner, 

causing damage to the artificial turf on Bolus’ property and an 

underground drainage system. (Id. ¶¶ 16-18). Bolus alleges various 

negligent acts that resulted in this damage, including, inter alia, trucks 

being driven with the vehicle’s “landing gear” down and becoming stuck 

in Bolus’ turf with locked wheels. (Id.). While the dates of the damage 

and the identities of the drivers are apparently unknown, Bolus alleges 

that the trucks were driven by “FEDEX,” “NFI,” and “RPM,” and that the 

defendant was “responsible for” the vehicles that caused the damage. (Id. 

¶¶ 16-19). 

Bolus corresponded with a Mike Reid of Lowe’s regarding possible 

resolutions. (Doc. 1 ¶¶ 54-56). Bolus further alleges that Lowe’s 

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“accepted responsibility” for the matter, and that on August 4, 2022, Mr. 

Reid stated in email he was amenable to doing the “right thing” but that 

he would first need to investigate the matter. (Id. ¶¶ 53-57). Discussions 

never progressed past that point, Lowe’s did not tender any payment to 

Bolus, and on August 10, 2022, Bolus instituted the instant action. (See

Doc. 1). 

Discovery in the instant matter has been lengthy and has included 

several extensions of the discovery deadlines, resulting in fact discovery 

concluding on February 12, 2024. (Doc. 28). On April 12, 2024, two 

months after the close of fact discovery, Lowe’s filed the instant motion 

for summary judgment. (Doc. 29). Bolus was ordered to respond on May 

13, and then again on September 16, and filed his brief in opposition to 

the motion on September 18. (Docs. 30, 32, 34). 

Lowe’s argues that it is entitled to judgment as a matter of law 

because Bolus has not established that it is liable for the alleged damage, 

nor that Lowe’s breached its contract with him. (Doc. 29-1). In response, 

Bolus argues that much of the critical information needed to prove the 

allegations here is in the possession of Lowe’s, who has not been 

forthcoming, specifically with the contact information of the security 

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guards who saw the damage occur. (Doc. 35 ¶¶ 3, 13, 20, 22, 23, 28, 41, 

43, 52, 57). Bolus states or implies throughout his brief in opposition to 

this motion that additional discovery is necessary to divine the identity 

of those guards and obtain their firsthand testimony. (Id. ¶¶ 13, 20, 23, 

28, 43, 52). Similarly, he states that a third party has security footage 

that will support his allegations, and that Bolus has “requested” this 

footage. (Id. ¶ 28). 

The motion is fully briefed and ready for disposition. (Docs. 29-1, 

35, 36). After consideration, we conclude that there are no genuine 

disputes of material fact with respect to Bolus’ claims against Lowe’s. 

Accordingly, we will grant the defendant’s motion for summary 

judgment. 

III. Discussion 

 

A. Motion for Summary Judgment – Standard of Review 

The defendant has filed a motion for summary judgment pursuant 

to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides 

that a court shall grant summary judgment “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 

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materiality of the facts will depend on the substantive law. Anderson v. 

Liberty Lobby, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts 

that might affect the outcome of the suit under governing law” will 

preclude summary judgment. Id. A dispute is only genuine if a 

reasonable juror could find in favor of the nonmoving party. Id. 

The moving party bears the initial burden to “demonstrate the 

absence of a genuine issue of material fact,” relying on pleadings, 

depositions, affidavits, and other evidence in the record. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). If the movant “successfully points to 

evidence of all of the facts needed to decide the case on the law,” the 

nonmovant can still defeat summary judgment by pointing to evidence in 

the record which creates a genuine dispute of material fact and from 

which a jury could find in its favor. El v. Southeastern Pennsylvania 

Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f 

the evidence is merely colorable, or is not significantly probative, 

summary judgment may be granted.” Anderson, 477 U.S. at 249-50 

(citations omitted). A court may not make credibility determinations or 

weigh the evidence, but “must view the facts in the light most favorable 

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to the non-moving party.” Hugh v. Butler County Family YMCA, 418 

F.3d 265, 267 (3d Cir. 2005). 

B. The Defendant’s Motion for Summary Judgment will be Granted. 

 

Lowe’s argues that the undisputed material facts fail to show that 

it is liable for the actions alleged, and therefore it is entitled to judgment 

as a matter of law. (Doc. 29-1). Bolus has alleged Lowe’s is liable on a 

theory of agency, arguing that Lowe’s was responsible for the vehicles 

which caused the damage to his property, and so Lowe’s bears liability 

for their actions. (Doc. 1 ¶ 35). Lowe’s claims that the only evidence 

suggesting they are liable for the events alleged by Bolus is hearsay 

evidence which this court may not consider at this time. (Doc. 29-1 at 9). 

Agency exists when a principal and an agent enter into an agency 

relationship, which under Pennsylvania law is created by three elements: 

“(1) manifestation by the principal that the agent shall act for him; (2) 

the acceptance of the undertaking by the agent; and (3) the control of the 

endeavor in the hands of the principal.” Tribune-Review Pub. Co. v. 

Westmoreland Housing Authority, 833 A.2d 112, 119 (Pa. 2003) (citing 

Basile v. H & R Block, Inc., 761 A.2d 1115 (Pa. 2000)). “There are four 

grounds upon which a [factfinder] can conclude that an agency 

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relationship exists and that the principal is bound by a particular act of 

the agent and liable to third parties on the basis thereof.” Bolus v. United 

Penn Bank, 525 A.2d 1215, 1221 (Pa. 1987).  An agency relationship can 

be based on (1) express authority, (2) implied authority, (3) apparent 

authority, or (4) authority that the principal is estopped from denying. 

Id. 

Express authority and implied authority both “fall within the 

definition of actual authority.” Restatement (Third) of Agency § 2.01 (Am. 

Law Inst. 2008). Actual authority “is created by a principal’s 

manifestation to an agent that, as reasonably understood by the agent, 

expresses the principal’s assent that the agent take action on the 

principal’s behalf.” Id. Apparent authority “is created by a person’s 

manifestation that another has authority to act with legal consequences 

for the person who makes the manifestation, when a third party 

reasonably believes the actor to be authorized and the belief is traceable 

to the manifestation.” Id. § 3.03. Authority that a party is estopped from 

denying relates to a party changing position in reliance on the 

representations of an agent on behalf of the principal and is not at issue 

here. Id. § 2.05.

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To survive summary judgment, Bolus must show that Lowe’s is 

liable for the actions of the drivers who caused damage to his property. 

Since Bolus has not alleged that Lowe’s took any action, Lowe’s can only 

be liable if Bolus can show that the person or entity that took action was 

an agent of Lowe’s. To make such a showing, Bolus must set forth 

evidence establishing an agency relationship between that actor and 

Lowe’s. As we will discuss, Bolus has not done so. 

Bolus argues that the damage was caused by individuals driving 

tractor trailers and alleges that these drivers were “under the control and 

direction” of the defendant. (Doc. 1 ¶ 13). Throughout the complaint, 

Bolus uses language tending to suggest an agency relationship between 

Lowe’s and these drivers. (See id. ¶¶ 16, 19, 26). However, these bare 

and conclusory allegations of an agency relationship cannot survive 

summary judgment. As the Third Circuit has recognized, “summary 

judgment is essentially ‘put up or shut up’ time for the non-moving party: 

the non-moving party must rebut the motion with facts in the record and 

cannot rest solely on assertions made in the pleadings, legal memoranda, 

or oral argument.” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 

201 (3d Cir. 2005). Accordingly, Bolus must set forth evidence showing 

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that an agency relationship exists, such as actions, documents, or 

testimony establishing such a relationship. 

Here, Bolus appears to rely on his assertions that “security guards 

under Lowes’s control” witnessed the damage. (Doc. 35, ¶¶ 3, 52, 55, 57, 

60). He further claims that he “spoke to representatives of NFI, who 

stated they were working under the control of Lowes. [sic]” (Id. ¶ 54). 

However, Bolus does not identify these security guards, nor has he 

deposed representatives of these trucking companies or anybody from 

Lowe’s to show that these drivers were working as agents of Lowe’s. He 

appears to rely on these statements, which Lowe’s has argued, even if 

these statements would establish an agency relationship, are hearsay 

that we may not consider at this time. We agree. 

First, and fundamentally, Bolus has not come forth with evidence 

of an agency relationship. Bolus cannot rely on the allegations in his 

complaint that security guards witnessed the damage, and that some 

unidentified representative of one of the trucking companies told him 

they were agents of Lowe’s. Bolus has taken no steps to identify these 

unnamed individuals through discovery, which as we have noted, was 

prolonged and extended many times in this matter. Rather, ten months 

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after the close of fact discovery, he has essentially requested to reopen 

discovery to request this information from Lowe’s and to depose Mr. Reid. 

The close of fact discovery has long passed, and to the extent Bolus is 

making this request, such a request is denied. Further, to the extent 

Bolus is content to rely on these statements, we conclude that these 

statements are inadmissible hearsay and cannot be considered to oppose 

the instant motion. 

Hearsay is an out-of-court statement offered for the truth of the 

matter asserted. Fed. R. Evid. 801(c). Hearsay evidence is inadmissible 

in federal court unless it falls into a recognized hearsay exception. Fed. 

R. Evid. 802. Inadmissible hearsay evidence cannot be considered by a 

court when deciding a motion for summary judgment. Smith v. City of 

Allentown, 589 F.3d 684, 693 (3d Cir. 2009). But “if the statement is 

capable of being admissible at trial, despite it currently being in an 

inadmissible form, the statement may be considered for purposes of 

deciding a motion for summary judgment.” Bender v. Norfolk Southern 

Corp., 944 F. Supp. 2d 593, 600 (M.D. Pa. 2014). This may be 

accomplished by showing that “there is more than a ‘mere possibility that 

the evidence will be admissible at trial.’ ” Id. (quoting Bouriez v. Carnegie 

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Mellon Univ., Civ. No. 02-CV-2104, 2005 WL 2106582 (W.D. Pa. Aug. 26, 

2005). To make that showing, a party must either show that the hearsay 

likely falls into an enumerated hearsay exception or show some likelihood 

that the hearsay declarant will themselves testify at trial. Howley v. 

Experian Info. Solutions, Inc., 813 F. Supp. 2d 629, 637 (D.N.J. 2011). 

Lowe’s specifically identifies the alleged statements by unnamed 

security guards in Bolus’ complaint as hearsay. (Doc. 29-1 at 9). These 

are plainly hearsay statements, as they have been made out of court, and 

they are offered here by Bolus to establish that the acts described were 

performed by agents of Lowe’s. Even affording Bolus the deference due 

to a pro se litigant, we cannot say that he has shown these statements 

fall into an established exception, nor a likelihood that any of the hearsay 

declarants will testify in this trial. 

At the outset, Bolus has failed to identify both the dates the alleged 

acts occurred, as well as the dates, location, or manner in which the 

unidentified security guards informed him of the damage. Bolus asserts 

throughout his brief that Lowe’s has the contact information for these 

guards but offers no explanation as to why that information was not 

requested during the lengthy discovery period. Further, if Bolus did 

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request this information and was frustrated by noncompliance on the 

part of Lowe’s, Bolus failed to raise this issue during the discovery period, 

including during our October 2023 discovery conference call with the 

parties. 

Even if Lowe’s furnished Bolus with the contact information in 

question now, Bolus would have to canvas that roster to discern which 

guard may have seen which truck, reconstructing that puzzle over three 

years after it allegedly happened. If such a strategy was to be employed, 

it needed to be done during the lengthy discovery period that has already 

closed. If Bolus wanted to prove the existence of an agency relationship 

via the third parties, as he states he discussed this issue with at least one 

of them, they needed to be deposed during the discovery period. In sum, 

while we recognize Bolus’ status as a pro se litigant, we will not reopen 

discovery more than nine months after it has closed, and we consider the 

motion without regard to the hearsay evidence presented by Bolus. 

With those statements put to the side, the undisputed facts 

establish that Lowe’s was a renter from Bolus, that Bolus’ property was 

damaged by someone other than Lowe’s, and the estimated cost of 

repairing that damage. Simply put, Lowe’s cannot be held liable for the 

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actions of third parties where it has not been established that those third 

parties were acting as Lowe’s agents. The negligence claim therefore 

fails as a matter of law. We reach the same result regarding the breach 

of contract claim. Because Bolus has not shown that the damage was 

caused by Lowe’s or its agents, Lowe’s owes no duty to Bolus to pay for 

the repairs. 

 In sum, there is no genuine issue of material fact as to these claims. 

Bolus has failed to provide evidence showing that Lowe’s is liable for the 

damage done to his property, either by way of negligence or by breach of 

the contract. Since the undisputed facts fail to allege the essential 

elements of either claim, Lowe’s is entitled to summary judgment on 

Bolus’ claims. 

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IV. Conclusion 

 For the foregoing reasons, the defendants’ motion for summary 

judgment (Doc. 29) will be GRANTED. 

 An appropriate order follows. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

Chief United States Magistrate Judge 

Dated: December 9, 2024 

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