This is аn appeal from the June 12, 1990 and June 26, 1990 orders of the Court of Common Pleas of Allegheny County, granting summary judgment to defendant, USX Corporation, and additional defendants, Josh Steel Company, B. Zeff Company, Inc., Isadore Joshowitz, and Bennett S. Zeff. We affirm.
Orlando A. Dudley, a 16 year old, was electrocuted while attempting to steal copper cable from a tower in USX’s Carrie Furnace Plant in Rankin Borough, Allegheny County. Dorothy L. Dudley, administratrix of the estate of Orlando Dudley, filed suit against USX alleging negligence in the maintenance and security of its Carrie Plant property. USX joined Josh Steel Company and B. Zeff Company, Inc., both scrap dealers, as additional defendants, alleging that they encouraged this theft by the purchase of stolen copper cable at various times prior to this incident. Both of the decedents’ parents were later joined as additional defendants on a theory of negligent parental supervision.
*164 The pleadings and discovery in this case reveal that Orlando Dudley, along with two companions, entered the Carrie Furnace Plant facility on October 4, 1986, for the express purpose of stealing copper cable from the plant. Upon entering the plant, Orlando Dudley and his two companions proceeded to a tower from which was strung copper lines. The base of the tower was enclosed with a circular grate welded onto the tower so as to prevent unauthorized access to the tower’s ladder. One of the three trespassers used a mallet to break off the circular grate. After the grate was broken, all three climbed to a ledge on the tower at a height of approximately 138 feet. When Orlando Dudley touched an energized transmission cable with his hacksaw, he was electrocuted.
The Carrie Furnace facility had been idle for several years prior to this incident. However, one power plant within the facility remained operational in order to generate electricity for the Homestead Works; another USX facility located across the river from the Carrie Furnace facility.
USX had barricaded the tunnel entrances to the Carrie Furnace facility by filling the tunnels with tons of slag, rocks, and railroad ties. A fence was erected at the main gate of the facility to prevent unauthorized access. USX had erected "Nо Trespassing” signs around the perimeter of the facility, and several "Danger — High Voltage” signs within the facility. A private security firm had been retained to patrol the facility and apprehend trespassers.
In fact, Orlando Dudley had been confronted by the security officers, plant officers, and local police officials about trespassing on the property, prior to the October 1986 incident. One of Mr. Dudley’s companions testified as to the stepped uр security efforts in the months preceding the accident. Another companion testified that he understood that the steel grate was welded to the bottom of the tower to prevent access to the ladder and that he had warned Mr. Dudley that he did not believe it would be safe to climb the ladder to the tower.
*165 Following discovery, the trial court granted USX’s motion for summary judgment on the basis that the facts of record establish that Mr. Dudley’s death was not the result of any culpаble conduct on the part of USX, because USX did not engage in any wanton or willful misconduct. Similarly, the trial court also granted additional defendants’ motions for summary judgment concluding that the evidence failed to establish liability under the proposed theories. Appellant has filed this timely appeal from the orders granting the various summary judgment motions.
Appellant raises three issues for our consideration.
I. Whether the trial court erred in granting summary judgment to USX Corporation?
II. Whether the trial court erred in granting summary judgment to additional dеfendants, scrap dealers Josh Steel Co. and B. Zeff Company?
III. Whether the trial court erred in granting summary judgment to the principal officers of the scrap dealers, Isadore Joshowitz and Bennett S. Zeff?
Prior to addressing the merits of the issues presented for our review, it is necessary first to consider the propriety of the trial court’s disposition of the summary judgment motions in light of the
Nanty-Glo
rule. Appellant, citing to
Curran v. Philadelphia Newspapers,
Any analysis of the
Nanty-Glo
rule must necessarily start with the case giving birth to the rule,
Nanty-Glo v. American Surety Co.,
American Surety offered no evidence to contradict the testimony of those witnesses. At the conclusion of all testimony, the trial judge granted the borough's motion for
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binding instructions and directed a verdict in its favor. American Surety appealed, arguing that the trial court erred in directing a verdict for the plaintiff because it took from the jury the opportunity to pass upon the truth of the oral testimony setting forth matters essential to plaintiff’s recоvery. In announcing its decision, the court quoted language from the case of
Reel v. Elder,
However clear and indisputable may be the proof 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, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.
Nanty-Glo,
From 1932, when the Nanty-Glo decision was handed down, until 1970, the courts consistently applied Nanty-Glo to situations involving binding instructions and directed verdicts. The rule has been uniformly held to provide that binding instructions and a directed verdict are not proper when the moving party relies solely upon oral testimony to prove facts necessary to make a prima facie case.
In 1970, the
Nanty-Glo
rule was first applied in a summary judgment setting in the case of
Bremmer v. Protected Home Mutual Life Ins. Co.,
Herein, the determination of whether or not the insured gave false and fraudulent statements depends upon a consideration of the testimony of Dr. Hipps and Dr. D’Angelo. This testimony was oral____ [I]t has long been the rule in Pennsylvania that where the testimony of the party having the burden of proof is oral, the credibility of that testimony is always for the jury.
Bremmer,
Since Bremmer, there have been numerous cases addressing the Nanty-Glo doctrine in the context of summary judgments. See, e.g., Penn Center Home, Inc. v. Hoffman, supra; Thompson Coal Co. v. Pike Coal Co., supra; Johmon v. Johnson, supra; Garcia v. Savage, supra; Troy v. Kampgrounds of America, Inc., supra. A review of these cases demonstrates that there is an inherent three-step process involved in determining whether the Nanty-Glo rule applies so as to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determinеd whether, in grant *169 ing summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.
It is only when the third stage is reached that Nanty-Glo comes into play. Thus, it is true that Nanty-Glo precludes summary judgment where the moving party relies solely upon testimonial affidavits and depositions of his witnesses to resolve material issues of fact. However, if there are no material issues of fact, or if the non-moving party has failed, in the first instance, to allege facts sufficient to make out a prima facie case, then summary judgment may be granted properly, even if the moving party has only set forth the pleadings and depositions of his witnesses in support thereof. Hence the language of Pa. R.C.P. 1035, which provides that “[ajfter the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.” Pa.R.C.P. No. 1035(a). Error only occurs if the moving party, in relying upon the testimonial affidavits of his witnesses, is attempting to resolve a material issue of fact, or more importantly, is attempting to demons irate the lack of any material issues of fact by asserting that the testimony of his witnesses is uncontradicted. 2
If there are no material issues of fact in dispute, and plaintiff has failed to allege facts sufficient to make out a
prima facie
case, as a matter of law, then summary judgment may be granted properly. Such was the result reached by our supreme court in
Thompson Coal Co. v. Pike Coal Co.,
We have no credibility issue here. Assuming everything that appellants argue is accepted as pristine truth, appellants fail to make out a prima facie case as a matter of law, not as a matter of fact.
Thompson Coal Co.,
The same result can and should be reached in the present case. Returning to the three-step approach, outlined previously, when addressing Nanty-Glo issues; we are presently at the first step in that process. Did the plaintiff allegе facts, which if proven to be true, would make out a prima facie case as a matter of law? Appellant fails at this first level. Even assuming everything alleged by appellant in the pleadings as true, and giving appellant the benefit of all reasonable inferences to be drawn from these alleged facts, appellant has failed to establish a prima facie case, as a matter of law. There are no credibility issues to be decided at this stage, hence, Nanty-Glo should not be a consideration.
Reviewing only the pleadings and appellant’s own response to the summary judgment motion, in a light most favorable to appellant, reveals the following facts. USX had an operational electric tower in an otherwise nonoperational plant. USX owned this property and had every right to have this tower operational. The decedent, Orlando Dudley, along with two companions, entered onto USX property, without authorization, for the purpose of stealing сopper cable. Upon entering the USX facility through a tunnel leading into the mill, the three trespassers decided to climb one of the electric transmission towers to steal copper cable. The tower’s ladder was surrounded by a circular steel “guard” which USX personnel had welded to the ladder to prevent unauthorized persons from climbing the ladder. Dudley and his companions broke the steel guard off the ladder by smashing it with a mallet. After removing the protеctive guard, Dudley and his companions pro *171 ceeded to climb the 140-foot tower. Upon reaching the platform, Dudley contacted an energized wire with the blade of a hacksaw and was electrocuted. The wire was energized in order to supply power to a pump house at USX’s Homestead Works. Orlando Dudley died as a result of the electrocution.
These facts are all established in the complaint and the responses in oppositiоn to the various summary judgment motions. These are facts which are not in dispute, and which the trial court could properly consider without violating the Nanty-Glo rule. Reviewing these facts, the trial court could correctly conclude that appellants failed to plead facts sufficient to make out a prima facie case against USX or the additional defendants, and that, as a matter of law, USX and the additional defendants were entitled to summary judgment. 3
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The decedent, Orlando Dudley, wаs, without a doubt, a trespasser on USX’s property. That fact is admitted by appellant in her pleadings. The'standard of care owed to trespassers on land has been defined by our supreme court to be the avoidance of willful
or
wanton misconduct.
Evans v. Philadelphia Transportation Co.,
It is clearly within the province of the trial court to grant summary judgment when there are fatal deficiencies in the allegations of the complaint as to the theory of liability upon which the plaintiff is attempting to proceed.
See Johnson v. Johnson,
Appellant failed to allege facts which, even if true, would establish that USX’s behavior was of a wanton or willful nаture. Absent such factual allegations of willfulness or wantonness, appellant was unable to make out a
prima facie
case against USX. Thus, the trial court was correct in granting USX’s motion for summary judgment, for while the question of whether possessors of land violated the
*173
standard of care to one who enters upon their land is normally a question of fact for the jury, the question may be decided by the courts where reasonable minds could not differ as to the conclusion.
See Carrender v. Fitterer,
Appellant’s second issue focuses on whether the trial court erred in granting summary judgment to additional defendants, Josh Steel Co. and B. Zeff Company, Inc. According to appellant, since these appellees knowingly purchased stolen copper, they were encouraging trespassers such as Mr. Dudley to enter USX’s property and risk injury to steal the copper.
With respect to the grant of summary judgment in favor of these additional defendants, appellant has again raised a Nanty-Glo argument. Appellant claims that summary judgment was improperly granted because the additional defendants relied upon their own testimony, or that of their witness to support the motion. However, as set out earlier, a Nanty-Glo analysis necessarily requires initially determining whether the complaint against the additional defendants alleged facts sufficient to establish a prima facie case of negligence against these parties. Again, as with the allegations against USX, thе allegations against the additional defendants are fatally flawed.
The three elements of a claim of negligence, as was raised against the additional defendants, include proof of a duty of care owed to plaintiff; breach of that duty by defendant; and injuries which were proximately caused by the breach.
Zanine v. Gallagher,
As a general rule the scope of duty any one person owes to another is limited to those risks that are reasonably
*174
foreseeable by the actor in the circumstances of the case.
Zanine, supra.
That general duty is only modified when a special relationship exists between the parties, such as landowner and invitee. No such special relationship existed between the additional defendants and Mr. Dudley, therefore, the scope of their duty was limited to those risks which were
reasonably
foreseeable. As this court has noted, “[w]ant of ordinary care consists in failure to anticipate what is reasonably probable — not what is remotely possible.”
Mathis v. United Engineers & Contractors, Inc.,
Clearly, the facts developed only from the pleadings in this case reveal that the harm which befell Mr. Dudley was not reasonably foreseeable to appellees, even if they were knowingly purchasing stolen copper wire from Mr. Dudley. It is hardly reasonable to foresee that Mr. Dudley would forcibly remove a metal barricade from the base of a tower, ascend the tower, and attempt to cut an energized line with a hacksaw. While this court may consider the alleged conduct of these additional defendants to be reprehensible, the acts of purchasing the copper wire are too far removed from thе reckless acts of Mr. Dudley to hold that these additional defendants owed Mr. Dudley a duty to protect him from this harm which occurred.
Similarly, these are insufficient allegations to establish proximate causation. Proximate causation is defined as a wrongful act which was a substantial factor in bringing about the plaintiffs harm.
Whitner v. Lojeski,
Finally, appellant questions whether the trial court erred in granting summary judgment in favor of Isadore Joshowitz and Bennett S. Zeff, the individual owners of the additional defendant corporations. An officer of a corporation can only be held personally liable for the tort of the corporation if he participated in the tort.
Wicks v. Milzoco Builders, Inc.,
For the foregoing reasons, we hold that the trial court’s orders of June 16 and June 26, 1990, were correct.
Orders and judgments affirmed. Jurisdiction relinquished.
Notes
. For other recent appellate cases offering interpretations of the
Nanty-Glo
rule,
see Penn Center House, Inc. v. Hoffman,
. The
Nanty-Glo
rule becomes all the more important when considering that under Rule 1035, the non-moving party is not required to respond to the summary judgment motion or to file counter-аffidavits.
See O’Neill v. Checker Motors Corp.,
. Contrast this case with one in which Nanty-Glo was properly considered and the differences are striking. Take, for example, the case of Garcia v. Savage, supra. Without delving too deeply into the facts, Garcia involved an action by the employee of one subcontractor against another subcontractor whose employees’ negligence allegedly caused his injuries. At the initial level, there were no fatal deficiencies in Garcia’s theory of liability against Savage, the second subcontractor. Garcia alleged facts which, if proven, would establish a prima fade case of negligence against Savage under a theory of vicarious liability for the negligent acts of its employees. At the next level, however, it is clear that certain facts, material to the resolution of the case, were at issue.
In particular, an issue arоse as to whose control the three workers were under at the time of the accident. Garcia alleged that they were under Savage’s control, making it liable under a theory of respondent superior. Savage alleged that the employees were under the control of the general contractor. Savage moved for summary judgment and supported the motion with deposition testimony of the workers themselves and the general contractоr, to the effect that the workers were under the control of the general contractor when the accident occurred. The trial court granted the summary judgment motion of Savage.
On appeal, this court reversed, reasoning that Nanty-Glo precluded the grant of summary judgment. In this case, an analysis of Nanty-Glo was warranted and correct. As previously stated, Garcia’s theory of liability was not fatally deficient, as in the present case, and there was a genuine issue of material fact surrounding the control of the workers. Yet, Savage attempted to resolve that issue of fact by relying *172 upon the deposition testimony of the workers and the general contractor.