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MARVIN L. WOLBACH AND ESTHER WOLBACH v. JOHN A. FAY (03/20/80)

decided: March 20, 1980.

MARVIN L. WOLBACH AND ESTHER WOLBACH, HIS WIFE, APPELLANTS,
v.
JOHN A. FAY, JAMES P. CALHOUN AND MADELYN C. CALHOUN, HIS WIFE, AND WILLIAM G. BARBER AND CAROLINE N. BARBER, HIS WIFE



No. 44 January Term, 1978, Appeal from the Order of the Superior Court, at No. 736 October Term, 1977, affirming the Order of the Court of Common Please of Bradford County, Civil Action -- Law, at No. 245 April Term, 1975

COUNSEL

Michael J. Dowd, John Kocsis, III, Athens, for appellant.

W. Marshall Dawsey, Philadelphia, for appellees, Mr. and Mrs. Calhoun.

Robert J. Murphy, Towanda, for appellees, Mr. and Mrs. Barber.

Maurice L. Epstein, Towanda, for appellee, John A. Fay.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Larsen, J., files a dissenting opinion which Flaherty, J., joins.

Author: O'brien

[ 488 Pa. Page 240]

OPINION OF THE COURT

On August 11, 1974, at approximately 9:55 p. m., appellant Marvin L. Wolbach was operating a truck on Legislative

[ 488 Pa. Page 241]

Route 08081 in Athens Township, Bradford County. He pulled off the road to help a friend, Gary Miller, who was having trouble starting his car. He parked in front of a car owned by appellee John A. Fay. While Wolbach was standing between his truck and Fay's car, a car driven by appellee Caroline Barber struck Fay's car, which in turn struck Wolbach, seriously injuring him.

Wolbach and his wife, Esther Wolbach, also appellant herein, sued Fay in the Court of Common Pleas of Bradford County. They alleged he was negligent in leaving his car unattended, without parking lights or flashers. They also sued James P. Calhoun and Madelyn C. Calhoun, his wife, appellees herein and owners of the property in front of which the vehicles were parked. The Calhouns operate a farm market on the property. Appellants alleged they were negligent in failing to provide adequate parking and lighting, making it necessary for the vehicles to park partly on the road. Fay joined Caroline Barber and her husband, William G. Barber, as additional defendants.

Before filing suit, at the request of an agent of the Barbers' insurer, Marvin Wolbach signed a release which stated that in consideration of the payment of $10,000, ...


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