Thomas Hollander, Pittsburgh, for appellant.
Aura N. Pershing, Greensburg, for Ghion, appellee.
Thomas W. Smith, Pittsburgh, submitted a brief on behalf of Refreshment Products, Inc., Appellee.
Richard L. Rosenzweig, Pittsburgh, for Holiday House, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., concurs in the result. Van der Voort, J., files a dissenting opinion.
[ 281 Pa. Super. Page 138]
Appellant contends that the lower court erred in (1) granting summary judgment in favor of appellee Refreshment Products, Inc.; (2) refusing to take off a compulsory non-suit in favor of appellee Holiday House, Inc.; and (3) excluding evidence of breathalyzer and blood test results. We agree with the latter two contentions and, accordingly, reverse the order of the lower court and remand for a new trial.
Appellant, administrator of the estate of John R. Couts, brought wrongful death and survival actions to recover damages allegedly resulting from Couts' death in an automobile accident. The facts surrounding the accident are as follows: On February 12, 1977, appellee Dean P. Ghion (Ghion),*fn1 attended a business meeting at a restaurant and motel operated by appellee Holiday House, Inc. (Holiday House), a licensee of the Pennsylvania Liquor Control Board. The meeting was held by appellee Refreshment Products, Inc. (Refreshment Products), a soft drink distributor for whom Ghion was a dealer. Refreshment Products had arranged with Holiday House for the latter to provide alcoholic beverages for those attending this meeting. Between
[ 281 Pa. Super. Page 1392]
:00 and 3:30 in the afternoon, Ghion consumed eight cocktails at the meeting.*fn2 Subsequently, Ghion ate lunch, and the meeting ended. At approximately 5:00 p.m. Ghion went to a bar located elsewhere in the Holiday House restaurant where he was served two additional cocktails.*fn3 Ghion finished the last of these drinks at approximately 5:15 p.m. and then left the bar in his Lincoln Continental automobile. Ghion did not consume alcoholic beverages at any other location before the accident.
The accident occurred at approximately 6:00 p.m. on the same day on Route 30 in North Huntingdon Township, Westmoreland County. Road surfaces were wet from an earlier rain and continuing drizzle. Ghion was driving east on Route 30 when his automobile suddenly crossed the double yellow divider line, proceeded into the westbound traffic lanes for 300 to 400 feet, and collided with the Toyota pickup truck which the decedent was driving. Ghion did not apply his brakes prior to the collision. Ghion's car returned briefly to an eastbound lane, crossed back over into the westbound lanes, ran off the roadway, and ultimately came to rest approximately thirty feet north of the roadway in a cemetery. Both vehicles were damaged extensively, and the decedent died at the scene. Although it was dark at the time of the accident, Ghion had been driving without the use of his automobile lights.
Within minutes after the accident a North Huntingdon Township police officer arrived at the scene to investigate. As he approached Ghion he observed Ghion walking with a staggering gait, and he detected a strong odor of alcohol. When the officer asked to see Ghion's driver's license and vehicle registration card, Ghion fumbled ...