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RODGER W. ROBARE AND PATRICIA ROBARE v. DONNA PEKARCIK (09/02/87)

decided: September 2, 1987.

RODGER W. ROBARE AND PATRICIA ROBARE, CO-ADMINISTRATORS OF THE ESTATE OF RODGER C. ROBARE, DECEASED, AND HERBERT MCCLAIN AND MARY ANN MCCLAIN, CO-ADMINISTRATORS OF THE ESTATE OF STEPHEN MCCLAIN, DECEASED, APPELLANTS
v.
DONNA PEKARCIK, NICHOLAS NIGRO, AND COMMONWEALTH OF PENNSYLVANIA, APPELLEES. DONNA PEKARCIK, APPELLANT V. RODGER W. ROBARE AND PATRICIA ROBARE, CO-ADMINISTRATORS OF THE ESTATE OF RODGER C. ROBARE, ET AL., APPELLEES



Appeals from the Orders of the Court of Common Pleas of Allegheny County, in cases of Rodger W. Robare and Patricia Robare, Co-Administrators of the Estate of Rodger C. Robare, Deceased and Herbert McClain and Mary Ann McClain, Co-Administrators of the Estate of Stephen McClain, Deceased v. Donna Pekarcik, Nicholas Nigro, and Commonwealth of Pennsylvania, No. G.D. 83-12375, dated March 5, 1986 and March 13, 1986.

COUNSEL

Arthur Cutruzzula, Maurizi & Cutruzzula, for appellants/appellees, Rodger W. and Patricia Robare, and Herbert and Mary Ann McClain.

Harry S. Cohen, Fingeret, Pollock, Cohen and Zavarella, for appellee/appellant, Donna Pekarcik.

Daniel J. Weis, Weis & Weis, for appellee, Nicholas Nigro.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Judge Colins dissents.

Author: Narick

[ 109 Pa. Commw. Page 88]

The following parties were involved in a jury trial giving rise to the two appeals before us: Rodger W. and

[ 109 Pa. Commw. Page 89]

Patricia Robare, as co-administrators of the estate of Rodger C. Robare, and Herbert and Mary Ann McClain, as co-administrators of the estate of Stephen McClain, sued Donna Pekarcik, Nicholas Nigro, and the Commonwealth of Pennsylvania, Department of Transportation as a result of an automobile accident in which Rodger C. Robare and Stephen McClain were killed.

Following the conclusion of the plaintiffs' case, the trial judge, upon motion, entered a compulsory non-suit in favor of defendant, Nicholas Nigro. The Robares and the McClains have appealed from the trial court's denial of their post-trial motions to remove the non-suit and grant a new trial as to defendant Nigro on the issue of liability.

The jury returned a verdict for each plaintiff's estate in the amount of $565,000, (later molded to a higher sum), against defendant Pekarcik only. Pekarcik has appealed from the dismissal of her motion for post-trial relief requesting a new trial because the verdict was against the weight of the evidence.

A brief summary of the facts would be helpful before we address the specific grounds for these appeals. On the evening of the accident, July 31, 1981, Donna Pekarcik and her boyfriend, Nicholas Nigro, went to a bar at about 9:30 p.m., where they drank two or three alcoholic beverages. They then went to a party at a friend's apartment, where Pekarcik drank a few glasses of beer. At about 12:30, Frank Tarkowski asked Nigro to move his truck, a 1979 Ram Charger, which was blocking Tarkowski's vehicle. Nigro told him to ask Pekarcik to move it, or to do so himself as the vehicle was unlocked, and the keys were in the visor. Tarkowski asked Pekarcik to do it.

After she had moved the truck, Pekarcik decided to drive to another bar to see if some friends were there. When she reached the ...


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