Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of The Estate of George Dankulich by Catherine Ann Dankulich, Administratrix of the Estate of George Dankulich, and Catherine Dankulich, Individually v. Frederick J. Tarantino, The Borough of Telford and The Commonwealth of Pennsylvania, Department of Transportation, No. 81-15921.
Thomas C. Branca, for appellants.
William B. Koch, Koch, Phelps and Cunningham, for appellee, Frederick J. Tarantino.
John W. Stahl, Dougherty & Stonelake, for appellee, Borough of Telford.
William A. Slotter, Office of Attorney General, for appellee, Commonwealth of Pennsylvania, Department of Transportation.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 110 Pa. Commw. Page 561]
Catherine Dankulich, as administratrix of the estate of her husband, George Dankulich, and individually, appeals a Montgomery County Common Pleas Court order denying her motion to strike off non-suit as to Frederick J. Tarantino and the Commonwealth of Pennsylvania, Department of Transportation (DOT). We affirm as to DOT but reverse and remand as to Tarantino.
George Dankulich, a pedestrian, died following injuries sustained in a collision with a car driven by Tarantino at or near the intersection of County Line Road and West Broad Street in the Borough of Telford. Before a jury, his personal representatives attempted to prove that the allegedly negligent design and maintenance of County Line Road at the site was a proximate cause of his death. Evidence was also presented purporting to demonstrate that Tarantino was driving negligently. At the conclusion of the plaintiff's evidence, the trial judge entered a non-suit in favor of defendants DOT and Tarantino.*fn1
Our scope of review has been repeatedly defined. A judgment of non-suit may be entered only in clear cases
[ 110 Pa. Commw. Page 562]
and the appellant must be afforded the benefit of every fact and reasonable inference arising from the evidence. McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). The entry of a non-suit is proper only if a jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the appellant, could not reasonably conclude that the elements of the cause of action have been established. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).
Dankulich initially contends that DOT breached its duty to provide reasonably safe state highways.*fn2 See 42 Pa. C.S. § 8522(b)(4). She argues that DOT's failure to post signs or otherwise control traffic at this intersection created a jury question of DOT's precaution and the ...