Appeal from the Order of the Superior Court of Pennsylvania Entered February 19, 1988 at No. 00859, Philadelphia, 1987 Affirming the Order of the Lehigh County Court of Common Pleas Entered December 12, 1986 at No. 81-C-1393.
James R. Fiorentino, Alfred P. Antonelli, Bethlehem, for appellant.
James M. Schildt, Doylestown, for Delcamp.
William E. Schantz, Allentown, Lisa Maiorana, Wyomissing, for Rupp.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., concurred in the result. Flaherty, J., files a dissenting opinion in which McDermott and Zappala, JJ., join.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The present controversy arose from an automobile accident. Appellant, Kevin M. Harvilla, was a passenger injured
in a vehicle driven by Appellee, Rodney J. Delcamp and owned by Appellee, Timothy M. Rupp. The pertinent facts of the case are as follows. On December 7, 1979, Harvilla, Delcamp, Rupp and two other young men were at a party and after some discussion decided to go on a hunting trip to the Pocono Mountains. All of the men drank beer at the party before leaving at approximately 3:00 a.m. on the morning of December 8, 1979. The men arrived at their destination at dawn. None of them slept during the trip.
After the group entered the woods Harvilla and Delcamp became cold and decided to return to the Rupp car which had a working heater. When they got into the car they drank more beer and then decided to get something to eat. Delcamp drove the car and eventually discovered a diner where they ate breakfast and, again, drank beer. After leaving the diner, Harvilla, recognizing that Delcamp was drunk, fought with him about who would drive the car. Unfortunately, Delcamp refused to let Harvilla drive and on the way back to the hunting site the car left the road and smashed into a tree. Both men were injured as a result of the accident.
Harvilla brought a suit against Delcamp for negligent operation of the vehicle and against Rupp, the owner of the car, under the theory of respondeat superior. At trial Harvilla testified that he fell asleep and did not know how the accident happened. Delcamp testified that he had no memory of how the car left the roadway and smashed into the tree. At the close of Harvilla's case Appellees Rupp and Delcamp moved for compulsory nonsuits.
The trial court granted the non-suit as to Rupp after determining that Harvilla had failed to establish an agency relationship.*fn1 The trial court also granted a compulsory non-suit as ...