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MARGARET E. MURRAY v. RICHARD J. ZARGER (11/21/89)

decided: November 21, 1989.

MARGARET E. MURRAY, ADMINISTRATRIX OF THE ESTATE OF CHERISE R. SILVIS, A/K/A CHERISE R. MURRAY, DECEASED
v.
RICHARD J. ZARGER, JACK MCINTYRE, AND CORRY AREA SCHOOL DISTRICT. APPEAL OF JACK MCINTYRE AND CORRY AREA SCHOOL DISTRICT, APPELLANTS



Appeal from the Common Pleas Court, Erie County; Honorable James Dwyer, Judge.

COUNSEL

Thomas M. Lent, with him, W. Patrick Delaney, Marsh, Spaeder, Baur, Spaeder & Schaaf, Erie, for appellants.

Ronald L. Slater, Elderkin, Martin, Kelly, Messina & Zamboldi, Erie, for appellee, Margaret E. Murray.

T. Warren Jones, with him, John W. Draskovic, MacDonald, Illig, Jones & Britton, Erie, for appellee, Richard J. Zarger.

Colins and McGinley, JJ., and Narick, Senior Judge.

Author: Mcginley

[ 129 Pa. Commw. Page 612]

Jack McIntyre (McIntyre) and the Corry Area School District (School District) appeal from an order of the Court of Common Pleas of Erie County (trial court) dated January 25, 1989, entering partial summary judgment in favor of Richard J. Zarger (Zarger), and against the School District with respect to Zarger's claim for contribution and/or indemnity from all claims for personal injuries arising out of the January 18, 1985, motor vehicle accident in which Cherise R. Murray (Decedent) was fatally injured. We reverse.

On January 18, 1985, Decedent, age fourteen and a freshman at Corry Area High School, was fatally injured in an

[ 129 Pa. Commw. Page 613]

    automobile accident in Harborcreek Township, Erie County, Pennsylvania. Decedent and three other members of the swim team were en route to a diving competition at Iroquois High School in a car owned by McIntyre, the high school swim coach, and operated by Zarger. McIntyre had loaned the car to Zarger and remained at the high school with other members of the swim team.

Margaret E. Murray, Administratrix of the Estate of Decedent (Estate), filed a complaint on February 18, 1986, requesting damages allegedly caused by the negligence of the School District, McIntyre and Zarger. The School District filed a motion for summary judgment which was argued before the trial court on July 25, 1988, and denied. On August 9, 1988, Zarger, with leave of Court, filed amended new matter alleging that he was an employee of the School District and was acting within the scope of his office and duties, or in good faith reasonably believed he was acting within the scope of his office and duties at the time of the January 18, 1985, accident. Zarger's new matter also included a claim for indemnity and contribution against the School District.

On October 15, 1988, Zarger filed a motion for partial summary judgment arguing that no genuine issues of material fact existed as to his employment status and that he was entitled to a determination as a matter of law. Zarger argued that he was entitled to contribution and indemnity against the School District. Because the trial was scheduled for October 11, 1988, Zarger's partial motion for summary judgment was not considered. A jury trial commenced on October 11, 1988, and was concluded on October 12, 1988, following the declaration of a mistrial. The trial court granted Zarger's request to reconsider his motion for summary judgment. After oral argument the ...


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