Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Anna M. Pine, Administratrix of the Estate of Edward S. Pine, deceased v. Joseph P. Synkonis, Jr., Harold Humbert, Joseph Brocco, Richard Brocco, William Hughes, Clark E. Whitesell and City of Philadelphia, No. 4343 January Term, 1975.
Joseph Goldberg, with him Edwin L. Scherlis and Herbert L. Olivieri, Margolis, Edelstein & Scherlis, for appellants.
Donald E. Matusow, with him Ronald L. Wolf, Litvin, Blumberg, Matusow & Young, for appellee.
Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Doyle.
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This litigation arose out of a motor vehicle accident on June 16, 1974, in which a vehicle traveling north through the 26th Street underpass of the Schuylkill Expressway in Philadelphia crossed through a missing section of medial barrier and struck a United taxicab being driven south by Edward S. Pine. Pine died two days after the accident and was survived by a wife and child.
Anna M. Pine, administratrix of the estate of her deceased husband, brought an action in trespass against Joseph P. Synkonis, Jr., Harold Humbert, Clark E. Whitesell, Joseph Brocco, Williams Hughes, and Richard Brocco in the Court of Common Pleas of Philadelphia. The defendants, appellants before this Court, were all employees of the Commonwealth Department of Transportation (Department).*fn1 The City of Philadelphia was also named as a defendant. A bifurcated trial was held before the Honorable Charles A. Lord and the jury returned a verdict against the six individual defendants and in favor of the City of Philadelphia. Damages were assessed at $642,375.*fn2 Delay damages of $26,413.52 were added. Following argument before a court en banc, defendants' motions
[ 79 Pa. Commw. Page 482]
for a new trial and/or judgment n.o.v. were denied. Judgment was entered and this appeal followed.
Evidence adduced at the trial indicated that at the time of the fatal accident there was a gap in the medial guardrail barrier in the 26th Street underpass which extended at least eighty feet. Other evidence indicated that all the defendants were aware of the high risk of accident generally present in the underpass and all admitted that the missing medial guardrail in this location would create a hazardous condition for motorists. There was also evidence that damaged or missing guardrail had been left unrepaired for an extended period of time.*fn3
Initially we must determine whether the Appellants are protected by the qualified immunity announced by the Supreme Court in DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978). In DuBree, the Court*fn4 analyzed prior law governing official immunity and established considerations for determining whether an official should be immune. These can be summarized as follows:
1. Can the official be held to a predictable standard of care, which can be defined and applied with relative ease.
2. Do the official's decisions or actions have a significant impact on the public or impact on a large portion of the public. The
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greater the impact of such decision making, the greater the need to isolate the official ...