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LENORE DIPIETRO v. CITY PHILADELPHIA (06/28/85)

decided: June 28, 1985.

LENORE DIPIETRO, ADMINISTRATRIX OF THE ESTATE OF THOMAS DIPIETRO, DECEASED,
v.
CITY OF PHILADELPHIA, JENKINS ELEVATOR AND MACHINE CO. APPEAL OF CITY OF PHILADELPHIA. LENORE DIPIETRO, ADMINISTRATRIX OF THE ESTATE OF THOMAS DIPIETRO, DECEASED, V. CITY OF PHILADELPHIA, AND JENKINS ELEVATOR AND MACHINE CO. APPEAL OF JENKINS ELEVATOR AND MACHINE CO.



Appeal form the Judgment entered December 9, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4026 March 1977. Appeal from the Order of December 9, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4026 March Term 1977.

COUNSEL

John B. Day, Philadelphia, for appellant (at 00041), for appellee (at 00199).

John M. McNally, Jr., Philadelphia, for appellant (at 00199), for appellee (at 00041).

Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ.

Author: Hoffman

[ 344 Pa. Super. Page 193]

The issue on appeal is whether defendant City of Philadelphia (City) is entitled to judgment in the amount of $100,000 against additional defendant Jenkins Elevator and Machine Co. (Jenkins) because of the latter's failure to purchase a contractor's comprehensive liability insurance policy as required by the elevator service contract between them. In holding that the city is not so entitled, we affirm the order and judgment of the court below.

On December 5, 1980, a jury returned a verdict in favor of the plaintiff for $220,000 on her wrongful death action and $130,000 on her survival action against both defendants. The actions stemmed from a March 27, 1976 accident in which plaintiff's decedent fell to his death down an elevator shaft. Also on December 5th, the court awarded the City $100,000 as against Jenkins based on the clause quoted below. See N.T. December 5, 1980 at 570-74. After

[ 344 Pa. Super. Page 194]

    post-trial motions were filed and argued, however, the court reversed itself and held that the City was not entitled to the $100,000. See Lower Court Opinion at 26-27. Instead, the court found that the right of contribution existed between the City and Jenkins as joint tortfeasors. Id. at 27-28. On December 9, 1981, the total award of $350,000 in damages was entered in plaintiff's favor and also amended to include $39,794.52 in delay damages. Both the City and Jenkins appealed from that judgment, and a three-judge panel of this Court affirmed in a Memorandum Opinion filed October 21, 1983. DiPietro v. City of Philadelphia, (Pa. Superior Ct. 1983) (per curiam). Reargument before this Court en banc was granted solely on the issue presently before us.

The provision of the elevator service contract in question provides as follows:

Insurance -- Contractor shall obtain and maintain in full force and effect covering the performance of the work under this contract, a Contractor's comprehensive liability insurance policy. Said policy shall have minimum limits, unless otherwise specified, of $100,000/300,000 public liability and $25,000 property damage and such insurance shall be endorsed with a hold harmless clause in favor of the City of Philadelphia. Evidence of such insurance shall be furnished to the Department of Public Property before the work is begun.

(City's Exhibit 5 para. 3.11) (emphasis added). Both Jenkins and the City agreed that the interpretation of the clause was a question of law for the court to decide and that Jenkins did not, in fact, maintain a policy endorsed with a hold harmless clause in favor of the City. (N.T. December 8, 1980 at 582-83).

At first glance, the City would appear to be entitled to damages for Jenkins's failure to procure the stated policy.*fn1 "[O]ne who enters ...


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