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filed: December 9, 1986.


Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD82-20452.


Michael B. Kaleugher, Pittsburgh, for appellant.

Edward J. Balzarini, Jr., Pittsburgh, for appellee.

Del Sole, Montemuro and Popovich, JJ.

Author: Popovich

[ 359 Pa. Super. Page 502]

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered in favor of the plaintiff/appellee, Frank Shellhamer, and against the defendant, Nadine Grey, in the amount of $269,676.44. We reverse and remand.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that at approximately 10:15 p.m. on the 26th of June, 1981, the plaintiff, age 37 and mildly retarded at the time, was about to cross the roadway where Helen Drive intersects with the four-lane McFarland freeway situated in the Pittsburgh/Mt. Lebanon area of Allegheny County.

The plaintiff looked in both directions before traversing the two lanes of the south-bound McFarland roadway without incident. He paused in the middle of the four-lanes, and, seeing no approaching vehicles from the remaining two north-bound lanes, he had completed crossing the third lane closest to the medial strip before he was struck and rendered unconscious by the vehicle driven by the defendant.

The weather was dry, and, according to the defendant's own recollection of her line of vision, there were no vehicles on either side of the highway to obstruct her view for some 300 feet before the point of impact. The defendant recalled that she had her headlights on and her vehicle was being driven between 25-30 miles per hour in the right hand (curb) lane proceeding north on McFarland. There was a

[ 359 Pa. Super. Page 503]

    street light at the intersection, which was otherwise not controlled by any traffic lights, signs or pavement markings as for a pedestrian cross-walk.

The defendant also admitted to being familiar with the roadway in question since she had driven and walked it over a period of two years on her way to work to a donut shop adjacent to where the accident occurred.

As for the victim's ability to remember what transpired, he could recall no more than crossing the roadway, being struck after walking three-quarters of the width of the highway and waking up in the hospital. As a result of the accident, the victim's mild retardation became more acute and will hamper his ability to seek any type of meaningful employment.

The most that the defendant could offer was that, while driving, she saw "something checkered" -- the victim's slacks. She did not know how far away it was, but when she saw the checkered object she "[s]lammed on [her] brakes and [the victim] was on top of [her] car." The victim rolled onto the hood of the vehicle and fell to the left (driver's) side. The time lapse between seeing "something checkered" and the actual contact was "[m]aybe two, three seconds."

Thereafter, the defendant put her vehicle in park after the collision and ran to the nearby donut shop to get help. The police and paramedics arrived within 15 minutes to transport the victim to the hospital for a skull injury which required surgery and a subsequent period of rehabilitation that never brought the victim back to his former self.

In addition, there was a vehicle traveling in the left (fast) lane, some 75-100 feet behind the defendant, but the driver and passenger could not shed any light as to the direction the victim was proceeding prior to the accident. However, they did confirm the speed at which the defendant was driving and the weather conditions. Both witnesses were only able to recall what occurred after impact.

[ 359 Pa. Super. Page 504]

The jury, hearing all of the evidence, found the defendant to be 85% negligent and the plaintiff 15% negligent. Damages for loss of earning capacity were assessed at $80,000.00, while all other damages awarded came to $210,000.00. The verdict was thereafter molded by the trial court. Following this, the plaintiff sought and was granted delay damages by the trial court under its interpretation of Pa.R.Civ.P. 238. Post-verdict motions were filed and denied. The verdict was reduced to judgment and this appeal ensued.

The first issue we will address is labelled Roman numeral IV in the appellant's brief and complains of the trial court's error in assessing Rule 238 delay damages of approximately $40,000.00 in the face of a defendant who was unable to offer more than the limits of ...

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