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CITY PHILADELPHIA v. ANNA MARIE MESSANTONIO (12/01/87)

decided: December 1, 1987.

CITY OF PHILADELPHIA, APPELLANT
v.
ANNA MARIE MESSANTONIO, APPELLEE



Appeal from the Court of Common Pleas of Philadelphia County in the case of Anna Marie Messantonio v. City of Philadelphia, No. 6395, March Term, 1980.

COUNSEL

Miriam B. Brenaman, Assistant City Solicitor, with her, Handsel B. Minyard, City Solicitor, Norma S. Weaver, Chief Deputy in Charge of Claims, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, for appellant.

Bruce W. Vosburgh, with him, Elena Yandola, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, for appellee.

Judges Barry and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 111 Pa. Commw. Page 365]

The City of Philadelphia (City) appeals from an order of the Court of Common Pleas of Philadelphia County which found for Anna Marie Messantonio (appellee), that the City was liable for contribution. We affirm.

On May 28, 1971, appellee struck and injured seven-year old Vandelyn Box while appellee was driving her automobile in a southerly direction on East River Drive.*fn1 Ms. Box was a pedestrian attempting to cross East River Drive in a westerly direction from the southeast corner of Midvale Avenue.

The sum which the Court of Common Pleas jury awarded Ms. Box was determined inadequate by the trial judge. In lieu of retrying the matter, the parties settled on April 1, 1980.

On April 3, 1980, appellee initiated an action for contribution in the Court of Common Pleas. The trial court found the City liable to appellee for one-half of the Sixty Thousand, Five Hundred Dollar ($60,500.00) settlement which was entered into between Ms. Box and appellee, plus six percent (6%) interest from the date of the settlement.

[ 111 Pa. Commw. Page 366]

The City moved to vacate the trial court's finding in favor of appellee in the contribution action. On May 29, 1986, the trial court denied the City's motion.

The City maintains that the trial court erred in (1) finding that once the City elected to perform a discretionary duty, it had a duty to properly place and time traffic signals such that they could be seen and understood by pedestrians, or alternatively, to warn pedestrians of the danger created by the failure to do so; and (2) holding that a fact-finder may determine that a defendant is a joint tortfeasor with a plaintiff in a suit for contribution where the extent of the plaintiff's negligence is not adduced at trial.

Preliminarily, we note that this action arose between the Supreme Court of Pennsylvania's abolishment of the doctrine of governmental immunity in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), and the legislature's subsequent re-establishment of limited ...


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