Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of John Owens and Joan Owens v. City of Philadelphia and Cornell Thompson, No. 1433 March Term, 1981.
Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, with her, Norma S. Weaver, Deputy in Charge of Claims, Handsel B. Minyard, City Solicitor, for appellants.
Samuel S. Davis, Bernstein, Bernstein & Harrison, P.C., for appellees.
Judges MacPhail, Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.
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The City of Philadelphia and Cornell Thompson (Appellants) appeal from the order of the Court of Common
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Pleas of Philadelphia County denying Appellants' motion for Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial or Remittitur and entering judgment on the verdict in favor of John Owens (Appellee)*fn1 in the amount of $353,379.29 plus delay damages of $164,321.37 for a total verdict of $515,700.66. We affirm.
On February 8, 1980 Appellee was injured in a motor vehicle accident caused by a City of Philadelphia garbage truck driven by Appellant Cornell Thompson in the course and scope of his municipal employment. Appellee was working as a truck driver for Frankford Grocery and was in the cargo area of his parked truck unloading groceries at the time of the accident. The garbage truck hit the left rear of Appellee's truck and jolted it forward. As a result, Appellee's body was twisted and thrown inside the truck. Cases of groceries came falling down upon him, hitting him in the head, neck, back and legs. A Philadelphia police officer, who happened to be visiting the store on a routine security check, took Appellee to Albert Einstein Medical Center where he was treated and released. He was later examined and treated by Dr. Phillip Getson, who was treating him through the time of the trial on October 29 through November 5, 1985.
Dr. Getson testified at the trial that Appellee has a permanent loss of range of motion of 20% in his lower back. Notes of Testimony (N.T.) of October 31, 1985 at 68-69, Reproduced Record (R.R.) at 15a-16a, Supplemental Reproduced Record (S.R.R.) at 104b-105b. Specifically, Appellee can no longer bend as fully from side to side or forward or backward and cannot twist at the waist. Consequently, Appellee has difficulty bending
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and lifting objects and can no longer play golf or other sports. The trial court found that "[s]ince the accident, the plaintiff [Appellee] has been in constant pain and is unable to participate in activities which he had previously enjoyed." Trial Court Opinion at 2. Damages were awarded in the amount of $185,000 for pain and suffering as part of the total damage award.
42 Pa. C. S. § 8553(c), commonly referred to as Section 8553(c) of the Political Subdivision Tort Claims Act, provides in pertinent part that damages for pain and suffering can be recovered in cases such as this "only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment. . . ." At the outset of the trial and in his opinion, Judge Berel Caesar interpreted the phrase "permanent loss of a bodily function" to mean "a diminution of function in the nature of a permanent loss of a range of motion to a degree that is statistically significant."*fn2 Trial Court Opinion at 5, N.T. of October 29, 1985 at 4, R.R. at 11a, S.R.R. at 2b. This phrase had been previously interpreted in the case of Savitt v. City of Philadelphia, 557 F. Supp. 321, 328 (E.D. Pa. 1983), to mean that "the plaintiff, as a [proximate] result of the accident, can no longer perform a physical act or acts which she ...