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GARY L. BURKETT v. JOHN STEPHEN GEORGE AND TOWNSHIP MONROE. TOWNSHIP MONROE (08/15/88)

decided: August 15, 1988.

GARY L. BURKETT, ADMINISTRATOR OF THE ESTATE OF ROBERT A. BURKETT, DECEASED, AND GUARDIAN AD LITEM FOR ALL PERSONS ENTITLED TO SHARE IN DAMAGES FOR THE WRONGFUL DEATH OF ROBERT A. BURKETT
v.
JOHN STEPHEN GEORGE AND THE TOWNSHIP OF MONROE. THE TOWNSHIP OF MONROE, APPELLANT. GARY L. BURKETT, ADMINISTRATOR OF THE ESTATE OF ROBERT A. BURKETT, DECEASED, AND GUARDIAN AD LITEM FOR ALL PERSONS ENTITLED TO SHARE IN DAMAGES FOR THE WRONGFUL DEATH OF ROBERT A. BURKETT, APPELLANT V. JOHN STEPHEN GEORGE AND THE TOWNSHIP OF MONROE, APPELLEES



Appeals from the Order of the Court of Common Pleas of Cumberland County, in the case of Gary L. Burkett, Administrator of the Estate of Robert A. Burkett, Deceased, and Guardian ad Litem for all persons entitled to share in damages for the wrongful death of Robert A. Burkett v. The Township of Monroe and John Stephen George, No. 2348 Civil 1984.

COUNSEL

William F. Martson, Martson, Deardorff, Williams & Otto, for Township of Monroe.

James D. Flower, Jr. for John Stephen George.

John M. Eakin, with him, Murrel R. Walters, III, for Gary L. Burkett, Administrator.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 118 Pa. Commw. Page 545]

Gary L. Burkett, Administrator of his son Robert's estate, and the Township of Monroe cross-appeal a Cumberland County Common Pleas Court order granting and denying certain post-trial motions. The final order granted a new trial as to survival and wrongful death damages but denied a new trial on the issue of liability. We affirm in part and reverse and remand in part.

Robert Burkett, an eighteen year old computer paper machine operator, died as a result of injuries sustained in an automobile accident. Burkett was a passenger in a car driven by John Stephen George, who, while driving in a construction zone, lost control on a curve causing the vehicle to leave the road and overturn. A jury heard evidence on the wrongful death and survival

[ 118 Pa. Commw. Page 546]

    action and found defendant George and Monroe Township each fifty percent negligent. The jury awarded wrongful death damages in the amount of $50,000 but did not award damages in the survival action.

After argument on post-trial motions, the common pleas court granted a new trial on survival and wrongful death damages holding that the amounts awarded were inconsistent with the evidence. The trial court found no merit to the motion for a new trial on liability. It concluded that once the township elected to post the construction zone, Section 6122 of the Vehicle Code, 75 Pa. C.S. § 6122, required the signs to be official traffic control devices.

Burkett here contends that a new trial should be awarded on survival damages alone. The township responds that the jury decision was proper in all respects but in the alternative moved for a new trial on wrongful death damages and liability.

Our scope of review of a common pleas court order granting in part and denying in part motions for new trial is limited to ascertaining whether the court abused its discretion or committed an error of law. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977). Additionally, whether to grant a new trial because of the inadequacy of the verdict is within the discretion of the trial court, and its decision will not be disturbed unless an abuse exists. Bortner v. Gladfelter, 302 Pa. Superior Ct. 492, 448 A.2d 1386 (1982).

Wrongful Death Damages

Wrongful death damages are established in 42 Pa. C.S. § 8301 for the purpose of compensating the spouse, children or parents of a deceased for pecuniary loss they have sustained by the denial of future contributions the deceased would have made in ...


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