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MARIE FENTON v. CITY PHILADELPHIA AND COMMONWEALTH PENNSYLVANIA (08/04/89)

decided: August 4, 1989.

MARIE FENTON, ADMINISTRATRIX OF THE ESTATE OF WILLIAM CARTER
v.
CITY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND DAVID KULB. APPEAL OF CITY OF PHILADELPHIA, APPELLANT



Appeal from Common Pleas Court, Philadelphia County; Honorable Curtis C. Carson, JUDGE.

COUNSEL

Miriam B. Brenaman, Seymour Kurland, City Solicitor, Norma S. Weaver, Chief Deputy in charge of claims, Barbara R. Axelrod, Divisional Deputy in charge of Appeals, Philadelphia, for City of Philadelphia.

Larry Coben, Gerald A. McHugh, Jr., Philadelphia, for Marie Fenton.

Theodore Chylack, Deputy Atty. Gen., Norristown, for other appellees.

Barry, McGinley and Smith, JJ.

Author: Barry

[ 127 Pa. Commw. Page 467]

OPINION

The City of Philadelphia appeals two orders of the Court of Common Pleas of Philadelphia, one of which denied the City's post verdict motions and directed the entry of judgment in favor of Marie Fenton, administratrix of the estate of her son, William Carter, and a subsequent order amending the original order.

On February 19, 1982, Carter was a passenger in an automobile driven by David Kulb. While proceeding north on Richmond Street approaching the intersection*fn1 at Butler Street, Kulb attempted to pass a tractor trailer which was proceeding in the same direction in the right hand lane. The driver of the tractor trailer then proceeded to make a left turn onto Butler Street, forcing the Kulb vehicle into a concrete abutment. The driver of the tractor trailer stopped only momentarily before driving away. Carter was injured in the accident and four and one-half years later died as a result of those injuries.

Carter filed a complaint against both the City and the Commonwealth's Department of Transportation. DOT joined Kulb as an additional defendant. While discovery

[ 127 Pa. Commw. Page 468]

    was ongoing, Carter died and Fenton, as administratrix of the estate, was substituted in Carter's place.

Trial was held during the first two weeks of April, 1987. The jury found Kulb to be 75% negligent, the driver of the tractor trailer to be 12.5% negligent and the City to be 12.5% negligent. The jury absolved DOT. The jury awarded damages of almost $1.4 million. Post verdict motions were denied and the City appealed. The trial court then amended the original order and awarded delay damages against the City and molded the verdict against the City ...


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