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White v. City of Philadelphia

Commonwealth Court of Pennsylvania

October 16, 2014

Gregory White
v.
City of Philadelphia, Police Officer Kevin Devlin, and Police Officer Joseph McCauley, Appellants

Argued February 10, 2014

Appealed from No. June Term, 2010, No. 02225. Common Pleas Court of the County of Philadelphia. Jackson, Senior Judge.

Kelly S. Diffily, Assistant City Solicitor, Philadelphia, for appellants.

Martin Stanshine, Philadelphia, for appellee.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge (P).

OPINION

Page 1054

BONNIE BRIGANCE LEADBETTER, Judge.

The City of Philadelphia and Police Officer Kevin Devlin[1] (collectively, Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County, which, following a jury verdict in favor of Gregory White, denied Appellants' motion for post-trial relief. For the reasons set forth below, we affirm.

On November 12, 2008, Officer Devlin was operating an unmarked police vehicle northbound on 60th Street in Philadelphia while on duty. At approximately 1:15 p.m., Officer Devlin observed White walking his bicycle northbound on 60th Street while exchanging pills for money with two unknown individuals. White testified that during the course of the drug transaction, he was looking for marked police vehicles and noticed Officer Devlin's vehicle behind him on 60th Street, but, because the vehicle was unmarked, he was unaware of Officer Devlin's identity. Reproduced Record (R.R.) at 72a. Thereafter, White began to ride his bicycle westbound on Haddington Avenue away from the two alleged buyers. Officer Devlin then turned westbound on Haddington Avenue. White testified that once he realized that a vehicle was following him, he attempted to flee. White testified that the windows of the vehicle following him were up. Officer Devlin testified that he was dressed in a black turtleneck and an outer-vest carrier on which there was an embroidered police badge with his badge number, " Philadelphia Police," and his name in print. Id. at 98a-99a. He also testified that his vehicle's front window was not tinted and that when he pulled up alongside White, the driver's side window was rolled down. Id. at 99a, 100a, 109a, 112a-13a. While pursuing White, Officer Devlin did not identify himself, nor did he activate any audio or visual sirens, lights, or alerts. According to White's testimony, Officer Devlin drove his vehicle onto the curb as he pursued him, striking the rear tire of his bicycle. Id. at 63a. As a result of the impact, White sustained severe injuries to his ankle requiring him to undergo surgery and ongoing treatment.

Page 1055

On June 22, 2010, White filed a complaint against Appellants in the trial court, asserting a cause of action in negligence as a result of the November 12, 2008 incident. Following several procedural steps not relevant to this appeal, the trial court conducted a jury trial on the matter. At the close of White's case-in-chief, Appellants moved for involuntary nonsuit on White's negligence claim, asserting that White's action was barred by governmental immunity under Sections 8541 and 8542 of the Judicial Code, 42 Pa. C.S. § § 8541, 8542.[2] Specifically, Appellants argued that the in-flight exception to the motor vehicle exception provided in Section 8542(b)(1) of the Judicial Code applied to bar White's negligence claim.[3] The trial court denied Appellants' motion, holding that whether White was actually fleeing apprehension was an issue for the jury to decide.

After the trial, the jury returned a verdict in favor of White on his negligence claim and awarded compensatory damages in the amount of $100,000. The jury completed the verdict sheet as follows:

QUESTION #5. Do you find that the Defendant, Officer Kevin Devlin, was negligent?
YES NO
. . . .
QUESTION #6. Do you find that the Defendant, Officer Kevin Devlin's negligence was a factual cause of any harm to ...

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