79 Pa. Commw. 479 | Pa. Commw. Ct. | 1984
Opinion by
This litigation arose out of a motor vehicle accident on June 16, 1974, in which a vehicle traveling north .through the 26th Street underpass of the Schuylkill Expressway in Philadelphia crossed through a missing section of medial barrier and struck a United taxicab being driven south by Edward S. Pine. Pine died two days after the accident and was .survived by a wife and child.
Anna M. Pine, administratrix of the estate of her deceased husband, brought an action in trespass against Joseph P. Synkonis, Jr., Harold Humbert, Clark E. Whites ell, Joseph Broceo, Williams Hughes, and Richard Broceo in the Court of Common Pleas of Philadelphia. The defendants, appellants before this Court, were all employees of the Commonwealth Department of Transportation (Department).
Evidence adduced at the trial indicated that at the time of the fatal accident there was a gap in the medial guardrail barrier in the 26th Street underpass which extended at least eighty feet. Other evidence indicated that all the defendants were aware of the high risk of accident generally present in the underpass and all admitted that the missing medial guardrail in this location would create a hazardous condition for motorists. There was also evidence that damaged or missing guardrail had been left unrepaired for an extended period of time.
Qualified immunity
Initially we must determine whether the Appellants are protected by the qualified immunity announced by 'the Supreme Court in DuBree v. Commonwealth of Pennsylvania, 481 Pa. 540, 393 A.2d 293 (1978). In DuBree, the Court
1. Can the official be held to a predictable standard of care, which can be defined and applied with relative ease.
2. Do the official’s decisions or actions have a significant impact on the public or impact on a large portion of the public. The*483 greater the impact of such decision making, the greater the need to isolate the official from the threat of liability.
3. Did the official himself engage in actionable conduct. Officials will not be held liable for the acts of those under them simply because they are in the chain of command.
4. But for a defendant’s status as an official, would an action in negligence lie. Plaintiff must establish a duty, breach of that duty, causation and injury.
5. Would any public policy be promoted in shielding the official from liability.
6. Has the plaintiff failed to pursue other available remedies.
Appellants urge that they are protected under DuBree and rely on the Superior Court’s application of the DuBree considerations in Lehnig v. Felton, 278 Pa. Superior Ct. 12, 419 A.2d 1330 (1980) (Lehnig II). In Lehnig v. Felton, 235 Pa. Superior Ct. 100, 340 A.2d 564 (1975) (Lehnig I), remanded 481 Pa. 557, 393 A.2d 302 (1978), the Superior Court affirmed an entry of summary judgment in favor of Department of Transportation officials in an action arising from the death of a truck driver whose truck went out of control after hitting a pothole. On appeal, however, the Supreme Court remanded the case for reconsideration in light of DuBree. On remand, entry of summary judgment in the officials’ favor was again affirmed. The Superior Court found that there were no allegations of direct conduct on the part of the officials nor of responsibility for the repair of the conditions which caused the accident. Echoing DuBree, the Court opined that the officials could not be held liable simply because they were in the “chain of command.” 278 Pa. Superior Ct. at 15, 419 A.2d at 1332. The Court also noted:
*484 [A]t a time when those responsible for the maintenance of state highways have been in a position where important economic decisions had to be made as to what areas needing repairs should and had to have priority, it is of utmost importance that they be able to engage in unfettered decision making.
Id.
We can agree .that, as a matter of general policy, Department officials should be able to engage in unfettered decision making in those matters which require exercise of their discretion,
Our analysis must necessarily proceed from an examination of the position and duties of each of the Appellants.
Clark Whitesell was the District Maintenance Engineer for the five-county area. His duties included supervision of routine maintenance through superintendents and periodic inspection, and the record indicates that he bad received reports of accidents in the 26th Street underpass which, damaged the median guardrail. Again, however, because of the broad range of his supervisory duties, we are unable to articulate a standard of care and we believe public policy is best served if the maintenance official at this level is free to exercise his judgment and establish repair priorities unfettered by a threat of smt. In addition, we find no duty at the regional (district) level to personally see that repairs are made.
Joseph Broceo was the Department Superintendent for Philadelphia County and was responsible for knowing the conditions of the 360-400 miles of roadway under his supervision. In the record he admitted responsibility to ride the roads to discover maintenance problems and admitted knowing of a number of accidents in the 26th Street underpass. WMle the re
William Hughes, Principal Assistant Superintendent for Philadelphia County, is similarly situated. He was responsible for distribution of police reports of road maintenance problems and was required to make periodic inspections of highway conditions. The record indicates that he was the Department contact to whom the Philadelphia Police directed reports of road maintenance problems and that he was contacted regarding the missing guardrail in the underpass. Like Broceo, Hughes is not shielded by qualified immunity in his failure to take reasonable .steps in a •timely manner to correct a known and dangerous road hazard. Public policy favors that officials whose job
The record indicates .that Richard Broceo, Assistant County Superintendent for Philadelphia County, was located in the South Philadelphia satellite office and was directly responsible for guardrail repairs at the 26th Street underpass. He, as well, is not shielded by immunity, but can easily be held accountable for failure to timely act to correct a known dangerous road condition. There is ample record evidence from which a jury could conclude that Broceo was negligent in the performance of his duties.
Evidentiary Error
Appellants also allege error in the admission of evidence of the earnings of taxi drivers employed by the Yellow Cab Company. Appellants argue that as the decedent was an owner-operator, not an employee of a taxi company, the evidence was not relevant and was therefore inadmissible. It is further urged that admission of the evidence was prejudicial and it was error to allow the jury to consider it. The argument is without merit.
It is the law in Pennsylvania that the measure of damages in a wrongful death action is to be based on the best available evidence even though such evidence does not constitute precise proof. Smail v. Flock, 407 Pa. 148, 180 A.2d 59 (1962). Appellants argue that the “best available evidence” was only the sparse record of decedent’s brief earning history as a United taxicab operator. We disagree. Our Supreme Court has recognized the inherently speculative nature of calculations of lost future earnings and urged that “that alone does not justify excluding reliable economic evidence....” Kacskowski v. Bolubasz, 491 Pa. 561, 574, 421 A.2d 1027, 1033-34 (1980). The record
In addition, we note that the evidence here contested was submitted to the jnry with full instruction by the trial judge regarding its value and limitations in aiding their assessment of damages. We consequently find no error or prejudice in its submission to the jnry.
Limitation of Damages
Appellants finally argue that Section 2 of Act 152 of 1978, formerly 42 Ba. C. S. §5111,
(a) Amount recoverable. — No verdict or verdicts against the Commonwealth on actions brought pursuant to Section 5110 (relating to limited waiver of sovereign immunity) arising from the same cause of action or transaction or occurrence or series of causes of action or .transactions or occurrences shall exceed $250,-000 in favor of any plaintiff or $1,000,000 in the aggregate. (Emphasis added.)
Appellants urge us, however, to examine the language now found in Subchapter B of Chapter 85 of the Judicial Code.
In accordance with, the foregoing, the denial of the motion for judgment non obstante veredicto with regard to defendants Synkonis, Humbert and Whitesell was error of law. We find no error, however, in the entry of judgment against defendants Joseph Broceo, William Hughes and Richard Broceo. Additionally, we find no error in the admission of evidence during trial .and affirm the court’s denial of defendants’ motion for new trial. Finally, we hold the statutory verdict limitations found in 42 Pa. C. S. §8528 to be inapplicable and affirm the court’s denial of defendants’ motion to mold the verdict.
Order
Now, January 11, 1984, the Order of the Court of Common Pleas of Philadelphia County in the above referenced matter, dated February 20, 1981, is reversed in part and affirmed in part. The judgment entered by the Court of Common Pleas on February 19, 1982 is hereby vacated and the matter remanded for entry of judgment consistent with this opinion. Jurisdiction is -relinquished.
Prior to trial, Richard Broceo passed away. Following the trial but prior to 'appeal, William Hughes also died. The record indicates that substitution of a personal representative has been made for Hughes but not for Richard Broceo.
Damages were assessed 'at $17,354 for the survival action and $625,021 for the wrongful death action.
This evidence indicated that as far back as 1971 a gap of some twelve feet existed in the guardrail. In May of 1973 an accident occurred in which a vehicle struck the jagged edge of .the guardrail and it penetrated the car, killing the driver and a child in the rear; to extricate the vehicle, additional guardrail was removed. Other evidence indicated that there were no .repairs to the missing guardrail between that time and the June 1974 Pine accident.
Per Roberts, J., with two Justices concurring and two Justices concurring in part.
The Courts of other states distinguish between governmental or discretionary acts and ministerial acts and extend immunity for discretionary activity but not in negligence in performance of ministerial duties. See e.g., James v. Prince George’s County, 288 Md. 315, 418 A.2d 1173 (1980); Weiler v. Town of Osceola, 51 Misc. 2d 163, 273 N.Y.S.2d 90, 1966); aff’d. 29 A.D.2d 737, 287 N.Y.S.2d 365 (1968); accord Tcherepnin v. Franz, 570 F.2d 187 (7th Cir. 1978), cert. denied, First National Bank & Trust Co. in Alton v. Berke, 439 U.S. 876 (1978).
No question is raised in the instant appeal with regard to failure to pursue other available remedies.
See supra note 3.
Appellants contad that the evidence regarding decedent’s . actual earnings project to only about $7,000 a year, 'considerably less than the $15,300 a year figure offered for Yellow Cab drivers. Appellants, however, incorrectly exclude from their projection contributions from decedent’s gross income toward the investment in his business. These contributions represent an accumulation of capital which Yellow Cab drivers do not enjoy. If not excluded, these investments raise decedent’s projected income to approximately $16,300 per year, a figure exceeding that of Yellow Oab drivers.
Section 5111 was repealed by Section 221(g) of the Act of October 5, 1980 PX. 693. Similar provisions are now found at 42 Pa. C. S. §8528.
42 Pa. C. S. §.§8521-28.
42 Pa. C. S. §8528(b).
42 Pa. C. S. §8501.