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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Stanley

:

:

v.

: No. 1068 C.D. 2004

:
City of Philadelphia

:

:
v.

:

:
Edward Reed, Jr.

:
Appeal of: City of Philadelphia
:
Joseph Stanley,

:

Appellant

:

:

v.

: No. 1134 C.D. 2004

: Argued: March 3, 2005
City of Philadelphia and
:
Edward Reed, Jr.

:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE
ROCHELLE
S. FRIEDMAN, Judge (P)

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FRIEDMAN
FILED: April 1, 2005

In these consolidated cases, the City of Philadelphia (City) appeals
from the April 20, 2004, order of the Court of Common Pleas of Philadelphia
County (trial court) denying the City's motion for post-trial relief for a new trial.
Joseph Stanley (Plaintiff) cross-appeals from the trial court's order of the same
date granting the City's motion for post-trial relief to mold the verdict against the

City to reflect a release executed by Plaintiff for the benefit of Edward Reed, Jr.
(Reed).

On September 21, 2001, Plaintiff, then seventy-four years old, was
attempting to cross Walnut Lane at a crosswalk when he was struck by a car driven
by Reed. At the time of the accident, Reed was a City employee. Although Reed
was driving his personal vehicle, he already had reported to work, had been
assigned a work location and was being paid by the City.

The traffic signal hanging at the crosswalk remains green to oncoming
traffic unless a button is pushed from the sidewalk. Once the button is pushed, the
traffic signal is programmed to change from green to yellow and finally to red, at
which time a walk signal indicates to pedestrians that it is safe to cross the street.
A police officer tested the signal shortly after the accident and found that it was not
operational. Residents previously had complained to the City that the signal was
malfunctioning.

Prior to the accident, Plaintiff was self-sufficient, resided alone and
enjoyed taking long walks in a nearby park. Since the accident, Plaintiff has
resided in an assisted living facility. Plaintiff's treating physician concluded that
Plaintiff will never again be able to live unassisted and that Plaintiff cannot walk
without the aid of a walker.

On May 8, 2002, Plaintiff signed an agreement that released Reed
from all liability in exchange for $15,000, the limit of Reed's personal insurance
2

coverage. (R.R. at 16a.) On May 23, 2002, Plaintiff filed a complaint against the
City, the Department of Transportation and Bradley Mallory, Secretary of
Transportation, alleging that his injuries resulted from the negligent maintenance
of the traffic signal located at the crosswalk.1

Thereafter, during Reed's deposition, the parties learned of Reed's
employment relationship with the City. On October 10, 2002, the City filed a
petition for leave to join Reed as an additional defendant. The trial court granted
this petition, and the City filed a joinder complaint averring that any damages
alleged in Plaintiff's complaint were caused solely by Reed's negligence. Plaintiff
subsequently filed a motion to amend his original complaint to add a claim against
the City for vicarious liability for the negligence of Reed. The City opposed the
motion, arguing that the release agreement executed by Plaintiff absolved the City
from liability for Reed's negligence. The trial court granted Plaintiff's motion and
allowed Plaintiff to amend his complaint.

A jury trial began on November 24, 2003. During the trial, the City's
attorney requested that the jury slip provide for a finding against the City and a
separate finding against Reed; the City asked that the jury distinguish Reed's
negligence from the negligence associated with the City's maintenance of the
traffic signal. The trial court granted this request. At the close of Plaintiff's case,
the City moved for a directed verdict as to claims for pain and suffering, and the
trial court denied the motion. The jury rendered a verdict for Plaintiff in the

1 An October 20, 2003, stipulation dismissed defendants the Department of
Transportation and Bradley Mallory.
3

amount of $987,000, apportioning negligence as follows: Plaintiff-10%; Reed-
40%; and the City-50%. The trial court reduced the verdict by the percentage of
Plaintiff's negligence to $888,000. The City filed post-trial motions, including a
motion to mold the damages by deducting all damages caused by Reed's
negligence. The City again claimed that when Plaintiff released Reed from
liability, he also released the City from vicarious liability for Reed's negligence.
The trial court granted the motion and molded damages by 40% to $493,000. All
other post-trial motions, including the City's motion for a new trial, were denied.

On appeal to this court, the City first argues that the trial court erred
when it charged the jury as follows:

The plaintiff must prove to you that a defendants [sic]
conduct caused the plaintiff harm. That's factual cause.
Conduct is a factual cause of harm, when the harm would
not have occurred absent the conduct. An act is a factual
cause of an outcome, if in the absence of the act, the
outcome would not have occurred. A defendants [sic]
negligent conduct need not be the only factual cause of a
plaintiff's harm. The existence of other causes does not
relieve a defendant from liability, as long as the
defendants [sic] conduct was a factual cause of the
injury.

(R.R. 84a-85a.) According to the City, this charge does not explain causation to
the jury in a legally correct manner; the City asserts that the trial court erred in
failing to instruct the jury that the defendant's negligence must also be a
"substantial factor" in bringing about the plaintiff's harm.

4

Although the City asserts that it preserved this issue for appeal, the
record reflects that it was Plaintiff, not the City, who objected to the jury charge
based on the omission of the "substantial factor" language. The City's counsel
disagreed with Plaintiff's objection and expressed approval of the charge as stated.2
(R.R. at 74a.) Accordingly, the City has waived this issue on appeal. See Pa.
R.C.P. 227(b) (all exceptions to charge to jury shall be taken before jury retires);
Takes v. Metropolitan Edison Co., 548 Pa. 92, 695 A.2d 397 (1997) (holding that
the issue was waived on appeal where the defendant failed to timely and
specifically object to the allegedly erroneous charge).3

The City next argues that the trial court erred in concluding that
Plaintiff presented sufficient evidence to support the jury's award of damages for
pain and suffering under section 8553(c) of the act commonly known as the
Political Subdivision Tort Claims Act, 42 Pa. C.S. §8553(c). In pertinent part,
section 8553(c) provides that damages for pain and suffering can be recovered
"only in cases of permanent loss of a bodily function, permanent disfigurement or
permanent dismemberment...." In Walsh v. City of Philadelphia, 526 Pa. 227, 585
A.2d 445 (1991), our supreme court held that the phrase "permanent loss of a

2 The City now contends that this exchange was misinterpreted by the trial court and that
it did object to the charge, but the record does not support this contention. (See R.R. at 82a,
86a.)
3 Moreover, a trial court has wide discretion in phrasing jury instructions. Gaylord ex rel.
Gaylord v. Morris Township Fire Department, 853 A.2d 1112 (Pa. Cmwlth.), appeal denied, 864
A.2d 1205 (2004). A charge will be found adequate unless the issues are not made clear to the
jury, the jury was palpably misled by the trial court's instructions or there is an omission in the
charge that amounts to fundamental error. Id. In this case, the trial court's charge is virtually
verbatim from the Pennsylvania Suggested Standard Civil Jury Instructions 3.25.
5

bodily function" means that, as a proximate result of the accident, the injured
plaintiff is unable to do or perform a bodily act that the plaintiff was able to do or
perform prior to sustaining the injury and that the loss of such ability is permanent.
Id. at 241-42, 585 A.2d at 452.

The City contends that the testimony of Barry D. Mann, M.D.,
Plaintiff's medical expert, was not sufficient to establish that Plaintiff permanently
lost any specific bodily function. Dr. Mann testified that the accident affected
Plaintiff's ability to function in many areas, including his cognitive function and
mental state. (R.R. at 114a.) He stated that Plaintiff now requires the use of a
walker and can no longer make his own meals, care for himself, or live
independently as he did before the accident. (R.R. 108a-10a.) Although Dr.
Mann was not asked specifically whether Plaintiff's need for a walker was
permanent, Dr. Mann stated that his opinions concerning Plaintiff's inability to
resume living independently were based upon an examination of Plaintiff
approximately eighteen months after the accident. The City does not dispute the
trial court's characterization of Dr. Mann's testimony, i.e., that Plaintiff will never
again be able to live unassisted, care for himself or walk alone outside. We
conclude that such testimony is sufficient to satisfy the evidentiary requirements
for an award of damages for pain and suffering under 42 Pa. C.S. §8553(c).
Walsh; see also City of Philadelphia v. Owens, 539 A.2d 512 (Pa. Cmwlth. 1988),
appeal denied, 525 Pa. 638, 578 A.2d 932 (1990) (affirming an award of damages
for pain and suffering to a plaintiff who suffered a permanent loss of 20% of the
range of motion in his lower back and could no longer play golf or other sports).

6

Finally, the City argues that it is entitled to a new trial because the
trial court erroneously allowed Plaintiff to amend his complaint and proceed
against the City on a claim for vicarious liability. The City complains that the
amendment of the complaint brought the issue of Reed's employment status before
the jury, and, thereafter, a more vigorous effort by the City to blame Reed for the
accident would reflect badly on the City, as Reed's employer. The City asserts that
were it not for the trial court's error, the jury could have assigned a higher
percentage of negligence to Reed. The City characterizes the situation as one of
"fundamental unfairness" entitling the City to a new trial.

As a general rule, amendments to pleadings should be permitted
liberally unless the amendment will prejudice the opposing party or is against a
positive rule of law. Glover v. SEPTA, 794 A.2d 410 (Pa. Cmwlth. 2002). Where,
as here, a party seeks to amend its pleading by adding allegations that properly
could have been included in the original pleading, the question of prejudice is
related to the time at which the amendment is offered rather than the substance of
the amendment. Horowitz v. Universal Underwriters Insurance Co., 580 A.2d 395
(Pa. Super. 1990), appeal denied, 527 Pa. 610, 590 A.2d 297 (1991). Thus, the
alleged prejudice must stem from the fact that the new allegations are pleaded later
in time, and not from the fact that the opponent may lose his case on the merits if
the amendment is allowed. Id. Here, the City does not argue that any lengthy
delay resulted in undue prejudice; in addition, the City's assertion of prejudice is
based entirely upon conjecture and speculation. Accordingly, the City failed to
establish prejudice warranting the award of a new trial. Id.

7

In his cross-appeal, Plaintiff argues that the trial court erred as a
matter of law in concluding that the release given to Reed also released the City
from vicarious liability. The trial court relied on Mamalis v. Atlas Van Lines, Inc.,
522 Pa. 214, 560 A.2d 1380 (1989), in which our supreme court held that an agent
and its principal are not joint tortfeasors under the Uniform Contribution Among
Tortfeasors Act4 and that the termination of a claim against the agent extinguishes
the derivative claim against the principal. The court in Mamalis explained that "[a]
claim of vicarious liability is inseparable from the claim against the agent since any
cause of action is based on the acts of only one tortfeasor." Id. at 221, 560 A.2d at
1383.

Plaintiff first asserts that Mamalis is distinguishable because the
plaintiff in that case executed a general release, whereas the release at issue
specifically preserves all claims against the City. The pertinent language of the
release agreement states as follows:

[Plaintiff releases] Edward Reed, Jr. and [his insurer] ...
from any and all claims, damages, actions, causes of
action, and suits of whatever kind, known or unknown
....
[Plaintiff] hereby expressly preserves, and does not
release, waive or discharge, any and all claims of any
nature whatsoever against other persons and entities,
including but not limited to the City of Philadelphia and
its officers, agents, employees, departments and
divisions.... Upon a determination that one or more
persons in addition to [Reed and his insurer] are jointly

4 42 Pa. C.S. §§8321-8327. The Uniform Contribution Among Tortfeasors Act is a
comprehensive act that dictates the effect of a release as to other tortfeasors, the method for
computing set-off and under what circumstances an action in contribution is to be allowed.
8

and severally liable in tort for the injuries to person or
property resulting from or arising out of the aforesaid
accident, the consideration for this Release shall be
received pro tanto in reduction of the total damages
recoverable against all other tortfeasors, and [Plaintiff]
specifically reserves all claims and causes of action
arising out of the aforesaid accident against all other
tortfeasors.

(R.R. at 16a.) Plaintiff argues that the plain language of the release expressly
preserves all claims of liability against the City and its agents and employees. As
the trial court correctly observed, this language does not release the City from
negligence concerning the maintenance of its traffic signal. However, the
agreement does release Reed from any and all claims, preserving claims only
against "other persons and entities" and "other tortfeasors." Thus, we reject
Plaintiff's contention that the trial court ignored the "plain language" of the
release.

Plaintiff also asserts that this matter is governed by Brown v. Cooke,
707 A.2d 231 (Pa. Super. 1998), which held that, when construing the effect and
scope of a release, the court must try to give effect to the parties' intent. Plaintiff
maintains that, because he was unaware of Reed's employment with the City at the
time he signed the release, his intent should be determined from those
circumstances and cannot be interpreted as releasing the City for Reed's conduct.
However, the primary source of the court's understanding of the parties' intent
must be the document itself, and what a party later claims to have intended is not
as important as the intent gleaned from reading the document. Id. Here, the plain
language of the document releases Reed without reservation; moreover, because
Plaintiff was unaware of Reed's employment with the City, the document cannot
9

be interpreted as intentionally preserving a separate claim against Reed in his
capacity as a City employee.

Plaintiff further complains that the trial court's interpretation of the
release is contrary to public policy, asserting that the result will discourage
settlements. The court in Mamalis specifically rejected this argument. See id. at
222, 560 A.2d at 1384. Finally, Plaintiff argues that the City waived the benefit of
the release and/or is estopped from relying on the release because it joined Reed as
an additional defendant with full knowledge of the release and Reed's employment
with the City. Plaintiff asserts that the City cannot now claim benefits under the
release because the City has taken inconsistent positions in its pleadings.
However, Plaintiff cites no authority for the proposition that the joinder estops the
City from relying on the release. Moreover, the City always has asserted that Reed
and Plaintiff were responsible for the accident.

For the foregoing reasons, the orders of the trial court granting the
City's motion to mold the damages and denying all other post-trial motions are
affirmed.

_____________________________

ROCHELLE
S.
FRIEDMAN,
Judge
10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Stanley

:

:

v.

: No. 1068 C.D. 2004

:
City of Philadelphia

:

:
v.

:

:
Edward Reed, Jr.

:
Appeal of: City of Philadelphia
:
Joseph Stanley,

:

Appellant

:

:

v.

: No. 1134 C.D. 2004

:
City of Philadelphia and
:
Edward Reed, Jr.

:

O R D E R

AND NOW, this 1st day of April, 2005, the orders of the Court of
Common Pleas of Philadelphia County, dated April 20, 2004, are hereby affirmed.

_____________________________

ROCHELLE
S.
FRIEDMAN,
Judge