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IN THE COMMONWEALTH COURT OF PENNSYLVANIA RAMONA WILLIAMS, Administratrix : of the Estate of BERNARD WILLIAMS,: deceased and RAMONA WILLIAMS in : her own right : : v. : : SOUTHEASTERN PENNSYLVANIA : TRANSPORTATION AUTHORITY : and BRYANT COBB, : Appellants : BEFORE:

No. 176 C.D. 1999 Argued: October 5, 1999

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JESS S. JIULIANTE, Senior Judge FILED: December 2, 1999

OPINION BY JUDGE FRIEDMAN

The Southeastern Pennsylvania Transportation Authority (SEPTA) and Bryant Cobb (together, Appellants) appeal from an order of the Court of Common Pleas of Philadelphia County (trial court) denying Appellants' post verdict motions and amended motion for post-trial relief in which Appellants asserted that the trial court committed various errors requiring judgment notwithstanding the verdict (JNOV) or a new trial.

This case arises out of a December 6, 1993 collision which occurred at the intersection of Olney Avenue and Mascher Street in Philadelphia between a SEPTA bus and the 1988 Buick driven by Bernard Williams (Decedent). Decedent's wife, Ramona Williams (Williams), filed a wrongful death action and a survival action against Appellants as a result of Decedent's death twenty days after the early morning accident on December 26, 1993. In her complaint, Williams

alleged that Cobb, the driver of a SEPTA bus heading east on Olney Avenue, entered the intersection at an excessive rate of speed and failed to yield the right of way, as a result colliding with Decedent's car as it headed south on Mascher Street. Williams alleged that Cobb's negligent operation of the SEPTA bus caused Decedent's injuries and wrongful death.

A jury trial began on August 5, 1998.1 Prior to trial, the trial court reviewed Appellants' proposed voir dire, striking various questions. Among those questions stricken were numbers eleven, twelve and thirteen, all of which pertained to a transit strike between SEPTA and the Transit Workers Union.

During the trial, both parties offered testimony regarding the speed of the bus and the color of the traffic signal at the time of the collision. Bus

passengers Elizabeth Delgado, Willie Isaac, Janine Griffin and Irene Mercede testified for Williams. Delgado testified that the bus was late and was "rushing, speeding." (R.R. at 171a.) She also stated that, as the bus entered the intersection, the light was "yellow to turn red." (R.R. at 177a.) Isaac testified that "the speed kept getting greater and it was like it was becoming out of control," (R.R. at 194a, 198a, 202a), and was "at least fifty to sixty" when the bus reached the intersection. (R.R. at 231a.) Isaac also stated that, as the bus approached the intersection, "the
Before trial, interrogatories and requests for production of documents were exchanged between the parties. Discovery commenced on September 13, 1994 and was ordered to be completed by October 31, 1997. However, on December 4, 1997, following a series of warnings, (see R.R. at 1056a, 1058a, 1068a), a sanction order was issued against Williams for failing to comply with court discovery orders of December 4, 1995, September 6, 1996 and November 6, 1997.
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light was yellow and he was going through." (R.R. at 211a, 234a.) Griffin testified that "the driver's speed increased midway up the block, being as though the light was yellow and I guess--I assumed he was trying to make that light." (R.R. at 248a.) Notwithstanding her testimony that the light turned yellow when the bus was in the middle of the block, Griffin could not say what color the light was when the bus entered the intersection. (R.R. at 249a, 259a.) Mercede testified that the driver was "going fast but not that fast." (R.R. at 269a, 278a.)

On the other hand, Cobb, testifying on behalf of Appellants, stated that, although the speed limit was not posted, he thought that the limit was twenty to twenty-five m.p.h. somewhere along the line. (R.R. at 494a, 521a.) Cobb admitted that he did not slow down before entering the intersection, but claimed that he was travelling at only twenty to twenty-five m.p.h. at the time of the accident, that he looked both ways before entering the intersection with his foot over the brake and that he had a green light. Cobb also testified that Decedent's car hit the bus rather than the other way around. (R.R. at 496a, 587a-89a, 592a93a, 604a.)

Both parties also offered testimony from engineers who had analyzed the accident. Williams offered the testimony of Lance Robson, who testified that the bus hit Decedent's car, not the reverse. Robson also stated that the bus was travelling forty-five m.p.h. as it entered the intersection, which was at least ten miles per hour over the thirty-five m.p.h. speed limit for an urban area. (R.R. at 111a, 119a, 127a.) On cross-examination, Robson noted the timing sequence of the traffic signal and agreed that, even if the bus had entered the intersection as the

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light turned red, the traffic light for Decedent would have remained red for another one and eight tenths seconds. (R.R. at 150a-58a.) Appellants presented the

testimony of Norman Marcus, an engineering consultant, who testified that the bus was travelling at a speed of thirty-four m.p.h. at the time of contact. (R.R. at 631a.) Marcus also opined that Cobb had acted properly with regard to SEPTA rules. (R.R. at 654a, 665a.)

Other witnesses, both medical and lay, testified regarding Decedent's consciousness prior to his death. To indicate that Decedent was conscious at some point after the accident, Williams testified that Decedent squeezed her hand when she asked him to use it as a signal that he heard her. She also stated that Decedent would open his eyes at various times and would respond when his throat tube was cleaned. In addition, on one occasion, he sat up in bed and looked as if he "wanted to come out of it." In fact, he smiled when the family visited him on Christmas day. (R.R. at 310a, 312a, 314a-15a.) Shakira Williams, Decedent's daughter, corroborated this testimony. (R.R. at 508a-09a.)

In addition to her own testimony and that of her daughter, Williams presented the testimony of Decedent's treating physician, Richard Greenberg, M.D., who also expressed the belief that Decedent had some level of awareness. Specifically, Dr. Greenberg testified that Decedent indicated that he experienced pain, and, consequently, Decedent received pain medication. Dr. Greenberg also stated that there were times when Decedent would move on his own and exhibit a level of consciousness. (R.R. at 371a, 373a, 413a, 419a.) However, contrary to Dr. Greenberg, Appellants' medical expert, Elizabeth Genovese-Stone, M.D.,

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testified that Decedent never regained consciousness from the time of the accident until his death twenty days later. (S.R.R. at 36, 50-51.)

On August 13, 1998, the jury rendered a verdict in which Appellants were adjudged sixty per cent negligent and decedent was adjudged forty per cent negligent. Damages were assessed by the jury as $1,367,000.00 on the survival action and $280,000.00 on the wrongful death action.2 (R.R. at 943a-48a.)

Williams filed a post-verdict petition for delay damages on August 18, 1998, and Appellants filed a motion for post-trial relief on August 21, 1998, seeking JNOV or, alternatively, a new trial. (R.R. at 950a-61a.) The trial court granted

Appellants' request to amend their motion for post-trial relief to include further allegations of error, and Appellants filed the amended motion on October 23, 1988. (R.R. at R.R. at 962a-65a.) On December 17, 1998, following a hearing, the trial court denied Appellants' motion for post-trial relief and amended motion for posttrial relief, thereby denying them JNOV or a new trial. The trial court also granted Williams' petition for delay damages and entered judgment in favor of Williams and against Appellants (R.R. at 10a.) Appellants now appeal to this court.3
The trial court molded the jury's determination into a verdict for Williams of $168,000.00 in the wrongful death action and $820,200.00 in the survival action. Subsequently, the trial court reduced the survival action verdict to $250,000.00, representing the limit of SEPTA's liability under what is commonly called the Sovereign Immunity Act, 42 Pa.C.S.

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