Nicholas Malfitano Oct. 9, 2015, 9:51am


PHILADELPHIA – The mother of a young boy injured in a fall on a city sidewalk should be allowed to discontinue her case, her attorney argues.

Marc F. Greenfield filed a motion to discontinue on July 21 in the Philadelphia County Court of Common Pleas, in order to end Philadelphia resident Christina Elam’s negligence lawsuit filed on behalf of her minor son, Keyon McDonald, against the city of Philadelphia and Philadelphia Gas Works.

Greenfield said Elam decided on or before April 15 that she no longer wished to pursue the case at that time. Greenfield set a meeting with Elam to discuss this decision on May 4, but Elam did not attend. On May 12, Elam attempted to file an order to discontinue and end the case without prejudice, but the prothonotary rejected this application because a minor’s compromise had to be granted first.

Elam also did not appear for a conference with Judge Lisa Rau on June 18, which Greenfield said further signaled her intention not to further pursue the case.

Rau explained she consulted with a judge from the Orphans Court, and reiterated a petition to dismiss a minor’s case without prejudice had to be filed with them first.

However, Greenfield argued a direct dismissal from the Philadelphia County Court of Common Pleas is warranted because Elam has already informed him that she does not want to pursue further litigation at this time.

On Sept. 21, Rau issued an order vacating the case’s Aug. 3 transfer to Orphans Court. Rau declared the case would not be discontinued without Elam’s presence at a hearing, since her testimony “is in the best interest of the minor plaintiff.”

A hearing in the matter was set for Thursday in court chambers, at Philadelphia City Hall.

On June 19, 2013, McDonald, then 22 months old, tripped and fell on a brick-filled pothole on a city street in the process of being repaired. Elam first filed suit in July 2014, alleging the city of Philadelphia and Philadelphia Gas Works were negligent in their failure to inspect, maintain or properly barricade the area where the accident occurred.

McDonald suffered impairment of bodily function and aggravation of pre-existing injuries in the accident, including a right-side collarbone fracture.

The plaintiffs are seeking judgment in excess of $50,000, plus interest and costs. Additionally, the plaintiffs are seeking a separate joint and several judgment through the Comparative Negligence Act in excess of $50,000, plus interest and costs.

The plaintiffs are represented by Marc F. Greenfield of Spear Greenfield & Richman in Philadelphia.

The defendants are represented by Bernadette Betzler and Karen E. Rompala, both in Philadelphia.

Philadelphia County Court of Common Pleas case 140703229

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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