Baranowske v. J.D. Wood & Sons

34 Pa. D. & C.5th 23
CourtPennsylvania Court of Common Pleas, Chester County
DecidedOctober 21, 2013
DocketNo. 2012-04925-TT
StatusPublished

This text of 34 Pa. D. & C.5th 23 (Baranowske v. J.D. Wood & Sons) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baranowske v. J.D. Wood & Sons, 34 Pa. D. & C.5th 23 (Pa. Super. Ct. 2013).

Opinion

TUNNELL, J.,

Plaintiff has filed a motion for delay damages pursuant to Pa. R.C.P. 238 requesting an award of prejudgment interest in the amount of $682.56 for the period from March 14, 2012 (one year after the service of original process upon defendant) to September 26, 2013 (the date of verdict). Plaintiff seeks to have the verdict molded to the aggregate sum of $14,915.24 to include those delay damages. (Plaintiff’s Motion for Delay Damages, at ¶7). Defendants oppose plaintiff’s motion and argue that plaintiff is not entitled to the requested delay damages because (1) defendants made [25]*25a settlement offer in excess of 125% of the final verdict pursuant to Pa. R.C. P. 238(b)(l)(i) prior to any accrual of delay damages and (2) any delay damages must exclude the period of time during which plaintiff delayed the trial pursuant to Pa. R.C.P. 238(b)(l)(ii). This court finds that plaintiff is entitled to delay damages only in the amount of $282.20.

I. FACTUAL BACKGROUND

Plaintiff initiated this personal injury action in the Philadelphia Court of Common Pleas (the “Philadelphia Action”) and served defendants with the complaint on March 14, 2011. Thereafter, defendants filed preliminary objections alleging that venue was improper. On June 30, 2011, the Philadelphia trial court sustained defendants’ preliminary objections and ordered the matter to be transferred to Chester County upon payment of costs by plaintiff. See order, dated June 30, 2011 (Phila. Ct. Com. PI. docket no. 2011-04390). On April 29, 2012 plaintiff filed a Praecipe to Transfer the Philadelphia Action and paid the required transfer fee. The case was docketed in Chester County on May 15,2012. At the outset of the case and up until the trial date, defendants made four settlement offers to plaintiff, which he rejected. The case went to trial on September 24, 2013. On September 26, 2013, a jury rendered a verdict in favor of plaintiff in the amount of $14,232.68. On October 4,2013, plaintiff filed the present motion. Defendants filed their response in opposition on October 11, 2013.

II. LEGAL ANALYSIS

A. Delay Damages Are Permitted in Pennsylvania Pursuant to Pa. R.C.P. 238.

[26]*26A prevailing plaintiff in a personal injury action may recover prejudgment interest from one year after the date that original process was first served up to the date of the jury award. Pa. R.C.P. 238(a)( 1 )-(2); see also Kameroski v. Pennsylvania Power & Light Co., 2005 WL 4685052 at *5 (Lacka. Co. 2005), aff’d., 905 A.2d 1054 (Pa. Super. 2006). Delay damages are calculated at a rate of interest “equal to the prime rate as listed in the first edition of The Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.” Pa. R.C.P. 238(a)(3). The period of time for which delay damages may be calculated excludes any time period after which the defendant has made a written offer of settlement that otherwise meets the requirements of Rule 238(b). See Pa. R.C.P. 238(b)(1)-(3).

Rule 238 is designed to compensate the plaintiff for the delay in receiving money to which he is entitled, and to prevent a defendant from being unjustly enriched by retaining interest earned during the litigation process on what is essentially the plaintiff’s money. Costa v. Lauderdale Beach Hotel, 626 A.2d 566, 569 (Pa. 1993); Marlette v. State Farm Mut. Auto. Ins. Co., 10 A.3d 347, 351 (Pa. Super. 2010). Rule 23 8 also is intended to alleviate congestion in the courts by encouraging defendants to settle claims as soon as reasonably possible. Thompson v. T.G. Whipple Constr. Co., 985 A.2d 221, 223-224 (Pa. Super. 2009), app. denied, 986 A.2d 152 (Pa. 2009). Defendants may protect themselves from exposure to prejudgment interest by making a timely and reasonable offer of settlement in good faith. Marlette, supra; Thompson, 985 A.2d at 224. A defendant who opposes a motion for delay damages bears the burden of proving either that (1) the [27]*27requisite written settlement offer has been made or (2) the plaintiff was responsible for specified periods during which the trial was delayed. Sopko v. Murray, 947 A.2d 1256, 1258 (Pa. Super. 2008); Shay v. Flight C Helicopter Servs., Inc., 822 A.2d 1, 20-21 (Pa. Super. 2003).

B. The Period for Calculating Plaintiff’s Delay Damages Began on March 14, 2012, One Year after the Date Original Process was Served.

Plaintiff initiated this personal injury action in the Philadelphia Court of Common Pleas and served defendants with the complaint on March 14,2011. After the Philadelphia trial court sustained defendants’ preliminary objections, plaintiff, though much delayed, transferred the action to Chester County and it was docketed on or about May 15, 2012. Plaintiff asserts that the period for delay damages began on March 14,2012, one year after service of the complaint in the Philadelphia Action. Defendants argue that the one year time period does not begin until May 15, 2012, when the action finally was docketed in Chester County.

Although plaintiff’s failure to timely transfer the Philadelphia Action impacts his right to delay damages as discussed below, this court finds that the proper starting point for delay damages is one year from the date original process was served upon defendants — March 14, 2012. The plain language of Rule 238 states “ [d] amages for delay shall be awarded for the period of time from a date one year after the date original process was first served....” Pa. R.C.P. 238(a)(2). The transfer of the Philadelphia Action to this court and the docketing thereof is not original process as contemplated by the plain language of the rule. [28]*28Therefore, March 14, 2012 marks the period at which delay damages could begin to accrue in this case.

C. Plaintiffs’ Delay in Transferring the Action to Chester County Precludes the Imposition of Delay Damages for that Period of Time.

Defendants submit that months of pretrial delay were attributable solely to plaintiff’s improper filing of this matter in Philadelphia County and the subsequent delay in transferring the action and that this time should be excluded from the delay damages calculation. A defendant successfully opposes a motion for delay damages by demonstrating that the plaintiff was responsible for certain periods of time during which the trial was delayed. Pa. R.C.P. 238(b)(1)(ii). Rule 238(b)(1) states that “[t] he period of time for which damages for delay shall be calculated...shall exclude the period of time...(ii) during which the plaintiff caused delay of the trial.” See Tindall v. Friedman, 970 A.2d 1159, 1178 (Pa. Super. 2009)(holding under Rule 238, the reason for the delay is not pertinent, the sole issue is whether plaintiff caused the delay); see also Sopko v. Murray,

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Related

Costa v. Lauderdale Beach Hotel
626 A.2d 566 (Supreme Court of Pennsylvania, 1993)
Thompson v. T.J. Whipple Construction Co.
985 A.2d 221 (Superior Court of Pennsylvania, 2009)
Tindall v. Friedman
970 A.2d 1159 (Superior Court of Pennsylvania, 2009)
Schrock v. Albert Einstein Medical Center
589 A.2d 1103 (Supreme Court of Pennsylvania, 1991)
Shay v. Flight C Helicopter Services, Inc.
822 A.2d 1 (Superior Court of Pennsylvania, 2003)
Potochnick v. Perry
861 A.2d 277 (Superior Court of Pennsylvania, 2004)
Marlette v. State Farm Mutual Automobile Insurance
10 A.3d 347 (Superior Court of Pennsylvania, 2010)
Sopko v. Murray
947 A.2d 1256 (Superior Court of Pennsylvania, 2008)

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Bluebook (online)
34 Pa. D. & C.5th 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baranowske-v-jd-wood-sons-pactcomplcheste-2013.