BROCKLEHURST BY BROCKLEHURST v. Watson

597 A.2d 631, 409 Pa. Super. 1, 1991 Pa. Super. LEXIS 2595

• Court: Superior Court of Pennsylvania
• Decided: September 5, 1991
• Docket: 1873
• Status: Published

Opinions

HUDOCK, Judge:

Following a verdict in their favor, Appellees filed a motion for delay damages under Pa.R.C.P., Rule 238, 42 Pa.C.S.A. Appellants objected to the award of delay damages because the motion was not timely filed. The trial court considered the motion on the merits and awarded delay damages of $6,998.82.

Initially we must determine whether the trial court erred by considering the untimely filed motion for delay damages. Rule 238(c) reads in its entirety:

Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.

(1) Within ten days after the motion is filed, the defendant may answer specifying the grounds for opposing the plaintiff’s motion. The averments of the answer shall be deemed denied. If an issue of fact is raised, the court may, in its discretion, hold a hearing before entering an appropriate order.

(2) If the defendant does not oppose the motion, the court shall add the damages for delay to the verdict or decision.

(3) (i) If a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is opposed, a judgment may not be entered until all motions filed under Rule 227.1 and this rule have been decided.

(ii) If no motion for post-trial relief is filed within the ten-day period under Rule 227.1 but the defendant opposed the motion for delay damages, the plaintiff may enter judgment on the verdict or decision. Thereafter, upon deciding the motion for damages for delay, the court shall enter judgment for the amount of the delay damages, if any.

Appellees’ motion for delay damages was filed eighteen (18) days after the verdict instead of within ten (10) days of the verdict as specified by the rule. Appellees’ counsel mistakenly believed that Rule 238 ended with subdivision (b)(2) and due to inadvertence she failed to timely file the motion.

The trial court concluded that the time limits required under Rule 238 should be treated like other time restrictions in the rules of civil procedure. The trial court cited Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988), to support its decision. We note that Wittig dealt with post-trial motions filed under Rule 227.1.

In Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987), we held that an issue raised in an untimely supplemental post-trial motion filed without leave of court was not preserved on appeal despite the fact that the trial court had addressed the issue on its merits. However, a petition for allocatur in Sheaff was granted, 518 Pa. 655, 544 A.2d 1342 (1988), and resulted in a per curiam order from the Supreme Court which reversed our holding. Accordingly, in Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), we determined that an issue was not waived for failure to secure formal allowance of supplemental post-verdict motions nunc pro tunc where the court below nevertheless chose to entertain the claim. In our recent en banc decision of Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991), we discussed at length the purpose of Rule 227.1 and re-affirmed our holding that untimely filed post-trial motions which are addressed on the merits by the trial court will be preserved for appellate review. See also Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991) (en banc) (similar holding and rationale applicable to Rule 1123(a) of the Rules of Criminal Procedure regarding the filing of post-verdict motions). We decline to extend Millard any further. To do so will further erode the time limits of the rules of civil procedure to the point where they will soon become meaningless, and uniformity of application will be lost.

The original purpose of Rule 238, as set forth in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, sub. nom., Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982), was (1) to alleviate delay in the courts and (2) to encourage defendants to settle meritorious claims as soon as reasonably possible. (See also 1988 Comment to Pa.R.C.P., Rule 238, 42 Pa.C.S.A.) We find a distinction between the purposes of this Rule and the purposes of post-trial proceedings in general, and accordingly treat such motions differently when filed out of time. Post-trial proceedings are designed to correct prejudicial errors occurring during the litigation. Indeed the treatment of post-trial motions by Rule 238(c)(3) bears out this distinction. Rule 238 is intended to prod insurance carriers into settling cases so as not to clog the courts' dockets, as well as to not unreasonably withhold payments to deserving claimants. While we are more liberal in treating untimely motions which question the integrity of the trial process or claim violation of constitutional rights, we see no need for such liberality when the aim is solely to punish one of the litigants for delay.

We find the reason given by counsel for not filing the motion in a timely mariner, that is, her inadvertence because she only read half the Rule and overlooked the part pertaining to the ten-day time limit, to be an insufficient reason for the trial court to overlook her late filing. The court’s acceptance of that reason amounted to an abuse of discretion requiring reversal.

Judgment reversed. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.