Brocklehurst v. Watson

7 Pa. D. & C.4th 570, 1990 Pa. Dist. & Cnty. Dec. LEXIS 231
CourtPennsylvania Court of Common Pleas, Mercer County
DecidedSeptember 14, 1990
Docketno. 1154 C.D. 1986
StatusPublished

This text of 7 Pa. D. & C.4th 570 (Brocklehurst v. Watson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Mercer County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brocklehurst v. Watson, 7 Pa. D. & C.4th 570, 1990 Pa. Dist. & Cnty. Dec. LEXIS 231 (Pa. Super. Ct. 1990).

Opinion

ACKER, P.J.,

We have for consideration plaintiff’s motion for damages for delay. This motion arises from a jury verdict returned against defendant, David Thomas Watson, and additional defendants, Karen and David Brock-lehurst, and the Township of Lake, on May 24, 1990.

On November 18, 1986, plaintiffs filed a complaint against defendants, David and Cheiyl Watson. The complaint arises from an incident which occurred on May 23, 1985. It is alleged by defendants that they were prepared to proceed to trial on September 27, 1989. It is further alleged by defendants that trial was delayed to January 1, 1990, because plaintiffs, Karen and David Brocklehurst, as additional defendants, did not have counsel and did not secure counsel until February 28, 1990. The trial commenced on May 22, 1990. A verdict for plaintiff was rendered May 24, 1990.

[572]*572It is plaintiff’s position that, pursuant to Pa.R.C.P. 238, due to the delay in bringing this case to trial, this court should add damages for delay computed from November 18, 1986. Defendants, David and Cheryl Watson, object to plaintiff’s position, first, because the request for delay damages was untimely filed; and second, the plaintiff incorrectly computed delay damages. It is defendant’s position that, if any delay damages are owing, the calculating time should not begin to run until February 12, 1988, and should not include the time period that plaintiff allegedly delayed while obtaining counsel to represent them as additional defendants.

Delay damages are authorized by Pa.R.C.P. 238, 42 Pa.C.S.

“Rule 238. Damages for Delay in Actions for Bodily Injury, Death or Property Damage

“(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. §7361, and shall become part of the verdict, decision or award.

“(2) Damages for delay shall be awarded for the period of time

“(i) in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision; or

[573]*573“(ii) in an action commenced on or after August 1, 1989, from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.

“(3) Damages for delay shall be calculated at the rate 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), 42 Pa.C.S.

II

It is defendant’s position that delay damages should not be awarded at all based on the fact that plaintiff filed them untimely. Pa.R.C.P. 238(c) states that “not later than 10 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.” The facts are undisputed that in the instant case plaintiff did not move for delay damages until 18 days after the jury handed down their verdict. Plaintiffs have informed the court that this lapse of time occurred due to the inadvertence of plaintiff’s counsel.

“A trial court has broad discretion to entertain untimely procedural motions.” Wittig v. Carlacci, 370 Pa. Super. 584, 537 A.2d 29 (1988).

In Wittig, the Pennsylvania Superior Court was confronted with a similar procedural issue. In that case post-trial motions were not filed until 18 days (the exact number as in the instant case) after the trial court’s adjudication. Despite the untimeliness of the motion, the trial court addressed the merits of the issues raised. The Superior Court stated that Pa.R.C.P. 2271 was a procedural rule and not jurisdictional. Therefore, the court ruled that the trial [574]*574court should be afforded broad discretion to entertain untimely procedural motions. Wittig v. Carlacci, supra.

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Bluebook (online)
7 Pa. D. & C.4th 570, 1990 Pa. Dist. & Cnty. Dec. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brocklehurst-v-watson-pactcomplmercer-1990.