Ceresini v. Valley View Trailer Park

552 A.2d 258, 380 Pa. Super. 416, 1988 Pa. Super. LEXIS 3728

• Court: Supreme Court of Pennsylvania
• Decided: December 21, 1988
• Docket: 1773
• Status: Published

Opinions

PER CURIAM:

This appeal is from a judgment which assessed delay damages against appellant Valley View Trailer Park. In assessing damages, the trial court sought to comply with the requirements of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1850 (1986), and the present appeal focused on the proper interpretation of that case as it modified the provisions of Pa.R.C.P. 288. On November 7, 1988, while this matter was still pending in this court, our Supreme Court rescinded Rule 238 governing Damages for Delay in an Action for Bodily Injury, Death or Property Damage and on the same date promulgated a new Rule 238, effective immediately. The new Rule 288 applies to “actions pending on or after the effective date of this rule in which damages for delay have not been determined”.

In determining whether the new Rule 238 applies to the matter pending before us, we are guided by Pa.R.C.P. 52 which states:

Rule 52. Effective Date.

Application to Pending Actions

(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.

(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. (Emphasis added).

See also, Sherry v. Trexler Haines Gas, Inc., 373 Pa.Super. 330, 541 A.2d 341 (1988).

The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule. A reading of Craig v. Magee Memorial Rehabilitation Center, supra, reveals the intent of the Supreme Court that its decision (involving Rule 238) should apply to cases “pending in the courts of this Commonwealth” where the issue of the delay damage aspect of the damage award has been preserved. Since we must assume that the new Rule 238 is simply the embodiment of the changes contemplated by our Supreme Court in Craig we see no reason why the scope of its effectiveness should be different from that enunciated in Craig. See also, Pivirotto v. City of Pittsburgh, 515 Pa. 246, 528 A.2d 125 (1987). Not to apply new Rule 238 to cases pending in the appellate courts where the propriety of delay damages entered by the court below is at issue would require a strained reading of new Rule 238 which states that it applies to “actions pending on or after the effective date of this Rule in which damages for delay have not been determined.” (Emphasis added). Unless delay damages have not been initially determined by the court below, there would be no basis on which the matter could be before us for review. The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case.

Moreover, whether or not we apply the new Rule 238 to cases on appeal, the result is the same for if we were to ask if the lower court properly complied with the requirements of Craig, logically we would be compelled to find that the new Rule 238 is a specific promulgation of the Supreme Court’s intention as set forth in the Craig opinion.

The dissenting opinion by President Judge Cirillo also determined that the trial court has imposed delay damages precisely in accordance with new Rule 238, even though it did not have the benefit of the Rule when it made its award. We disagree with the conclusion. New Rule 238 is quite complex and differs from the prior rule in a number of respects including the monetary formula for the calculation of damages. We believe the court must consider the entire rule in order to correctly ascertain delay damages and the court below must consider it in assessing damages. Since the delay damages assessed in this case have not been finally determined, we remand to the trial court for assessment of delay damages in accordance with Pa.R.C.P. 238, effective November 7, 1988.

JUDGMENT REVERSED.

JURISDICTION IS NOT RETAINED.

CIRILLO, President Judge, and POPOVICH, J., files dissenting opinions. McEWEN, J., did not participate in the consideration or disposition of this appeal.