King v. Southeastern Pennsylvania Transportation Authority

557 A.2d 11, 383 Pa. Super. 420, 1989 Pa. Super. LEXIS 840
CourtSupreme Court of Pennsylvania
DecidedApril 5, 1989
Docket1806
StatusPublished
Cited by41 cases

This text of 557 A.2d 11 (King v. Southeastern Pennsylvania Transportation Authority) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King v. Southeastern Pennsylvania Transportation Authority, 557 A.2d 11, 383 Pa. Super. 420, 1989 Pa. Super. LEXIS 840 (Pa. 1989).

Opinions

PER CURIAM:

This appeal of the Southeastern Pennsylvania Transportation Authority, defendant in a personal injury action brought by plaintiff/appellee Theresa King, is from the judgment entered on “delay damages” awarded to appellee pursuant to Pa.R.C.P. 238. The sole issue presented for our review is whether the trial court erred in awarding “delay damages” to appellee after having found that the delay encountered in litigating the case was not the fault of either party. For the reasons set forth below, we conclude that the trial court did not err in doing so, and we affirm the judgment entered on the award.

The events giving rise to this appeal began on February 3. 1982, when appellee was bumped by a passimeter as she passed through a subway turnstile. Although the extent of her injuries was not immediately known, appellee was un[422]*422able to work for six of the following ten months. Appellee instituted the underlying action against appellant on December 14, 1982. On July 7, 1984, appellee was diagnosed as suffering from a herniated disc. She ceased working completely in January, 1985, and underwent a lumbar laminectomy on July 17, 1986.

Appellee’s action was first listed for trial in January, 1987. Appellee subsequently requested a continuance, which was not contested by appellant. On February 11, 1987, appellee made a demand of $200,000 to settle the action. On March 6, 1987, appellant made a counter-offer of $45,000. Appellee rejected the counter-offer on March 17, 1987, and trial commenced the same day. On March 23, 1987, the jury returned a verdict in favor of appellee in the amount of $200,000. However, the jury also found appellee to have been 49% causally negligent, which resulted in a reduction of the verdict to $102,000. Judgment on the verdict was entered and satisfied.

In the meantime appellee filed a petition for “delay damages” pursuant to Rule 238. The trial court determined that the delay in the case was the result of the backlog of cases in the Philadelphia Court of Common Pleas, and was not attributable to either party. In addition, the court found that there was no manifest bad faith on the part of appellant in failing to make a more substantial settlement offer prior to trial. Nevertheless, after analyzing our Supreme Court’s opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the court awarded appellee “delay damages” in the amount of $42,160. The court reasoned that

when both parties are blameless it would be unreasonable and unjust to deny delay damages. Fundamental fairness would require .. .that the plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants who, of course, have had the use of that money.

Trial Court Opinion at 6. Awarding “delay damages” under such circumstances does not penalize defendants, the court explained, because they “had an opportunity to pro[423]*423tect themselves from exposure to delay damages by making a reasonable offer of settlement in good faith and in a timely fashion” (Trial Court Opinion at 6). To interpret Craig as holding that “delay damages” can be assessed against a defendant only if that defendant has actively delayed the litigation would, in the trial court’s view, “emasculate Rule 238” (Trial Court Opinion at 7). Accordingly, the trial court concluded that appellee was entitled to “delay damages.” Judgment was entered on the award of “delay damages,” and appellant’s timely appeal is now before us.

Appellant’s sole argument on appeal is that, given the trial court’s findings that the delay was not attributable to either party and that appellant was not guilty of manifest bad faith in failing to make a more substantial settlement offer, the court erred in awarding “delay damages” to appellee.1 Central to appellant’s argument is the assumption that the trial court erroneously interpreted the Supreme Court’s decision in Craig.

However, subsequent to the argument of the present appeal before this Court en banc, the Supreme Court rescinded then-existing Rule 238 and promulgated, in its stead, a new Rule 238. This change, according to the Explanatory Comment to the new rule, “revises Rule 238 in light of the Craig decision.” Subsection (f) of the new rule provides for the rule’s application to “actions pending on or after the effective date of this rule [November 7, 1988] in which damages for delay have not been determined.” In the cases of Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989), and Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989), this Court en banc has determined that new Rule 238 is applicable, in cases pending on appeal on the date the new rule was adopted and made effective, to the resolution of issues properly pre[424]*424served and presented by the appellant. Therefore, in deciding the issue raised by appellant in this case, we will apply those portions of new Rule 238 that are relevant and material to the resolution of that issue.

Turning to the new rule, we learn from subsection (b) that the rule’s drafters specified two, and only two, periods of time to be excluded from the calculation of delay damages: “(1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial.” Miller v. Wise Business Forms, 381 Pa.Super. at 241, 553 A.2d at 446. The drafters of the new rule “have not allowed for the exclusion of periods of delay not caused by either party.” Id., 381 Pa.Superior Ct. at 241, 553 A.2d at 446; (emphasis added). In effect, Rule 238 provides for the award, in appropriate cases, of prejudgment interest. See Dale v. The Baltimore & Ohio Railroad Company, 520 Pa. 96, 107, 552 A.2d 1037, 1042 (1989) (“Rule 238 prejudgment interest damages” may not be awarded in actions brought in Pennsylvania courts pursuant to the Federal Employer’s Liability Act).

In Staats v. Noll, supra, and Miller v. Wise Business Forms, supra, we applied new Rule 238 to the following situation: the defendant had not made an adequate settlement offer, the plaintiff had not caused delay of the trial, the plaintiff was not awarded “delay damages,” and the plaintiff appealed, contending that the denial of “delay damages” under such circumstances was improper. As the preceding analysis of new Rule 238 indicates, the plaintiffs’ claim for relief in these cases was meritorious. “[WJhere the defendant has not made an adequate settlement offer pursuant to Rule 238(b)(1) and the plaintiff has not caused delay of the trial as noted in Rule 238(b)(2),” Miller v. Wise Business Forms, 381 Pa.Super. at 242, 553 A.2d at 446, there is no basis on which to deny the plaintiff an award of [425]

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Bluebook (online)
557 A.2d 11, 383 Pa. Super. 420, 1989 Pa. Super. LEXIS 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-southeastern-pennsylvania-transportation-authority-pa-1989.