Miller v. Wise Business Forms, Inc.

553 A.2d 443, 381 Pa. Super. 236, 1989 Pa. Super. LEXIS 103
CourtSupreme Court of Pennsylvania
DecidedJanuary 25, 1989
Docket319 and 418
StatusPublished
Cited by44 cases

This text of 553 A.2d 443 (Miller v. Wise Business Forms, Inc.) 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
Miller v. Wise Business Forms, Inc., 553 A.2d 443, 381 Pa. Super. 236, 1989 Pa. Super. LEXIS 103 (Pa. 1989).

Opinions

ROWLEY, Judge:

These consolidated appeals of appellant Keith G. Miller, successful plaintiff in a personal injury action, raise a single issue: whether, pursuant to Pa.R.C.P. 238, the trial court erred in refusing to award delay damages to appellant where neither appellant nor defendant/appellee Wise Business Forms, Inc. engaged in conduct that delayed the trial of the case. In light of the revision of Rule 238 promulgated by our Supreme Court on November 7, 1988, and made effective immediately, we vacate the judgment entered January 29, 1987, insofar as it does not include an award of delay damages to appellant, and remand the case to the trial court for further proceedings consistent with this opinion.

The facts of the case, briefly summarized, are as follows: Appellant was employed as a laborer by Warner and Warner, Inc., a general contractor. On December 5, 1983, [238]*238appellant’s right foot was crushed in an accident on the work site where Warner and Warner was working on a building owned by appellee. Appellant filed the underlying action against appellee on October 19, 1984. Appellee joined Warner and Warner as an additional defendant.1

On three occasions appellee made written requests for appellant’s settlement demands and received a response that was described by the trial court as “very limited” (Trial Court Opinion at 2). On August 27, 1986, appellant requested damages in the amount of $750,000. On October 20,1986, the date set for trial, appellee made a written offer of $25,000, which was declined by appellant. The case went to trial before a jury, which returned a verdict in favor of appellant for $195,000. Appellant was found to be one percent contributorily negligent, and the judgment eventually entered in his favor was in the amount of $193,-050.00.

Appellant sought delay damages pursuant to Pa.R.C.P. 238. Following a hearing, the trial court on January 28, 1987, entered an order denying appellant’s petition. Appellant filed exceptions to the order, which were denied by the trial court in a second order entered on February 26, 1987. On that day, appellant filed a notice of appeal to this Court from both the January 28, 1987, and the February 26, 1987, orders. This appeal has been docketed at No. 319 Pittsburgh 1987. On March 23, 1987, upon praecipe of appellant, judgment was entered on the trial court’s order of February 26, 1987, denying appellant’s exceptions. Appellant thereupon filed a second appeal to this Court, docketed at No. 418 Pittsburgh 1987, this time appealing only from the order entered on February 26, 1987.

Initially we are required to address the somewhat unorthodox procedure by which the present appeal has [239]*239come before us. There is no rule of civil procedure which provides for the filing of exceptions to an order denying a petition for delay damages. Consequently, appellant’s filing of such exceptions, the trial court’s order denying the exceptions and the entry of judgment thereon, and the two appeals from the order denying the exceptions were unnecessary. We note also that on January 28, 1987, the same day that the trial court entered an order denying appellant’s petition for delay damages, the court entered a second order denying appellee’s post-trial motions and directing the prothonotary to enter judgment in favor of appellant in the amount of $193,050.00. Judgment was so entered the following day.2 The present appeal, therefore, should properly have been taken from the judgment entered January 29, 1987, not from the order of January 28, 1987, denying the petition for delay damages.

Nevertheless, as there has been a final judgment entered in the case and appellant’s first appeal, docketed at No. 319 Pittsburgh 1987, was filed within thirty days of the entry of that judgment, we will treat that portion of the first appeal that is from the January 28, 1987, order as actually being from the January 29, 1987, judgment. The trial court’s order of February 26, 1987, cannot be considered final and appealable, however, as it adds nothing to the order of January 28, 1987, or the judgment of January 29, 1987. Therefore, we are without jurisdiction to consider an appeal from that order, and the appeal at No. 418, as well as that portion of the appeal at No. 319 which is taken from the February 26, 1987, order, must, accordingly, be quashed.

We now turn to the merits of appellant’s appeal at No. 319 Pittsburgh 1987. Appellant’s sole argument on appeal is that the trial court erred in denying his petition for delay damages pursuant to Rule 238. In the opinion which accompanied its January 28, 1987, order, the trial court observed that although the parties agreed that neither had engaged in any delaying activity during the pleading and discovery stages, appellee had not made a settlement offer [240]*240until the day set for trial and then offered only $25,0003; the jury verdict, of course, was for $195,000. Therefore, according to the trial court’s reading of the Supreme Court’s opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the issue to be decided was whether “mitigating factors exist that would abrogate [appellee’s] duty to pay delay damages” (Trial Court Opinion at 1). The court found such mitigating factors in appellant’s inability to make a settlement demand of his own until August 27, 1986, and appellee’s consequent inability to formulate a reasonable offer until very late in the pretrial process. The trial court concluded that appellant was at fault in this regard and appellee was not, and therefore delay damages should not be awarded.

Appellant argues on appeal that “all Craig did and all that it was ever intended to do was to permit the defendant to toll the imposition of prejudgment interest for whatever period of time the factfinder concluded that the conduct of the plaintiff delayed the trial of the case” (Brief for Appellant at 19). The mere fact that appellee caused no procedural delay in the present case, appellant asserts, does not change the fact that appellant was injured by appellee’s tortious conduct and deserves just compensation, including an award of prejudgment interest. Therefore, according to appellant, appellee, having failed to insulate itself from liability for delay damages by making a written settlement offer equal to or greater than eighty percent (80%) of the verdict, as provided for in then-effective Rule 238(e), should now be required to make appellant whole through the payment of such - damages. Appellee’s response is that where, as here, a defendant has been found not to have delayed the progress of the case, delay damages may not be awarded.

[241]*241To resolve the issue raised by appellant, we turn to the revision of Rule 238 that was promulgated by our Supreme Court on November 7, 1988, and made effective immediately. The Explanatory Comment to the rule observes that “[t]his amendment revises Rule 238 in light of the Craig decision.” Subsection (f) of the rule provides that it “shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined.” In the case before us, whether appellant is entitled to delay damages has not yet been finally determined. Therefore, we are required to resolve the issue in accordance with the mandate of revised Rule 238. Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super.

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Bluebook (online)
553 A.2d 443, 381 Pa. Super. 236, 1989 Pa. Super. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-wise-business-forms-inc-pa-1989.