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September 26, 1974

HELEN MASCUILLI, Administratrix of the Estate of ALBERT MASCUILLI, Deceased, Plaintiff

Ditter, J.

The opinion of the court was delivered by: DITTER

The present question before the court is the appropriate date from which interest should be awarded where numerous appeals have been taken in a suit against the United States under the Public Vessels Act.

 The plaintiff's husband was killed aboard the defendant's ship on May 1, 1959. Shortly thereafter a suit was filed and assigned to the late Honorable Harold K. Wood. On December 5, 1960, Judge Wood issued a Memorandum and Pre-Trial Order *fn1" resolving the issue of liability against the United States on the basis of the admitted facts, leaving only the question of damages to be tried.

 A trial on the damages issue was tried before the late Honorable Judge John W. Lord, Jr., without a jury. On April 11, 1961, Judge Lord issued a decree awarding the plaintiff $124,000. and a judgment in that amount was entered.

 The United States appealed this decision to the Third Circuit which reversed and remanded the case to the district court solely on the grounds that because there were material facts in dispute it was error to decide the issue of liability in a Pre-Trial Order. *fn2"

 The Court stated at 768:

For the reasons stated the Decree filed April 11, 1961 entering judgment in favor of the libellant in the amount of $124,000 against the United States will be vacated and the Pre-Trial Order filed December 5, 1960 will be reversed with direction to proceed in accordance with this Opinion. (emphasis added)

 On remand the late Honorable Ralph C. Body conducted a trial on both the liability and damage issues. Judge Body determined that the ship was not seaworthy and that the United States was not liable and entered judgment accordingly. In his findings of fact, however, Judge Body stated that had he found for the plaintiff the damages would have been $60,438.20. *fn3"

 The plaintiff appealed the district court's decision claiming that liability was the only remaining issue and that the trial court was bound by previous $124,000. damage determination of Judge Lord. The Third Circuit affirmed Judge Body's findings as to liability and therefore felt there was no need to decide the damage issue. *fn4"

 The Third Circuit decision was reversed by the United States Supreme Court in a short per curiam decision remanding the case to the district court for further proceedings in conformity with its opinion. *fn5"

 The plaintiff then moved for entry of judgment against the United States for $124,000. Judge Body denied this motion since Judge Lord's decision had been vacated by the Court of Appeals. Instead, he entered a judgment of $60,438.30 for the plaintiff on the grounds that only his determination of liability, not damages, had been reversed by the Supreme Court. *fn6"

 On appeal the Third Circuit concluded that Judge Body had incorrectly applied the Pennsylvania Wrongful Death Act in his computation and therefore his award of damages could not be justified. *fn7" The Court observed that the only alternative available to remanding the case would be to sustain the original $124,000. judgment on the theory that the district court could have done so in the exercise of its discretion. *fn8" However, since the original judgment was decided without benefit of knowledge of the legal basis of liability, the Circuit Court held that to reinstate the original judgment would have been an abuse of discretion. Therefore, the case was remanded to the district court for a new hearing and determination of the question of damages. *fn9"

 Judge Body held a hearing on the question of damages on November 21, 1969. When he became ill, the case was transferred to me. I issued an opinion on March 31, 1972, in which I concluded that judgment should be entered in favor of the plaintiff for $111,720. *fn10" This decision was appealed and the Third Circuit reversed and remanded the case for computation of loss of earnings using actual and not estimated figures. *fn11"

 After further submission of briefs I issued another opinion and judgment on March 29, 1974, awarding the plaintiff $132,665. *fn12" In her present petition plaintiff claims that she is entitled to interest from the date damages were initially assessed in her favor by Judge Lord on March 10, 1961. Mascuilli argues that when a judgment for money damages is appealed and is modified, interest on the judgment as modified runs from the date of the original judgment. She relies on F.R.A.P. 37; Perkins v. Standard Oil Company of California, 487 F.2d 672 (9th Cir. ...

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