The opinion of the court was delivered by: TROUTMAN
At the conclusion of four days of testimony a jury awarded plaintiff, Vicki Cole, $ 9,000 for injuries which she sustained when a horse suddenly tore away from a hitching post at defendant, Joseph Altieri's, riding stable. Defendant now seeks a reduction in the jury award and asserts that the release for $ 7,500 which extinguished the liability of his former wife, Martha Altieri, should offset the award returned against him. See Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. § 8321 et seq. Plaintiff, resisting this motion, contemporaneously argues that the judgment should be augmented to include damages for delay. See Pa.R.Civ.P. 238. Applying Pennsylvania law in this diversity suit, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), we hold that a reduction in the verdict is not warranted and that damages for delay are due.
The Uniform Contribution Among Tortfeasors Act provides:
§ 8327. Liability to make contribution as affected by release
§ 8326. Effect of release as to other tort-feasors
A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount, or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.
Joseph Altieri contends that the release for $ 7,500 which his wife executed operates, pursuant to the above statute, to reduce the $ 9,000 verdict returned against him. Consequently, he urges that he is properly liable to plaintiff only in the amount of $ 1,500. Plaintiff counters that in order to claim the benefit of the statute and effect a reduction in the verdict, defendant, Joseph Altieri, must prove that his wife's negligence was either "judicially determined" or that the release, and the circumstances accompanying its execution, evidence an intent to waive such a determination.
Davis v. Miller, 385 Pa. 348, 351-52, 123 A.2d 422 (1956) held that in order to give effect to the "pro rata share" clause in a release, the status of the settling party must be "judicially determined". See also, Griffin v. United States, 500 F.2d 1059, 1071 (3d Cir. 1974). The parties do not dispute that, pursuant to their agreement, Martha Altieri's alleged negligence was never raised before, or submitted to, the jury. This agreement, reached prior to trial and approved by the Court, is binding on counsel. Cf. Price v. Inland Oil Co., 646 F.2d 90, 96 (3d Cir. 1981) (counsel are bound by their pre-trial representations to the Court). As such, Martha Altieri's individual and/or joint negligence has never been "judicially determined". Therefore, the contingent provisions of the release, embodied in the fourth paragraph thereof and providing for specified occurrences based upon an adjudication of Martha Altieri's negligence, are not called into play. Hence, defendant cannot look to Davis for authority that the verdict should be reduced.
Where there is no "judicial determination" of negligence but the wording of the release is "unambiguous" and "concede(s) the joint tortfeasor status" of the settling defendant, the non-settling defendant is entitled to a reduction of the verdict returned against him. Griffin v. United States, 500 F.2d at 1072. Accord, Rensi v. Langston, 499 F. Supp. 720, 725-26 (W.D.Pa.1980) (Provision in release that it shall operate as a "reduction of the total damages recoverable against all the other tortfeasors" is such an unambiguous declaration and effects a reduction). Finally, verdicts are properly reduced where the released tortfeasor's liability is the product of "plaintiff's concession", i.e., that the circumstances attendant to the release show that plaintiff considered the released party a joint tortfeasor. Mazer v. Security Insurance Group, 507 F.2d 1338, 1342 (3d Cir. 1975) (en banc).
Consequently, the standard which we apply to the issue at bar is that Joseph Altieri is entitled to a reduction only if he can show that the subject release concedes liability by calling for a reduction in recoveries against him or if the circumstances surrounding the execution of the release "clear(ly)" show that the released party was a joint tortfeasor. Rutherford v. Gray Line, Inc., 615 F.2d 944, 948, n. 11 (2nd Cir. 1981) (applying Pennsylvania law). See also, Young v. Verson Allsteel Press Co., 524 F. Supp. 1147 (E.D.Pa.1981).
The release at issue does not concede Martha Altieri's liability and does not call for a verdict reduction. Rather, it evidences an intent to make claims against Joseph Altieri and to assert that he is solely liable for plaintiff's injuries. For example, the second paragraph of the release provides that plaintiff