No. 299 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Washington County at No. 461 May Term 1979, A.D.
Stephen P. McCloskey, Washington, for appellant.
William S. Schweers, Pittsburgh, for appellee.
Wickersham, Wieand and Beck, JJ. Wieand, J., files a concurring opinion.
[ 295 Pa. Super. Page 327]
On the evening of May 27, 1978, the automobile in which Gary Havelka and several of his friends were traveling ran out of gas and coasted to a stop in the left hand passing lane of a four lane highway. Havelka was a passenger in the automobile and Harry Pappas, Jr. was the driver. Havelka and the other passengers exited the automobile and began to push it from the rear. After pushing for only twenty to thirty seconds, a Datsun truck operated by Joseph M. Sheraskey slammed into the rear of the disabled automobile. Gary Havelka was seriously injured in the collision. His injuries included compound fractures of both legs requiring a below knee amputation of the left leg and there was an incomplete union of the bones of the right leg.
Gary Havelka commenced an action in trespass against Joseph M. Sheraskey, and Sheraskey joined Harry Pappas, Jr. as an additional defendant. Following trial, the jury returned a verdict in favor of Gary Havelka in the amount of $250,000.00. The jury found that both Sheraskey and Pappas were negligent. The percentage of causal negligence attributed to Sheraskey was ninety-three percent (93%) and to Pappas, seven percent (7%).
Following the jury verdict, Pappas filed a motion for new trial, motion for judgment n.o.v., petition to mold the verdict and a supplemental petition to mold the verdict. Sheraskey filed no post-trial motions whatsoever. In his supplemental
[ 295 Pa. Super. Page 328]
petition to mold the verdict, Pappas argued that the application of Pa.R.C.P. No. 238 to him would constitute an unconstitutional denial of equal protection and due process. Rule 238 provides that where the jury verdict is greater than one hundred twenty-five percent (125%) of a written offer of settlement made by the defendant prior to trial, the trial court shall increase the amount of the verdict by ten percent (10%) as an award of damages for delay.*fn1 Pappas argued
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that Rule 238 should not apply to him because he made a pre-trial written offer to settle for $35,000.00 which was greater than the jury verdict against him which was seven percent (7%) of $250,000.00 or $17,500.00. In its opinion, the lower court agreed that Rule 238 did not apply to Pappas and, consequently, did not reach the issue of the constitutionality of the rule. By its order dated February 9, 1981, the lower court found that Rule 238 did apply to Sheraskey, however, and the order directed the prothonotary to enter a judgment on the increased verdict accordingly. Sheraskey took this appeal from that order.*fn2
The only issue that Sheraskey raises in this appeal is whether Rule 238 is unconstitutional.*fn3 Sheraskey neither raised this issue in the lower court nor notified the Court Administrator of Pennsylvania of his constitutional challenge to the rule as prescribed by Pa.R.A.P. 522. Consequently, we find that the issue has been waived. Cf. Matter of Adoption of ...