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filed: February 19, 1982.


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.

Author: Wickersham

[ 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

[ 295 Pa. Super. Page 329]

    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 Christopher P., 480 Pa. 79, 389 A.2d 94 (1978) (Issue of constitutionality of a statute is waived by the

[ 295 Pa. Super. Page 330]

    failure to raise it in the lower court or notify the Attorney General as prescribed by Pa.R.A.P. 521).*fn4

Judgment affirmed.

WIEAND, Judge, concurring:

I concur in the result. The only issues properly raised by appellant in the instant appeal pertain to the facial constitutionality of Pa.R.C.P. No. 238.*fn1 These issues were decided adversely to appellant in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981) (Dissenting Opinion by Roberts, J.), where a majority of the court upheld the constitutional validity of the rule. Despite a lingering belief that the dissenting opinion represents the

[ 295 Pa. Super. Page 331]

    sounder view, that decision is dispositive of the issues which have been raised in this case.

However, neither the decision of the Supreme Court in Laudenberger nor the opinion of the present majority compels the conclusion that Rule 238 was properly applied to the facts of the instant case.*fn2 Similarly, it has not been determined in this case whose responsibility it is to pay the delay damages awarded by the trial court. Thus, it has not been decided whether appellee should proceed against an impecunious defendant, against whom a judgment therefor has now been entered, or against his insurance carrier who offered to pay policy limits and forwarded a check therefor at least eight months prior to trial. This issue is not now before the Court. Its resolution, therefore, must await another day.

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