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PAULINE COLODONATO AND JAMES COLODONATO v. CONSOLIDATED RAIL CORPORATION (11/30/82)

filed: November 30, 1982.

PAULINE COLODONATO AND JAMES COLODONATO
v.
CONSOLIDATED RAIL CORPORATION, APPELLANT



No. 3047 Philadelphia, 1981, Appeal from the Judgment entered October 30, 1981, in the Court of Common Pleas of Delaware County, Civil Action, Law, at No. 77-3723.

COUNSEL

George J. McConchie, Media, for appellant.

Henry B. Fitzpatrick, Philadelphia, for appellees.

Cavanaugh, Rowley and Watkins, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Watkins

[ 307 Pa. Super. Page 478]

This is an appeal from the Judgment of the Court of Common Pleas of Delaware County by which damages for delay were added to the jury's award of both compensatory and punitive damages.

[ 307 Pa. Super. Page 479]

This action in trespass arose out of the rape of the wife-appellee in the suburban station in Philadelphia on June 23, 1976. The jury returned verdicts for both plaintiffs. Mrs. Colodonato was awarded compensatory damages of $250,000 and punitive damages of $500,000. Her husband was awarded $25,000 in compensatory damages.

The issue before the court arises from plaintiffs' motion to mold the verdict under Pa.R.C.P. 238. The question is whether Pa.R.C.P. 238, providing for the imposition of damages for delay in certain circumstances, applies to that portion of the jury's verdict that awarded punitive damages to Mrs. Colodonato. The court below awarded, without breakdown damages for delay on the total verdict of $750,000 in favor of Mrs. Colodonato. Of the total award for delay damages, exactly two-thirds or $76,805.53 was computed on the punitive damages of $500,000. It is this sum that is in dispute between the parties and that is the subject of this appeal.

The pertinent part of Pa.R.C.P. 238 is as follows:

". . . in an action seeking monetary relief for bodily injury, death or property damage . . . the court . . . shall (1) add to the amount of compensatory damages in the verdict of a jury . . . damages for delay at ten (10) percent per annum, not compounded, which shall become part of the . . . verdict . . ."

Plaintiffs-appellees contend that the rule is meant to apply to both compensatory and punitive damages. Since the issue has never been before the court, the exact meaning of the rule must be ascertained from the sparse case law dealing with that particular rule and also rules of construction.

The distinction between compensatory and punitive damages was explained in Esmond v. Liscio, 209 Pa. Superior Ct. 200, 224 A.2d 793 (1966). In that decision, it was held that "punitive damages are in no sense intended as compensation to the injured plaintiff. They are, rather, a penalty, imposed to punish the defendant and to deter him and others

[ 307 Pa. Super. Page 480]

    from 'outrageous' conduct". The function of compensatory damages, on the other hand, is primarily "to shift the loss from a wholly innocent party to one who is at fault".

According to Pa.R.C.P. 127:

". . . When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit."

If one reads Pa.R.C.P. 238 in light of the provisions of Pa.R.C.P. 127, it becomes clear that damages for delay are to be computed on compensatory damages only.

The purposes of Pa.R.C.P. 238 were enunciated in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), which upheld the constitutionality of the rule. According to the Supreme Court "this rule serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts." In the course of further explaining the purpose of the rule, a statement was made by the court which may be helpful in the disposition of our case since it shed some light on the intended meaning of the rule. It was written that "although the award for delay of time may be 'in the nature of interest', in reality, it is merely an extension of the compensatory damages necessary to make the plaintiff whole." [Emphasis added]. If the damages for delay are considered to be an extension of the compensatory damages, it only follows that they are to be computed according to the amount of compensatory damages awarded, and not according to the entire sum which includes punitive damages.

Order reversed and case remanded with a procedendo in accordance with this opinion. Jurisdiction retained.

CAVANAUGH, Judge, dissenting:

I dissent. The facts of this case showed a callous disregard for public safety on the part of Conrail and fully justified the jury's award of substantial punitive damages.

[ 307 Pa. Super. Page 481]

Following the verdict, the lower court molded the verdict by adding damages for delay under Pa.R.C.P. No. 238 at the rate of 10% per annum from October 16, 1979 to April 29, 1981.*fn1 The court rejected Conrail's argument that Rule 238 did not authorize the computation of delay damages on the punitive damages and judgment was entered in favor of Pauline Colodonato in the amount of $865,208.29 (including $115,208.29 of delay damages) and in favor of James Colodonato in the amount of $28,840.22 (including $3,840.22 of delay damages). Conrail has appealed from the judgment in favor of Pauline Colodonato insofar as it includes damages for delay computed on the punitive damages -- a sum of $76,805.53 is thus in dispute.

When a rule, statute or other promulgation must be interpreted the first step is to examine the language of the rule.*fn2 Rule 238 provides in part:

"Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage.

(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any ...


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