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JOHN A. LAVIN AND JOANNE LAVIN v. PHILIP MYLECRAINE AND PEARL MYLECRAINE (12/17/82)

filed: December 17, 1982.

JOHN A. LAVIN AND JOANNE LAVIN, HIS WIFE, APPELLANTS,
v.
PHILIP MYLECRAINE AND PEARL MYLECRAINE, HIS WIFE, AND MTD PRODUCTS, INC.



No. 2368 Philadelphia, 1981, Appeal from the Order and Judgment of the Court of Common Pleas, Civil Action, Law, of Bucks County at No. 79-4686-09-2.

COUNSEL

Frank N. Gallagher, Doylestown, for appellants.

Frederick E. Smith, Doylestown, for appellees.

Wickersham, Brosky and Wieand, JJ.

Author: Wickersham

[ 307 Pa. Super. Page 566]

This is an appeal from an order and judgment of the lower court which denied a petition to add damages for delay to a verdict pursuant to Pa.R.C.P. No. 238. The pertinent facts are as follows.

On May 21, 1977, appellant John A. Lavin was driving his automobile on Route 202, opposite the premises of Howard's Antiques in Buckingham Township, Bucks County, when he was struck in the left eye by an object propelled by a lawnmower being operated by Philip Mylecraine as he mowed the lawn at the antique store. John A. Lavin lost the use of his left eye as a result of the accident. The Lavins filed a complaint in trespass against Philip Mylecraine; Pearl Mylecraine, the owner of Howard's Antiques; and also against MTD Products, Inc., the manufacturers of the mower, on May 14, 1979.

On July 14, 1981, the Mylecraines offered $30,000 to the Lavins in exchange for a joint tortfeasor's release, which offer was accepted. MTD made an oral offer of settlement of $15,000, which the Lavins rejected. A trial was held before Judge William H. Rufe, III, and a jury; a verdict of $37,000 was returned in favor of the Lavins on July 16, 1981. Comparative negligence was apportioned at ninety percent (90%) on MTD and ten percent (10%) on the Mylecraines.

The Lavins then filed a petition for damages for delay alleging, inter alia, that MTD had made no written offer of settlement prior to the verdict and was, therefore, pursuant to Pa.R.C.P. No. 238, liable for an additional $7,831.79 in delay damages. The trial court issued an order denying the delay damages claim because the $37,000 jury verdict did not exceed one hundred twenty-five percent (125%) of the $30,000 previously accepted by the Lavins in settlement of their claims against the Mylecraines. The Lavins filed a motion for reconsideration of the order denying damages for delay, which was denied by the lower court. Judgment was subsequently entered.

The Lavins frame the first question involved as follows:

[ 307 Pa. Super. Page 567]

A. When a plaintiff recovers a verdict against joint tortfeasors A and B after having settled with A, is he entitled to delay damages under Rule 238 from B ...


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