APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (PITTSBURGH).
Aldisert and Weis, Circuit Judges, and Re, Chief Judge.*fn*
The major question for decision raised by these two appeals from a judgment in favor of plaintiff in a diversity action brought under Pennsylvania law is the extent to which delay damages may be awarded under Rule 238, Pa.R.Civ.P.*fn1 Here, defendant obtained a directed verdict at the close of the first trial, but, after a retrial was ordered by this court, ultimately lost on the merits. Because defendant lost and because he never made a settlement offer, plaintiff was awarded Rule 238 delay damages totaling $247,500. This award included damages for the time the case was on appeal from the directed verdict, but, because of plaintiff's mathematical miscalculation, did not include damages for the 17 days immediately preceding the final verdict. For the reasons, the defendant, at No. 82-5711, argues that the delay damages award was excessive and the plaintiff, at No. 82-5836, contends that it was insufficient.
Because the facts giving rise to this case have been reported previously, Barris v. Bob's Drag Chutes & Equipment, 685 F.2d 94 (3d Cir. 1982), we will only summarize them here. Arnold Barris was driving in a sprint car race on May 28, 1978, and was involved in an accident. His car flipped over several times, his shoulder harness broke, and, as a result of injuries suffered therefrom, he died. On May 21, 1979, his estate, represented by his wife, sued the manufacturer of the shoulder harness, Bob's Safety Equipment, Inc. (Bob's), and the seller, relying principally on the strict products liability doctrine of the Restatement (Second) of Torts, § 402A, as adopted by Pennsylvania. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
Mrs. Barris contended that the harness manufactured by Bob's was defective and introduced an expert's report to prove that the stitching on the "Y" seam, where the shoulder straps connected to the backstrap, was not strong enough to withstand the force of the accident. Bob's contention was that the harness used by the decedent failed during the accident because it was old and had been cut prior thereto. At the close of the first trial, the district judge ruled that the evidence of Bob's liability was insufficient to go to the jury and entered a directed verdict in its favor. On plaintiff's appeal, this court disagreed and, on August 6, 1982, remanded for a new trial. At the retrial, the same evidence was presented with additional testimony on damages, and on November 1, 1982, the jury returned a verdict against Bob's in the amount of $825,000. On November 18, 1982, per petition of plaintiff, the court made a further award of $247,500 for delay damages under Rule 238. Both parties appeal.
Plaintiff complains that the award of delay damages was too small. Although plaintiff's November 8, 1982 motion to the district court requested delay damages totaling $247,500, and although this amount was granted by the court, plaintiff now claims that she made a mathematical error in computing the amount. Because of plaintiff's admitted inadvertence, the requested amount did not include delay damages for the 17 days immediately prior to November 1, 1982, the date the final verdict was rendered against defendant. Plaintiff requests that we direct the district court to increase her award accordingly.
Bob's appeal, on the other hand, contends that the award was excessive. It claims that delay damages are only available to a prevailing party, and that until August 6, 1982, when this court vacated the directed verdict and ordered a new trial, it, and not plaintiff, had prevailed. Accordingly, Bob's argues, delay damages are only available from the date this court reversed the directed verdict.*fn2
Plaintiff also has filed a motion with this court asking that we quash the delay damage arguments in Bob's appeal. We will address that motion first.
Barris moves to quash because Bob's appealed only from the November 1, 1982 judgment of compensatory damages and not from the judgment of delay damages entered on November 18, 1982. We deny this motion. As we have held, a post-judgment motion for Rule 238 delay damages is in the nature of a motion to correct clerical mistakes in judgment under Rule 60(a), F.R.Civ.P. Hayden v. Scott Aviation, Inc., 684 F.2d 270 (3d Cir. 1982). Rule 60(a) provides that in cases where an appeal is taken, such clerical mistakes may be corrected, on motion by any party, until the appeal is docketed, and thereafter with leave of the appellate court. Also, a motion to correct a clerical mistake does not affect the finality of the original judgment, Albers v. Gant, 435 F.2d 146 (5th Cir. 1970), nor does it toll the time limits within which an appeal must be taken, International Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 758, 98 S. Ct. 730 (1978). For these reasons we hold that when, as here, a district court judgment is corrected by grant of a subsequent motion for Rule 238 delay damages, the order actually appealed from is that which originally ...