No. 52 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court dated November 30, 1982, entered at No. 3047 Philadelphia, 1981, Reversing the Order of the Court of Common Pleas of Delaware County dated October 30, 1981, entered at No. 77-3723, Pa. Super. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion. Larsen, J., files a dissenting opinion.
The question presented in this appeal is whether the amount of punitive damages awarded in an action seeking monetary relief for bodily injury, death or property damage is to be included in the basis of the computation of damages for delay pursuant to Pa.R.C.P. 238. The majority of a Superior Court panel, reversing the trial court, held that
punitive damages must be excluded from the computation of delay damages. For the reasons which follow we affirm the order of the Superior Court, 307 Pa. Super. 478, 453 A.2d 987.
Appellants Pauline and James Colodonato brought a trespass action against appellee Consolidated Railway Corporation ("Conrail") in the Delaware County Court of Common Pleas following the assault and rape of Mrs. Colodonato in the subbasement area of Conrail's Suburban Station in Philadelphia on June 23, 1976. Conrail made no substantial settlement offer, and the case proceeded to trial. The jury awarded Mrs. Colodonato $250,000 in compensatory and $500,000 in punitive damages. That verdict was subsequently molded by the trial court to include delay damages of $115,208.29, representing ten percent annual interest on the total award of $750,000 for the period from October 16, 1979 to April 29, 1981.*fn1 As a result, two-thirds of the delay damages assessed, or $76,805.53, consisted of interest on the jury's punitive damage award. Conrail appealed to the Superior Court, which ordered a remittitur of the portion of the judgment representing delay damages on the award for punitive damages. This Court granted the Colodonatos' petition for allowance of appeal.
The decision in this matter turns on the interpretation of Pa.R.C.P. 238, a rule promulgated by this Court in 1978. We are guided in our construction of the rule by Rule 127 of our Rules of Civil Procedure, which provides in pertinent part:
(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not Page 83} to be disregarded under the pretext of pursuing its spirit.
(c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule.
Pa.R.C.P. 127 (emphasis supplied).
In accordance with Rule 127, we shall examine the language of the rule at issue to determine whether it explicitly controls the question before us. We need engage in further interpretation only if we conclude Rule 238 is unclear or ambiguous. In determining whether ambiguity is present in the first instance, we are required to interpret the words of Rule 238 in accordance with well-established canons of construction. "Words and phrases shall be construed according to rules of grammar and according to their common and approved usage . . . ." Pa.R.C.P. 103; 1 Pa.C.S. § 1903. This Court's intent in formulating the Rule is controlling. Pa.R.C.P. 127(a). It must be presumed that we did not intend "a result that is absurd, impossible of execution or unreasonable," Pa.R.C.P. 128(a), and that we intended "the entire rule . . . to be effective and certain." Pa.R.C.P. 128(b). If possible each word "is to be given meaning and not to be treated as surplusage." Matter of Employees of Student Services, Inc., 495 Pa. 42, 52, 432 A.2d 189, 195 (1981).
Pa.R.C.P. 238 applies only to actions to recover damages for death, personal injury and/or property damage. Rule 238 provides in pertinent part:
(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the
arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court's decision in a non-jury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or ...