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GERALD L. MORGAN v. MONESSEN SOUTHWESTERN RAILWAY COMPANY (03/08/85)

filed: March 8, 1985.

GERALD L. MORGAN, APPELLEE,
v.
MONESSEN SOUTHWESTERN RAILWAY COMPANY, A CORPORATION, APPELLANT



No. 849 Pittsburgh, 1982, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 70-23765.

COUNSEL

Paul A. Manion, Pittsburgh, for appellant.

Thomas Hollander, Pittsburgh, for appellee.

Rowley, Johnson and Hester, JJ.

Author: Rowley

[ 339 Pa. Super. Page 467]

OPINION OF THE COURT

This is an appeal from the Judgment entered on the jury's verdict in favor of Gerald L. Morgan, appellee, in the amount of $125,000.00 plus delay damages under Pa.R.C.P. 238, following the trial court's Order dismissing post-trial motions filed by Monessen Southwestern Railway Company (Monessen), appellant. This action was instituted by appellee under the Federal Employers' Liability Act, 45 U.S.C. ยงยง 51-60 (1976) (FELA), for injuries he suffered in the course of his employment with Monessen. On appeal, appellant first argues that the trial court erred in adding $26,712.50 in delay damages pursuant to Pa.R.C.P. 238 in an action under the FELA. Appellant also contends that a new trial is warranted because the trial court erred in failing to instruct the jury that any damage award for future lost earnings must be reduced to present value.*fn1 For the following reasons, we affirm.

Appellant's initial contention is that the addition of delay damages under Pa.R.C.P. 238 was improper in an FELA case heard in a Pennsylvania court. This issue was resolved by a unanimous panel of our court in Humphries v. Pittsburgh & Lake Erie Railroad Company, 328 Pa. Super. 119, 476 A.2d 919 (1984). In Humphries, this court held that, "while the FELA does not fix the rate of prejudgment interest, the allowance of such interest pursuant to Rule 238 comports with our understanding of the federal decisional law on the matter." Id., 328 Pa. Superior Ct. at 132, 476 A.2d at 926. Our decision in Humphries is controlling in this case and, thus, the trial court's addition of delay damages to the jury's verdict was proper.

[ 339 Pa. Super. Page 468]

Appellant's next contention is that the trial court erred in failing to instruct the jury that an award for future lost earnings was to be calculated on the basis of net earnings after taxes in accordance with Norfolk and Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). We have carefully reviewed the charge given by the trial court and we find that it was in keeping with the principles espoused in Liepelt; accordingly, we find no error in the charge regarding this issue which warrants the grant of a new trial.

Appellant's final contention is that a new trial is required because the trial court failed to charge the jury, as requested by appellant, that a damage award for future lost earnings must be reduced to its present value. The trial court charged the jury in accordance with the "total offset method" for determining future earning capacity, as set forth in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), which equates the rate of future inflation with that of future interest rates and eliminates the need for adjustment of a verdict based upon these factors. (See N.T., December 4, 1982, pp. 701-701). The trial court refused to give appellant's requested jury instruction regarding present worth reasoning that, under Kaczkowski, it is unnecessary to burden the jury with such instructions. The court also relied upon the decision in Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453 (3d Cir. 1982) vacated 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), wherein the "total offset method" was approved by the Third Circuit for use in federal actions under the Longshoremen's and Harbor Workers' Compensation Act.

During the pendency of this appeal, the United States Supreme Court reversed the Third Circuit's decision in Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). At oral argument in this case, the parties' were instructed to file supplemental briefs addressing the recent decision of the ...


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