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THEODORE M. BERRY v. ANNE M. ANDERSON (01/03/86)

filed: January 3, 1986.

THEODORE M. BERRY
v.
ANNE M. ANDERSON, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 80-9758.

COUNSEL

Dean B. Stewart, Jr., Norristown, for appellant.

Stephen M. Feldman, Philadelphia, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ.

Author: Rowley

[ 348 Pa. Super. Page 619]

OPINION OF THE COURT

This is an appeal from an Order that appellant Anne M. Anderson pay delay damages to appellee Theodore M. Berry

[ 348 Pa. Super. Page 620]

    in addition to compensatory damages awarded by a jury. We hold that the trial court erred in imposing delay damages after February 25, 1982 without first conducting an evidentiary hearing to ascertain the appellant's financial status from February 25, 1982 until the date of the verdict. For the purpose of the following discussion, we will assume that the facts stated in appellant's new matter are true and that she is indigent. Of course, appellant still bears the burden of proving those facts on remand.

On June 3, 1980, appellee Berry initiated a lawsuit against the appellant as a result of an automobile accident which left Berry partially paralyzed. On February 25, 1982, twenty-two months before trial, the appellant offered to settle the case for the full amount of her insurance policy -- $100,000. Appellee rejected the offer. On December 15, 1983, following a five-day trial, a jury returned a verdict in favor of appellee for $2,000,000. Appellee then filed a motion to mold the verdict to add delay damages as provided for by Pa.R.C.P. 238 (Rule 238). The Rule states in 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. § 1303.101 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;

(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after ...


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