Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Tioga County at No. 1472 Civil Division
Before Wickersham, Del Sole and Popovich, JJ.
DEL SOLE, J. files a concurring memorandum.
POPOVICH, J., concurs in the result.
ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of Tioga County is affirmed.
Accordingly, I would affirm the trial court's order.
CONCURRING MEMORANDUM BY DEL SOLE, J:
While I agree with the Majority's disposition of this case, I write separately because I believe that the particular facts of this case must be set forth clearly to understand the holding we reach today.
Margaret Rost initiated an action against the Commonwealth of Pennsylvania and appellant to recover for the injuries she suffered in a one vehicle accident. Prior to trial, Ms. Rost executed a Joint Tortfeasor Release and entered into a Structured Settlement Agreement with the Commonwealth. By the terms of these documents the Commonwealth was released form all liability arising out of this particular cause of action. In addition, Ms. Rost was to be paid $930,000 over a 30 year period. The present value of this settlement was $236,000.00.
The case proceeded to trial and on August 13, 1984 the jury returned a verdict of $171,360.00 with liability allocated as follows: 1) Ms. Rost - 20% comparatively negligent; 2) Appellant - 30% negligent, or $51,408.00; and 3) Commonwealth of Pennsylvania, Department of Transportation - 50% negligent, or $85,680.00.
Ms. Rost then filed a Motion to Correct Jury Verdict by imposition of delay damages against Appellant, pursuant to Pennsylvania Rule of Civil Procedure 238. By order dated October 19, 1984, the trial court imposed delay damages against Appellant in the amount of $24,816.68. No appeal was taken by Appellant.
On May 1, 1985, Ms. Rost issued a writ of execution in the amount of $24,816.68, representing the delay damages. Appellant responded by filing a Petition to Satisfy Judgment and a Petition to Stay or Set Aside the Execution. After the court ...