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MARGARET MANEVAL STUBBS ROST v. COMMONWEALTH PENNSYLVANIA (05/08/86)

SUPERIOR COURT OF PENNSYLVANIA


May 8, 1986

MARGARET MANEVAL STUBBS ROST
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND S.J. GROVES & SON, INC.

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.

Per Curiam:

Order affirmed.

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.

Disposition

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 refused to grant Appellant's petition, this appeal was filed.

In this appeal, Appellant is actually seeking to challenge the trial court's award of delay damages due to the fact that Ms. Rost has recovered, by way of settlement, an amount in excess of the jury award plus delay damages. Appellant presented this same argument to the trial court following Ms. Rost's Motion to Correct the Jury Verdict by imposition of delay damages. In rejecting Appellant's claim the trial court stated:

The Court also notes that the arguments raised by Defendant Groves against payment were squarely addressed by the Superior Court in Lavin v. Mylecraine, Pa. Super. , 453 A.2d 1031 (1980) and resolved in favor of Plaintiff's position.

Trial Court Opinion, 10/19/84.

The propriety of this ruling cannot now be challenged since Appellant failed to take an immediate appeal of the disputed order. By failing to appeal the trial court's October 19, 1984 order within 30 days, Appellant waived any right to object to the existence or execution of the judgment. Appellant cannot now by means of a Petitioner for Satisfaction or Stay do indirectly what it could not do directly - enlarge the time in which an appeal may be taken. See : Baciotti v. Simmons, Pa. Super. , 498 A.2d 1351 (1985); Reilly by Reilly v. Southeast. Pa. Trsp., 330 Pa. Super. 420, 479 a.2d 973 (1984); and Lavin v. Mylecraine, supra., where direct appeals were taken from orders granting or refusing to grant delay damages.

Accordingly, I would affirm the trial court's order.

19860508

© 1998 VersusLaw Inc.



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