Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1820 January Term, 1981. Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1820 January Term, 1981.
Sarah M. Thompson, Philadelphia, for appellant (at 2202) and appellee (at 2375).
Marilyn Monaco, Broomall, for appellee (at 2202) and appellant (at 2375).
Cirillo, President Judge, and Rowley and Wieand, JJ.
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The principal issue in this appeal is whether a non-settling defendant whose causal negligence has been found to be 35% should be required to pay Rule 238*fn1 damages on the total amount of damages awarded to the plaintiff or only upon the portion thereof which the non-settling defendant is required to pay. The trial court determined the amount of the delay damages by reference to the portion of the award which the non-settling defendant was required to pay. We affirm.
On June 7, 1978, Rita Korn was injured when the automobile in which she was riding as a passenger collided with a train owned and operated by Consolidated Rail Corporation (Conrail). She filed an action in trespass against Conrail and also against Dr. Bernard Kirshbaum, who was the driver of the automobile in which she was riding. The claim against Dr. Kirshbaum was settled prior to trial. On June 11, 1985, a jury returned a verdict finding Kirshbaum's negligence to be 65% and Conrail's negligence to be 35%. The jury awarded damages to Korn in the amount of $150,000, of which Conrail's proportionate share was $52,500. Korn filed a petition in the trial court requesting that delay damages be awarded against Conrail on the entire amount of the damages as found by the jury. The trial court denied the request and directed Conrail to pay delay damages on the proportionate part of the verdict which it was required to pay. Korn appealed.
Rule 238 of the Pennsylvania Rules of Civil Procedure provides:
(a) Except as otherwise provided in subdivision (e), in an action seeking monetary relief for bodily injury . . . the court . . . shall
(1) add to the amount of compensatory damages . . . in the verdict of a jury . . . damages for delay at ten (10)
[ 355 Pa. Super. Page 173]
percent per annum, not compounded, which shall become part of the . . . verdict . . .
(c) Except as provided in subdivision (e), damages for delay shall be added to the . . . verdict . . . against all ...