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decided: October 8, 1986.


Appeal of Magee Memorial Rehabilitation Center from the Order entered June 15, 1983, Entering Judgment Against Defendant, Magee Memorial Rehabilitation Center, by the Court of Common Pleas of Philadelphia County, at No. 4626, April Term, 1976, 341 Pa. Super. 622, 491 A.2d 923 (1985).


William F. Sullivan, Jr., Philadelphia, for appellant.

Arnold M. Kessler, Philadelphia, for appellees.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result and files a separate concurring opinion. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Mcdermott

[ 512 Pa. Page 62]


This is a medical malpractice action in which a jury returned a verdict in favor of appellees against defendant Magee Memorial Rehabilitation Center, appellant herein, in the amount of $50,000. The jury also found against appellees and in favor of defendant Marjorie Hosfeld, M.D., on allegations of joint liability. The trial court thereafter added damages for delay pursuant to Pennsylvania Rule of Civil Procedure 238. On appeal, the Superior Court affirmed, per curiam. We granted review to consider appellant's claim concerning Rule 238.*fn1

[ 512 Pa. Page 63]

The facts of the instant action are as follows. The wife-plaintiff was originally injured in an automobile accident, resulting in the loss of motor function in both legs. After four months of treatment at other facilities, she was transferred to Magee Memorial Rehabilitation Center, under the care of Dr. Marjorie Hosfeld. While receiving treatment there, Mrs. Craig suffered injuries when she sustained a burn as the result of coming into contact with an air blower which was being utilized in the treatment of a decubitis ulcer. This occurred in May of 1974.

In April, 1976, plaintiffs instituted suit against the Magee Center and Dr. Hosfeld. However, it was not until December, 1980, that the case came to trial. A mistrial was occasioned at that time, and it was not until January, 1983, that the case was tried to conclusion before a jury in the Court of Common Pleas of Philadelphia. The pre-trial record of the litigation reveals frequent and lengthy postponements, delays and requests for continuances, many attributable to appellees, plaintiffs below. The trial ended in the vindication of Dr. Hosfeld. However, the jury found the Magee Center liable and awarded the above mentioned verdict. Since the jury's verdict exceeded the defendants' last offer of settlement by more than 25%,*fn2 delay damages of $16,450 were imposed pursuant to Rule 238.

Appellant filed post-trial motions asserting, among other things, the unconstitutionality of Rule 238. These motions were denied and the verdict was affirmed on appeal. Both lower courts dismissed appellant's Rule 238 arguments,

[ 512 Pa. Page 64]

    relying on the decision of this Court in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Upon petition we granted allocatur to re-examine Laudenberger, id., and Rule 238.*fn3

Rule 238 was promulgated as an exercise of this Court's rule-making authority. It was a bold experiment that seemed reasonable, salutary and equitable. It was reasonable because it sought to clear dockets cluttered by unreasonable refusals to pay what was owed. It was salutary in that it provided a penalty for profiting by denying what was due. It was equitable because it compensated for loss caused by an unreasonable refusal to correct a tortious injury.

It was an experiment. The Laudenberger Court faced a challenge shortly after the promulgation of the Rule. They faced, as we face now again, an attack on the Rule upon grounds of Equal Protection, Due Process and the contention that this Court slipped, under procedural cover, into definitive substantive law.

The Laudenberger Court accepted as an underlying reason for the Rule that there was deliberate, profitable delay on the part of tortfeasors. If one accepts that a refusal to settle is always prompted by such motives, then no wrong is done a wrongdoer, and the rationale of Laudenberger would have settled the argument presented for then and always.

Now seven years after the Rule's promulgation, we face not only the previous challenges, but a different set of facts, viewed from a different perspective. The facts here are the obverse of the coin: the defendant below argues that there was delay, but not his; that the delay was the fault of the plaintiffs below. Appellant does not ...

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