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KATHLEEN KNUDSEN v. DELAWARE COUNTY REGIONAL WATER QUALITY CONTROL AUTHORITY (04/22/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 22, 1987.

KATHLEEN KNUDSEN, ADMINISTRATRIX OF THE ESTATE OF DAVID E. KNUDSEN, DECEASED, APPELLANT
v.
DELAWARE COUNTY REGIONAL WATER QUALITY CONTROL AUTHORITY, PERCY JONES, THE BOROUGH OF UPLAND AND CHESTER-UPLAND SCHOOL DISTRICT, APPELLEES

Appeal from the Order of the Court of Common Pleas of Delaware County in case of Kathleen Knudsen, Administratrix of the Estate of David E. Knudsen, Deceased v. Delaware County Regional Water Quality Control Authority, Percy Jones, The Borough of Upland and Chester-Upland School District, No. 82-9247.

COUNSEL

Daniel L. Thistle, Beasley, Hewson, Casey, Colleran, Erbstein & Thistle, for appellant.

George J. McConchie, Cramp, D'Iorio, McConchie & Forbes, P.C., for appellees.

Judges Craig and Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 105 Pa. Commw. Page 410]

Kathleen Knudsen, administratrix of the estate of David Knudsen (Appellant), appeals from an order of the Court of Common Pleas of Delaware County denying Appellant's motion for delay damages upon a verdict recovered by her against the Delaware County Regional Water Quality Control Authority (DELCORA). We reverse and remand for further proceedings.

On April 18, 1982, David Knudsen, Appellant's son, died from injuries received in an accident that occurred on December 2, 1981. On the day of the accident, David Knudsen, a five-year-old kindergarten student at the Main Street Elementary School in Upland, was struck by a vehicle while attempting to cross 6th Street in Upland. The vehicle was owned by DELCORA and driven by its employee, Percy Jones.

[ 105 Pa. Commw. Page 411]

Appellant subsequently instituted a wrongful death and survival action against DELCORA and Jones. The authority joined the Borough of Upland (Borough) and the Chester-Upland School District (District) as additional defendants.*fn1 At trial, a compulsory non-suit was entered by the court in favor of the Borough and the District. The case was then submitted to the jury, which rendered a verdict of $445,000 solely against DELCORA. The trial judge, acting pursuant to Section 8553(d) of the Judicial Code (Code), 42 Pa. C.S. ยง 8553(d), molded the verdict to exclude no-fault death benefits paid to Appellant, thereby reducing the verdict to $430,000.

Appellant then filed a motion seeking to have delay damages added to the verdict pursuant to the then-operational provisions of Pa. R.C.P. 238 (Rule 238).*fn2 The

[ 105 Pa. Commw. Page 412]

    trial judge, relying on Section 333 of the JARA Continuation Act of 1980,*fn3 which provides in relevant part that "[n]o interest shall accrue in any . . . action [against a local agency] prior to the entry of judgment," denied the motion.

[ 105 Pa. Commw. Page 413]

The immediate issue on this appeal is whether delay damages may be assessed against a local agency, notwithstanding the provisions of Section 333 of the JARA Continuation Act of 1980. Our Court has answered this question in the affirmative in City of Pittsburgh v. Pivirotto, 93 Pa. Commonwealth Ct. 563, 502 A.2d 747 (1985), petition for allowance of appeal granted, 512 Pa. 114, 516 A.2d 1 (1986), and that case controls our decision here.*fn4 Appellee's arguments that Pivirotto should be overruled are not persuasive.

Once we determine, however, that the case must be remanded for the assessment of delay damages, we then face the issue of what is the proper legal standard to be applied at that time; the solution to this question is somewhat clouded by our Supreme Court's decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In Craig the operation of Rule 238 was suspended and in its place the Supreme Court articulated a new set of criteria to be used in determining whether delay damages should be assessed upon a verdict.*fn5 The Supreme Court in Craig also stated that:

[T]he suspension of the mandatory provisions of Rule 238 is to be given prospective effect only. Those parties whose cases are now in the appellate

[ 105 Pa. Commw. Page 414]

    or post-trial process, who have not asserted attacks on the Rule 238 aspect of the damage award, may not now assert such challenges. However, in those cases where the issue has been preserved, the court before whom the case resides on or after this date [October 8, 1986] is to resolve the issue in a manner consistent with this opinion.

Id. at 66, 515 A.2d at 1353.

[ 105 Pa. Commw. Page 5]

In the posture of the case now before us, of course, there would have been no reason for the Appellee, DELCORA, to directly attack Rule 238, because the trial judge denied delay damages. But in its memorandum of law to the trial court in response to Appellant's motion for delay damages, the issue of whether delay damages should be assessed under Rule 238 was preserved when DELCORA brought to the attention of the court that the purpose underlying Rule 238 was to compensate an injured plaintiff for delay attributable to defendant's unreasonable failure to settle cases. See Craig, 512 Pa. at 63, 515 A.2d at 1352-53; Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). DELCORA has contended that in this case, "it has been the plaintiff, not the defendants, whose refusal to be reasonable prevented a settlement short of trial." Page 5 of DELCORA's memorandum of law. More specifically, DELCORA contended that any delay was caused by Appellant's refusal to accept DELCORA's offer of its maximum statutory liability under Section 8553(b) of the Code*fn6 and its consistent demand for more. Cf. Shellhamer v. Grey, 359 Pa. Superior Ct. 499, 519 A.2d 462 (1986); Berry v. Anderson, 348 Pa. Superior Ct. 618, 502 A.2d 717 (1986). Indeed, in Craig one reason the Supreme Court suspended Rule 238 was that the plaintiff and not the defendant

[ 105 Pa. Commw. Page 415]

    had caused the delay in that case. Craig, 512 Pa. at 65, 515 A.2d at 1353. Thus, having preserved the issue of Appellant's fault for delay in settling the case,*fn7 DELCORA is entitled to the application of the Craig criteria upon remand.

Upon remand the trial court should consider, as part of the other pertinent factors discussed in Craig, the Appellant's reasons for not accepting offers equivalent to the statutory limitation on damages applicable to actions against local agencies.

The order of the Court of Common Pleas of Delaware County is reversed and the case remanded for further proceedings consistent with this opinion.

Order

Now, April 22, 1987, the order of the Court of Common Pleas of Delaware County, No. 82-9247, dated October 23, 1985, is hereby reversed and the case remanded for further proceedings consistent with this opinion.

Disposition

Reversed and remanded.


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