Appeal from the Order entered October 24, 1986 in the Court of Common Pleas of Montgomery County, Civil Division, No. 83-13336.
Edward T. Feierstein, Philadelphia, for appellant.
John J. O'Brien, Jr., Philadelphia, for appellee.
Montemuro, Popovich and Cercone, JJ.
[ 368 Pa. Super. Page 167]
This is an appeal from an order denying appellant's request for delay damages following the entry of a jury verdict in his favor.
On September 29, 1986, the trial began in the civil suit brought by Alvin Laster, appellant, against Glasgow, Inc., appellee. On October 10, 1986, the jury awarded appellant $150,000 in damages. At the conclusion of the trial and subsequent to the verdict being received in open court, counsel for the appellant made an oral motion for delay damages. See Pa.R.C.P. No. 238, 42 Pa.C.S.A.*fn1 The lower court advised that it would compute the delay damages and mold the verdict to reflect the addition of delay damages. Defense counsel did not object to this.
After computation of the delay damages, totaling $32,999.99, but before filing the order for damages, the lower court became aware of the decision of the Pennsylvania Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and accordingly the computation was crossed out on the verdict sheet. The verdict sheet was then filed indicating no delay damages on
[ 368 Pa. Super. Page 168]
the basis of the above case. On October 24, 1986, the lower court handed down its order that no delay damages would be awarded in this case since the plaintiff had not filed a petition in accordance with the requirements as set forth in Craig v. Magee Memorial Rehabilitation Center, supra.
In Craig, the Pennsylvania Supreme Court was faced with a due process challenge to Rule 238. The appellant in Craig argued that Rule 238 punishes a defendant without fault. In response to this challenge, the court stated:
Having had now the opportunity for observation of the workings of Rule 238, and being presented herein with a factual context which frames in sharp relief the Rule's inequitable operation, we direct that those mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault are suspended as of this date for all cases now pending in the courts of this Commonwealth, and for any cases instituted hereafter.
In its stead we direct that claims for delay damages are to be presented by petition within five days of a jury ...