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DANIEL K. WOLFE v. MICHAEL STOVER (10/07/88)

filed: October 7, 1988.

DANIEL K. WOLFE
v.
MICHAEL STOVER, APPELLANT



Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 85-10100

COUNSEL

Lisle A. Zehner, III, Pittsburgh, for appellant.

J. Bradley Kearns, Pittsburgh, for appellee.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Tamilia

[ 378 Pa. Super. Page 314]

This is an appeal by defendant Michael Stover from a December 21, 1987 Order awarding delay damages, pursuant to Pa.R.C.P. 238, to appellee Daniel K. Wolfe in a personal injury action.

On June 7, 1985, appellee commenced this action for injuries he received in a one car accident on November 10, 1984 while a passenger in a vehicle driven by appellant. A two day non-jury trial was held on October 13, 1987. By Order dated October 27, 1987, the trial judge found for the plaintiff in the amount of $3,600. The trial court's decision was filed in the prothonotary's office on October 28, 1987 and entered on the prothonotary's docket on Thursday, October 29, 1987. However, the docket does not indicate that notice of the Order was given to appellee as required

[ 378 Pa. Super. Page 315]

    by Pa.R.C.P. 236. On November 4, 1987, appellee presented a petition for award of delay damages to the trial court. Appellant filed an answer to the petition and a motion to quash on November 12, 1987. Subsequently, appellee presented a supplemental petition for delay damages which appellant answered. On December 21, 1987, the trial court denied appellant's motion to quash and awarded delay damages in the amount of $420, resulting in a total judgment of $4,020, plus court costs. This timely appeal followed.

Appellant's sole claim on appeal is that appellee's petition for delay damages under Pa.R.C.P. 238 was untimely because it was presented more than five (5) days after the trial court's judgment in favor of appellee.

Rule 238 allows for the calculation of delay damages in any action seeking relief for bodily injury, death, or property damage. An award of delay damages acts to compensate the plaintiff for the time elapsed from the filing of the case until the verdict if the defendant fails to offer an adequate settlement.*fn1 The purpose of the rule is to provide

[ 378 Pa. Super. Page 316]

    a sanction against a defendant who delays the commencement of trial. Laudenberger v. Port Authority, 496 Pa. 52, 436 A.2d 147 (1981). However, in 1986, the Supreme Court suspended certain provisions of Rule 238 because it found that the award of delay damages to a winning plaintiff without a finding of fault denied due process to the losing defendant. Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 65, 515 ...


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