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KEITH G. MILLER v. WISE BUSINESS FORMS (01/25/89)

filed: January 25, 1989.

KEITH G. MILLER, APPELLANT,
v.
WISE BUSINESS FORMS, INC., APPELLEE, V. WARNER AND WARNER, INC. (TWO CASES)



Appeal from the Judgment Entered, January 29, 1987, in the Court of Common Pleas, Civil Division, of Butler County, No. A.D. 84-579, Book 125, Page 289. Appeal from the Order Entered February 26, 1987, in the Court of Common Pleas, Civil Division, of Butler County, No. A.D. 84-579, Book 125, Page 289.

COUNSEL

Richard G. Spagnolli, Pittsburgh, for appellant.

Dennis S. Mulvihill, Pittsburgh, for Wise, appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen,*fn* Olszewski, Montemuro, Popovich and Johnson, JJ. Cirillo, President Judge, files a dissenting statement in which Johnson, J., joins. Popovich, J., files a dissenting opinion.

Author: Rowley

[ 381 Pa. Super. Page 237]

These consolidated appeals of appellant Keith G. Miller, successful plaintiff in a personal injury action, raise a single issue: whether, pursuant to Pa.R.C.P. 238, the trial court erred in refusing to award delay damages to appellant where neither appellant nor defendant/appellee Wise Business Forms, Inc. engaged in conduct that delayed the trial of the case. In light of the revision of Rule 238 promulgated by our Supreme Court on November 7, 1988, and made effective immediately, we vacate the judgment entered January 29, 1987, insofar as it does not include an award of delay damages to appellant, and remand the case to the trial court for further proceedings consistent with this opinion.

The facts of the case, briefly summarized, are as follows: Appellant was employed as a laborer by Warner and Warner, Inc., a general contractor. On December 5, 1983,

[ 381 Pa. Super. Page 238]

    appellant's right foot was crushed in an accident on the work site where Warner and Warner was working on a building owned by appellee. Appellant filed the underlying action against appellee on October 19, 1984. Appellee joined Warner and Warner as an additional defendant.*fn1

On three occasions appellee made written requests for appellant's settlement demands and received a response that was described by the trial court as "very limited" (Trial Court Opinion at 2). On August 27, 1986, appellant requested damages in the amount of $750,000. On October 20, 1986, the date set for trial, appellee made a written offer of $25,000, which was declined by appellant. The case went to trial before a jury, which returned a verdict in favor of appellant for $195,000. Appellant was found to be one percent contributorily negligent, and the judgment eventually entered in his favor was in the amount of $193,050.00.

Appellant sought delay damages pursuant to Pa.R.C.P. 238. Following a hearing, the trial court on January 28, 1987, entered an order denying appellant's petition. Appellant filed exceptions to the order, which were denied by the trial court in a second order entered on February 26, 1987. On that day, appellant filed a notice of appeal to this Court from both the January 28, 1987, and the February 26, 1987, orders. This appeal has been docketed at No. 319 Pittsburgh 1987. On March 23, 1987, upon praecipe of appellant, judgment was entered on the trial court's order of February 26, 1987, denying appellant's exceptions. Appellant thereupon filed a second appeal to this Court, docketed at No. 418 Pittsburgh 1987, this time appealing only from the order entered on February 26, 1987.

Initially we are required to address the somewhat unorthodox procedure by which ...


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