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CARL C. MODRICK v. B.F. GOODRICH COMPANY (02/16/89)

filed: February 16, 1989.

CARL C. MODRICK, JR.
v.
THE B.F. GOODRICH COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 84-20441.

COUNSEL

James D. Belliveau, Pittsburgh, for appellee.

Brosky, Johnson and Melinson, JJ. Johnson, J., files a dissenting statement.

Author: Brosky

[ 383 Pa. Super. Page 500]

This appeal lies from the judgment entered on a molded jury verdict which was amended to include an award for delay damages imposed solely upon appellant.

As its sole issue, appellant alleges that it should not be responsible for delay damages because it was not held liable for any delay in the case. Finding the award of delay damages to have been proper but not in conformity with newly enacted Pa.R.C.P. 238, as embodied in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and interpreted by this court in Ceresini v. Valley View Trailer Park, 380 Pa. Super. 416, 552 A.2d 258 (1988, en banc), we vacate the judgment entered on the molded verdict, as amended, and reverse and remand with directions. Our reasoning follows.

The record relates that appellee instituted this cause of action by filing a Complaint against appellant on November 13, 1984, alleging injuries growing out of a motor vehicle accident which occurred on April 15, 1983. The matter was placed at issue, certifying readiness for trial, on January 21,

[ 383 Pa. Super. Page 5011985]

. The parties conducted discovery, and the case was then listed for trial on the November 1986 trial list.

Trial commenced on December 4, 1986, with a verdict ultimately rendered on December 9, 1986, in the amount of sixty-six thousand dollars ($66,000.00), as molded by the trial court to reflect a forty percent reduction for the comparative negligence of appellee.

Following verdict, appellee filed a Petition requesting delay damages from November 13, 1984, the date on which the Complaint was filed, to the verdict date of December 9, 1986. Appellant filed a response and "New Matter" thereto opposing any award of damages for delay on the basis that it had engaged in no conduct which would justify the imposition of delay damages and alleging court calendar delay and appellee's unreasonably high settlement demand as further reasons for its failure to make an earlier settlement offer.

On December 21, 1986, the trial court entered an Order amending the molded verdict of sixty-six thousand dollars ($66,000.00) to include an award of delay damages in the amount of sixteen thousand seven hundred eighty-three dollars ($16,783.00), for a total verdict of eighty-two thousand seven hundred eighty-three dollars ($82,783.00). This appeal followed the entry of judgment on the molded verdict as amended.

The trial court awarded delay damages apparently pursuant to a stipulation*fn1 purportedly entered into by counsel for both parties. The sum and substance of the court's rationale is set forth in its one-sentence Opinion as follows: "The Court entered an Order for delay damages without any hearing pursuant to stipulation filed by counsel for

[ 383 Pa. Super. Page 502]

    plaintiff and defendant that 'Neither Modrick [appellee herein] nor BFG [appellant herein] requested any continuances, delays, or postponement of the case after it had been placed at issue.'"

On appeal, appellant argues that since the trial court, after hearing, found no delay in the ordinary course of the case attributable to either party, it should not be compelled to respond in delay damages. Newly enacted Rule 238,*fn2 however, rejects this position. A fair reading of this new Rule in subsection (b)(1) thereof leads to the conclusion that where a defendant fails to make a settlement offer in compliance with the terms of the Rule and where both parties are determined to be free from ...


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