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BETTY J. BAKER v. S. & L. SERVICE COMPANY (02/21/89)

filed: February 21, 1989.

BETTY J. BAKER, EXECUTRIX OF THE ESTATE OF THOMAS MOTEL, DECEASED, APPELLANT,
v.
S. & L. SERVICE COMPANY, APPELLEE



Appeal From Order of Court of Common Pleas, Civil Division, Clinton County at No. 1246-80.

COUNSEL

John M. Humphrey, Williamsport, for appellant.

Thomas K. Kistler, Bellefonte, for appellee.

Cavanaugh, Olszewski and Popovich, JJ. Popovich, J., files dissenting opinion.

Author: Cavanaugh

[ 381 Pa. Super. Page 638]

The sole issue in this appeal is the propriety of the award of delay damages by the court below. A verdict was entered in favor of the plaintiff below, who is the appellee herein, in the amount of $283,281.43. The court awarded delay damages on the amount of the verdict at the rate of ten (10%) per cent per year to be computed from May 17, 1986 through the date of payment.

An appeal from the award of delay damages was pending in this court on November 7, 1988 when new Rule 238 of the Pennsylvania Rules of Civil Procedure became effective. The instant case is controlled by this Court's recent en banc decision in Ceresini v. Valley View Trailer Park, 380 Pa. Super. 416, 552 A.2d 258 (1988) wherein we stated at page 380 Pa. Superior Ct. 418, 552 A.2d at 259:

In determining whether the new Rule 238 applies to the matter pending before us, we are guided by Pa.R.C.P. 52 which states:

[ 381 Pa. Super. Page 639]

Rule 52. Effective Date.

Application to Pending actions

(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.

(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. (Emphasis added.)

See also, Sherry v. Trexler Haines Gas, Inc., [373] Pa. Super. [330], 541 A.2d 341 (1988).

The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule. (Emphasis added.)

We further stated in Ceresini, supra, 380 Pa. Superior Ct. at 419, 552 A.2d at 259:

The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case. (Emphasis added.)

In Ceresini, as in the instant case, the court below entered delay damages, and the issue on appeal was the appropriateness of the damages. We remanded in Ceresini, as we must in this case, for the court below to assess delay damages in accordance with new Rule 238.

The dissenting opinion states at page 569:

Once damages for delay have been "determined" by a trial court, in accordance with the provisions and procedures of the Craig case, the matter is not subject to reassessment merely because it was "pending" on ...


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