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CLARA SHERRILL v. PORT AUTHORITY ALLEGHENY COUNTY (03/28/89)

filed: March 28, 1989.

CLARA SHERRILL, APPELLEE,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY, A MUNICIPAL CORPORATION, APPELLANT



Appeal from the Judgment entered July 23, 1987 in the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 80-03827.

COUNSEL

James R. Duffy, Pittsburgh, for appellant.

James B. Cole, Pittsburgh, for appellee.

Olszewski, Tamilia and Kelly, JJ. Tamilia, J., files a concurring statement.

Author: Kelly

[ 383 Pa. Super. Page 106]

Appellant, Port Authority of Allegheny County, appeals from judgment entered on July 23, 1987, on the molded verdict dated July 14, 1987, which granted appellee delay damages pursuant to Pa.R.C.P. 238. For the reasons that follow, we vacate the trial court's order of July 14, 1987, and remand for proceedings consistent with this opinion.

The pertinent procedural history of this case is as follows. On February 15, 1980, appellee, Clara Sherrill, filed a complaint in trespass seeking recovery for injuries she sustained as a result of an accident between a Port Authority bus and a taxicab. At the time of the accident, appellee was a passenger on the bus.

Some time prior to trial, appellee's counsel made a settlement demand of $22,500.00. Immediately prior to trial, appellant made an oral offer to settle for $10,000.00 which

[ 383 Pa. Super. Page 107]

    appellee refused. The case was tried, initially, in October of 1982, and resulted in a verdict in favor of appellee in the amount of $2,500.00. Timely post-trial motions were filed and denied. Judgment was thereafter entered on the verdict as molded by the trial court. Appellee subsequently appealed to this Court alleging an error in the trial court's charge with reference to the application of the $15,000.00 No-Fault Wage Loss Deduction. On February 15, 1985, a majority of a divided three judge panel of this Court, filed a Memorandum Opinion*fn1 and Order sustaining the appellee's objection to the trial court's charge, reversing the judgment, and remanding the case for a new trial on the issue of damages only.*fn2

During the pendency of the appeal, appellee underwent surgery, on May 23, 1983, for a removal of a disc between L-4, L-5 vertabra, which had been injured in the accident. As a result of this surgery, appellee's known damages increased considerably. On May 20, 1983, appellant and appellant's counsel were advised by appellee's counsel of the impending surgery and further advised that all prior demands were withdrawn.

Prior to trial on remand, and as a result of the dramatic change in appellee's known damages, appellee's counsel made an oral demand of $175,000.00 which was reduced to

[ 383 Pa. Super. Page 108]

$120,000.00 after the jury was chosen but prior to opening statements. No written offer of settlement was made by appellant. On December 3, 1986, the jury returned a verdict in favor of appellee in the amount of $72,536.00. Thereafter, appellee's counsel presented the trial court with a timely petition requesting delay damages and appellant filed a timely response thereto.

In lieu of an evidentiary hearing, the parties filed a Stipulation of Facts regarding appellee's claim for delay damages. Paragraphs thirteen and fourteen of the Stipulation of Facts provided:

13. No part of the passage of time between the filing of the complaint and the return of the verdict on December 3, 1986 was due to the fault of the plaintiff.

14. No part of the passage of time between the filing of the complaint and the return of the verdict on December 3, 1986 was due to the fault of the defendant.

(Stipulation of Facts at 3). On July 14, 1987, the trial court filed its opinion and order granting appellee delay damages in the amount of $32,154.31 for the period between the filing of the complaint and the jury verdict on December 3, 1986, excluding the period of time between the date the original verdict was entered and the date this Court remanded the matter for retrial.*fn3 This timely appeal followed.

On appeal, appellant raises the following issues:

I. Did the trial court deprive the defendant of its constitutional right to due process and equal protection of the law in awarding delay damages and molding the jury verdict to reflect the award of delay damages without a finding of fault on the part of the defendant causing the delay?

[ 383 Pa. Super. Page 109]

II. Did the court err in failing to apply the mandates of the Supreme Court of Pennsylvania in suspending the mandatory award of delay damages and in awarding delay damages in the face of a record stipulation of fact that no part of the passage of time between the filing of the complaint and the return of the verdict on December 3, 1986 was due to the fault of either the plaintiff or the defendant?

III. Did the trial court deny the defendant due process and equal protection of the law in calculating delay damages from the date of filing of plaintiff's complaint and on the total jury verdict on retrial when those damages arose from a dramatic change, over which the defendant had no control, in plaintiff's physical condition and when the retrial was as a result of trial court error, over which the defendant had no control, on an unrelated issue of law?

(Appellant's Brief at 3).

I. LIABILITY FOR DELAY DAMAGES

Appellant's first two issues on appeal address the same basic question, i.e. did the trial court err in awarding delay damages to appellee where there was no finding by the trial court that appellant was responsible for any delay and where the parties have stipulated that any delay encountered in litigating this case was not the fault of either party. For the reasons which follow, we find that an award of delay damages was appropriate.

While this case was pending before this Court, our Supreme Court promulgated the revised Rule 238, dated November 7, 1988, effective immediately. Subsection (f) of the rule provides that it "shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined." Pa.R.Civ.P. 238(f). Since appellant's liability for delay damages had not been finally determined when the new rule became effective, revised Rule 238 governs this case. Ceresini v. Valley View Trailer Park, 380 Pa. Super. 416, 552 A.2d 258 (1988)

[ 383 Pa. Super. Page 110]

(en banc); Miller v. Wise Business Forms, Inc., 381 Pa. Super. 236, 553 A.2d 443 (1989) (en banc).

Revised Rule 238 subsection (b) provides:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,

(1) after which the defendant has made a written offer of:

(i) settlement in a specified sum with prompt cash payment to the plaintiff, or

(ii) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages, for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff, or

(2) during which the plaintiff caused delay of the trial.

Pa.R.C.P. 238(b).

A review of the Explanatory Comment reveals that the above provisions provide the only basis upon which a defendant may oppose a motion for delay damages. Pa.R.C.P. 238, Explanatory Comment. Accordingly, we conclude that where the defendant has not made a settlement offer in accordance with Rule 238(b)(1) and the plaintiff is not responsible for any of the delay, the defendant is liable for delay damages. Miller v. Wise Business Forms, Inc., supra.

In the instant case, no written offer of settlement was made. Moreover, both parties stipulated that the plaintiff was not responsible for any delay encountered in litigating this case. As such, an award of delay damages in ...


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