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THERESA KING v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (04/05/89)

filed: April 5, 1989.

THERESA KING
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2138 December Term 1982.

COUNSEL

Mark A. Corchin, Philadelphia, for appellant.

Joan Saltzman, Philadelphia, for appellee.

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

Author: Per Curiam

[ 383 Pa. Super. Page 421]

This appeal of the Southeastern Pennsylvania Transportation Authority, defendant in a personal injury action brought by plaintiff/appellee Theresa King, is from the judgment entered on "delay damages" awarded to appellee pursuant to Pa.R.C.P. 238. The sole issue presented for our review is whether the trial court erred in awarding "delay damages" to appellee after having found that the delay encountered in litigating the case was not the fault of either party. For the reasons set forth below, we conclude that the trial court did not err in doing so, and we affirm the judgment entered on the award.

The events giving rise to this appeal began on February 3, 1982, when appellee was bumped by a passimeter as she passed through a subway turnstile. Although the extent of her injuries was not immediately known, appellee was unable

[ 383 Pa. Super. Page 422]

    to work for six of the following ten months. Appellee instituted the underlying action against appellant on December 14, 1982. On July 7, 1984, appellee was diagnosed as suffering from a herniated disc. She ceased working completely in January, 1985, and underwent a lumbar laminectomy on July 17, 1986.

Appellee's action was first listed for trial in January, 1987. Appellee subsequently requested a continuance, which was not contested by appellant. On February 11, 1987, appellee made a demand of $200,000 to settle the action. On March 6, 1987, appellant made a counter-offer of $45,000. Appellee rejected the counter-offer on March 17, 1987, and trial commenced the same day. On March 23, 1987, the jury returned a verdict in favor of appellee in the amount of $200,000. However, the jury also found appellee to have been 49% causally negligent, which resulted in a reduction of the verdict to $102,000. Judgment on the verdict was entered and satisfied.

In the meantime appellee filed a petition for "delay damages" pursuant to Rule 238. The trial court determined that the delay in the case was the result of the backlog of cases in the Philadelphia Court of Common Pleas, and was not attributable to either party. In addition, the court found that there was no manifest bad faith on the part of appellant in failing to make a more substantial settlement offer prior to trial. Nevertheless, after analyzing our Supreme Court's opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the court awarded appellee "delay damages" in the amount of $42,160. The court reasoned that

     when both parties are blameless it would be unreasonable and unjust to deny delay damages. Fundamental fairness would require . . . that the plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants who, of course, have had the use of that money.

Trial Court Opinion at 6. Awarding "delay damages" under such circumstances does not penalize defendants, the court explained, because ...


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