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JANICE SNELSIRE AND GARY SNELSIRE v. ELIZABETH S. MOXON (04/26/89)

filed: April 26, 1989.

JANICE SNELSIRE AND GARY SNELSIRE
v.
ELIZABETH S. MOXON, EXECUTRIX OF THE ESTATE OF THOMAS W. MOXON, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 84-9163.

COUNSEL

Carl W. Brueck, Jr., Pittsburgh, for appellant.

J. Bradley Kearns, Pittsburgh, for appellees.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Olszewski, Montemuro, Popovich and Johnson, JJ. McEwen, J., did not participate in the consideration of or decision upon this appeal. 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: Brosky

[ 384 Pa. Super. Page 86]

This appeal is from the judgment entered on an award of delay damages after a jury verdict in favor of appellees.

The sole issue presented to the court en banc is whether an award of delay damages is proper under Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), where the trial court determined that the parties acted without fault and caused no undue delays in the litigation. Finding the delay damage award to be proper in this case, we affirm the judgment entered on the award.

The undisputed facts giving rise to this litigation relate that a complaint was filed by appellees against appellant on May 24, 1984.*fn1 The complaint alleged injuries to appellee, Janice Snelsire, as a result of her exit through a window, which was necessitated by a fire on the premises owned by appellant where Janice Snelsire resided with her husband, appellee, Gary Snelsire, and her three children. Gary Snelsire claimed medical expenses as well as the loss of the services and society of Janice Snelsire as a result of her injuries.

[ 384 Pa. Super. Page 87]

The original trial date was set for April 2, 1986. A continuance was granted on March 25, 1986, due to the illness of counsel for appellees. The matter was relisted for trial on the November 1986 trial list, a jury was chosen on November 17, 1986, and a verdict in the amount of one hundred forty-seven thousand dollars ($147,000.00) was rendered after trial on December 3, 1986.

On December 10, 1986, appellees filed a Petition to mold the verdict to add delay damages from February 6, 1985, which date was one year after the date of the accrual of the cause of action to March 25, 1986, the date on which the continuance was granted to the November 1986 trial list, in the amount of sixteen thousand nine hundred five dollars ($16,905.00), for a total verdict of one hundred sixty-three thousand nine hundred five dollars ($163,905.00). On December 16, 1986, a hearing was held on the Petition. Subsequently, by Order entered January 8, 1987, the trial court molded the verdict to add the requested delay damages. Judgment was entered on the delay damages portion of the verdict, only, the original verdict amount of one hundred forty-seven thousand dollars ($147,000.00) having been satisfied prior to the entry of said judgment. This appeal followed.

At the hearing on delay damages, the court expressed concern that "although it is not mandatory, the plaintiff is entitled to delay damages unless you have some of these other factors. And we don't have in this case any of those other factors." N.T. 8. "[T]hose other factors" referred to by the trial court (N.T. 8, supra) are what Craig required trial courts to consider in reaching their determinations concerning the awarding of delay damages. These include "the parties' respective responsibilities in requesting continuances, the parties' compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors." Craig at 65-66, 515 A.2d at 1353.

The trial court's entire reasoning for its decision to award delay damages to appellees is set ...


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