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filed: June 12, 1989.


Appeal from the Judgment of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 4710 Nov. Term 1978.


Stephen S. Dittmann, Philadelphia, for appellants.

Alan Greenberg, Philadelphia, 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 of this appeal. Cirillo, President Judge, and Olszewski, J., files concurring and dissenting statements. Rowley, J., joins the majority and files a concurring statement. Popovich, J., files a concurring and dissenting opinion.

Author: Brosky

[ 385 Pa. Super. Page 97]

This appeal is from the judgment entered on molded verdicts awarded in favor of appellees, Carl Rollins (hereinafter, "Rollins"), and Delores Rollins (hereinafter, "Mrs. Rollins"), and against appellants, Southeastern Pennsylvania Transportation Authority (hereinafter, "SEPTA"), and Robert Addison (hereinafter, "Addison"), and William Tindal, Jr. (hereinafter, "Tindal").*fn1 Appellants raise two interrelated issues before the court en banc. The first is whether they have a due process right to an evidentiary hearing to determine their responsibility for the payment of delay damages. Appellants' second contention assumes, for the purpose of argument, their liability for delay damages. However, they question whether delay damages should be allocable either jointly and severally as against all liable defendants or whether they should be apportioned only against a particular defendant's liability.

Pursuant to the mandate of Pa.R.C.P. 238, newly promulgated as the embodiment of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), we

[ 385 Pa. Super. Page 98]

    reverse and vacate the judgment entered on the award, as molded, and remand with instructions. Our reasoning follows.

The procedural genesis of this suit is a complaint filed on December 1, 1978, by appellees and Tindal against appellants as a result of an intersectional collision between a motor vehicle driven by Tindal and a SEPTA bus operated by appellant, Addison. Appellees were passengers in the Tindal vehicle.

Pursuant to Pa.R.C.P. 2252(d), appellant, SEPTA, filed New Matter joining Tindal as an additional defendant. By Order of June 15, 1979, the President Judge of the trial court stayed the instant litigation because Tindal's insurer, Safeguard Mutual Insurance Company, had become insolvent, as a result of which the Insurance Commissioner suspended Safeguard from conducting business in Pennsylvania. According to the Opinion of the trial court, this stay terminated on October 2, 1982.

Pursuant to a pre-trial conference, the trial court entered an Order dated November 2, 1984, which indicated that Rollins' wage loss was, as yet, unascertainable because requested copies of Rollins' tax returns had not been received by counsel for appellants.

A settlement figure for Mrs. Rollins of nine thousand dollars ($9,000.00) was recommended by the Court. However, at oral argument on post-trial motions, counsel for SEPTA conceded that it had never made a written offer of settlement. At a subsequent pre-trial conference, the trial court entered another Order dated December 7, 1984, indicating that Tindal's settlement offer to Rollins was the policy limit of fifteen thousand dollars ($15,000.00), and that an offer of two-thousand dollars ($2,000.00) by Tindal to Mrs. Rollins had also been made. At that time, the trial court granted a continuance for the period December 17, 1984, through December 30, 1984, because appellants' expert witness was unavailable for trial for this period of time.

[ 385 Pa. Super. Page 99]

Trial commenced on January 29, 1985, and terminated on February 5, 1985, culminating in a verdict in favor of appellees as follows: for Rollins, in the amount of seventy thousand dollars ($70,000.00); for Mrs. Rollins, in the amount of fifteen thousand dollars ($15,000.00) for her injuries due to the accident and in the amount of five thousand dollars ($5,000.00) for her derivative claim of loss of consortium. Tindal was determined to be seventy percent (70%) liable and both SEPTA and Addison together were found to be thirty percent (30%) negligent. On February 13, 1985 (by document filed February 15, 1985), the trial court molded the verdicts to reflect delay damages.

Post-trial motions for a new trial, which included a motion to reduce the molded verdicts, were filed on behalf of SEPTA and Addison and orally argued on November 4, 1985. By Order filed December 31, 1985, the trial court denied appellants' post-trial motions for a new trial and to reduce the molded verdicts and entered judgment on the verdicts, as earlier molded. From the judgment entered, an appeal was taken to this court on January 29, 1986, at No. 00291 Philadelphia, 1986. In a per curiam Memorandum Opinion filed January 21, 1987, 363 Pa. Super. 649, 522 A.2d 666 this court remanded for further proceedings consistent with Craig.

Following remand, the trial court, by Order entered March 19, 1987, vacated its previous Order filed December 31, 1985, and entered judgment on the verdicts as remolded, in the amount of ninety thousand, three dollars ($90,003.00) in favor of Rollins and twenty-five thousand, seven hundred fifteen dollars ($25,715.00) for Mrs. Rollins. This latter figure represents the aggregate amount for both the direct and the derivative claims made by Mrs. Rollins. Following entry of judgment on the verdicts as remolded, appellants once again appealed to this court.

As their threshold issue, appellants urge that, upon initial remand of this case by us for consideration in light of Craig, the trial court "failed to hold an evidentiary hearing

[ 385 Pa. Super. Page 100]

    or to make findings as to what extent . . . SEPTA was responsible for any alleged delay." Appellant's Brief, 6.

The basis for the trial court's reduction of delay damages and its consequent remolding of the verdicts on remand was its exclusion from the period of alleged delay the one hundred-eighty-seven-day stay imposed by the President Judge of the Philadelphia County Common Pleas Court as a result of the insolvency of Tindal's insurer, Safeguard Mutual Insurance Company. The trial court believed that the mere deduction of the period of time in which the litigation was stalled because of administrative concerns -- a period of delay for which neither party was responsible -- without further ascertainment of fault on the part of the respective parties for the balance of the delay period was tantamount to compliance with Craig. In short, the trial court simply deducted the period of time encompassed by the stay from the total time between one year following accrual of the cause of action and the date of verdict and then charged the balance of the time to appellants.

Appellants' dispute is two-fold. First, they contest their liability for delay damages at all; secondly, assuming that a court would find them liable for at least some delay, appellants seek a judicial determination as to the extent of their responsibility for delay damages. Appellants argue, in essence, that "the Trial Court has stopped short of the due process requirement [of holding an evidentiary hearing] as to . . . SEPTA to determine what period of delay is to be assessed against a particular defendant[,]" (Appellant's Brief, 7) i.e., against appellants and against Tindal, as well. They further charge the trial court with failing to "sufficiently evaluate the cause of the delay . . . ." Id.; emphasis in text. We interpret this to mean the failure of the trial court, in considering the total ...

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