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ANTHONY R. DELUCA v. CAROLYN J. SMALLER AND GOLDBRICK CO. (07/27/89)

filed: July 27, 1989.

ANTHONY R. DELUCA, ADMINISTRATOR DE BONIS NON OF THE ESTATE OF ANGELINA C. VIOLA, DECEASED, APPELLANT,
v.
CAROLYN J. SMALLER AND THE GOLDBRICK CO., INC., APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1660 November Term, 1982.

COUNSEL

Jack M. Bernard, Philadelphia, for appellant.

John T. Quinn, Philadelphia, for appellees.

Wieand, McEwen and Melinson, JJ.

Author: Wieand

[ 385 Pa. Super. Page 547]

This is an appeal from an order denying a petition to award delay damages pursuant to Pa.R.C.P. 238.

On December 15, 1981, Angelina Viola, a sixty-seven year old homemaker, was struck by a vehicle operated by Carolyn Smaller and owned by The Goldbrick Co., Inc. Viola died a short time after the accident, leaving as survivors an elderly husband and two adult sons. On November 9, 1982, the administrator of the decedent's estate commenced wrongful death and survival actions against the owner and operator of the offending vehicle. On September 23, 1987,

[ 385 Pa. Super. Page 548]

    a jury returned a verdict in favor of the plaintiff and against the defendants which resulted in an award of $84,000.00.*fn1 A petition for delay damages was filed, and oral argument thereon was entertained by the court. Thereafter, the petition was denied. This appeal followed by the plaintiff.

The trial court found that all delay in resolving the claim for Angelina Viola's death had been caused by her heirs. This finding was based, inter alia, upon the fact that the decedent's adult sons had started harassing Carolyn Smaller, the driver of the offending vehicle, immediately following the accident. This harassment, the court determined, had been sufficient to cause a reasonable person to apprehend imminent danger. It caused Smaller to move without leaving a forwarding address. Threats, the court found, had also been made upon defense counsel and increased the difficulty in settling the case. In addition, the decedent's heirs were uncooperative with their own counsel regarding settlement.

The petition and answer disclose that the defendant-appellees made numerous settlement offers, all of which were rejected. On September 29, 1982, before a complaint had been filed, an offer was made in the amount of $50,000.00. On November 22, 1982, the offer was increased to $60,000.00. On April 7, 1983, defendants' offer was increased to $65,000.00; and on October 19, 1983, the sum of $70,000.00 was offered. Negotiations for a structured settlement continued until July, 1984, when negotiations broke off. On September 3, 1987, an offer was made in the amount of $85,000.00. This was increased to $90,000.00 on September 16, 1987 and to $100,000.00 at the time of trial. All offers were rejected. The attitude of the decedent's sons, according to the trial judge, was that they would abjure any settlement and leave it to the jury to determine the value of the case. The jury's verdict, as we have observed, resulted in an award of $84,000.00.

[ 385 Pa. Super. Page 549]

The applicable law, when this case was decided by the trial court, had been stated by the Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In suspending the mandatory provisions of Pa.R.C.P. 238, the Court said it was impermissible to presume conclusively that all ...


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