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filed: August 2, 1989.


Appeal from the Judgment entered July 8, 1987, Court of Common Pleas, Philadelphia County, Civil Division at No. 1830 July Term, 1982.


Robert J. Casey, Jr., Philadelphia, for Albert Einstein Medical Center, appellant.

Ronald L. Wolf, Philadelphia, for Schrock, appellee.

Paul R. Anapol, Philadelphia, amicus curiae.

James R. Farley, Pittsburgh, amicus curiae.

Carol N. Shepherd, Philadelphia, amicus curiae.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, McEwen,*fn* Olszewski, Montemuro, Popovich and Johnson, JJ. Brosky, Rowley and Montemuro, JJ., join Johnson, J. Cavanaugh, J., files a dissenting opinion, which is joined by Olszewski, J. Popovich, J., files a dissenting opinion. Cirillo, President Judge, files a dissenting statement.

Author: Johnson

[ 386 Pa. Super. Page 217]

Albert Einstein Medical Center, Daroff Division, appeals from the judgment of the Court of Common Pleas, Philadelphia County, awarding delay damages of $11,562.00 to Joseph R. Schrock. We originally granted en banc review to consider the question of whether the imposition of delay damages complied with the supreme court's decision of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) which suspended the application of the mandatory provisions of former Pa.R.C.P. 238 and introduced the principle of fault into the delay damage determination. However, prior to the resolution of this matter the supreme court revised former Pa.R.C.P. 238 in light of Craig, supra. See Pa.R.C.P. 238, Explanatory Comment, 519 Pa. LXXII, LXXV (1988). This court has determined that revised Pa.R.C.P. 238, effective as of November 7, 1988, is applicable to issues properly preserved and presented in cases pending on appeal on the effective date of the revised rule. King v. SEPTA, 383 Pa. Super. 420, 557 A.2d 11 (1989); Snelsire v. Moxon, 384 Pa. 85, 557 A.2d 785 (1989). Accordingly, revised Rule 238 is determinative of the issues before us. We affirm.

The facts giving rise to this appeal are as follows. On July 13, 1981, Schrock was admitted to the Medical Center and treated by Dr. Joseph Chapman for a gun shot wound in the leg. Two weeks later, on July 27, 1981, an x-ray report disclosed that the gun shot fractured Schrock's left femur. Schrock filed a complaint in trespass on July 15, 1982, alleging that, as a direct result of the "carelessness, negligence and gross negligence" of the Medical Center and Dr. Joseph L. Chapman in failing to recognize or identify

[ 386 Pa. Super. Page 218]

    the full extent of the injury for which he sought treatment on July 13, 1981, he incurred severe and disabling injuries. Schrock sought compensatory damages in excess of $20,000.00 together with interest, cost of suit and attorneys' fees. After trial by jury, a verdict was returned which exonerated Dr. Chapman*fn1 and found against the Medical Center and in favor of Schrock in the amount of $25,000.00. Pursuant to former Rule 238, delay damages of $11,562.00 were molded into the verdict for a total award of $36,562.00.

On appeal, the Medical Center challenges the constitutionality of awarding delay damages in this case because such an award, they allege, "imposes additional liability on a defendant in every case in which plaintiff's demand exceeds the verdict" and because Craig, supra, as implemented, "creates an impermissible classification between plaintiff and defendant by imposing additional liability on a defendant which is unreasonable and arbitrary and not substantially related to any legitimate objective." Medical Center's Brief at page 7, points C & D. Neither of these arguments were presented below nor were they addressed by the trial court. Accordingly, they are waived. Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa. Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed. 2d 149 (1985).

Next, the Medical Center contends that the trial court abused its discretion by finding that Schrock was not responsible for delay of trial. Essentially, the Medical Center argues that because Schrock's settlement demands were unreasonable, serious attempts to settle this case were thwarted and consequently resulted in the imposition of delay damages. Both parties, in their briefs, acknowledge that the lowest settlement demand made by Schrock was $50,000.00, twice the amount of the jury verdict.

A defendant's responsibility for the payment of delay damages is not contingent upon the parties reaching an amicable settlement agreement. A defendant is not subject

[ 386 Pa. Super. Page 219]

    to delay damages where the verdict, decision or award does not exceed his or her written offer by more than 125 percent. Rule 238(b)(1). The fact that a plaintiff refuses to make a demand reasonably close to the amount of the verdict and/or refuses to accept a viable offer by the defendant is irrelevant to whether an adequate offer was actually made.

Moreover, the plain language of Rule 238 makes clear that plaintiff's conduct will affect the delay damage award only where his or her conduct "caused the delay of trial." Pa.R.C.P. 238(b)(2) [Emphasis added]. The Explanatory Comment to rule 238 further states:

[w]ith respect to [plaintiff's] delay of the trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial.

Rule 238, Explanatory Comment 519 Pa. at LXXVI [Emphasis added]. While it is evident that the parties would have no reason to proceed to trial if they had settled the case, we do not perceive the failure of Schrock to make a more conservative settlement demand to be a procedural delay which actually prolonged the trial of this matter.

Finally, we address the Medical Center's claim that the trial court erred by assessing delay damages against them where the trial court found that the Medical Center was not responsible for delay of the trial. Rule 238 makes only two provisions for the reduction of a delay damage award. Delay damages may be avoided in their entirety where the verdict does not exceed the defendant's offer by more than 125 percent, Rule 238(b)(1), or the period of delay may be reduced by that time in which the plaintiff has contributed to the delay of trial, Rule 238(b)(2). We have also recognized in Berry v. Anderson, 348 Pa. Super. 618, 502 A.2d 717 (1986), which has not been superceded by the revised rule, that delay damages will not be awarded where the defendant has made an offer which exhausts his resources.

[ 386 Pa. Super. Page 220]

In the absence of these three circumstances, delay damages are awardable from the time the complaint is filed or one year after the accrual of the cause of action to the date of the verdict, award or decision. Rule 238(a)(2)(i). "The drafters of the revised rule 'have not allowed for the exclusion of periods of delay not caused by either party.'" King v. SEPTA, 383 Pa. Super. at 424, 557 A.2d at 13 quoting Miller v. Wise Business Forms, 381 Pa. Super. 236, 553 A.2d 443 (1989). Thus, delay caused by an overcrowding of the court system will not be subtracted from the period of delay chargeable against a defendant. Nor should it be, since the defendant has the ability to earn prejudgment interest upon the amount of the verdict, decision or award during the entire period that the plaintiff's claim is being litigated.

The highest settlement offer made by the Medical Center was $10,000.00, which is inadequate to relieve them of responsibility for delay damages under Rule 238(b)(1). Also, Schrock has not caused such delay of the trial as would require a reduction of the period of delay under Rule 238(b)(2). Therefore, in the absence of any fault by the parties, the trial court's determination awarding delay damages is proper. Since the Medical Center is not entitled to relief and Schrock has not challenged the trial court's award on appeal, it is unnecessary to remand this matter to the trial court for a recalculation of delay damages. King v. SEPTA, supra; Snelsire v. Moxon, supra.

Judgment affirmed.


Judgment affirmed.

[ 386 Pa. Super. Page 221]

CAVANAUGH, Judge, dissenting.

I dissent and would remand for a calculation of delay damages under New Rule 238 for the reasons set forth in my Dissenting Opinion in King v. Southeastern Pennsylvania Transportation Authority, 383 Pa. Super. 420, 557 A.2d 11 (1989.)

POPOVICH, Judge, dissenting.

This is an appeal from the judgment of the Court of Common Pleas of Philadelphia County awarding delay damages of $11,562.00 in favor of the appellee/Joseph R. Schrock and against the appellant/Albert Einstein Medical Center, Daroff Division.

I cannot join in the Majority's rationale for affirming the issuance of delay damages in the absence of "fault" ...

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