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ANGELO JISTARRI AND ANTHONY JISTARRI v. CHARLES FENTRESS (11/28/89)

filed: November 28, 1989.

ANGELO JISTARRI AND ANTHONY JISTARRI
v.
CHARLES FENTRESS, DELAWARE RIVER PORT AUTHORITY AND ANGELO JISTARRI. APPEAL OF CHARLES FENTRESS AND THE DELAWARE RIVER PORT AUTHORITY. ANGELO JISTARRI AND ANTHONY JISTARRI, APPELLANTS, V. CHARLES FENTRESS, DELAWARE RIVER PORT AUTHORITY AND ANGELO JISTARRI



Appeal from the Order Entered Docketed February 22, 1989 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4761 March 1978.

COUNSEL

Bruce W. McCullough, Philadelphia, for appellant (at 647) and appellee (at 825).

William M. Carlitz, Philadelphia, for appellant (at 835) and appellee (at 647).

Tamilia, Kelly and Cercone, JJ.

Author: Cercone

[ 390 Pa. Super. Page 210]

This is a consolidated appeal and cross-appeal from a final order docketed February 22, 1989 in the Court of Common

[ 390 Pa. Super. Page 211]

Pleas of Philadelphia County, Civil Division. The instant case arises out of a traffic accident that occurred on November 28, 1976. Plaintiffs/cross-appellants Angelo and Anthony Jistarri were involved in a collision with a motor vehicle operated by Charles Fentress, a Delaware River Port Authority employee. At the time of the accident, Mr. Fentress was acting within the course and scope of his employment. In May of 1982, a unanimous jury verdict awarded $350,000.00 to Anthony Jistarri and $15,000.00 to Angelo Jistarri for their personal injury claims. These amounts were molded to reflect no-fault benefits and delay damages which resulted in total awards of $417,872.92 to Anthony Jistarri and $11,108.35 to Angelo Jistarri. Defendants/appellants Fentress and the Delaware River Port Authority filed motions for judgment notwithstanding the verdict and requesting the grant of a new trial. The lower court sitting en banc dismissed these motions and entered judgment for the Jistarris. Defendants/appellants subsequently appealed to this court which reversed and remanded the case for a new trial. The Jistarris then appealed to our supreme court, which denied their petition for allocatur on August 28, 1987.*fn1

A new trial was held before the Honorable Charles A. Lord sitting with a jury. On March 21, 1988, the jury rendered a unanimous verdict in favor of Anthony and Angelo Jistarri who were awarded damages molded to $225,000.00 and $15,000.00 respectively. No appeal was taken from this verdict and damages were paid to the Jistarris as awarded. Promptly thereafter, the Jistarris requested delay damages pursuant to Pa.R.C.P. No. 238, 42 Pa.C.S.A. On December 15, 1988, the trial judge signed an order granting the Jistarris an undifferentiated total award of $278,068.79 in delay damages. Defendants/appellants then filed a petition to nullify the order because it had not been accepted by the lower court prothonotary. On February

[ 390 Pa. Super. Page 2121]

, 1989 the trial judge signed a new order which vacated the unentered order of December 15th, and required the prothonotary to docket delay damages in favor of Anthony and Angelo Jistarri in the amounts of $260,689.47 and $17,379.32 respectively. The February 1st order was not docketed until February 22, 1989.

In response, defendants/appellants timely filed the instant appeal contesting the time periods for which delay damages had been granted and challenging the constitutionality of Rule 238, supra. The Jistarris timely filed a cross-appeal alleging that the lower court erred in reducing the amount of delay damages by excluding certain periods of time for purposes of calculating interest. For the reasons set forth below, we affirm.

Defendants/appellants assert the following claims: (1) that the lower court correctly excluded from its award of delay damages the period during which plaintiffs/cross-appellants pursued a petition for allowance of appeal to our supreme court after a panel of this court had granted a new trial; (2) that the lower court correctly granted delay damages for the remainder of the time between the filing of the complaint and the second verdict; and (3) whether Rule 238, supra, violates the due process rights of defendants qua defendants. Plaintiffs/cross-appellants raise four additional questions: (4) whether Rule 238, supra, as revised November 7, 1988, is applicable to the instant action; (5) whether defendants/appellants are liable for delay damages; (6) whether the ...


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