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FRANK SHELLHAMER v. NADINE GREY (12/27/89)

filed: December 27, 1989.

FRANK SHELLHAMER, APPELLEE,
v.
NADINE GREY, APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD82-20452.

COUNSEL

Michael B. Kaleugher, Pittsburgh, for appellant.

Michael Balzarini, Pittsburgh, for appellee.

Wieand, Tamilia and Hester, JJ.

Author: Wieand

[ 390 Pa. Super. Page 124]

This is an appeal by a defendant from an order awarding delay damages under amended Pa.R.C.P. 238. The case is unusual because of the manner in which it wended its way through the courts while the rule was being amended, first by Supreme Court decision and secondly by an amended rule.

[ 390 Pa. Super. Page 125]

On June 26, 1981, Frank Shellhamer, age thirty-seven and mildly retarded, was struck by a car driven by Nadine Grey as Shellhamer attempted to cross a four-lane freeway in Mt. Lebanon, Allegheny County. Shellhamer incurred a skull injury which, even after surgery, augmented his mild retardation and made it more acute. On October 27, 1982, Shellhamer filed a complaint in trespass against Grey. On April 19, 1984, shortly before trial, Grey's insurance carrier offered in settlement the $25,000.00 limit of Grey's insurance policy. Shellhamer rejected the offer, and the matter proceeded to trial. On January 14, 1985, the jury returned a verdict in favor of Shellhamer, which, after adjustment on account of his contributory negligence, was molded as $233,750. Shellhamer petitioned for and was granted damages for delay pursuant to Pa.R.C.P. 238 in the amount of $36,929.34. The amount was calculated at the rate of ten (10%) percent per annum from the filing of the complaint on October 27, 1982 to May 8, 1984. Grey's post-trial motions were denied, and she appealed.

While this appeal was pending, the Supreme Court handed down its decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), which suspended the mandatory provisions of Rule 238 requiring the assessment of delay damages without regard to fault. Thereafter, the Court said, a plaintiff's right to delay damages was to be based on considerations of fault and was to be determined upon petition and answer.

Also during the pendency of Grey's appeal, the Superior Court decided Berry v. Anderson, 348 Pa. Super. 618, 502 A.2d 717 (1986), which held that "a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 238 after the date of the defendant's offer when the court determines that, because of the defendant's indigency, the offer was the full amount available for payment of the plaintiff's claim and it was impossible for the defendant to have offered more." Id., 348 Pa. Superior Ct. at 627, 502 A.2d at 722.

When Grey's appeal came before the Superior Court, the Court remanded the case to the trial court to redetermine

[ 390 Pa. Super. Page 126]

Shellhamer's right to delay damages in accordance with Craig and Berry. Shellhamer v. Grey, 359 Pa. Super. 499, 519 A.2d 462 (1986), allocatur ...


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