The opinion of the court was delivered by: Ambrose, Chief District Judge.
Before the Court are Plaintiffs' post trial motion for delay damages and Defendant-Bobcat's opposition to same. [Docket entry nos. 177 and 190]. In addition, Plaintiffs filed a motion for costs under F.R.Civ.P 54(d) and Defendant-Bobcat filed a response in opposition as well as a motion to strike the Plaintiffs' bill of costs. [Docket entry nos. 178, 189, 191]. Having recently denied Defendant-Bobcat's motion for new trial, these motions are now ripe for decision.
1. Federal Court Jurisdiction and Delay Damages under Pa.R.Civ.P. 238
Defendant-Bobcat first claims that this court lacks jurisdiction to award delay damages, offering no further explanation or argument on this matter. I disagree.
Counsel for Defendant-Bobcat removed this case to federal court based on diversity of citizenship. In diversity cases, such as this one, federal courts possess jurisdiction over all substantive matters, which include delay damages. The Third Circuit has held:
We . . . hold that the Pennsylvania law on delay damages in tort, whether awarded under the suspended rule, Craig or the present Rule 238 is substantive for purposes of Erie R.R. v. Tompkins, [cite omitted]. Therefore, under Erie, it must be followed by federal courts sitting in diversity cases.
Fauber v. KEM Transportation and Equipment Co., Inc., 876 F.2d 327, 328 (3d Cir.1989). See also, Kirk v. Raymark Indus., Inc., 61 F.3d 147, 168 (3d Cir. 1995) (we reiterate that it is proper for a federal district court sitting in diversity to award delay damages to a plaintiff under Rule 238 of the Pennsylvania Rules of Civil Procedure).
2. Plaintiffs Did Not Delay
Next, Defendant-Bobcat claims that Plaintiffs should be charged with causing the delay from August 6, 2007 to the date of trial. Again, I disagree.
Under Pa.R.Civ.P. 238(a)(2) damages for delay shall be awarded, "for the period of time from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision." The original process was first served on July 17, 2005. Under Rule 238, delay damages would start to run on July 18, 2006 and continue to run up to the date of verdict (April 7, 2008). Factoring in an extra day for leap year in February of 2008, the total number of days subject to delay damages is 628 days. Rule 238(b)(1)(ii) states that this 628-day period of time shall exclude any time that a delay was caused by the plaintiff.
Trial was originally scheduled for July 31, 2007, but in May of 2007, due to court calendar conflicts, I moved the start date back one week to August 6, 2007. Plaintiffs' counsel filed a motion to continue the trial because he was scheduled to try another U.S. District Court case in Erie, Pennsylvania, on August 13, 2007 and the instant matter was expected to last 6 working days. In response to this motion, I scheduled the instant case for trial on September 24, 2007. Counsel for Defendant-Bobcat filed a motion to continue the trial because he had to be in state court for a trial that commenced on September 18, 2007. Following a conference with all parties, it was agreed that this trial would start on January 14, 2008. Ultimately, due to a number of court calendaring factors, one of which was the need to hold a Daubert hearing (which Defendant-Bobcat requested), a jury trial commenced on March 31, 2008, and concluded on April 7, 2007 with a verdict in Plaintiffs' favor. Given these facts, I do not find that Plaintiffs caused a delay from August 6, 2007 and thus, should receive delay damages for all 628 days.
3. Applicability of Delay Damages to Various Torts
Next, Defendant-Bobcat argues that Plaintiffs cannot recover delay damages on all portions of the verdict. I agree that Plaintiff, Roxana Altman, cannot recover delay damages on her loss of consortium award. See, Anchorstar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120 (1993), (delay damages are not recoverable in loss of consortium cases). Accordingly, the $600,000 awarded to Plaintiff, Roxana Altman, is not subject to delay damages. However, I find that Plaintiff, Thomas ...