United States District Court, E.D. Pennsylvania
ELIZABETH C. SNIDER, Individually and as Executrix of the Estate of DANIEL A. SNIDER, and LEE W. SNIDER, a minor, by his mother, ELIZABETH C. SNIDER Plaintiffs
STERLING AIRWAYS, INC., and CONTINENTAL MOTORS, INC., Defendants
MEMORANDUM AND ORDER
wrongful death/products liability action is once again before
the Court on Motion of the Plaintiffs for Delay Damages (Doc.
No. 429). In accordance with the following rationale, the
motion shall be granted.
a nearly four-week trial, a jury found in favor of the
Plaintiffs, the wife and young son of decedent Daniel Snider,
and against Defendant Continental Motors, Inc.
(“CMI”) finding CMI solely liable for Mr.
Snider's wrongful death in a 2010 plane crash. Damages in
the amount of $2, 753, 048.49 were awarded to Plaintiffs.
Post-trial, CMI moved for a new trial and/or to alter or
amend the judgment and renewed its previously-filed motion
for entry of judgment in its favor as a matter of law.
Finding no merit in either motion, this Court denied both. By
the motion now before us, Plaintiffs move for the entry of
delay damages pursuant to Pa. R. C.P. 238. Defendant CMI
opposes this motion and submits that it should either be
denied in its entirety or alternatively, that a significantly
lesser amount of such damages should be awarded.
Underlying Rule 238
by now well-settled that Rule 238 is deemed to be a
substantive rule of Pennsylvania law which must be followed
by federal courts sitting in diversity cases. Kirk v.
Raymark Industries, Inc., 61 F.3d 147, 168 (3d Cir.
1995)(citing Fauber v. KEM Transportation and Equipment
Co., 876 F.2d 327, 328 (3d Cir. 1989)); Barnes v.
Wal-Mart Stores, Inc., Civ. A. No. 06-1356, 2009 U.S.
Dist. LEXIS 44356 at * 3 (E.D. Pa. March 26, 2009);
Lancenese v. Vanderlans & Sons, Civ. A. No.
05-5951, 2009 U.S. Dist. LEXIS 3568 at *2 (E.D. Pa. Jan. 13,
2009). “Rule 238 permits a successful plaintiff in
certain civil actions to recover damages for delay,
i.e., interest on the amount of his or her
award.” Arthur v. Kuchar, 546 Pa. 12, 682 A.2d
1250, 1253 (1996).
purpose of Rule 238 is twofold: ‘(1) to alleviate delay
in the courts, and (2) to encourage defendants to settle
meritorious claims as soon as reasonably
possible.'” Id. (citing Pa. R. C. P. 238,
1988 Explanatory Comment, Laudenberger v. Port
Authority of Allegheny County, 496 Pa. 52, 436 A.2d
147 (1981), and Craig v. Magee Memorial Rehabilitation
Center, 512 Pa. 60, 515 A.2d 1350 (1986)); Krebs v.
United Refining Co., 2006 PA Super. 31, 46, 893 A.2d
776, 795 (Pa. Super. Ct. 2006). “Delay damages do not
penalize a defendant that chooses to go to court; they simply
do not permit a defendant to profit from holding money that
belongs to the plaintiff by requiring the defendant to
compensate the plaintiff for the loss of the use of that
money during the time the defendant held it.”
Shamnoski v. PG Energy, 2000 PA Super 367, 765 A.2d
297, 305-306 (Pa. Super. Ct. 2000)(quoting Costa v.
Lauderdale Beach Hotel, 534 Pa. 154, 626 A.2d 566, 570
Rule 238 reads as follows in pertinent part:
Rule 238. Damages for Delay in Actions for Bodily
Injury, Death or Property Damage
(a)(1) At the request of the plaintiff in a civil action
seeking monetary relief for bodily injury, death or property
damage, damages for delay shall be added to the amount of
compensatory damages awarded against each defendant or
additional defendant found to be liable to the plaintiff in
the verdict of a jury, in the decision of the court in a
nonjury trial or in the award of arbitrators appointed under
section 7361 of the Judicial Code, 42 Pa. C. S. §7361,
and shall become part of the verdict, decision or award.
(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.
(3) Damages for delay shall be calculated at the rate equal
to the prime rate as listed in the first edition of the Wall
Street Journal published for each calendar year for which the
damages are awarded, plus one percent, not compounded.
(b)(1) The period of time for which damages for delay shall
be calculated under subdivision (a)(2) shall exclude the
period of time, if any,
(i) after the defendant made a written offer which complied
with the requirements of subdivision (b)(2), provided that
the plaintiff obtained a recovery which did not exceed the