*1 478 A.2d and James Colodonato COLODONATO
Pauline v. CORPORATION, Appellant. RAIL
CONSOLIDATED Pennsylvania. Court of Superior Argued June 30, 1982. Filed Nov. May Appeal Granted
Petition for Allowance Media, McConchie, for George appellant. J. Philadelphia, Fitzpatrick, appellees. B. Henry WATKINS, JJ. CAVANAUGH, ROWLEY Before WATKINS, Judge: is an from the appeal Judgment
This of Delaware County Common Pleas award both compensatory were added to the jury’s and punitive damages.
This action in trespass arose out of the rape wife-appellee the suburban station in Philadelphia June 1976. The returned verdicts both jury plain- *2 tiffs. Mrs. was Colodonato awarded compensatory damages $250,000 of punitive $500,000. of Her husband $25,000 was awarded in damages. compensatory The issue before the court arises from motion to plaintiffs’ mold the verdict 238. The under Pa.R.C.P. is question whether Pa.R.C.P. for the of dam- providing imposition ages for circumstances, certain to delay applies of portion verdict jury’s that awarded punitive damages to Mrs. Colodonato. The awarded, court below without breakdown damages for on the total $750,- verdict of delay 000 in favor of Mrs. Colodonato. Of the total award for delay damages, $76,805.53 two-thirds or exactly was comput- ed on $500,000. the punitive damages of It is this sum that is in between the dispute and that parties subject is this appeal.
The part pertinent of Pa.R.C.P. 238 is as follows: “.. in. an action relief for seeking monetary bodily death or .. . court . . injury, property damage . shall (1) add to the amount of compensatory damages verdict of . a . . jury ten (10) percent annum, not per compounded, which shall become .. part the . verdict...”
Plaintiffs-appellees contend that the rule is meant to apply to both compensatory punitive damages. Since issue has never been court, before the the exact meaning of the rule must be ascertained from the sparse case law with that dealing particular rule and also rules construc- tion.
The distinction between
dam-
compensatory
ages
Liscio,
was
in Esmond v.
209 Pa.
explained
Ct.
Superior
200, 224
(1966).
decision,
A.2d 793
In that
it was held that
“punitive damages
in no
sense intended as compensation
to
injured plaintiff.
are,
a
They
rather,
penalty, im-
posed
punish the
and to deter him
defendant
and others
of The function
conduct”.
from ‘outrageous’
loss
“to shift the
hand,
primarily
on the other
damages,
one
at fault”.
who is
party
innocent
wholly
from
127:
to Pa.R.C.P.
According
all
and free from
a rule are clear
the words of
“... When
under
disregarded
is not to be
letter of it
ambiguity,
its spirit.”
of pursuing
the pretext
light
provisions
reads Pa.R.C.P.
If one
are to
it
clear that
Pa.R.C.P.
becomes
damages only.
computed
be
enunciated Lauden-
288 were
The
of Pa.R.C.P.
purposes
Pa.
County,
of Allegheny
berger
Authority
v. Port
constitutionality
(1981),
upheld
Order reversed Jurisdiction retained. this opinion. accordance with J., dissenting opinion. a CAVANAUGH, files CAVANAUGH, dissenting: Judge, a callous disre- this case showed I The facts of dissent. and fully on the of Conrail part safety for gard public damages. punitive award of substantial justified jury’s verdict, the lower court molded the verdict Following for No. 238 at the adding damages under Pa.R.C.P. rate of per 10% annum from October 1979 to April 1981.1 The court rejected Conrail’s Rule 238 argument did not authorize the of on the computation punitive damages and was entered in favor of judgment Pauline $865,208.29 Colodonato in the amount (including $115,208.29of delay damages) and favor of James Colodo nato in $28,840.22 the amount $3,840.22 (including delay damages). Conrail has from the appealed judgment favor of Pauline Colodonato insofar as it includes damages for delay computed sum of damages—a $76,805.53is thus in dispute.
When rule, statute or other be promulgation must interpreted the first step to examine the language rule.2 Rule 238 provides part:
“Award of Damages in an Action Delay for Bodily Injury, Death or Damage. Property (a) Except provided (e), in subdivision in an action relief seeking monetary death bodily injury, or proper- or ty thereof, combination damage, court . .. shall
(1) add to the amount in the compensatory damages arbitrators, award of the of a or verdict jury, court’s trial, decision in a nonjury ten (10) annum, not percent per which shall compounded, become award, decision; part verdict or *4 If (e) a defendant at time to trial any prior makes a written offer of settlement in a specified sum with prompt cash to the and payment plaintiff, continues that offer in effect trial, until commencement of but the offer is not accepted and the award, does not recover by decision, verdict or exclusive of damages for delay, more prior 1. At no time to had trial defendant made offer to settle this case. See Motion to Mold and Defendant’s Verdict Answer at R 2a 238(e) (f). and 3a. See Pa.R.C.P. 2. Pa.R.C.P. No. 127. the arbitrators offer, the court or of the percent
than 125 the after period for damages delay shall not award date the offer was made. that the words “add
It is position majority damages mean that damages” the amount of compensatory damages on the computed compensatory for shall be delay not punitive damages. only not obvious, the Rule does however, is that immediately It on”; chose the rather, the Court Supreme say “computed for quite It would have been simple words “add to”. shall be “comput- court to have directed It did damages”. ed on the amount of the not; statutory construction precepts and the fundamental set out specific guidelines as well as the in No. 127 its rules Pa.R.C.P. the construction of Court for of the effect to all give provisions that we require “add the amount of the words rule—here specifically compensatory damages.” Rule addition, in structuring it those circumstances specified a section in which
included provides: not to Section apply. (g) in which the rule was not This rule shall (g) apply domain (1) proceedings; eminent in damages actions (2) pending this rule. in the absence of allowable section punitive damages could have included The court that the not; indicates and I believe omission It did (g). from the damages not intend to exclude court did rule. of the application Rule is that the language
The meaning plain computed upon should be amount of delay The awarded. any punitive damages entire award including should be added to amount thus computed This accordingly. per- entered judgment since even delay, sensible fectly approach damages, are compensatory paying punitive to act a penalty. nature and not designed *5 The paramount in the precept construction of the Su- preme Court Rules is stated be:
The object of all interpretation construction rules is to ascertain and effectuate the intention of the Su preme Court.3
The Supreme Court is more explicit when it directs following matters be considered in ascertaining the intention of the Court:
(1) rule; occasion and necessity for (2) the circumstances under it which was promulgated; (3) remedied; mischief to be (4) object be attained.4 Fortunately Supreme Court itself has us informed all of these points when it discussed the occasion for the promulgation of Rule the mischief to be remedied and the object to be attained in the its course of opinion v. Laudenberger Port Authority al., et Allegheny County, 52, 58, 59, Pa. 436 A.2d 150, 151 (1981). There the court said: September, the Civil Procedural Rules Commit-
tee proposed Rule 238 to this Court for its review and promulgation. In the com- accompanying explanatory ments, the Committee stated:
The judicial has system long been vexed prob- lem of congestion and of civil disposition actions for or bodily death injury, property damages pending trial courts. Various techniques, such as arbitration, compulsory have helped dispose promptly of the bulk of such $10,000 cases amounts under Philadelphia and Allegheny $5,000 Counties and under in other counties which have adopted compulsory arbi- tration. Nevertheless, there is still a considerable resi- due of so-called major cases not presently subject to arbitration. 127(a). Pa.R.C.P. No. 127(c).
4. Pa.R.C.P. No. *6 from arbitration also the appeals There are in the trial court. further require proceedings are set- percent that... [t]hirty-eight show Statistics are settled through to trial. Some without going tled cases but in too techniques, many conciliation pre-trial after a trial commence only meaningful negotiations or in the steps the courthouse or on date fixed thus to courtroom, leading disposition present practice in the courts. The congestion and cases early for settlement. no incentive provides death or bodily injury, action the usual civil In suc- no to the compensation there is damage, property the no defendant against sanction plaintiff cessful of the action commencement between long delay the trial. *7 on the delay damages puni tive of portion eliminated, verdicts is then the motivation of defendants to make early settlements in punitive damage cases is eliminated. I view this as an dilution unnecessary of the impact of Rule and at the same time anomalous would, as it providing, better treatment for those whose conduct is outrageous to those compared whose conduct is merely negligent.
Nor has appellant advanced reason which persuades me that an entire of cases should be category removed from of application Rule 238. Appellant points to four consid- erations which it cites as of its supportive interpretation of the intent of the Court. Supreme
First, appellant out points that of purpose punitive is damages not to make the plaintiff (but whole rather to and punish deter). be, that we are may here However concerned not with the of purpose punitive damages but with the of purpose delay damages and the of purpose opinion: As lower court observed course of its particularly applicable “We feel that the is Rule ato case such as present one. ready From the time this matter was certified as through pre-trial for trial conference and settlement discussion negotiations, parties punitive all in interest were aware that integral part were an of the case. Because the serious case, circumstances involved the defendants knew full well exposure facing their jury empowered awarding compen- with satory punitive fact, damages. say punitive it is fair to that inextricably were entwined in this case.” can This purpose whole.6 tois make the plaintiff the computing be only accomplished by by the defendant. from the the entire sum withheld few cases include that Second, very asserts appellant if the rule accom- and therefore claims punitive damages of these the settlement prospects no plishes improvement no lost. privy been We cases not much will have however, even if the number on this point; statistics small, it be proportionately may cases is punitive damage punitive damage the number of that in an absolute sense is cases not insubstantial. backlog
Third, asserts that “majority appellant that there and contends cases” involve insured defendants one’s obtain- in Pennsylvania prohibits a public policy dam- of insurance by way indemnification ing is largely the intent of rule Thus, argued, it is ages. no I cases find damage anyway. frustrated in punitive reserved that the support supposition settlement the motivation for early to insurance companies the enactment of Rule cases it sought impart by fact, very Court dealt with this As a matter in the Lau- which was defendants pressed by argument complained case. There defendants denberger are without defendants who “Rule 238 also uninsured stings *8 The for investment.” the use of reserve funds responded: Court misstate they
As own language, evidenced by appellees’ their attention on concentrating the aim of the rule by one It that Rule 238 does the is true of rule. by-product in reserve insurance placed by on funds profits disgorge However, while some trials. up-coming companies uninsured, have nonethe- they in fact be defendants may the their tortious by the loss to less caused plaintiffs Uniform- to their victims. conduct and owe compensation may of “Although time be ‘in the nature the award for of 6. interest’, merely reality in it is an extension Laudenberger v. Port plaintiff damages necessary whole.” to make 66, County, 147, Authority Allegheny A.2d 154 of 496 Pa. 436 (1981).
487 plaintiffs the are the ly, parties prejudiced by long litigation process; whether the defendants are insured or uninsured does not lessen their loss.
496 Pa. at at 436 A.2d Fourth, appellant contends that the meant Supreme Court to punitive damage exclude cases from it sought get those to off the trial lists and out of judicial by system encourag- ing settlements because difficult evaluate—at they least more difficult than cases. I non-punitive reject this generalization out of hand. There are limitless gradations of difficulty the evaluation of cases settlement— whether involve or they punitive damages not. Punitive damage cases be one of case may which is difficult to type evaluate; cases involving multiple defendants can be anoth- er; cases involving another; serious can be liability questions cases of involving death a child another. In those cases the defendants have to make a may effort evalu- special ate will case—presumably if know will be they they they don’t; if paying delay contrariwise, if they defendant those of cases will types knows it not be it can paying delay damage—that keep money invest it—there is no effort, motivation for it to make any effort, let alone a to evaluate case so special that an offer settlement be may made.
Having determined primary purpose that the of the rule— alleviation of congestion best be courts—can achieved not excluding damage cases from its application found having countervailing no I now disadvantage examine the second of the rule which purpose provide to the compensation this plaintiff.7 purpose Obviously, “In bodily injury, property the usual civil action for or death damage, compensation there is no to the successful and no against long delay sanction defendant between com Explanatory mencement of the action and the trial.” Notes of Committee, (1978). Pa.Civil Procedural Rules Pa. Bulletin Laudenberger al., Authority Allegheny County, supra, v. Port et Pa. Pennsylvania at 436 A.2d 151. The “Undeniably referred to Rule as follows: this rule serves to *9 compensate inability plaintiff rightfully the to utilize funds due him...” 488 plaintiff if the is fully compen- will be better served rule damages Punitive partially compensated.
sated rather than and the damages money compensatory are no less real than a benefit is no less of damages interest earned on punitive earned on compensatory than the interest defendant of the use of is no less deprived damages plaintiff one than of the other. direction that this context the Court’s
Viewed in ... damages the amount of compensatory court “add it directs is understandable: thoroughly damages delay” dam- to the compensatory that the be added the delay damages are—compen- that is what ages because who has been are to compensate plaintiff sation. They well as the as damages denied the use of punitive damages. compensatory of the on the language the majority
The reliance by damages that Laudenberger, supra, Supreme Court neces the compensatory damages are “an extension of delay whole” misconstrues the point sary plaintiff make no are i.e., making, damages is Supreme Court to make' designed damages different from other sustained” wrong done or injury “for an whole plaintiff wrong perpe derivative “secondary which in this case is Lauden settlement.” delaying the defendant trated New Jersey Pennsylvania Both the berger, supra. as a withholding sepa have viewed the Courts wrong.9 or “second” rate, derivative”8 “secondary, payment The delay dam with the “inextricably entwined” as as the just long just wrong was ages is and if the payment he this is11 says as the compensated to be Laudenberger, supra. 8. dismissed, Levine, (1973), appeal
9. Busik v.
The hand, on the other have suffered no wrong. tortfeasors, are not They, de unjustly prived compensation the course of during del pretrial ays.12
I would hold that the court below added to the properly delay damages which it computed both the punitive portions of the verdict would accordingly affirm its order.
HOANG KHAI Superior Court of Pennsylvania.
Argued 16, Nov. 1981.
Filed Dec. 1982. Petition Appeal for Allowance May Denied 1983. Laudenberger al., Authority Allegheny County, v. Port et Pa. at A.2d notes These (1978). explanatory Pa. Bulletin 2668 or this adopted promulgated by not officially have been How- of the rule. Court, do constitute part nor they and motivation behind the ever, indicate the they spirit rule, guidelines serve as they drafting rule draft- for which the was the understanding purpose ed. went on to the Court Articulating purpose state: to the compensate this rule serves Undeniably, him, funds due but rightfully to utilize inability the alleviate rule is to the basic aim cases, lessening congestion thereby disposition courts. at 436 A.2d 496 Pa. identification with clear We are thus furnished by eradicate sought which the problem viz., caused congestion of Rule court promulgation relief for seeking monetary the failure to of cases dispose or combination damage death or bodily injury, property things scheme of some cases seek- thereof. the ordinary punitive damages a claim for such relief will include ing case does—and this damages—as addition to compensatory some cases will seek Even compensatory damages. only briefest reflection on of the rule the mechanics will reveal that if imposed are be on the compensato ry portion of a verdict holds, only, majority Supreme Court’s purpose promulgating rule will be in all thwarted where punitive cases sought. This is so sections; because cases cannot be settled in plain tiffs cannot be an expected accept offer to settle the section a case (even though in a case given a plaintiff might offer to be regard reasonable as to and then damages) try punitive section.5 Moreover, if the calculation of