*1 60 disciplinary proceeding in an administrative

Commonwealth development, we licensing light board. by a Kindle matter to the State Board Nurse remanded of the laches issue. Consistent resolution Examiners Kindle, now reverse the order Common- we Real remand instant State Court and case wealth applicability for a determination of Commission Estate of laches.

HUTCHINSON, J., dissenting opinion files a J., C.J., FLAHERTY, NIX, join. Justice,

HUTCHINSON, dissenting. dissenting in my the reasons contained I dissent Commonwealth, Nurse Examin- State Board opinion Kindle, v. 44, ers (1986). 512 Pa. 515 A.2d C.J., FLAHERTY, J., dissenting NIX, join opinion. A.2d Craig, Appellees, Joyce S.

Keith CRAIG and W. MEMORIAL REHABILITATION MAGEE

CENTER, Appellant, Hosfeld, Marjorie Defendant. Pennsylvania. Supreme Court of Argued 1985. Dec. Decided 1986. Oct. March Reargument Denied *2 Sullivan, Jr., appellant. Philadelphia, F. William Kessler, Philadelphia, appellees. Arnold M. McDERMOTT, LARSEN, FLAHERTY,

NIX, C.J., and PAPADAKOS, HUTCHINSON, JJ. ZAPPALA and OPINION McDERMOTT, Justice. in a jury a medical action malpractice

This is appellees against defendant a verdict favor of returned herein, Center, appellant Rehabilitation Magee Memorial $50,000. against appel- also found jury the amount M.D., Hosfeld, on Marjorie lees and favor of court thereafter liability. trial allegations joint Rule of delay pursuant Pennsylvania added Superior af- appeal, Procedure 238. On Court Civil curiam. per appel- firmed, We review to consider granted 238.1 concerning lant’s claim Pennsylvania provides: Rule of Civil Procedure 238 (e), seeking (a) Except provided in an as in subdivision action bodily damage, monetary injury, property death relief for thereof, appointed under court or arbitrators combination amended, June 5 P.S. Arbitration Act of P.L. *3 Malpractice seq., Act of October et or the Health Care Services § 30 1975, 390, 15, seq., P.S. et shall § P.L. 1301.101 (1) compensatory damages in the award of add to the amount arbitrators, jury, of a or in the court’s decision in the verdict of the nonjury annum, trial, (10) per damages delay percent not for at ten award, part compounded, decision; shall become of the verdict which (2) damages delay plaintiff compute the date for from the year after complaint a date one the initial in the action from filed later, action, up date is to the of the cause of whichever the accrual award, or decision. verdict damages (b) the amount of under the Act arbitration determining delay the amount be included in whether for shall not controversy jurisdiction within the of the arbitrators. in (e), (c) damages delay Except provided in shall subdivision for award, against defendants verdict or decision all be added liable, joined in action. matter when found shall, charge (d) party may, request and on of a court plaintiff plaintiff, it not award the jury that if it for the shall finds court. any damages a matter for the because (e) offer prior to makes written If a at time trial prompt payment to the specified cash in a sum of settlement plaintiff, in effect until commencement and continues that offer trial, not recover accepted not and the does offer is award, damages delay, more decision exclusive of verdict or offer, percent arbitrators shall the court or the than 125 was period the date the offer for the after award made. The facts of the instant action are as follows. The in wife-plaintiff originally injured was an automobile acci- dent, in resulting legs. the loss of motor function both facilities, After four months of treatment at other she was Center, un- Magee transferred to Memorial Rehabilitation Marjorie receiving der the care of Dr. Hosfeld. While there, Craig injuries treatment Mrs. suffered when she coming sustained a burn as the result of into contact with being an air blower was utilized in the of a treatment This decubitis ulcer. occurred of 1974. May In April, plaintiffs against instituted suit the Magee However, Dr. Center and Hosfeld. it was not until Decem- ber, 1980, that the case came to A trial. mistrial was time, occasioned at that January, and it was not until that the case was tried to conclusion before a in the jury Court of Common Pleas of Philadelphia. pre-trial litigation frequent record of the reveals and lengthy post- ponements, continuances, delays requests for many appellees, plaintiffs attributable to below. The trial ended However, the vindication of Dr. jury Hosfeld. found Magee Center liable and awarded the mentioned above verdict. the jury’s Since verdict exceeded the defendants’ 25%,2 last offer of settlement more than delay damages $16,450 imposed were pursuant to Rule 238. Appellant filed post-trial motions asserting, among other things, the unconstitutionality of Rule 238. These motions were denied and the verdict appeal. was affirmed on Both lower courts appellant’s dismissed Rule 238 arguments, *4 (f) rule, pending If an action is on the effective of date or if brought an action is after the effective date on a cause of action date, prior damages delay which accrued to the effective for shall be computed complaint from the date files the initial or from action, year a date one after the accrual of the cause of or from a (6) rule, date six months after the effective date of this whichever date is later. (g) apply This rule shall not (1) proceedings; eminent domain (2) pending damages delay actions in which are allowable in

the absence of this rule. 2. The defense $25,000. of offer settlement was of this Court in v. Laudenberger on the decision

relying 496 Pa. 436 A.2d Authority Allegheny County, Port (1981). petition granted allocatur to reexam- Upon we id., ine and Rule 238.3 Laudenberger, as an exercise of this Court’s promulgated Rule 238 was that experiment It was a rule-making authority. bold reasonable, It reason- salutary equitable. was seemed unrea- sought it to clear dockets cluttered able because It was salutary was owed. pay sonable refusals what denying it what was penalty profiting by that provided for loss equitable compensated it due. It was because tortious an refusal to correct a caused unreasonable injury. Laudenberger Court faced experiment.

It was an They of the Rule. shortly promulgation after the challenge faced, upon an on the face attack Rule again, as we now Protection, Process and the conten- Equal Due grounds of cover, into under slipped, tion that this Court definitive substantive law. an rea- accepted underlying Laudenberger Court deliberate, profitable was

son for the Rule that there that refusal to accepts If one part on of tortfeasors. motives, wrong such then no always prompted by settle is wrongdoer, Laudenberger done and the rationale then and argument presented settled the would have always. face promulgation, the Rule’s we years

Now seven after challenges, a different set previous not only here facts, The facts perspective. from a different viewed argues are coin: defendant below the obverse his; that the was that there but not delay, was does not Appellant argue fault plaintiffs below. reasonable, salutary, the sanctions Rule and equitable. Corp., A.2d 475 Rail 504 Pa. Colodonato Consolidated rejected argument (1983), involving also we a case compensatory damages amount of punitive included in the were to be calculated. damages upon which are Rule 238 *5 procedural rule contending point is no

There fault, consistent yet without punishes exist that may arguing that a point is there Process. Neither Due with qua a defendant punishes rule that of duties enlargement of a substantive not smack does Laudenberger, the rationales of do not overrule We owed. ends in the context of the of their own they vitality experience the Rule because today suspend We sought. sought tight gauntlet run too the ends shows fault Process, of a forum to assess by denial through Due short, In Rule 238 has sought to avoided. delay for the be that all fault lies presumption an uncontestable become such is many why are too reasons a defendant. There so not case; always may is not be and what always follows. penalty when irrebuttable opportunity observation Having had now 238,4 herein with being presented of Rule workings the Rule’s sharp frames in relief a factual context which mandatory provi those operation, we direct that inequitable damages against assess sions of Rule as of this suspended to fault are regard defendants without of this in the courts Com pending date for all cases now monwealth, hereafter. any and for cases instituted that claims for its stead we direct of a days jury within five presented by petition are to be thereafter days five or arbitration award. Within verdict plaintiff’s If the shall be due. respondent’s answer verdict, presid judge from a recovery jury resulted and answer. petition the trial is to consider the ed over decision, hearing hold a reaching judge Prior plaintiff’s recovery If the disputes. factual any to resolve parties’ petition proceeding, from an resulted arbitration arbitra to the next available and answer shall be submitted to resolve hearing shall be conducted panel, tion and a part as follows: Explanatory to Pa.R.C.P. 238 states Comment it will serve the Experience will indicate whether under the Rule stimulating early of claims and purpose settlement intended reducing congestion in the courts. rendered, a decision shall Thereafter disputes. factual *6 with Pa.R. damages consistent delay awarding denying 238(a)(1). Civ.P. entitlement plaintiffs a decision on a making time the start length of between the mere

delay criterion. the sole verdict is not and the ing date5 responsi respective parties’ consider: the finder shall fact continuances, compliance the parties’ in requesting bilities responsibilities discovery; respective rules of parties; additional of joinder necessitated factors. pertinent other above, of the manda- suspension indicated

As we effect given prospective Rule 238 is to be tory provisions in the appellate are now cases parties Those whose only. on the asserted attacks have not process, who post-trial award, assert not now damage aspect Rule 238 However, the issue in those cases where challenges. such case resides whom the the court before preserved, has been in a manner the issue date is to resolve or after this on opinion. with this consistent in effect until a to remain in this matter is directive Our The issue promulgated. can be delay damages on new Rule of the Civil to the attention brought immediately will be consideration. for their Rules Committee Procedural reversed, Court is Superior order of the Accordingly, Pleas of Common to the Court matter is remanded and the opinion. this consistent with proceedings Philadelphia files a J., result and HUTCHINSON, concurs concurring opinion. separate in which J., dissenting opinion LARSEN, files a PAPADAKOS, J., joins.

HUTCHINSON, concurring. Judge, case, suspension result I as to the concur view my to reiterate separately but write Pa.R.C.P. 238(a)(2). Pa.R.Civ.P. 5. See are outside substantive issues which rule addresses

that the and, therefore, inappropriate rule-making jurisdiction our rules committee. consideration effect, into after Rule Pa.R.C.P. went years Now six rule has acknowledging that this well-intentioned arewe rights of defendants under process the due violated Constitution, Kline, 412 U.S. Vlandis United States (1973),1 and altered the sub- 37 L.Ed.2d 93 S.Ct. our Constitu- litigants violation of own rights stantive designed expedite judicial process The rule was tion. the adverse effect of plaintiffs of injured and to relieve creating presumption an irrebutable delay by unreasonable litiga- in tort only are the source that defendants tion. *7 to greater sensitivity the need for

This case demonstrates separation powers the constitutional behind policy rule-making power The exercising rule-making power. our V, 10(c) Pennsylvania in Article of the Consti is embodied § to power pre shall Supreme “The Court tution: procedure general governing practice, rules scribe added), reserv (emphasis of all courts. . . .” the conduct the determination Assembly to the General ing provision, rights litigants. Under substantive left to the concerning damage delay best general rule Court, Speaking for the Justice Stewart said: permanent presumption of nonresi- irrebuttable We hold ... legit- adopted by preserve that Connecticut dence —the means Clause, because it Process imate interest —is violative of Due applied of State provides opportunity from out for students they fide Connecticut resi- have become bona to demonstrate dents. 453, (Weinberger Subsequent v. cases 412 U.S. at 93 S.Ct. at 2237. 2457, (1975), 749, Elkins v. Salfi, 522 422 U.S. 95 S.Ct. 45 L.Ed.2d 647, 1338, (1978), Moreno, Plyler v. L.Ed.2d 614 U.S. 98 S.Ct. 55 435 202, 2382, (1982), Doe, Toll v. 72 L.Ed.2d 786 U.S. 102 S.Ct. 457 2977, 1, (1982), Moreno, v. 102 S.Ct. L.Ed.2d 563 458 U.S. Martinez 1838, (1983) 321, our Bynum, 103 S.Ct. 75 L.Ed.2d 879 461 U.S. Commonwealth, Moly- opinion Department Public Welfare (1982)) scope neaux, A.2d 730 have limited 498 Pa. rational permit legislative based on a classifications Vlandis so as to principle underlying still relationship governmental goals but the applies. legislature, judiciary but the remains free to give substan- relief its against consequences tive on a case case basis. of restraining wisdom ourselves to the common law’s specific altering case method of rights substantive is shown experience our with this Rule. connection, In this the comments of Justice Roberts’ (later Roberts) Chief Justice dissent in Laudenberger v. Authority Port 496 Pa. 436 A.2d Allegheny, (1981) appropriate: are most of Rule compounded unfairness 238 further by its defendants, of duties and sanctions

imposition only upon If upon plaintiffs. object of the Rule is to discourage delay, the Rule should not only require de- offers, fendants to make reasonable settlement but also should require plaintiffs to make reasonable demands. party Failure of either to make a effort reasonable imposition settle should result in the of similar sanctions.

Ill that, Thus it is clear promulgating majority of this upon misguided, Court embarked improper jour- ney, its wholly beyond constitutional rulemak- result, ing authority. As a the lawmaking function of our Legislature too, has improperly usurped. been So tres- pass litigants needlessly subjected have been to unfair treatment.

Id., 496 Pa. at 436 A.2d at 160-161.

Today’s opinion notes the properly salutary rationale and purpose of a salutary goal enough Pa.R.C.P. is not Courts, to override basic constitutional restraints. more institution, than other making recognize law should We, all, this. not to deal ought cavalierly above with the constitutional of a coordinate authority prospec- branch tively generally rights. determine and define substantive The of dealt problem delay litigation properly tort can be law, with judiciary which sets standards its case case, allowing a trial judge, familiar with the facts of sanctions, exercise discretion in finan- applying appropriate

69 traditional otherwise, delay. This for unreasonable cial or adjustment permits reasoned process the judicial method of of level, judicial to this Court’s function subject the trial at review, intruding legislature’s pow- on the without appellate therefore, I, law statute. changing substantive er of result. concur

LARSEN, Justice, dissenting. conclu- opposition majority’s to: the

I to voice my write inequitable; suspension 238 is sion that Rule cases; and the majority’s all and future pending 238 for a forum and complete modified rule fashioning of a action precipitious for This delay. fault to assess procedure rule. It will purposes frustrate the worthwhile will expedi- to settle the incentive to tortfeasors serve to dilute and bodily injury, death brought actions tiously damage. property (1) it that: grounds Rule 238 on challenges appellant

The making of this Court authority rule exceeds (2) it litigants; rights of the substantive by modifying of the U.S. Consti- protection guarantees the equal violates Constitution; (3) it offends Pennsylvania tution and the that we con- arguments the same due These are process. ago years five in Laudenber- less than rejected sidered Pa. County, Authority Allegheny v. Port ger (1981). held that Rule Laudenberger we A.2d substantive abridge, enlarge modify invalidly did not due equal protection nor it violate substantive rights, did do not overrule states: “We process. Today majority vitality they Laudenberger, the rationales of 65). (At p. sought.” ends their own in the context readily is of this indistinct statement meaning embraces though majority apparent. It clear holds, con- directly arguments and previously discredited inequitable Rule 238 trary Laudenberger, this conclusion majority due reaches process. offends 238 as of Rule characterizing provisions by erroneously delay. for all as defendants for defendants punishment *9 This is not the case. As we observed in simply Laudenber- defendant can always protect himself from the ger, “[A] pre-judgment by extending assessment of interest a reason- Id., in timely settlement offer manner.” 496 Pa. able at 69-70, p. 436 A.2d at 156.1 in a pp. Delays coming case to trial, case, such as those which occurred in the instant are consequence to a defendant has made a reason- offer. It is where a only able settlement defendant chooses offer, make an settlement or to unreasonable fails to make that he be to the subject mandatory require- offer will In required ments of Rule 238.2 such case he will be to pay interest as mandated the rule. pre-judgment finding that the Rule violates due majority, pro- cess, that: has an states become uncontestible “[R]ule presumption delay] that all fault lies with a defendant.” [for This conclusion misses the of Rule 238. A point plaintiff, motions, tactics, through dilatory continuances and other responsible causing in a claim to may coming be may plaintiff wilfully trial. It be incontrovertible that a If, engaged precipitating lengthy delay. conduct how- ever, early such a case the defendant makes a reasonable open plaintiff offer of settlement which remains to the until trial,3 the commencement of running pre-judgment any particular 1. What constitutes a reasonable settlement offer in case defendant, subjective judgment is not to the left objective provides the court. Rule 238 criteria that an offer that is (80%) eighty percent or more of an eventual verdict is reasonable and (80%) eighty percent, meet if it falls short of it fails to the standard reasonableness. practices 2. Human nature and usual business tend to motivate a tortfeasor, insurer, as or a tortfeasor’s to hold on to settlement monies long money possible provided do so. as that it does not cost more tortfeasor, insurer, reaps situations where the tortfeasor’s funds, holding financial benefits to these the incentive to from on postpone strong. opera- a reasonable settlement offer is Without interest, pre-judgment it tion of Rule 238 and the assessment of early, behooves defendants not to settle but to retain funds earmarked long possible that revenues for claims settlement as so generated designed Rule 238 is from investment of those funds. replace funds to the last hour and it remove the incentive to retain pay promptly. with an incentive settle and meritorious claims 238(e) provides: 3. Rule

71 not tolled. defendant is Rule is The under interest of the offer. 238 interest after the date to pay made circumstances, Further, the would be true such same under defendant, and through dilatory motions where the even claim. The assessment of tactics, resolution of the delays in for the punishment interest not pre-judgment the Rule arises The interest mandated reaching trial. make a offer of failure to reasonable from the defendant’s it is a punishment,4 not a of question It settlement. plaintiff the whole.5 making matter of to a monetary can of benefit Realistically, delay be meritorious claim causes plaintiff If a with a plaintiff. monies, rightful- are he is himself of which delay, depriving his, benefiting in the are the hands ly which rejecting plaintiff delay by does cause defendant. Where (e) prior If a at to trial makes written offer defendant time specified payment prompt cash to the of settlement in a sum plaintiff, trial, effect commencement of continues that offer in until plaintiff accepted not decision, the does not recover but the offer is award, delay, damages for more verdict or exclusive offer, percent court or arbitrators shall not than the period after the date the offer was award for the made. for, empowered punishment 4. Where be called Courts are impose party engages dilatory on a conduct while an sanctions 2503(7) pending. example action is For see 42 Pa.C.S.A. § provides: following participants The coun- shall entitled to reasonable part sel fee of the taxable costs of matter: (7) Any participant who as a is awarded counsel fees sanction dilatory, against participant another obdurate or vexatious con- during pendency duct of a matter. order Also see Pa.R.C.P. 4019 which authorizes court to sanctions party by pre-trial discovery rules. when a fails to abide money indemnify he serves to would 5. "[Rule 238] promptly it.” earned on his award if he had received Laudenber- supra. Roy ger Authority Allegheny County, also Star v. Port See Cir., court, Co., Inc., (1st 1978) Chopper considering 584 F.2d 1124 where pre-judgment statute said: "Pre- a Rhode Island interest long dating judgment history, at interest statutes have a least from legitimate country held this ... and have been to serve purpose making injured party.” whole an offer,6 not only he loses the benefi- a reasonable settlement offered, he also right use of the monies loses the cial interest from the time the offer. pre-judgment it a point makes Rule 238 as an majority identify years duration. Without a shred of experiment of seven that the has majority experiment assumes evidence left to that the guess majority are reached worked. We upon single one this conclusion based case now before displeasure with the majority’s mandatory us. obvious against interest pre-judgment assessment of *11 in the case motivated the conclusion that apparently instant working. no that the Rule 238 is not There is evidence rule failing legitimate objectives. its is to achieve challenge

The that the to Rule 238 majority acknowledges same raised in this case is the as that in substantially time the supra. though, majority This Laudenberger, notes, entirely set of presented we are with an different facts in are differ- merely facts. But because the this case in from us is Laudenberger ent those which were before operation insufficient reason to the suspend and, effect, The Laudenberger. underlying overrule encourage prompt reason for Rule 238—to settlement of the same difference in regardless claims—remains the the facts. there the should be some

Apparently, majority believes the delay. majority rule which addresses matter provisions fit the of Rule 238 replace mandatory sees to post-trial involving petition and answer procedure with the who at the trial. When the presented judge presided to arbitrators, is by petition case heard a board of the the next arbitration presented answer are to be to available by which the 6. The of concern to Rule 238 is that is occasioned offer, make or the defendant’s failure to a reasonable settlement plaintiff rejecting offer. In the former case a reasonable settlement pre-judgment the deemed to caused is pre-judgment is tolled interest is In the latter case interest assessed. day Delay results causes as of of the offer. from other import to Rule 238. post-trial hearing may case a be held to In each board. disputes. resolve factual process and burdensome devised unnecessary

This purpose of Rule 238. original tends to defeat majority from claim step long road another With verdict, victim, is entitled to a injured recovery, an more Now a defendant will have an delay. faced him to hold onto the procedure enabling post-trial additional parties litigate due the while the monies verdict “comparative” in a sort of interest right pre-judgment of Rule 238 hearing.7 majority’s modification fault encourage litigation additional designed to be seems interest. discourage plaintiffs seeking pre-judgment from procedure trial in- Additionally, providing post for a hearing, majority judicial- answer and volving petition, adhering to the formal rule amends Rule 238 without ly If traditionally followed this court. making process eliminated, its amend- changed wants the rule majority in the fashion. repeal up customary ment or should be taken case, if offer appellant In this had made reasonable continued offer until the start of of settlement and *12 trial, interest pre-judgment assessment of Rule 238 would upon offer.8 Based day have been tolled from the not, Rule, and there- appellant did prescription fore, the interest assessed. right appellant pay it is

I dissent.

PAPADAKOS, J., dissenting opinion. joins compulsory plaintiff’s obtained in a In a case where a award was quite proceeding majority’s procedure is cumber- new arbitration newly presented con- petition be to a some. The and answer must board, may may not decide to hold a vened arbitration hearing question hearing. evidentiary is itself a Whether to hold an vigorously contested. $50,000.00, a reasonable jury was 8. Since the verdict in this case $40,000.00 appellant’s or more. The offer would have been settlement $25,000.00. highest offer was