*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
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.,
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.
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
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