This is an appeal from the Judgment of the Court of Common Pleas of Allegheny County, entered following an en banc Order denying appellant’s (Pittsburgh & Lake Erie Railroad Co.’s) motion for judgment non obstante veredic-to. Pa.R.App.P. 301(a). We affirm in a case of first impression.
On October 6, 1978, plaintiff-appellee (Howard H. Hum-phries) filed a complaint in trespass alleging, in relevant part, that:
THIRD: At all times relevant to this suit, the defendant[appellant] was a common carrier of freight for hire and by rail and was engaged in interstate commerce.
* * * * * *
FIFTH: Jurisdiction is conferred upon this court under and by virtue of the provisions of the Federal Employers’ Liability Act of Congress____
SIXTH: On or about May 19, 1978, at approximately 12:30 p.m., the plaintiff was performing his duties as a track laborer for the defendant on the defendant’s single main track, Mon River Bridge, Homestead, Pennsylvania. Plaintiff was engaged in work which was within the scope of his employment. The plaintiff, along with three other *122 servants of the defendant, was using a rail stretcher to perform his assigned duties. During the course of this activity, a bolt that was attached to the rail stretcher broke and the plaintiff was caused to fall to the ground by reason of the defendant’s negligence with the result that the plaintiff suffered severe injuries and damages
In conclusion, a claim for damages in an amount in excess of $10,000.00 was sought.
Thereafter, following the disposition of various pretrial items (e.g., interrogatories, statements and depositions), the case proceeded to trial and a jury found for the plaintiff in the amount of $12,400.00. The plaintiff followed this with a submission of a motion seeking prejudgment interest pursuant to Pennsylvania Rule of Civil Procedure No. 238. 1 The court entered an order that remolded the verdict by “adding delay damages in the amount of $3,203.00, reflecting a total award of $15,603.00.” What ensued was the filing of an *123 appeal questioning the propriety of the award as to the delay damages.
More particularly, the issue preserved for our review 2 concerns whether Pennsylvania’s Rule 238 may be invoked in a Federal Employers’ Liability Act 3 suit heard in a court of common pleas. We believe it can be.
Our discussion starts with the proposition that state courts are forbidden from discriminating against a federal cause of action. This prohibition is manifested in the supremacy clause of Article VI of the United States Constitution,
see Testa v. Katt,
Instantly, this means that “[s]ince [Humphries’] claim arises under a federal statute, whether prejudgment interest will be allowed is initially a question of federal law and not the law of the forum state.
See Wallis v. Pan American Petroleum Corporation,
Thus, we wish to emphasize that, albeit a federal court sitting in diversity must look to local law to determine the availability of prejudgment interest,
see Klaxon Co. v. Stentor Electric Mfg. Co.,
However, as is conceded by all concerned, and a review of the statute confirms this, the Federal Employers’ Liability Act makes neither a provision allowing nor forbidding prejudgment interest such as was awarded by the trial court here. Despite this absence of an unequivocal prohibition against interest in the Act itself, we have been directed to the general interest statute governing federal civil actions, 28 U.S.C. § 1961.
See Murphy v. Lehigh Valley R. Co.,
Interest shall be allowed on any money judgment in a civil case recovered in a district court____ Such interest shall be calculated from the date of the entry of the judgment, at the rate allowed by State law. 7
It is true that the preceding has been construed, in the context of the Federal Employers’ Liability Act in
Louisiana & Arkansas Ry. Co. v. Pratt,
Although the Fifth Circuit’s position in
Pratt
has been followed in a number of state courts,
8
we notice that most recently this stance, as it affects Section 1961 and federal causes of action in regard thereto, has been altered. For example, in
Olsen v. Shell Oil Co.,
In response to this diversity of opinion that had manifested itself in the circuit, the Court opted to renounce its former, unfavorable position on the issue of prejudgment interest and adopted, instead, a posture consonant with that espoused in Ellis v. Chevron U.S.A. Inc., 650 F.2d *127 94 (5th Cir.1981). In doing so, the Court made statements that are quite germane to the case at bar; viz.:
[I]n Ellis, an OCSLA wrongful death case, we upheld a denial of prejudgment interest once again, but only on the ground that the district court had “properly exercised its discretion.”650 F.2d at 98 . The panel there read 28 U.S.C. § 1961 as mandating postjudgment interest but also permitting prejudgment interest. Thus, it concluded that the district court “could have left intact its award of prejudgment interest if it found ‘other principles of law’ which justified the award ...” Id. (quoting Illinois Central Railroad Co. v. Texas Eastern Transmission Corp.,551 F.2d 943 , 944 (5th Cir.1977).
We think Ellis is the better view. Ellis reads the federal interest statute as permissive on the matter of prejudgment interest; Berry [v. Sladco, Inc.,495 F.2d 523 (5th Cir.1974)] and Aymond [v. Texaco, Inc.,554 F.2d 206 (5th Cir.1977) ] read it as prohibitory. The problem with the latter reading is that 28 U.S.C. § 1961 governs all civil actions in federal district courts, Gele v. Wilson,616 F.2d 146 , 148 (5th Cir.1980), except diversity cases, Degelos Bros. Grain Corp. v. Fireman’s Fund Insurance Co. of Texas,498 F.2d 1238 , 1239 (5th Cir. 1974), yet prejudgment interest has frequently been awarded in nondiversity cases without express statutory authority (for example, suits in the admiralty). Indeed, Berry and Aymond appear to contravene the almost universal view that “section 1961 does not by its silence bar the awarding of prejudgment interest ...” Bricklayers Pension Trust Fund v. Taiariol,671 F.2d 988 , 989 (6th Cir.1982) (citing cases).
Ellis indicated that an award of prejudgment interest in an OCSLA case might be justified by “other principles of law. ” We think the Louisiana statute providing for interest from the date of judicial demand, La.Rev.Stat. § 13:j203, is such a principle. Accordingly, we hold that where, as here, a district court awards prejudgment interest to a prevailing OCSLA *128 plaintiff whose remedy is based on surrogate state law, the award should not be disturbed on appeal if supported by that state law.
This holding, we believe, is consistent with the precepts of Rodrigue [v. Aetna Casualty & Surety Co.,395 U.S. 352 ,89 S.Ct. 1835 ,23 L.Ed.2d 360 (1969)] and [Chevron Oil Co. v.] Huson, [404 U.S. 97 ,92 S.Ct. 349 ,30 L.Ed.2d 296 (1971)]. Prejudgment interest, and inflationary measures, ought to be regarded as integral to each other and to the state law remedy, particularly when the final judgment is being entered, as it is here, more than a decade after the suits were originally filed. See General Motors Corp. v. Devex Corp.,461 U.S. 648 , 655-656 n. 10,103 S.Ct. 2058 , 2062-2063,76 L.Ed.2d 211 (1983). (Emphasis added) (Footnote omitted)
Drawing such a corollary from
Olsen
is not at odds with, and in fact seems to have been forecasted by, two United States Supreme Court rulings,
Louisville & Nashville Railroad Co. v. Stewart,
In Stewart, a cause of action under the FELA was brought in state court against the railroad company for negligently causing the death of the plaintiffs intestate, her husband. Two trials took place in which a lesser amount was obtained by the plaintiff after the second proceeding. Because a review by the state court proved *129 unsatisfactory to the railroad company and plaintiff, cross-appeals were filed to the Supreme Court. The railroad company complained that, among other things, the Kentucky court of appeals was not authorized to add 10% in damages to the amount of the award. In dismissing this averment, the Stewart Court held:
The first of the other objections is that the court of appeals was not authorized to add 10 per cent damages on the amount of the judgment, as it did. But the railroad company obtained a supersedeas, and the law of the state makes 10 per cent the cost of it to all persons if the judgment is affirmed. There was no obligation upon the state to provide for a suspension of the judgment, and nothing to prevent its making it costly in cases where ultimately the judgment is upheld. So, the state may allow interest upon a judgment from the time when it is rendered, if it provides appellate proceeding and the judgment is affirmed, as, but for such proceedings, interest would run as of course until the judgment was paid.
In Miles, the Supreme Court was elaborating upon the precursor to 28 U.S.C. § 1961, Section 966 of the Revised Statutes, originally enacted August 23, 1872, c. 118, § 8 (5 St. at Large, 518), and its scope of authority in the area of prejudgment interest; more succintly, assimilating into the federal statute state laws that condone the entry of “interest upon verdicts.” It stated its approval in the following terms:
At common law neither verdicts nor judgments bore interest; but by Revised Statutes, § 966, “interest shall be allowed on all judgments in civil cases, recovered in a circuit or district court, and may be levied by the marshal under process of execution issued thereon, in all cases where, by the law of the state in which such *130 court is held, interest may be levied under process of execution on judgments and recovered in the courts of such state, and it shall be calculated from the date of the judgment, at such rate as is allowed by law on judgments recovered in the courts of such state.” Did the case rest solely upon this statute, it is difficult to see how interest could be computed upon this verdict, inasmuch as the specific allowance of interest upon judgments would seem to exclude the inference that interest should be allowed upon verdicts before judgment. But by an act of the legislature of Pennsylvania, passed in 1859, it is declared to “be lawful for any party or parties in whose favor any verdict may be rendered for a specific sum of money to collect and receive interest upon such sum from the date of the verdict; and every general judgment entered upon such verdict, whether by a court of original jurisdiction or by the supreme court, shall be deemed and held to be a judgment of the sum found by the verdict, with interest thereon from the date of such finding.” We regard this statute as settling the question in favor of our jurisdiction. Section 966, while providing only for interest upon judgments, does not exclude the idea of a power in the several states to allow interest upon verdicts, and, where such allowance is expressly made by a state statute, we consider it a right given to a successful plaintiff of when he ought not to be deprived by a removal of his case to the federal court. The courts of the state and the federal courts sitting within the state should be in harmony upon this point. Both in Holden v. Trust Co.,100 U.S. 72 [25 L.Ed. 567 ], and in Ohio v. Frank [103 U.S.] 697 [26 L.Ed. 531 ] it was held that the question of interest is always one of local law. (Emphasis added).
Instantly, we are confronted, as was the Court in
Miles,
with assessing the impact of a Pennsylvania law (Rule 238 here, an 1859 statute there) upon the general interest statute governing federal actions. Consistent with the thinking implicit in
Miles,
we favor an approach that
*131
does not exclude the idea, notwithstanding Section 1961’s reference to interest on judgments only, of a state, which in our case would be the judiciary by constitutional mandate, promulgating a rule of law that permits the recoupment of prejudgment interest. In point of fact, our Supreme Court has done just that by forging Rule 238 into use. Thus, as did the Court in
Miles,
we equate this with a right given to a successful plaintiff, of which he ought not to be deprived of by an overly constrained reading of a federal statute on the subject of interest. And, “[t]he courts of the state and the federal courts sitting within the state should be in harmony upon this point.”
Massachusetts Benefit Association v. Miles, supra,
At this stage it also requires mention that even the author of the Pratt decision, which seems to be the polestar for defendant’s denunciation of Rule 238, refused to give the federal statute such a judicial glossing that it could not be read to accommodate “interest after verdict.” This is borne out by the following:
State statutes are superseded by the Federal Employers’ Liability Act only in so far as they are in conflict therewith, and said Liability Act does not legislate upon interest after verdict; hence it is not in conflict with any state statute that allows interest from the verdict. State and federal courts exercise concurrent jurisdiction over causes arising under the Federal Employers’ Liability Act; interest is essentially a question of local law; and, for purposes of harmony and uniformity of administration, state statutes relating to interest should be applied whenever it is practicable to do so. (Footnotes omitted)
We believe that the logic expressed in the preceding passage comports with the thinking of the United States
*132
Supreme Court in
Stewart
and
Miles,
which is that Section 1961 “does not exclude the power in several states to allow [prejudgment] interest ... where such allowance is expressly made by a state statute ____”
Massachusetts Benefit Association v. Miles, supra,
Accordingly, after assiduously scrutinizing the subject at hand in adherence with accepted practice,
see Rodgers v. United States,
Further, we believe that cases which declare that the acts of Congress supersede all state legislation on the subject of liability of railroad companies to their employees have nothing to do with the matter at hand. The Pennsyl
*133
vania procedural rule does not meddle with that. It deals only with
interest
on the monetary loss resulting from the damage or injury “compute[d] ... from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the ... verdict or decision [at 10% per annum.]” Pa.R.Civ.P. 238(a)(1)
&
(2). Additionally, it cannot be seriously contended that Congress did not anticipate suits in state courts on the question of interest under the FELA. Given Section 1961, and its interpretation by the federal courts, it seems plausible that Congress contemplated and accepted state procedure in advance.
See Louisville & Nashville Railroad Co. v. Stewart, supra; Massachusetts Benefit Association v. Miles, supra; see generally Dickinson v. Stiles,
Therefore, we do not perceive the Pennsylvania rule to be adverse to federal policy, for a state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to secure prejudgment interest.
See Robertson v. Wegmann,
Notwithstanding the aforesaid, as touched upon earlier in this Opinion, the Third Circuit’s acceptance in
Jarvis v. Johnson, supra,
of Rule 238 as a “substantive” appendage to Pennsylvania law goes a long way to discount defendant-appellant’s prophetic remarks, at least in this jurisdiction.
Cf. Murphy v. Lehigh Valley R. Co., supra,
Based on the above, we deem it unnecessary to embark on an extended discussion of the procedural/substantive dichotomy that has pervaded the courts of this land since the Supreme Court’s decision in
Erie R.R. Co. v. Tompkins,
Judgment affirmed.
Notes
. Pennsylvania Rule of Civil Procedure No. 238 provides, in pertinent part:
[I]n an action seeking monetary relief for bodily injury, death, or property damage, or any combination thereof, the court or the arbitrators ... shall
(1) add to the amount of compensatory damages in the ... verdict of the jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict, or decision;
(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of the action, which ever is later, up to the date of the award, verdict, or decision.
******
Except as provided in subdivision (3), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in this action.
******
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
. To the extent that the defendant demands that this Court resolve the constitutionality of Rule 238, we decline the invitation. Since this issue was not presented to the court below, we find the issue waived.
See Benson v. Penn Central Transportation Co.,
. 45 U.S.C. § 51 et seq. (hereinafter referred to as the Act or FELA).
. The Federal Employers’ Liability Act, which imposes liability upon railroad companies engaged in interstate commerce for injuries or wrongful death of their employees, provides that jurisdiction of the federal courts over actions brought under the Act shall be concurrent with that of the courts of the several states. 45 U.S.C. § 56.
.
Accord Robinson v. Watts Detective Agency,
. It is to be observed that our Supreme Court in
Laudenberger v. Port Authority of Allegheny County,
. Section 1961 was amended April 2, 1982, Pub.L. 97-164, Title III, § 302(a), 96 Stat. 55; September 13, 1982, Pub.L. 97-258, § 2(m)(l), 96 Stat. 1062; January 12, 1983, Pub.L. 97-452, § 2(d)(1), 96 Stat. 2478. However, because of the dates of the amendments, no more need be said than that they do not impact on the 1978 cause of action here.
.
Wicks v. Central Railroad Company of New Jersey,
. We would like to mention that Rule 238 has been referred to by our Supreme Court, in the course of sustaining its constitutional authority to enact same, in procedural terms. Yet, it has not been labelled as being totally devoid of substantive attributes.
See Laudenberger v. Port Authority of Allegheny County,