*1 structure, separately or or but that it err in pied charge, dismissing secured did thereof, portion burglary charge against with intent occupied Jackson. Accord- therein, the premis- ingly, portions commit a crime unless we affirm the of the trial open public granting are at the time to the or the court’s order es his motion to dis- or enter.” privileged trespass charge actor is licensed miss the and denying 3502(a). Thus, § to convict Jackson’s motion to Pa.C.S.A. dismiss the assault burglary, charge, portion Jackson of the Commonwealth reverse the of the trial prove have to that Jackson entered court’s order granting would Jackson’s motion to in- burglary the former marital residence with the dismiss the charge, and remand tent to commit crime therein. See Com to the trial court for further proceedings.4 Alston, 202, 206, v. monwealth Order reversed in and affirmed (1994). 1092, 1094 The intent to com A.2d part. proceed- Case remanded for further mit a crime not a for a required is element ings. relinquished. Jurisdiction finding contempt, of indirect criminal and above, a finding as outlined of indirect contempt requires proof
criminal of multi- PFA
ple relating elements order.
Thus, unique because there are elements criminal contempt to both indirect and MARLETTE, Richard A. and Sr. burglary, comparison passes Marlette, Wife, Marleen his test, sq, Bloclcburger prosecution for bur- Appellants glary does not run afoul of the Double v. Jeopardy Clause. FARM STATE MUTUAL AUTOMO Finally, we consider assault BILE INSURANCE COMPANY and charge. charged Jackson was with as Jordan, Appellees. Herman L. 2701(a)(3) sault under Section Code, provides Crimes which that “[a] Marlette, Richard A. and Sr. Marleen if person guilty of assault he at [] Marlette, Wife, Appellees his tempts by physical put menace to another v. in fear bodily injury.” of imminent serious State Mutual Automobile 2701(a)(3). 18 Pa.C.S.A. As discussed Company Insurance above, the PFA violation giving rise to the Herman L. Jordan. finding contempt of indirect criminal con presence viction was Jackson’s mar Appeal of Farm Mutual ital residence. None elements of Automobile Insurance that offense are shared with the elements Company, Appellant. such, simple assault. As the criminal Superior Pennsylvania. Court of prosecution on this charge proceed as well. Argued Dec. 2009. Filed Dec.
Thus, we conclude that the trial court did not err in dismissing trespass
charge refusing to dismiss the assault 1925(b) regarding Accordingly, Jackson also raises issues eluded his statement. Constitution of the Commonwealth of Penn- they purposes appeal. are waived for See sylvania estop- and the doctrine collateral Nobles, Commonwealth 51-52 pel. Appellee/Cross-Appellant's See Brief at 1925(b)(4)(vii). (Pa.Super.2008), Pa.R.A.P. However, 15-16. these issues were not in- *3 Carmody,
Sean J. Pittsburgh, for Mar- leen Richard Marlette. Rivetti, L. Pittsburgh,
Daniel for State Farm. MUSMANNO,
BEFORE: BENDER BOWES, JJ. MUSMANNO, OPINION BY J.: (“Mr. Marlette, Richard A. Sr. Mar- lette”) wife, and his Marleen Marlette (“Mrs. Marlette”), (collectively, “the Mar- lettes”) appeal from the directing Order1 Farm Mutual State Automobile Insurance (“State Farm”) Company pay the Mar- lettes in the amount of $28,223.76in underlying mo- uninsured (“UM”) torist case. In its cross-appeal,2 Farm challenges obligation delay damages in excess of its lim- review, its. After careful we vacate the judgment and remand a recalculation delay damages. case from an instant arises automo- 2, 2002, July bile accident that occurred on Marlette, City Pittsburgh. Mr. resident, stopped Florida in traffic operated by when a vehicle Herman L. (“Jordan”), uninsured, Jordan who was sideswiped crossed centerline and Mr. Marlette’s vehicle. As result of the acci- dent, Mr. Marlette phys- sustained serious fore, appeal ap- 1. The Marlettes filed their Notice of as in "we will consider the 24, peal entry judgment.” from the trial court's March 2009 Order filed after the (citation omitted). granting, part, delay their Motion for dam- ages. generally Such an interlocu- order tory appealable and not appeals unless reduced to 2. State Farm also from die Order of McGuire, 549, 24, judgment. LaRue v. March 2009. We will consider State However, judg- (Pa.Super.2005). n. 1 appeal entry judg- filed Farm’s after 1, subsequently supra. ment was entered on the award See n. This Court ment. consolidat- 11, delay damages May appeals May 2009. There- ed the on contend that the trial wages and The Marlettes well as lost injuries as ical its discretion and erred as court abused earning capacity. of his impairment calculating matter of law auto insurance had Marlettes verdict Policy damages based molded (“the Farm. The with State Policy”) the actual verdict of rather than coverage totaling UM provided stacked $550,000 personal inju- Mr. Marlette’s argues that no ries. State filed the Marlettes On October damages can be awarded excess County, pursuant Allegheny action policy limits under either UM Jordan and State Policy, against *4 law, thus, Pennsylvania Florida or and They sought coverage. Farm for UM that, error to assess bodily injuries Mr. Marlette’s damages for verdict, resulted in a when added to out of the accident wages arising and lost As State judgment exceeding those limits. of consortium. Marlette’s loss and Mrs. implicating a choice of Farm raises issues uncontested; pro- the case Liability was all of the potentially impact law that could damages. on the issue of ceeded to trial appeal, we State Farm’s issues on address trial, two-day re- Following a cross-appeal first. State raises Marlettes, in favor of the turned a verdict following issues for our review: $550,000 Marlette and Mrs. awarding Mr. Whether the trial court erred award- $150,000. trial court molded Marlette involving in a lawsuit ing delay damages to reflect the Marlettes’ UM the verdict a claim for uninsured motorist benefits $250,000 and credited an policy limits of policy under an automobile insurance is- $16,693.02 payment of made earlier when: sued Florida Farm, resulting in a verdict of limits, paid policy 1. The insurer $233,306.98for the Marlettes. Pennsylvania law and Florida subsequently The Marlettes filed a that an not have provide insurer does pursuant Pennsylvania to Rule of Motion pay policy more than its limits ab- seeking delay dam Civil Procedure 2383 faith; finding sent a of bad ages on the verdict awarded to law, appli- 2. Florida which controls opposed Mr. Marlette.4 State Farm policy provi- cation of the insurance Motion, the Marlettes were arguing sions[,] of prohibits “pre- award legally damages. entitled to interest” in uninsured mo- judgment trial court awarded torist lawsuits[?] $28,223.76,which was calculated amount of Brief at 1. State Farm’s appropriate interest rates applying $233,306.98. Our standard of review is de This to the molded verdict followed. novo because contentions cross-appeal timely concerning appeal and nonjury provides, pertinent part, 3. as fol- in a trial or in the award of arbitra- appointed lows: tors under section 7361 of 7361, Code, Damages Delay in Actions for Judicial 42 Pa.C.S. and shall Bodily Injury, Property Damage Death or or become decision (a)(1) request At the in a award. monetary seeking civil action relief for bod- 238(a)(1). Pa.R.C.P. ily injury, property damage, death or dam- ages shall be added to the amount undisputed delay damages are not It is awarded for claims of loss of consortium. each defendant defendant or additional Trucks, Inc., 177, Anchorstar v. Mack 533 found to be liable to the in the 1120, (1993). 620 A.2d 1122 jury, of the court verdict of a in the decision
351
entitled,
proce
of the rules of civil
were
but which remained in the
interpretation
law.
v. Riv
questions
dure raise
Jones
during litigation.
hands of a defendant
era,
1148,
(Pa.Super.2005).
866 A.2d
Pennsylvania
Willet v.
Catastrophe
Med.
of Pa.
applicability
At issue herein is
Fund,
613,
850,
549 Pa.
Loss
702 A.2d
vehicle in
238 to a Florida motor
R.C.P.
(1997).
protect
n.
Defendants can
them
policy
with
surance
UM insurance
exposure
pre-judgment
selves from
in
a ruling
limits of
We review
by making
terest
a settlement offer in
under Rule 238 for an abuse of discretion. writing that bears a substantial relation
1159,
Friedman,
Tindall v.
970 A.2d
the actual
ship
by offering
or
2009).
(Pa.Super
Laudenberger,
limits.
the Constitution was altered then, that Rule 238 a involves matter of grant Supreme power to the Court “the to procedure. Laudenberger, 436 A.2d at prescribe general rules governing practice, 155; 246, Pivirotto v. Pittsburgh, 515 Pa. procedure, the of and conduct all (1987) (same). 125, 528 A.2d 130 As Rule ” 10(c). V, § Pa. courts.... Const. Art. herein, 238 procedural is and 238, providing delay damages Rule in Pennsylvania Therefore, governs. law interest, the nature of pre-judgment is Florida case law has no bearing Committee, such a rule. The Civil Rules proper application of Rule 238. following study a in major cases Penn arbitration, that, sylvania subject argues Pennsyl- not to con State Farm under delay law, “emasculat[ing] may cluded was vania not be held liable for judicial system’s ability to hear cases. delay damages excess of policy its limits Rule 238 fulfills Supreme] [the Court’s ob finding absent a policy of bad faith or ligation legislature public to the and to the contrary. See State prompt, expeditious to effectuate trial and at Farm’s Brief 6-9. State Farm relies Laudenberger settlement of cases.” v. heavily upon this recent Court’s decision in Allegheny Port Auth. County, 496 Co., Thompson Whipple v. T.J. Constr. 985 (1981). 147, 152 436 A.2d 221 (Pa.Super.2009), A.2d in which the affirmed the trial court’s refusal to Rule primarily 238 is therefore intended impose delay damages “high” on the delay to alleviate our courts and encour- high/low settlement an agreement absent age defendants to settle meritorious claims among parties to that effect. See possible. as soon as See Civil Procedural State Farm’s Brief at 7-9. holding Our Explanatory Rules Committee Comment however, (1988). Thompson, unique high/low to secondary 238 Pa.R.C.P. Its agreements purpose compensate plaintiffs inapplicable is to for the and on the facts delay in receiving money they to which before us. range A of the is “a settle ment. verdict outside agreement high/low
A agreement triggered condi- agrees high/low a defendant in which ment tion, recovery high in return or low amount rendering a minimum accept supplanting agreement binding as a settlement and plaintiffs regardless of the out jury amount verdict.5 maximum at Thompson, A.2d on settlements because the trial.” are come of Dictionary, 8th encouragement of settlements is (quoting Law Black’s (2004)). parties Thompson Rule underlying ed. $1,000,000 high would be agreed the other Penn- We have also reviewed low, Delay Id. dam and that State Farm cites sylvania cases not discussed ages were claim and determine its support trial, negotiations. Following settlement misplaced. reliance these cases is returned verdict (citing Brief at Incol See State Farm’s 6-7 $1,071,041.67,which the trial court reduced 474 Pa. lingo Ewing, v. 379 A.2d $1,000,000, in accordance with the set (1977), Surety & Aetna Cas. Cowden Id. The agreement. tlement (1957), Co., 389 Pa. seeking Rule 238 petition filed a Nationwide, 713 Browne v. A.2d 663 denied, plain damages, which contrary, analo (Pa.Super.1998)). To tiff appealed. law a determination gous supports case affirmed the denial of This Court that State Farm be held liable for focusing purpose on the damages, in excess of the UM *6 the fact that the high/low agreement and 1, Mellinger, limits. See Allen 567 negotiated its parties terms. specifically (2001) (where 784 767-68 the A.2d 227-28, 230. We held that the Id. at liability was Commonwealth defendant’s a conditional settlement agreement was to a en- limited to due parties expressly say the and that “unless actment, holding that an additional award otherwise, prejudgment in- calculation delay damages against the Common- limits is not beyond terest chosen though delay wealth even proper was (cita- agreement.” Id. at 226 high/low li- damages increased Commonwealth’s omitted). tion ability beyond statutory cap); controlling herein. A Thompson is not (where supra parties underlying in the far in policy purchased form ad- insurance personal injury pre- action entered into giving liability,
vance
the incident
rise to
stipulation
any compensatory
trial
that
case,
analogous
in this
is not
as occurred
damage
for the
could not
award
agreement in Thompson,
to the settlement
$15,000, holding that an award of
exceed
the eve
trial
negotiated
which
on
was
though
even
delay damages
proper
had been
Fur-
damages
after
ascertained.
damages
those
increased
defendant’s
ther,
compensatory
limit on
dam-
amount).
liability beyond
stipulated
ages
not the same as the settlement of
claims,
Thompson.
Turning
language
all
to the
of the Pol
as occurred
Moreover,
a limit on
holding
icy,
imposes
critical
to our
we note that
bodily injury only. Pre-
parties
damages
was the fact that
for
Thompson
delay damages are not
mutually negotiated a conditional
award interest or
settle-
however,
noted,
there is no settlement.
Thompson
lion is not met and
event,
Thompson,
at
In that
jury
985 A.2d
where the
renders a verdict within
apply
range
high/low agreement,
properly
to the verdict.
the condi-
context;
posed
mentioned in the UM
to the
specifically
molded verdict based
however,
Policy provides
they
are
the net amount of insurance coverage
in the
context6 Un
recoverable
provided by
($233,-
[State Farm]
policy provisions regarding
UM
der
306.98)[?]
coverage,
agreed
“dam
The Marlettes’ Brief at 4.
injury
legally
ages
bodily
for
insured is
trial
court held that
it properly
entitled to collect from the owner or driver
calculated
on the net
of an uninsured motor vehicle.” The Poli
amount
coverage
of insurance
as reflected
cy at
lan
(emphasis
original).
This
in the
opining
molded
that Rule
guage places
damages
UM
recoverable
delay
contemplates
damages are
footing
from State Farm on the same
to be
calculated based
the amount of
damages
party liability,
for third
which
generally
delay
damages
includes
recoverable
Arguably,
placing
plaintiff.
7/6/09,
costs.
State Farm the
Opinion,
Trial Court
footing
party
same
as the third
at 4.
In
holding,
so
the trial court con-
tortfeasor,
insured,
Policy
vis a vis the
ceded that it
the unpredictabil-
“remov[ed]
allows
the poli
excess of
ity of delay damages on
potentially
the[]
event,
cy
any
limits.
we discern no
larger,
verdiet[,]”
much
unmolded
Policy
in the
that can be con
effect of which was to “undermine the
limiting liability
strued as
dam
salutary effect of Rule
encourage-
238’s
ages
pre-award
or
interest
the UM con ment of
degree.
settlements[ ]” to some
text. State
specifically
Farm’s failure to
court,
According
4-5.
howev-
mention
or
interest
in the
er,
interpretation
application
Policy it
ambiguous
drafted renders it
on Rule
unduly
“d[id]
restrict
and, therefore,
point,
it must be con
(em-
salutary purpose of Rule 238.” Id.
strued
the insurer. See Standard
phasis in original). For the reasons that
Venetian Blind
v. Am. Empire
Co.
Ins.
follow, we determine that the trial court
Co.,
(1983).
503 Pa.
*7
in
erred
its calculation of
damages.
Since there is no
in
Policy
issue,
In addressing this
State Farm
that
an
prohibits
award of
any
that
delay damages against
asserts
limits,
in excess of the UM
nor is
must be
upon
calculated based
the verdict
law,
precluded
such an
by
award
State
as molded to reflect the Marlettes’ UM
cross-appeal
Farm’s
fails.
policy limits. State Farm’s Brief at 10-11.
Having
Farm
concluded
State
is not
support,
Allen,
In
upon
relies
cross-appeal,
entitled to relief in its
we
supra. We determine that State Farm’s
question
turn now to the
by
raised
upon
reliance
regard
Allen
is mis-
appeal:
Marlettes on
placed.
Whether
Pa.R.C.P.
The
in the
Allen Court addressed the
present
interplay
matter should be calculat-
upon
statutory
ed
between Rule 238 and the
per-
cap
factfinders’ verdict for
on
recoverable,
injuries
damages
by compensatory damages
sonal
and
sustained
im-
($550,000.00)
8528(b)
Richard Marlette
op- posed by
section
of the Sovereign
Policy
(providing,
judgment
6. See the
at 7
accruing!]
relevant
a
... before the
part, that
law,
addition to the limits of liabili-
"[i]n
judgment,
only
where owed
but
ty,
any
we will
insured
costs listed
judgment
pay.”
(emphasis
of the
we
resulting
below
from such
2. In-
accidentf:]
original)).
terest on
owed
the insured due to
stated in
Act,7
private litigant. As this Court
a
when
Commonwealth
Immunity
Allen,
supra,
interplay
A.2d at
of the
Thompson,
“[t]he
a defendant.
party is
injured in
Immunity
in Allen was
Act with Pa.R.C.P.
plaintiff
Sovereign
The
763.
and thereafter
vehicle accident
unique
a motor
Allen created a
scenario
]
238 [in
both the
against
action
negligence
here,
filed a
parties
where the
Depart-
Pennsylvania
and the
other driver
lim-
by statutorily-imposed
were not bound
Id. at 763-64. A
Transportation.
ment
recovery.”
985 A.2d at
Thompson,
its on
the other
a verdict
jury rendered
coverage
limit for UM
Id. at 764.
driver and
Commonwealth.
a
equated
cannot be
with
simply
this case
question
relevant
before
Court
liability
statutorily-imposed cap on
a
was whether
calculation
Allen
parties.
Commonwealth
jury
entire
applicable to the
damages was
however,
ap-
acknowledge,
We
that our
or to
against the Commonwealth
verdict
strictly
pellate courts have not
limited
the statu-
as molded to reflect
the verdict
only
involv-
holding of Allen to
those cases
cap of
tory
LaRue,
In
ing
parties.
Commonwealth
$250,000.
held that
Id. at 767. The Court
underlying
in the
supra,
plaintiffllessee
damages recoverable from Com-
“delay
into a
negligence
voluntarily
action
entered
to those cal-
parties
monwealth
are limited
stipulation with the
pre-trial
defendant/les-
statutory cap.”
culated
Id.
based
whereby
parties agreed
to limit the
sor
holding, the
rea-
at 768-69.
In so
Court
pending jury
in the
defendant’s
can-
soned
since
Commonwealth
compensatory damage
trial to a maximum
any
beyond the statu-
not be liable for
sum
$15,000.LaRue,
award of
We its verdict for Mr. Marlette was imposed enactment the limitation on the our rules of statutory “Under construction, liability, give Commonwealth’s whereas we must effect every to voluntarily case, plaintiff] statute, [the every provision word in agreed [the to the limitation on defen- may we not interpret statutory language in liability pursuant dant’s] Rule a manner that any provision renders 1311.1, gain in order to the benefit of superfluous or surplusage.” mere Gaudio Nonetheless, expenditures. reduced Co., v. Ford Motor 976 A.2d plaintiffs] voluntary the effect of 127(b) [the (Pa.Super.2009); (provid- Pa.R.C.P. “private choice is that he is not a liti- ing construed, that “[e]very rule shall be if gant!] subject not to limitations on lia- possible, give effect to all provisions. bility!,]” the distinction the Allen court When the words of a rule are clear and emphasized. free from all ambiguity, the letter of it is disregarded not to be pretext under the Allen, (quoting Here, pursuing its 768) added). spirit.”). we cannot (emphasis A.2d at ignore explicit reference in Rule 238 to case, In the instant unlike La- ” “compensatory damages awarded nor Rue, the Marlettes not enter an did into may we interpret language of the Rule agreement with State Farm to limit imply an by Supreme intention potential exchange insurer’s shall be calcu- some form of benefit at trial. The volun legally lated based the sum recovera- tary by decision in LaRue to Gaudio, by ble a plaintiff. See 976 A.2d at proceed under Pa.R.C.P. 1311.1 is not akin (stating that “[[listening attentively to to the inherent compen “limitation” of the say, what the statute does not we not satory damages by recoverable the Mar- interpret express a limita- action, lettes in a UM imposed which was contain.”). simply tion it does not by pre-trial stipulation and the Rules Procedure, solely by of Civil but the terms Finally, our disposition in this case is Policy issued State Farm. In supported by the policy considerations un- deed, in every coverage insurance dispute, derlying the Supreme Court’s enactment liability, insurer’s absent a claim of bad above, of Rule 238. As mentioned faith, is limited insurance primary Rule’s purpose encourage is to *9 policy limits. Laudenberger, settlements. 436 A.2d at Moreover, plain the language of Rule 152. In the presented circumstances here- in, supports 238 that the only determination de- Rule 238 can be effectuated lay damages against State Farm calculating delay damages should be upon based the upon calculated based the jury’s upon award verdict and not the verdict as jury. provides, in relevant part, policy molded to reflect the insurance lim- “damages that shall be added to its. If we apply were to the Rule as State
356 BOWES, OPINION BY be no “un- DISSENTING there would suggests,
Farm J.: an motivate that would known” insurer/de- a reasonable settlement make
fendant to re- Supreme our Court’s As I believe Indeed, actually provide an it could offer. the of Pa.R.C.P. interpretation of a mer- to settle with a disincentive insurer Pa. 784 Mellinger, 238 in Allen v. the hopes forcing plain- of claim in itorious (2001) gen- for the controlling A.2d 762 than the a claim for less tiff to settle delay damages that are to proposition eral liability exposure the insurer’s amount of compensatory be on the dam- calculated pro- Even if policy. the insurance under legally recoverable rather than ages dispute ensues and litigation tracted respectfully I dissent. trial, may only be the insurer
proceeds Depart- In v. Woods Commonwealth limits, even policy for the liable Transportation, ment of here, of the fact- the verdict though, as (overruled (1992) by Allen A.2d 970 lim- exceeds the significantly finder Supreme our Mellinger, supra), Court Further, Rule 238 as the trial apply its. of unpredictability that the de- concluded may provide in the instant case court did pro- lay damages powerful was a factor an economic disincentive insurers with moting of cases. The Court settlement claims in insui-ance cov- meritorious settle upon rejected the calculation of an Specifically, insurer erage disputes. statutory cap imposed as to verdicts where the finan- incentive to settle has no against finding defendants Commonwealth on the insurer’s investment cial returns to settle- to be “distinct disincentive” (ie., reflecting poli- the retained funds delay damages ment would be “since that remains the insur- cy limits at issue upon a constant.” Id. at predictable based during litigation) exceed possession er’s time, delay damages were 972. At delay damages ex- potential the maximum routinely compensatory on the calculated prevail at trial. posure should by jury against a de- in the above situations risks An insurer fendant. negative faces no conse-
nothing and
Allen,
revisited
Supreme
our
Court
application
quences
delay.
Such
interplay
of Rule 238 and
Woods and
un-
policies
Rule 238 would eviscerate
statutory
on the liabili-
cap
Rule.
derlying the
ty
imposed
defendant
Commonwealth
8528(b)
Sovereign Immunity
foregoing, we conclude
upon the
Based
Act,
§§
8521-8553. One of the
Pa.C.S.
delay damages
award
issues in Allen was whether
dam-
be calculated based
should
ages
were to be
on a
award
calculated
jury’s
award
against the Commonwealth defendant
Accordingly,
Mr. Marlette.
damages for
limit,
statutory
or whether
exceeded the
judgment
we
the trial court’s
as to
vacate
delay damages
were to be calculated
remand the matter
$250,000. There
statutory
limit of
was
re-calculate
for the court to
that the
question
no
in Allen
was
Opinion.
with this
accordance
even when the
delay damages,
entitled to
vacated.
remanded
Judgment
Case
delay damage
effect of the
award was to
jurisdic-
Superior
with instructions.
increase the
be-
Commonwealth’s
relinquished.
tion
cap
yond
because
encourage
settlement.
of Rule
*10
However,
BOWES, J.,
Court overruled
Dissenting Opinion.
Allen
files
Woods, supra,
majority attempts
which
to distinguish
earlier decision
Al
be calculat-
on the
damages
ground
that
would
len
that it involved
held
such
Com
subject
rather than on the statu- monwealth defendants
to
ed on the verdict
statutori
However,
tory cap.
ly-imposed
recovery.
limits on
ignored
very
this Court
that
distinction in
holding, the Allen
reexam-
In so
(Pa.Su
McGuire,
LaRue v.
With respect purpose to the rule’s tarily stipulated to limitation on the oth- compensating for plaintiff party’s liability pursuant er to Rule 1311.1. receiving recovery, his or her it defies voluntary The effect of that choice was suggest reason to that the basis for cal- was not a “private litigant [ ] culating compensation such be could [,] subject limitations anything than other the amount emphasized.” distinction the Allen court party actually Commonwealth could be Allen, supra at (quoting supra responsible paying plaintiff. 768). at Recognizing plaintiffs compensa- Id.
tory case, damages could never exceed the stat- In the instant the Marlettes volun- utory cap, tarily Allen Court reasoned that elected and paid for UM claim, receiving there could be no coverage. Absent a bad faith I find cap. amounts in excess of that self-imposed compensato- Absent limitation on delay, ry that “the sufficiently analogous Court concluded stated to be justification compensating limitation in Allen and the illusory.” with stipulation in LaRue to warrant the same treatment under Rule 238.1 I can discern case, third-party plain- legal recovery capped In a insurance tiffs is not at the defen- *11 limiting Allen to situa- basis logical no RETIREMENT EMPLOYEES’ STATE statutory As the cap. involving
tions SYSTEM, Petitioner premised on a holding was Allen Court’s language of Rule of the re-interpretation every case where RECORDS, OF OPEN OFFICE appropriate. are delay damages Respondent. majority’s decision is that the I believe Pennsylvania. Commonwealth Court plain of the reinterpretation based on a Aug. on Briefs Submitted contrary to Rule 238 that is Decided Nov. Court, in The Allen LaRue. Allen and Woods, rejected specific overruling majority es- that the
policy considerations Allen, the Court was herein.
pouses policy consid- primary that the
dissuaded 238, the encour- underlying Rule
eration settlements, would suffer
agement of where
those situations limits
were calculated on uncertainty jury ver-
rather than Indeed, the cal- perceived the Court
dict. compen- delay damages on
culation of more
satory damages recoverable secondary un-
closely promoting 238, which is the com-
derlying Pa.R.C.P. for the loss of use of
pensation money throughout period
his
delay. trial
Accordingly, I believe that properly calculated
court compensatory damages legally re-
on the
coverable, rather than on the I with Allen and LaRue. As accord majority’s position reconcile the
cannot authority, compelled
with I am prevailing
to dissent. Thus, delay damages. the calculation of
dant's limits. the verdict would control for