*1
215
timony
based,
on medical
in part,
matters
upon reports of
evidence,
others which
are not
expert
but which the
customarily
upon
relies
in the practice of his profession.”
Thomas,
Commonwealth v.
436, 445,
444 Pa.
693,
282 A.2d
Daniels,
(1971).
also: Commonwealth v.
See
480 Pa.
Karch,
340,
Commonwealth v.
(1978);
The judgment of sentence is affirmed.
v. CENTER, ALBERT EINSTEIN MEDICAL DAROFF Joseph Chapman, DIVISION L. M.D.
Appeal of CENTER, ALBERT EINSTEIN MEDICAL DIVISION, Appellant.
DAROFF Superior Pennsylvania. Court of
Argued Dec. 1987. Aug.
Filed *2 Einstein . for Albert Jr., Philadelphia, Casey, J. Robert Center, appellant. Medical Schrock, appellee. Wolf, Philadelphia, L.
Ronald curiae. Philadelphia, amicus Anapol, R. Paul curiae. Pittsburgh, amicus Farley, James R.
Carol N. Shepherd, Philadelphia, amicus curiae. CIRILLO, CAVANAUGH, Before President Judge, and ROWLEY, BROSKY, McEWEN,* OLSZEWSKI, MONTEMURO, JOHNSON, POPOVICH and JJ.
JOHNSON, Judge: Center, Division,
Albert Einstein Medical
appeals
Daroff
the judgment
Pleas,
from
of the Court of Common
Philadel-
$11,562.00
phia County, awarding delay
Joseph R.
We
Schrock.
en
originally granted
banc review
consider the
question
whether the
of delay
damages complied
court’s
supreme
with
decision of
v.
Craig Magee
Center,
Memorial
Rehabilitation
Pa.
The facts rise to giving this as appeal are follows. On 13, July 1981, Schrock was admitted to the Medical Center Joseph and treated Dr. Chapman gun for a shot wound leg. later, in the 27, 1981, Two on weeks an July x-ray report the gun disclosed that shot fractured Schrock’s left femur. Schrock a complaint trespass 15, filed in on July 1982, that, alleging a direct the “carelessness, as result of negligence gross negligence” Medical Center and Dr. L. Joseph Chapman failing recognize or identify * McEwen, J., participate did not the consideration this case.
218 sought for which he treatment injury the full extent 1981, disabling 13, injuries. he severe and July on incurred $20,- damages in excess of sought compensatory Schrock interest, attorneys’ cost of suit and together with was returned by jury, fees. After verdict and found the Medical Chapman1 Dr. exonerated $25,000.00. in the amount of in favor of Schrock Center and 238, $11,562.00 damages of former Rule Pursuant $36,562.00. into for a total award of molded the verdict were challenges the Medical Center constitution appeal, On such awarding this case because ality award, on a they allege, “imposes liability additional an plaintiff’s case in which demand exceeds every defendant supra, as implemented, and because the verdict” impermissible classification between “creates an on a defen by imposing liability additional and defendant and not substan arbitrary dant which unreasonable Medical legitimate objective.” Center’s any related tially 7, arguments D. of these points C & Neither page Brief at trial, they were addressed below nor presented were Humphries Pitts v. are waived. Accordingly, they court. Co., Lake Erie Railroad Pa.Super. & burgh (1984), denied, cert. 474 U.S. 106 S.Ct. A.2d 919 (1985). 2d 149 L.Ed.
Next, the trial court the Medical Center contends re- was not by finding its Schrock abused discretion of trial. Medical Center sponsible Essentially, settlement demands were argues that because Schrock’s settle, unreasonable, attempts to this case were serious *4 of in the consequently resulted thwarted and briefs, acknowledge in their parties, Both damages. delay by was settlement demand made Schrock that the lowest jury amount of the verdict. $50,000.00, twice the delay for payment A the of responsibility defendant’s an contingent upon parties reaching not the damages is subject A is not agreement. defendant amicable settlement trial, Although Chapman is not a Dr. was a named defendant at he appeal. party to this 219 does verdict, or award decision where delay than by or her offer more not his written exceed refuses 238(b)(1). plaintiff fact that a Rule The percent. amount close reasonably make a demand by accept a viable offer and/or refuses verdict an offer adequate is irrelevant to whether defendant actually made.
Moreover,
Rule
makes clear
plain language
award
damage
affect the
plaintiffs
delay
that
conduct will
his or her
“caused the
of trial.”
delay
conduct
only where
238(b)(2)
Explanatory
The
[Emphasis
Pa.R.C.P.
added].
to rule 238 further states:
Comment
trial,
[plaintiffs]
every
not
respect
delay
[w]ith
dam-
delay
to the
delay
relevant
issue
procedural
delay
actually
such
as
cause
ages,
only
but
occurrences
the trial.
[Empha-
519 Pa. LXXVI
Explanatory
Rule
Comment
have
parties
sis
it
that the
would
While
is evident
added].
case, we
no
if
had
proceed
they
reason to
to trial
settled
more
to make a
perceive
do not
failure of Schrock
delay
to be a procedural
conservative settlement demand
prolonged the trial of this matter.
actually
Finally, we address the Medical Center’s claim
assessing delay damages against
the trial court erred by
them where the
court found that the Medical Center
the trial.
238 makes
responsible
was not
Rule
damage
reduction of
only
provisions
two
Delay
entirety
be avoided in their
may
award.
where the verdict does not exceed
defendant’s offer
238(b)(1),
percent,
period
more than
Rule
has
may
be reduced
time
which the
trial,
238(b)(2).
have
contributed to the
We
Anderson,
recognized
Pa.Super.
also
Berry v.
(1986),
220 circumstances,
In
of these three
dam-
delay
the absence
ages
complaint
are awardable from
time the
is filed or
one
after the accrual of the cause of action to the date
year
verdict,
238(a)(2)(i).
award or decision. Rule
“The
drafters of the revised rule ‘have not allowed for the
”
party.’
exclusion of
not caused
either
periods
delay
by
SEPTA,
King v.
Pa.Super.
A.2d at 13
Forms,
quoting
Miller v. WiseBusiness
Pa.Super.
(1989). Thus,
The settlement offer made the Medical Center $10,000.00, inadequate which is to relieve them of 238(b)(1).Also, responsibility delay damages under Rule Schrock has not caused such of the trial as would require period reduction of under Rule Therefore, 238(b)(2). in the of any absence fault parties, the trial court’s determination awarding delay dam- ages proper. Since the Medical Center is not entitled to relief has not challenged and Schrock the trial court’s appeal, unnecessary award on it is to remand this matter to the trial King damages. court for a recalculation of delay SEPTA, Moxon, supra; v. Snelsire v. supra.
Judgment affirmed.
BROSKY, MONTEMURO, JJ., ROWLEY and join JOHNSON, J.
CAVANAUGH, J., dissenting opinion, files a which is OLSZEWSKI, joined by J.
POPOVICH, J., dissenting opinion. files a CIRILLO, Judge, President files a dissenting statement.
CAVANAUGH, dissenting. Judge, of a calculation remand for I dissent and would *6 set forth in 238 the reasons for damages under New Pennsylva- Dissenting Opinion King v. Southeastern in my 420, 557 Authority, Pa.Super. Transportation nia (1989.) A.2d CAVANAUGH, J., J.
OLSZEWSKI, joins POPOVICH, Judge, dissenting. of the Court of from the appeal judgment
This is an delay dam- awarding Philadelphia County Pleas of Common R. $11,562.00 appellee/Joseph of the in favor ages Einstein Medical appellant/Albert the Schrock and Center, Division. Daroff affirming the in rationale for Majority’s
I cannot the join of “fault” attrib- the absence issuance of to appellant. uted the complaint
A of the record indicates that a review 15, 1982, alleging trespass appellee July filed the on by was “carelessness, that, negligence as a direct result L. (including Joseph appellant gross negligence” or the full M.D.,1) identify Chapman, failing recognize sought he treatment —bullet injury extent of his the in a fracture of left leg resulting wound to the left stop robbery attempting femur sustained while a —he he disabling sought for which injuries incurred severe $20,000.00 together in excess of compensatory damages interest, and attorneys’ costs of suit fees. with 5, 1982, appellee filed August objections On appellant’s pages interrogatories, many portion of the by as evidenced inapplicable of which to the case were 25, August appear “form” of record. On they in which 1982, denying appellant by an answer was submitted matter, seeking, in new complaint allegations M.D., party but Joseph Chapman, to the suit his 1. was named as L. jury dispensed liability with the need him exoneration from appearance appeal judgment His to file from the entered below. an only. is informational in the recitation the facts indemnification and/or contribution from L. Joseph Chap- man, M.D., as the party purportedly primarily liable for injuries suffered appellee. 1, 1982, Chapman
On November Doctor filed an answer 10, to the complaint. On November appellant’s appellee’s #24, answers to the interrogatories, save for filed. This prompted appellee file, were on Novem- 12, 1982, a motion seeking ber an order of court directing the appellant to # interrogatory However, answer requested when, order was rendered moot on December supplemental answer to the appellee’s interrogatory # 24 presented appellant. 28, 1983,
On March the appellee filed a motion for sanc- tions with the court seeking depose, time, for a second *7 the radiologist allegedly detect, who failed to upon his reading of the x-rays appellee taken of the upon admission to the hospital, the of presence the left leg broken permitting appellee the upon walk it.
During the initial deposition, it was averred that counsel for the appellant prohibited the radiologist giving from responses to questions various claimed counsel to war- proffering rant the of expert opinion, an a matter on which deponent the was not purportedly qualified to speak. April On answers to the appellee’s supple- two interrogatories mental were submitted by appellant. the later, Four days appellant filed an to the appel- answer lee’s motion for sanctions contending that the questions posed radiologist to the beyond were the area of his exper- were, therefore, tise and not discoverable. order An dated September 2,1983, denied the appellee’s motion on the basis questions that the sought to be asked were answered at the deposition. initial
The record discloses that no further action took place in
13, 1986,
case until March
the date the appellee’s
supplemental interrogatories were
appel-
answered
lant and Doctor Chapman. Thereafter,
2, 1987,
on March
verdict in favor of
Chapman
Doctor
in
favor of the
$25,-
against
appellant
in the amount
appellee
trial.
eight
four-day
after
by jury
entered
000.00 was
which is based
opinion,
learns
the trial court's
One
from
1, 1987,
what
hearing
as to
given
April
at a
on
on evidence
to a
regard
after
before and
the verdict
transpired
“fault” under Pa.R.Civ.P.
or the assessment of
settlement
$10,000.00
rejected.
made and
238, that an offer of
verdict,
pur-
delay damages
of the
Following
rendition
a total
added to the verdict for
2382 were
suant
provided:
Pennsylvania
Rule of Civil Procedure 238
(e),
seeking
(a) Except
provided
in an
as
in subdivision
action
any
injury,
property damage,
monetary
bodily
or
relief
death or
for
thereof,
appointed under
the court or the arbitrators
combination
amended,
16, 1836,
715, as
5 P.S.
Arbitration
of June
P.L.
Act
Malpractice
seq.,
of October
et
or
Health Care Services
Act
§
15, 1975,P.L.390,
seq., shall
P.S. 1301.101et
§
(1)
damages
compensatory
in the award
add
the amount
arbitrators,
jury,
of a
verdict of a
or in the court’s decision
in the
annum,
trial,
nonjury
percent per
damages for
at ten
award,
part
compounded,
shall
verdict
become
decision;
(2) compute
for
from the date the
year
complaint
initial
in the
or from a date one
after
filed the
action
action,
later, up
to the date
the accrual
the cause of
whichever
award,
verdict or decision.
(b)
In arbitration under the Act of
amount
determining
amount
shall not be included in
whether the
controversy
jurisdiction
of the arbitrators.
is within
(c)
(e), damages
Except
provided
as
shall
subdivision
award,
verdict
all defendants
be added to the
or decision
liable,
joined
the action.
found
no matter when
*8
shall,
(d)
party
charge
may,
request
on
The court
and
of
plaintiff
plaintiff,
not
jury that if it
for the
it shall
award the
finds
any damages
delay
the court.
because this is a matter for
for
(e)
any
prior
offer
If a
at
time
to trial makes a written
defendant
specified
prompt
payment to the
sum with
cash
of settlement in a
until
of
plaintiff, and
that offer in effect
commencement
continues
trial,
accepted
plaintiff
not recover
but the
is not
and the
does
offer
award,
damages
delay,
for
more
verdict or decision exclusive
offer,
percent
or the
shall
than 125
the court
arbitrators
period
offer was
for
for the
after
date the
award
made.
rule,
(f)
or if
pending on
date of this
If an action is
the effective
action
brought
after the
date on
cause of
an action
effective
date, damages
delay shall be
prior to the effective
for
which accrued
plaintiff
complaint or from
computed
date
files the initial
from the
action,
year
or from a
one
the accrual of the cause
a date
after
$36,562.00.
award of
With the reduction of the verdict to
judgment,
timely appeal was filed and the case was
granted en banc consideration to
question3
review the
whether the
delay damages complied with the
Supreme Court’s recent decision of Craig Magee
v.
Memori-
Center,
60,
(1986).
al
Rehabilitation
Pa.
the absence of this rule.
appellant’s "Summary
I note that
Argument”
in the
Of The
in its
7,
D,
page
points
brief at
constitutionality
C &
it assails the
grounds
imposes
Pa.RXiv.P. 238 on
it
liability
additional
on a
any
plaintiffs
defendant
case where the
demand exceeds the
procedure
Supreme
verdict and the
Craig
mandated
our
Court in
v.
Center,
Magee Memorial Rehabilitation
512 Pa.
Albeit the equation effect, is one facet of the only 238 came into this damages question should be deciding the whether sight must lose of the Rule. One not “reopened” under this Court, speaking through Supreme admonition to the via Comment Procedural Rules Committee Civil final and are not Rule, “proceedings are delay damages guise of Rule as a under the new reopened” to be course, has been “deter- question matter of where adhering Craig. mined” “proceeding” at a held and bar, hearing was the below “proceeding” At framework of within the parties both participated comes portion equation “determination” The Craig. awarding delay “decision” the trial court’s play into with hearing damages. completion Given ruling, to new under Comment entry the trial court’s to be considered final “proceedings those are Rule re-examination.” subject Supreme Court intended all Pennsylvania If enunciated procedure with the comply cases directing quite easily it could have done so new Rule (be they involving delay actions pending that all level) new Rule be controlled appellate so, portion new It chose not to do Comment state otherwise of that intention. To proof direct speculation. pure would be
I perceive our function on appeal reviewing to be one of mind, the trial court’s “determination” with Craig not look to Rule merely inquiring new 238 without into the particular facts with “fault-determination” Craig’s as a I propose criterion. to do so now.
In suspended the Court “mandatory” provi- the (former) had, sions of past, Rule the assessed delay damages against defendants regard without to fault. The into put place procedure Court a claim whereby presented would have by “petition” (5) Thereafter, within of a days five verdict. within the frame, same time respondent the required would be be, submit an If need judge presided “answer”. the who could, prior reaching decision, over hold a hearing to any disputes. resolve factual This occurred here. making
In
its determination as to the plaintiff’s entitle-
damages,
ment to
trial court was directed by the
Supreme
criteria,
Court to look to a list of
albeit
exhaustive,
fact-finding
(1)
to aid
process; to-wit:
length
starting
verdict;
of time between the
date4 and the
(2) the parties’ respective responsibilities in requesting con-
tinuances;
(3)
parties’ compliance
with rules of dis-
(4)
covery;
respective responsibilities
necessi-
(5)
tated
of additional
joinder
parties; and
other
pertinent factors.
Instantly, the court below the appellee/plaintiff awarded delay damages despite its finding appellant/defen- causing dant was not at fault in the delay of some six years complaint from to verdict—a delay attributable solely congestion Nonetheless, in the court system. one cannot 238(a)(2). 4. See former Pa.R.Civ.P. To Craig. afoul of running ruling such a without
affirm “mandatory” provisions elaborate, Craig, only under no longer could suspended plaintiff so that were damages if his/her ver- be awarded “automatically” No offer of the defendant. the last dict exceeded 125% one pre- to entitle shown ^re-Craig more needed to be (former) formula. Rule 238’s interest under judgment J., by Papadakos, Craig, joined dissent in Larsen’s Justice as hearing petition, of a answer and discounted the use money by receipt the ultimate merely protracting countervailing parties to the benefit any without urged that as a He dispute-resolution system whole. *11 the defen- of settlement” a “reasonable presentment the having pay delay him/her from to dant would insulate into the and, thus, “fault” need not be factored damages, in damages. Majority Craig rejected of The assessment prerequi- “fault” as a determining in favor of position this prescribed set of the of under site to facts. bar, petition, of a answer timely the submission
At after the concluded that neither hearing, and a trial court thereto (since protracting the case responsible unduly was party complaint and verdict is the norm between the eight years of the plain- in nor was the demand Philadelphia County), the unrea- tiff/appellee defendant/appellant or offer Nevertheless, the trial court wrote that: sonable.5 point, offer 5. At this I wish to note that the first written defendant, $5,000.00, April was made on in the amount years complaint filed. The second offer of four after the was almost 10, 1986, $10,000.00 rejected. also made on October was first, $125,000.00 plaintiff, and then As for the he demanded $50,000.00. stayed This in until 20th the amount to effect lowered offer, January, to failure increase its 1987. With defendant’s rose, $125,000.00. again, plaintiffs to I also make men- demand response interrogatories appellant’s for the record that in to the tion damages, regarding appellee did of his list an itemization following: benefits; $3,410.40 (a) earnings: fringe plus Lost the value (b) earning capacity loss Future loss of and other future related undetermined; injury: his $3,918.75; (c) hospital expenses: Medical $6,409.00 (d) Income for 1981: It is the of this court opinion that the mere fact that a defendant is not at fault in causing case does not automatically being relieve the defendant from assessed under Equally impor- Rule 238. analysis tant which must be made the trial court is the responsibility plaintiff causing In a delay. plaintiff situation which the is partially totally at fault, the assessment of delay damages may very well not However, be warranted. when parties both are blameless it would unjust be unreasonable and dam- deny delay ages. Fundamental fairness require opinion would Court, plaintiffs this that the receive interest on what essentially their money period that it is held by who, course, defendants had the have use money.
[******] a plaintiff When has not made an unreasonable demand to settle a case and is not otherwise fault for any at. delay, applicable. 238 should be The assessment of delay damages in such situations is not for the purpose of punishing the defendant or compel the defendant Rather, settle unmeritorious cases. the rule is a legit- imate attempt to make the whole.
(Trial 7) Opinion Court at 6 &
If one to position were embrace the (as of the trial court here) Majority be, does essence, he/she would con- doning awarding of delay damages in the absence of “fault” having been first established on the part This, defendant/appellant. find, I is at explicit odds with language in Craig denouncing such pro practice, forma if goal even its were to make the whole, plaintiff/appellee since “[tjhere point is no in contending that a procedural $3,563.00 1980: $3,454.27. 1979: (See Appellee’s Appellant’s Interrogatories 26) Answer to # 22 & # It interesting stated, appellant’s to observe that counsel at the 1, 1987, hearing April imposition delay damages, of to assess the appellee’s
that he considered the case to be no more than a "nuisance” suit.
229 fault, yet and is without punishes may rule exist 65, Pa. 515 A.2d at Process.” 512 at with Due consistent appears to be Thus, that new 238 the extent 1353. to (of damages delay days awarding to pre-Craig a reversion “fault”), I read the Rule as would presence without any not it to avoid supplanting and supplementing Craig challenges thereto. constitutional lack- having totally found to be of fault
The assessment
bar, I
hold that the
of the case at
would
ing in the context
dic-
under the
awarding
improper
Pa.Super.
359
v. Grey,
See Shellhamer
tates of Craig6
(allocatur
6/17/87), wherein
denied
A.2d 462
(with delay
judgment
reversed a
panel
of this Court
$269,676.44 and
to allow the
remanded
damages)
inability
to
the defendant’s contention
court to review
two
to Rule 238 under
then
damages pursuant
pay
“fault”
We also
old
decision.
labelled
Craig
month
of Rule
precedent
“a condition
to
element
Pa.Super.
at
garnered from our mandate Shellhamer there permitted damages will not be be instances where being compliance non the initial imposed, qua the sine supple- Craig “fault” criteria enunciated with the reading today. this of Rule 238 mented writer’s posed I record and law on the issue scrutinized the have conclude, contrary Majority to the for our review below, are parties to a lawsuit the court where completion, prolongation free” in the case “fault jury affixing prohibits Craig where of a as a matter of course verdict favor comply previously, dispense a remand to this would with As stated *13 new Rule with 238. “fault”, Craig, no as so defined in evident. Thus for the stated, reason I herein would not affirm the entry of Rule 238 delay damages.
I judgment would reverse the of the court below as to delay damages and remand for the entry judgment as to $25,000.00 in favor of only plaintiff/appellee the defendant/appellant.
CIRILLO, President Judge, dissenting.
I
dissent from the
respectfully
majority’s determination
that appellant Albert Einstein Medical Center
has
[Einstein]
waived constitutional
concerning
issues
Pennsylvania Rule
of Civil Procedure 238 and its application by
failing
raise
those issues before the trial court. Although our rules of
appellate procedure require that claims be first raised in the
court,
see Pa.R.A.P.
there is not and has never
any
been
mechanism in the rules of either civil or appellate
procedure
provides
raise,
an
avenue
which to
prior
to appeal, claims of error concerning delay damages.
I note
that new rule 238 indicates that an order of the trial court
concerning
damages is not
subject
to a motion for
relief. See Pa.R.C.P.
post-trial
238(c),
comment. The new
provide
rule does
that delay damages are to be determined
answer,
through petition procedures
similar to those
suggested by
supreme
court in Craig v.
Memori-
Magee
Center,
al Rehabilitation
512 Pa.
(1987).1
A.2d 1350
However, I would not require that an appellant’s answer
raise a claim of constitutional violation based on the possi-
bility
that the court
dispose
would
of that petition errone-
ously, for I believe to do so would
akin
to requiring the
appellant
cry
“ouch” before he or she is harmed.
In any
case, I note that Einstein’s
petition
answer
for delay
damages denied liability under Craig,
though
even
it admit-
ted that
the verdict was
greater
than
125%
its settlement
rule,
plaintiff may
Under the new
requesting delay
file a motion
decision,
days
within ten
of the verdict or the notice of the
may
and a defendant
file
days
an answer within ten
of the motion.
238(c)(1).
Craig,
supreme
Pa.RX.P.
In
day
court set a five
limit
petition,
on
and the answer.
Einstein to a settlement offer within failing make 125% verdict, there is no assessed a penalty jury eventual demand that is similarly makes settlement plaintiff who According to to Ein- in that verdict. comparison excessive stein, defen- impermissible classifications of this creates relationship no plaintiffs, dants and bears rational Although argu- goal case settlement. these the stated terms, equal in are more protection they ments are couched questions of fundamental fairness. addressed as properly rule, was intended to Because I believe that new defect, fundamentally this remains unfair rectify I find negotiations, portion settlement context of would of the rule unconstitutional. supreme question
In
court addressed the
Craig,
of former rule 238:
constitutionality
point
contending
procedural
There is no
that a
rule
fault, and is
consist-
may
punishes
yet
exist that
without
Process____
suspend
ent
Due
today
with
We
the rule
Process,
tight
gauntlet through
it
too
Due
because
runs
sought
denial of
forum assess fault for
short,
In
Rule 238 has
an uncon-
be avoided.
become
that all fault lies with the defen-
presumption
testable
many
why
dant. There are too
reasons
such is not
case; is not
so
always
always may
what
be
when a
follows.
penalty
irrebuttable
Id.,
rectify
The delay contemplated by the supreme court in Craig, however, and fairly remedied an award of prejudgment interest, is not the of type delay that we are faced with this case. In Craig, that, the court stated in addition to the of period time between the starting verdict, date and the fact finder shall consider: parties’ respective [t]he responsibilities in requesting continuances, parties’ compliance with rules of discovery; respective respon- 2. I make no constitutionality comment on the of such a rule under the separation constitution, powers clause of our state as that issue was not raised before us. argument. 3. This is said question for the sake of I whether a rule which assumes that all compensate defendants who refuse plaintiffs jury profit without a they verdict from the ostensibly monies have kept for fundamentally themselves can be said fair. I note with self-insurer, concern may the case of the who not have the funds on invest, probably hand to return and who most will be unable to obtain a comparable suggested by to that prime the rule—the rate listed in the first edition of the year Wall Street Journal for each calender awarded, for which the plus percent, are to be one not compounded. of addition- joinder for necessitated sibilities factors. parties; pertinent al and other words, In other A.2d 512 Pa. at at question with the narrow was concerned Craig itself. It process delays in the trial causing parties’ fault no made at- address, new therefore not and the rule did in the assessment inequity inherent tempt remedy, parties’ based on damages against defendants taking first into consid- settlement without failure to reach It during settlement. actions plaintiff’s eration here. which is before us issue period for the 238 excludes
New rule time: offer of the defendant has made written after which cash (i) specified prompt in a sum with settlement plaintiff, to the payment *
* * * * * ninety days and continued that offer effect for least occurs, trial, first until whichever or commencement did not accepted and the which offer award, verdict, decision, exclusive dam- recover either the ages delay, percent more than 125% settle- specified sum or the actual cost of the structured *16 plaintiff; ment cash the or plus any payment to of the trial. during plaintiff delay which the caused 238(b)(1)(i) (b)(2). one assume Although might Pa.R.C.P. & the current subtract from the total procedure would including the delay delay by plaintiff, delay all caused settlement, require during the rule does not this result. Rather, specifically the rule states all trial be Pa.R.A.P. plaintiff attributable to will excluded. See at 238(b)(2); 515 A.2d see also Pa. plaintiff’s No is made the role in the settlement mention Rather, upon the burden of settlement rests the process. 238(b)(1)(i). I shoulders of the defendant. See Pa.R.A.P. is fundamentally believe that this unfair. agreement parties
A is an two and settlement between on of both. requires part an effort the presumably therefore rule, the present Under should to plaintiff choose demand an negotiations, unreasonable amount at settlement an justifiably amount the defendant cannot or will not pay, settlement as if surely as thwarted the defendant case, had failed make a offer. In latter reasonable the the for delay damages the defendant all less the amount the caused plaintiff logical is at moved to least the defendant —had plaintiff make a reasonable offer would made have been sooner, whole that much having spend without time However, at trial. has plaintiff only where made an demand, unreasonable settlement has failed to make any settlement, way move toward or in some acts to or settlement, prevent is unfair place going it blame trial, form assessment for all on delay, solely plaintiff court-caused the defendant. If the which, makes a demand when considered in of the light jury verdict, unreasonable, appears plaintiff is at least as responsible going trial as the In such defendant. situation, is not plaintiff prevented being from made through whole at settlement any profit motive of the defen- dant; profit appears motive to be the A plaintiffs. defendant should not then be penalized by being required to which, pay those monies after jury verdict, are deter- mined to have property plaintiff been the all along. The plaintiff could have had use of those monies settlement, through process but frustrated the settlement Further, his her or actions. an unreasonable settlement on the part demand could viewed offer, defendant as a rejection any more reasonable discourage therefore could that defendant from making any other offer which would shield him her from rule 238 damages. us,
In the case before complains that, although Einstein verdict its jury offer, plaintiffs exceeded settlement settlement demand exceeded jury’s award *17 $25,000.00; unreasonable. The jury awarded Schrock his original $125,000.00, demand was five times the amount eventually It appears awarded. that both plaintiff and
235 case; defendant, however, only misvalued the defendant This construc- for the failure to settle. being penalized is negotiations onus of the settlement puts tion the rule arrangement I do think such an party. on one not squarely in agreement fairness. I am with fundamental comports Laudenber- dissent well-considered with Justice Roberts’ 496 Pa. 436 Authority Allegheny County, Port ger v. (1981): 147 A.2d by its compounded further unfairness is
The
defendants,
only upon
duties and sanctions
imposition
is
If
of the Rule
to
upon plaintiffs.
object
not
require
not
defen-
only
the Rule should
discourage delay,
offers, but also
to make reasonable settlement
dants
plaintiffs to make reasonable demands.
require
should
a reasonable effort
to
party
of either
make
Failure
of similar sanctions.
should result in the
settle
J.,
Id.,
(Roberts,
dissenting).
It me seems respective fault of the finding failure to make unconstitutionality, and held that rule smacked of parties It this reason. precisely unworkable for “[had] all fault lies presumption an become uncontestable such is many why There are too reasons with a defendant. *18 case; always and what is not so always may not be Id., irrebutable a penalty when follows.” 512 Pa. at A.2d at 1353. There are many reasons for a failure to case, settle a and unless can we determine that the defen- dant’s role in the settlement scenario was out played with a profit motivation, not, then we should and constitutionally cannot, punish that defendant. If so, we to do attempt we are mandating settlement situations where settlement perhaps should not take place, we are punishing defendants for attempting litigate cases, and, their in some instanc- es, punishing we are them being unable to make an acceptable settlement offer. I am of the opinion that assess all delay against a defendant solely because of the amount of his or her settlement offer any without determination of the respective fault of the parties during settlement negotiations is ineffectual and fundamentally I unfair. therefore dissent.
Carol Superior Pennsylvania. Court of
Argued Jan. 1989. Aug. Filed