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HomeMy WebLinkAbout89-2990 CivilROBERT L. BOWERS, Plaintiff V. ADAMS WHOLESALERS and MAMCO of Pennsylvania, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2990 CIVIL 1989 JURY TRIAL DEMANDED IN RE: PLAINTIFF'S PETITION FOR DELAY DAMAGES BEFORE OLER. J. ORDER OF COURT AND NOW, this Oday of April, 1993, upon careful consideration of Plaintiff's Petition for Delay Damages, Defendants' Answer thereto, and the briefs of the parties, and following a hearing on the matter, Plaintiff's Petition is GRANTED. Delay Damages in the amount of $4,527.94 are to be added to the verdict in favor of Plaintiff. BY THE COURT, Wesley Oler, Jr. J. Dusan Bratic, Esq. 101 Office Center, Suite A 101 U.S. Route 15 South Dillsburg, PA 17019 Attorney for Plaintiff Karl R. Hildabrand, Esq. 111 Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Defendants :rc ROBERT L. BOWERS, Plaintiff V. ADAMS WHOLESALERS and MAMCO of Pennsylvania, Defendants Oler, J. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2990 CIVIL 1989 JURY TRIAL DEMANDED IN RE: PLAINTIFF'S PETITION FOR DELAY DAMAGES BEFORE OLER, J. OPINION AND ORDER OF COURT At issue in the present case is a Petition for Delay Damages filed by Robert L. Bowers (Plaintiff) following a jury verdict in favor of Plaintiff and against Adams Wholesalers and MAMCO of Pennsylvania (Defendants). In response to this Petition, Defendants have filed an Answer opposing the imposition of delay damages. For the reasons set forth in this Opinion, Plaintiffs Petition for Delay Damages is granted. On August 18,1989, Plaintiff commenced this action by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Cumberland County. Subsequently, on July 12, 1990, Plaintiff filed a Complaint sounding in negligence against Defendants.' In turn, Defendants filed an Answer with New Matter on August 10, 1990, and Plaintiffs reply to Defendants' New Matter was filed on August 27, 1990.2 On July 7, 1990, Defendants' First Request for Production of Documents was served upon Plaintiff. Subsequently, on July 13, 1990, Defendants served their First 1 Plaintiff has requested delay damages from July 13, 1991. See Plaintiff's Petition for Delay Damages, paragraph 2. 2 Plaintiff had labelled this reply as an Answer to Defendants' New Matter. No. 2990 Civil 1989 Set of Interrogatories, including Expert Interrogatories, upon Plaintiff. On October 30, 1990, Plaintiff answered Defendants' Interrogatories and "attached to those Interrogatories a substantial number of documents including medical reports, and Plaintiff s drawings. 113 However, Plaintiff did not supply an expert's report until January 18, 1993. On November 13, 1990, Plaintiff sent Interrogatories and a Request for Production of Documents to Defendants Defendants on April 21, 1992. These were answered and produced by On June 19, 1992, defense counsel listed the case for trial for the September, 1992, Trial Term. By Order of Court on September 8, 1992, the Honorable Harold E. Sheely continued the case by agreement of counsel. Initially, a request for continuance had been made by Plaintiff, but objected to by Defendants, and was denied. However, "[t]wo weeks later when defense counsel learned that Defendants' expert was not available during trial week, defense counsel advised Plaintiffs counsel that he would agree to the continuance request."' This case was again listed for trial on October 15, 1992, and was tried before a jury on January 25, 26, and 27, 1993. At the conclusion of the trial, the jury returned a verdict in favor of Plaintiff in the amount of $35,000.00. 3 Plaintiff's Brief, at 1. ' Defendants' Brief, at 7. 2 No. 2990 Civil 1989 On February 5, 1993, Defendants filed a Motion for Post -Trial Relief. This motion is currently pending. Also on this date, Plaintiff filed the present Petition for Delay Damages under Pennsylvania Rule of Civil Procedure 238, contending that Defendants failed to submit any offer for settlement6 and seeking total delay damages in the amount of $4,579.24.8 In response to Plaintiff's Petition, Defendants contend the following: (1) "Rule 238 is unconstitutional to the extent that `fault -neutral' time periods are automatically assessed against Defendants;` and (2) "[a]ny delay in the trial of the subject matter was caused by the Plaintif T's] action or inaction and was not caused by any action or inaction on the part of Defendants."' A hearing on the Petition was held before the undersigned judge on March 12, 1993. Pennsylvania Rule of Civil Procedure 238(a)(1) provides that "[alt the request of the plaintiff in a civil action seeking monetary relief for bodily injury, ... damages for delay shall be added to the amount of compensatory damages awarded against each defendant ... found to be liable to the plaintiff in the verdict of a jury." Moreover, "[d]amages for delay shall be awarded for the period of time ... from a date one year 5 Plaintiff"s Petition, paragraph 3. Defendants admit to not making any written settlement offers. Defendants' Answer, paragraph 4. 6 Plaintiff"s Petition, paragraph 4. Defendants' Answer, paragraph 7. 8 Defendants' Answer, paragraph 9. 3 No. 2990 Civil 1989 after the date the original process was first served in the action up to the date of the ... verdict." Pa. R.C.P. 238(a)(2)(ii). However, this period of time shall not include "the period of time, if any, (1) after which the defendant has made a written offer of [settlement] ... and continued that offer in effect for at least ninety days or until commencement of trial ... or (2) during which the plaintiff caused the delay of the trial." Pa. R.C.P. 238(b). In response to Plaintiffs request for delay damages, Defendants initially contend that Rule 238 is unconstitutional, and that as a consequence delay damages should not be assessed against them. In so contending, Defendants rely upon the holding of the Pennsylvania Supreme Court in Craig v. MaGee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). In Craig, the Pennsylvania Supreme Court suspended prior Rule 238 because it "assesse[d] delay damages against defendants without regard to fault," and therefore violated due process. Id. at 65, 515 A.2d at 1353 (1986). As a result of this holding, the Pennsylvania Supreme Court adopted the present Rule 238 in November, 1988. Since the enactment of the present Rule 238, several cases have arisen challenging its constitutionality. See, e.g., Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 4 No. 2990 Civil 1989 568 A.2d 1272 (1990), allocatur denied 528 Pa. 610, 596 A.2d 157 (1991).9 In addressing this issue, the Pennsylvania Superior Court held that "Rule 238 is not patently unconstitutional, and any further determination in this respect can only emanate from the Supreme Court." Id. at 490, 568 A.2d at 1279. In light of this and similar holdings, we must reject Defendants' contention that Rule 238 should not be applied to assess delay damages in this case because it is unconstitutional. Defendants also contend that according to the official docket of this case, Plaintiff did not file his Petition for Delay Damages until February 17, 1993, "some 21 days after the jury returned its verdict on January 27, 1993.i10 Consequently, Defendants contend that this was not a timely filing as mandated by Rule 238(c)," and that Plaintiffs petition should be dismissed. In response to this argument, however, it must be noted that in the Cumberland County Court System, various petitions and motions are filed with the Court 9 See also Novelli v. Johns -Manville Corp., 395 Pa. Super. 144, 149-50 n.6, 576 A.2d 1085, 1088 n.6 (1990) (stating that it is inappropriate for the Superior Court to hold a rule promulgated by the Supreme Court unconstitutional); allocatur denied, _ Pa. _, 592 A.2d 45 (1991) Shellkamer v. Grey, 390 Pa. Super. 122, 568 A.2d 224 (1989) (Rule 238 is not unconstitutional and does not exceed the Supreme Court's power). 10 Defendants' Brief, at 5; Exhibit A. 11 Rule 238(c) provides that "[n Jot later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation." (Emphasis added.) 5 No. 2990 Civil 1989 Administrator and are subsequently entered onto the docket.12 Here, Plaintiff's Petition was filed with the Court Administrator on February 5, 1993, and, thus, was within the ten day filing period prescribed by Rule 238(c).13 Finally, Defendants contend that "[a]ny delay in the trial ... was caused by Plaintiff['s] action or inaction and was not caused by any action or inaction on the part of Defendants."14 Moreover, Defendants aver that Plaintiff "failed to diligently and reasonably move the instant action to trial and failed to timely respond to Defendants' Discovery Requests, including the provision of timely expert records.t15 Consequently, Defendants contend that all or part of the delay in this action is attributable to Plaintiff and should be excluded from the computation of delay damages. Initially, it should be noted that, in challenging a motion for delay damages, "the burden is on the defendant ... to prove either that the requisite offer was made or that the plaintiff was responsible for a period during which the trial was delayed. City of Pittsburgh v. Jodzis, _ Pa. Commw. _, _, 607 A.2d 339, 348 (1992). In the present 12 See Cumberland County Rule of Procedure 206-2(a), which provides that "[a]11 motions and petitions shall be presented to the Court Administrator for assignment to a judge for disposition." " See Commonwealth of Pennsylvania, Dept. of Transportation v. Milisavic, No. 1839 Civil 1992 (Cumberland Co. 1992) (holding that date stamped upon receipt by Court Administrator constitutes the date on which appeal was filed). 14 Defendants' Answer, paragraph 9. 15 Defendants' Answer, paragraph 10. 0 No. 2990 Civil 1989 action, both parties agree that Defendants had made no written offer of settlement to Plaintiff.18 Consequently, the Court's determination is limited to the issue of whether Defendants have proven that Plaintiff was responsible for any of the delays in the present action. Defendants primary contention is that "the period of time from August 18, 1990 up to January 20, 1993 should be excluded [from the calculation of delay damages] due to Plaintiffs failure to timely obtain and provide an expert's report" which was requested by Defendants on July 13, 1990.17 Furthermore, Defendants contend that, since Plaintiff requested a continuance on August 19, 1992, "the period of time from September 8, 1992 when the continuance `by agreement of counsel' was granted, through the date of trial should be excluded as clearly a delay in trial [which] was occasioned by Plaintiff's request for a continuance."18 Defendants also contend that as of August 7, 1990, Plaintiffs response to Defendants' Request for Production of Documents was overdue; consequently, "the period of time from August 7, 1990 through at least February 18, 1991 should be excluded" from the calculation of delay damages.19 is Plaintiff"s Petition, paragraph 3; Defendants' Answer, paragraph 3. 17 Defendants' Brief, at 7. 18 Defendants' Brief, at 8. is Defendants' Brief, at 8. 7 No. 2990 Civil 1989 It has been noted that, for purposes of computing delay damages, normal delays in the discovery process will not be attributed to the fault of a plaintiff "unless it is demonstrated that the plaintiff failed to take reasonable and normal steps to prepare his case and proceed to trial." Kuchak v. Lancaster General Hospital, 377 Pa. Super. 288, 293, 547 A.2d 372, 375 (1988) (emphasis added), allocatur denied, 521 Pa. 621, 557 A.2d 725 (1989). However, when a delay is the result of a plaintiff's action or inaction, whichever the case might be, the period of time encompassed by the delay will be excluded from the computation of delay damages. With respect to Defendants' contention that the calculation of delay damages should not include the period of time during which Plaintiff failed to obtain and provide an expert report, as well as the period of time during which Plaintiff did not respond to Defendants' discovery requests, the Explanatory Comment to Rule 238 provides that failure by the plaintiff to answer interrogatories within thirty days should not affect the award of damages for delay unless the trial was delayed as a result.... It is felt that Rule 4019 provides a vehicle ... which can timely dispose of delay due to discovery noncompliance regardless of whether or not it delays the trial. The note under ... Rule 238(b)(2) is a reminder of this alternative remedy to halt delay damages and to expedite preparation of the case for trial. (1992 Supp.). Thus, as a general rule, a delay in discovery should not affect the issue of delay damages. In addition, with particular reference to the expert report herein, it is clear that this circumstance did not in fact delay the trial, the case having been No. 2990 Civil 1989 listed prior to its receipt and Defendants having rejected the Court's offer of a continuance when it was received. Finally, in reference to Defendants' contention that the period of time during which the trial was delayed by the continuance should be excluded from the calculation of delay damages, it should be noted that although Plaintiff initially requested the continuance, without success, Defendants caused the continuance to occur when they "learned that [their] expert was not available during trial week.i20 As such, it cannot be said that the delay occasioned by the continuance is attributable solely to Plaintiff. Consequently, this time period should not be excluded from the calculation of delay damages.21 Based upon the foregoing discussion, Defendants will be liable to Plaintiff for delay damages from July 13, 1991, until January 27, 1993, the date on which the jury rendered a verdict in favor of Plaintiff. The amount of delay damages on the verdict of $35,000 is $4,527.94.22 20 Defendants' Brief, at 7. 21 The equities of this position are strengthened by the fact that Plaintiff has not sought to compute the delay damages from the date of filing of the praecipe for a writ of summons. See note 1 supra. 22 These damages are calculated as follows: Year Prime Rate +10% Days Amount 1991 10.5% 171/365 $1,721.71 1992 7.5% 365/365 2,625.00 1993 7% 27/365 181.23 $4,527.94 R7 No. 2990 Civil 1989 ORDER OF COURT AND NOW, this W4dayof April, 1993, upon careful consideration of Plaintiff's Petition for Delay Damages, Defendants' Answer thereto, and the briefs of the parties, and following a hearing on the matter, Plaintiff's Petition is GRANTED. Delay Damages in the amount of $4,527.94 are to be added to the verdict in favor of Plaintiff. Dusan Bratic, Esq. 101 Office Center, Suite A 101 U.S. Route 15 South Dillsburg, PA 17019 Attorney for Plaintiff Karl R. Hildabrand, Esq. M Market Street P.O. Box 93 Harrisburg, PA 17108-0093 Attorney for Defendants :rc BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. 10