Frisch, A. v. James River Ins. ( 2021 )

J-A17009-21
2021 PA Super 212AARON FRISCH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JAMES RIVER INSURANCE COMPANY :
:
Appellee : No. 1520 EDA 2020
Appeal from the Order Entered July 7, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 180400052
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
OPINION BY KING, J.: FILED OCTOBER 20, 2021
Appellant, Aaron Frisch, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which granted a new trial in this
case following a jury verdict in favor of Appellant.1 For the following reasons,
we reverse the order granting a new trial, vacate the order denying Appellant’s
motion for delay damages, and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
March 29, 2018, Appellant filed a complaint against Appellee James River
Insurance Company. Appellant alleged that on July 3, 2016, he was a
passenger in a vehicle that was rear-ended. Appellant claimed he suffered
serious, severe, and permanent bodily injuries from the accident. The driver
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See Pa.R.A.P. 311(a)(6) (explaining that appellant can take interlocutory
appeal as of right from order in civil case awarding new trial).
J-A17009-21
of the vehicle that struck the car in which Appellant was a passenger had
insufficient insurance to compensate Appellant for his injuries. At the time of
the accident, Appellant was the owner of a vehicle insured by Appellee, which
included underinsured motorist coverage. Consequently, Appellant sought
damages from Appellee.
The case proceeded to a two-day jury trial on January 21, 2020. The
jury heard live testimony from Appellant and video deposition testimony from
the parties’ respective expert witnesses. Relevantly, the testimony at trial
made clear that Appellant had undergone various treatments and procedures
in connection with a pre-existing low back injury from a prior fall. Thus, the
parties disputed to what extent the July 3, 2016 car accident caused
Appellant’s alleged injuries (as opposed to the pre-existing condition), as well
as Appellant’s claim for future medical expenses and non-economic damages.
During jury instructions, the court issued the following charge:
7.70, pre-existing condition or injury. Damages should be
awarded for all injuries caused by the accident even if: One,
the injuries caused by the accident were more severe than
could have been foreseen because of the plaintiff’s prior
physical condition; or two, a pre-existing medical condition
was aggravated by the accident.
If you find that the plaintiff did have a pre-existing condition
that was aggravated by the accident, the defendant is
responsible for any aggravation caused by the accident. I
remind you that the defendant can be held responsible for
only those injuries or the aggravation of a prior injury or
condition that you find was factually caused by the accident.
* * *
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Factual cause. In order for the plaintiff to recover in this
case, the accident must have been a factual cause in
bringing about harm. Conduct is a factual cause of harm
when the harm would not have occurred absent the conduct.
To be a factual cause the accident must have been an actual,
real factor in causing the harm, even if the result is unusual
or unexpected.
A factual cause cannot be an imaginary or fanciful factor
having no connection or only an insignificant connection
with the harm.
To be a factual cause, the accident need not be the only
factual cause. The fact that some other causes concur with
the accident in producing an injury does not relieve the
defendant from liability, as long as the accident is a factual
cause of the injury.
(N.T. Trial, 1/22/20, at 93-94). Following the court’s instructions, the jury
retired for deliberations at 11:45 a.m.
At 12:24 p.m. on the same day, the jury asked: “May we please have a
copy of the law surrounding pre-existing conditions.” (Id. at 102). The
following exchange then took place:
[THE COURT]: Is there any objection to sending back the
instruction?
[APPELLANT]: None from plaintiff, Your Honor.
[APPELLEE]: I object, Your Honor.
[THE COURT]: Based on what?
[APPELLEE]: I don’t believe that it’s appropriate to give
the jury one section of the charge. So, for a particular
reason, like in this one it says “May we please have a copy
of the law surrounding pre-existing conditions.”
I don’t believe that that asks for one particular charge, and
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so the question is does that include the sections on factual
cause?
[THE COURT]: No, it doesn’t.
[APPELLEE]: Well—
[THE COURT]: It doesn’t. And “surrounding” is probably the
semantics used by a layperson.
[APPELLEE]: Okay.
[THE COURT]: So, let me just take a look at it.
[APPELLEE]: I don’t have an objection, your Honor, to
bring the jury back and read it to them again, but I do
have an objection if that section of the charge is
provided to them to go into the jury room.
[THE COURT]: Okay. Let’s bring them in and if they need
further clarification, then I’m going to send it back.
[APPELLEE]: Very well.
[THE COURT]: So, we’re talking 7.70 [regarding pre-
existing conditions].
[APPELLEE]: Correct.
[APPELLANT]: Correct.
[THE COURT]: Okay.
* * *
[THE COURT]: So, Ladies and Gentleman of the Jury, we
received your question through your foreperson. I will read
it again for the record.
“May we please have a copy of the law surrounding pre-
existing conditions.”
Based upon my conversation with counsel, I am going to
read to you again the charge relating to pre-existing
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condition or injury…
(Id. at 102-04) (emphasis added). The court then re-read the entire
instruction regarding pre-existing conditions. The court did not re-read the
section defining factual cause. After the court re-read the pre-existing
conditions instruction, the court asked if any member of the jury “needs
another reading of the rule of law that I just read[.]” (Id. at 106). No juror
asked for another reading, and neither party raised any objection to the
court’s charge. Thus, the court did not send back to the jury room the
instruction regarding pre-existing conditions.
On January 22, 2020, the court returned a verdict in favor of Appellant
for $255,000.00 in economic damages and $35,000.00 in non-economic
damages. Appellant timely filed a motion for delay damages on January 24,
2020. In response, Appellee claimed that Appellant had caused a 91-day
delay in the case such that he should not be entitled to delay damages for
that period.
On Monday February 3, 2020, Appellee timely filed a post-trial motion,
claiming, inter alia, the court erred when it re-read jury instruction 7.70
relating to pre-existing conditions without also re-reading the charge
pertaining to the definition of factual cause. Appellee alleged that the jury
might have misunderstood and/or confused the instruction, believing that it
could award Appellant damages for aggravation of his pre-existing condition
even if the accident was not a real factor in causing such aggravation.
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Additionally, Appellee asked the court to reduce the verdict by $25,000.00
based on a credit Appellee was entitled to from a settlement Appellant had
obtained with the tortfeasor/driver of the other vehicle.
In response, Appellant claimed that Appellee waived any challenge to
the court’s supplemental jury charge pursuant to Pa.R.C.P. 227.1, where
Appellee did not object after the court re-read the instruction on pre-existing
conditions. Appellant did not oppose reducing the verdict by $25,000.00.
On February 25, 2020, the court denied Appellant’s motion for delay
damages. Appellant initially took a premature appeal from this order, which
this Court subsequently quashed. (See 1147 EDA 2020). On July 7, 2020,
the court granted Appellee’s motion for new trial, stating that it erred by
declining to re-read to the jury the definition of factual cause when it re-read
the charge on pre-existing conditions. This timely appeal follows.2
Appellant raises two issues for our review:3
Whether the trial court abused its discretion and otherwise
committed an error of law when it failed to re-read a jury
instruction that was read to the jury less than an hour prior
during the initial jury charge?
Whether the trial court abused its discretion and otherwise
committed an error of law when it improperly denied
[Appellant’s] post-trial motion for Delay Damages by way of
____________________________________________
2 No Pa.R.A.P. 1925(b) statement was ordered or filed.
3 Although Appellant presents only two issues in his statement of questions
presented, his argument section is divided into four sections. We remind
counsel that “[t]he argument shall be divided into as many parts as there are
questions to be argued[.]” Pa.R.A.P. 2119(a).
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Order dated February 24, 2020 and Supporting
Opinion/Motion to Quash [Appellant’s] appeal dated July 16,
2020?
(Appellant’s Brief at 8) (re-ordered for purposes of disposition).
In his first issue, Appellant argues that the court informed the jury of
the definition of “factual cause” in the initial jury charge, which the court read
44 minutes before the jury submitted the question regarding the law on pre-
existing conditions. Appellant emphasizes that factual cause was discussed in
at least two of the jury instructions. Appellant insists that the court’s failure
to re-read a jury instruction, which was covered on multiple occasions, cannot
constitute grounds for a new trial. Appellant concludes the court’s award of a
new trial was erroneous, and this Court must reverse.4 Because Appellee
waived its challenge to the jury instruction, we agree Appellant is entitled to
relief on this claim.
Our review of Appellant’s claim implicates the following principles:
Trial courts have broad discretion to grant or deny a new
trial. The grant of a new trial is an effective instrumentality
for seeking and achieving justice in those instances where
the original trial, because of taint, unfairness or error,
produces something other than a just and fair result, which,
after all, is the primary goal of all legal proceedings.
Although all new trial orders are subject to appellate review,
____________________________________________
4 In the second argument section of his brief (which does not correspond to
one of the issues contained in the statement of questions involved), Appellant
argues that the question of causation should not even have gone to the jury,
where both experts agreed Appellant sustained injuries from this motor
vehicle accident. (See id. at 19-23). Because we conclude on other grounds
that the court should not have awarded a new trial, we need not address this
argument.
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it is well-established law that, absent a clear abuse of
discretion by the trial court, appellate courts must not
interfere with the trial court’s authority to grant or deny a
new trial.
* * *
Each review of a challenge to a new trial order must begin
with an analysis of the underlying conduct or omission by
the trial court that formed the basis for the motion. There
is a two-step process that a trial court must follow when
responding to a request for new trial. First, the trial court
must decide whether one or more mistakes occurred at trial.
These mistakes might involve factual, legal, or discretionary
matters. Second, if the trial court concludes that a mistake
(or mistakes) occurred, it must determine whether the
mistake was a sufficient basis for granting a new trial. The
harmless error doctrine underlies every decision to grant or
deny a new trial. A new trial is not warranted merely
because some irregularity occurred during the trial or
another trial judge would have ruled differently; the moving
party must demonstrate to the trial court that he or she has
suffered prejudice from the mistake.
To review the two-step process of the trial court for granting
or denying a new trial, the appellate court must also
undertake a dual-pronged analysis. A review of a denial of
a new trial requires the same analysis as a review of a grant.
First, the appellate court must examine the decision of the
trial court that a mistake occurred.
At this first stage, the appellate court must apply the correct
scope of review, based on the rationale given by the trial
court. There are two possible scopes of review to apply
when appellate courts are determining the propriety of an
order granting or denying a new trial. There is a narrow
scope of review: [w]here the trial court articulates a single
mistake (or a finite set of mistakes), the appellate court’s
review is limited in scope to the stated reason, and the
appellate court must review that reason under the
appropriate standard.
[Conversely,] [i]f the trial court leaves open the possibility
that reasons additional to those specifically mentioned
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might warrant a new trial, or orders a new trial “in the
interests of justice,” the appellate court applies a broad
scope of review, examining the entire record for any reason
sufficient to justify a new trial.
Even under a narrow scope of review, the appellate court
might still need to examine the entire record to determine if
there is support for any of the reasons provided by the trial
court.
The appropriate standard of review also controls this initial
layer of analysis. If the mistake involved a discretionary
act, the appellate court will review for an abuse of
discretion. If the mistake concerned an error of law, the
court will scrutinize for legal error. If there were no
mistakes at trial, the appellate court must reverse a decision
by the trial court to grant a new trial because the trial court
cannot order a new trial where no error of law or abuse of
discretion occurred.
If the appellate court agrees with the determination of the
trial court that a mistake occurred, it proceeds to the second
level of analysis. The appellate court must then determine
whether the trial court abused its discretion in ruling on the
request for a new trial. An abuse of discretion exists when
the trial court has rendered a judgment that is manifestly
unreasonable, arbitrary, or capricious, has failed to apply
the law, or was motivated by partiality, prejudice, bias, or
ill will. A finding by an appellate court that it would have
reached a different result than the trial court does not
constitute a finding of an abuse of discretion. Where the
record adequately supports the trial court’s reasons and
factual basis, the court did not abuse its discretion.
When determining whether the trial court abused its
discretion, the appellate court must confine itself to the
scope of review, as set forth in our preceding discussion. If
the trial court has provided specific reasons for its ruling on
a request for a new trial, and it is clear that the decision of
the trial court is based exclusively on those reasons,
applying a narrow scope of review, the appellate court may
reverse the trial court’s decision only if it finds no basis on
the record to support any of those reasons. As a practical
matter, a trial court’s reference to a finite set of reasons is
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generally treated as conclusive proof that it would not have
ordered a new trial on any other basis. Alternatively, where
the trial court leaves open the possibility that there were
reasons to grant or deny a new trial other than those it
expressly offered, or the trial court justifies its decision on
the “interests of justice,” an appellate court must apply a
broad scope of review and affirm if it can glean any valid
reason from the record.
Harman ex rel. Harman v. Borah, 562 Pa. 455, 465-69, 756 A.2d 1116,
1121-24 (2000) (internal citations and quotation marks omitted).
Pennsylvania Rule of Civil Procedure 227.1 governs post-trial relief and
provides as follows:
Rule 227.1. Post-Trial Relief
(a) After trial and upon the written Motion for Post-
Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party;
or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
(b) Except as otherwise provided by Pa.R.E. 103(a),
post-trial relief may not be granted unless the grounds
therefor,
(1) if then available, were raised in pre-trial
proceedings or by motion, objection, point for charge,
request for findings of fact or conclusions of law, offer of
proof or other appropriate method at trial; and
Note: If no objection is made, error which could have
been corrected in pre-trial proceedings or during trial
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by timely objection may not constitute a ground for
post-trial relief.
Pa.R.E. 103(a) provides that the specific ground for an
overruled objection, or the substance of excluded evidence,
need not be stated at or prior to trial, or without having
made an offer of proof, if the ground of the objection, or the
substance of the evidence sought to be introduced, was
apparent from the context.
(2) are specified in the motion. The motion shall state
how the grounds were asserted in pre-trial proceedings or
at trial. Grounds not specified are deemed waived unless
leave is granted upon cause shown to specify additional
grounds.
Pa.R.C.P. 227.1(a)-(b) (emphasis added).
Regarding jury instructions specifically, the rules of civil procedure make
clear that “all exceptions to the charge to the jury shall be taken before the
jury retires.” Pa.R.C.P. 227(b). Thus, to preserve an issue concerning the
correctness of a trial court’s jury charge, the complaining party must make a
timely, specific objection to the charge as given. Jones v. Ott, 648 Pa. 76,
80-81, 191 A.3d 782, 784 (2018) (internal citation omitted). “Requiring a
timely specific objection to be taken in the trial court will ensure that the trial
judge has a chance to correct alleged trial errors. This opportunity to correct
alleged errors at trial advances the orderly and efficient use of our judicial
resources.” Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 258-59,
322 A.2d 114, 116 (1974).
Assuming a challenge to the jury charge is properly preserved, in
reviewing challenges to the charge:
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[O]ur scope of review is to determine whether the trial court
committed clear abuse of discretion or error of law
controlling the outcome of the case. Error in a charge is
sufficient ground for a new trial, if the charge as a whole
is inadequate or not clear or has a tendency to mislead or
confuse rather than clarify a material issue. A charge will
be found adequate unless the issues are not made clear to
the jury or the jury was palpably misled by what the trial
judge said or unless there is an omission in the charge which
amounts to fundamental error. A reviewing court will not
grant a new trial on the ground of inadequacy of the charge
unless there is a prejudicial omission of something basic or
fundamental. In reviewing a trial court’s charge to the
jury, we must not take the challenged words or
passage out of context of the whole of the charge, but
must look to the charge in its entirety.
McManamon v. Washko, 906 A.2d 1259, 1271 (Pa.Super. 2006), appeal
denied, 591 Pa. 736, 921 A.2d 497 (2007) (internal citations and quotation
marks omitted) (emphasis added). A supplemental jury charge “must be
viewed in conjunction with [the original jury charge], not divorced therefrom
and in isolation.” Polett v. Public Communications, Inc., 633 Pa. 445,
509, 126 A.3d 889, 933 (2015).
Instantly, in granting Appellee a new trial, the trial court explained:
During deliberations, the jury asked for “a copy of the law
surrounding pre-existing conditions.” (N.T., 1/22/20, p.
102). This [c]ourt suggested clarifying the jury’s
understanding of the law by sending a copy of Jury
Instruction 7.70 back to the jury room. However, defense
counsel objected to such an action, asserting that the jury’s
question did not ask “for one particular charge.” (N.T.,
1/22/20, p. 103). Defense counsel, instead, argued that the
jury’s question asked for “surrounding law,” which would
include sections on factual cause. (N.T., 1/22/20, p. 103).
This [c]ourt retorted that the word “surrounding” was
probably the “semantics used by a layperson,” and re-read
only Instruction 7.70 to the jury. (N.T., 1/22/20, p. 103-
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104). …
* * *
While consulting with counsel, this [c]ourt brushed off the
jury’s usage of the word “surrounding” as semantics. This
was improper. The [c]ourt should have answered the jury’s
question exactly as it was written, and read Jury Instruction
13.20—Factual Cause along with 7.70—Pre-existing
Condition.
It seems apparent that by only re-reading Instruction 7.70
to the jury, the jury may have misunderstood or confused
the two instructions, thereby mistakenly believing that it
could award [Appellant] damages for aggravation of a pre-
existing condition even if the accident was not a real factor
in causing such aggravation. Jury Instructions 13.20 and
7.70 should have been re-read together. By re-reading
Instruction 7.70—which speaks to aggravation of prior
medical conditions but which does not remind the jury that
factual cause equates to the motor vehicle accident having
been an actual, real factor in causing the harm—the [c]ourt
erroneously highlighted the concept of aggravation of a pre-
existing condition without simultaneously reinforcing the
concept that the motor vehicle accident must be an actual
cause of said harm.
(Memorandum of Law in Support of Court’s Order, filed July 8, 2020, at 12-
13).5 We cannot agree with the trial court’s rationale because the record
makes clear Appellee waived its challenge to the jury instruction.
A close reading of the trial transcript shows that the jury asked for a
____________________________________________
5 See also (Rule 1925(a) Opinion, filed July 21, 2020, at 4) (stating: “[O]n
July 7, 2020, this [c]ourt granted a new trial on the ground that the [c]ourt
erred in refusing to re-read to the jury Pennsylvania Standard Civil Jury
Instruction 7.70—Pre-existing Condition or Injury in conjunction with Jury
Instruction 13.20—Factual Cause during deliberations, thereby perpetuating
jury confusion”).
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copy of the law surrounding pre-existing conditions. (See N.T., 1/22/20, at
102). The court asked if there was any objection to sending back the
instruction to the jury room, and Appellee objected. Appellee’s counsel stated
that he did not think it was appropriate to send back with the jury a copy of
the law on pre-existing conditions, without also sending back a copy of the
law defining factual cause. In fact, Appellee made clear: “I don’t have an
objection, your Honor, to bring the jury back and read it to them again,
but I do have an objection if that section of the charge is provided to
them to go into the jury room.” (See id. at 102-04). In light of Appellee’s
objection, the court re-read only the jury instruction pertaining to pre-existing
conditions; if the jury needed further clarification, then the court said it would
send back only that instruction with the jury to the deliberations room. (See
id.) After the court re-read the jury instruction on pre-existing conditions,
the jury foreperson stated that the jurors did not need further clarification.
Consequently, the court did not send back the jury instruction on pre-existing
conditions.
The record here shows that Appellee’s objection was not to re-reading
the jury instruction on pre-existing conditions without also re-reading the jury
instruction on factual cause. Rather, Appellee’s objection was to sending
back only the jury instruction on pre-existing conditions. The court
acquiesced to Appellee’s wishes by re-reading the instruction on pre-existing
conditions instead of just sending it back to the jury deliberation room, which
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is what the jury had asked the court to do. Because Appellee did not object
to the court re-reading the instruction on pre-existing conditions without also
re-reading the instruction on factual cause, Appellee was prohibited from
raising this claim for the first time in its post-trial motion seeking a new trial.
See Pa.R.C.P. 227.1(a)-(b); Pa.R.C.P. 227(b); Jones, supra; Dilliplaine,
supra. See also Takes v. Metropolitan Edison Co., 548 Pa. 92, 99, 695
A.2d 397, 401 (1997) (stating: “A trial court may not eliminate the entire
purpose of making a record and invalidate the directive in Dilliplaine simply
by addressing an issue”). As our Supreme Court made clear in Jones: “The
parties, their lawyers, and the court must be able to trust that a point for
charge, once affirmatively abandoned on the record, cannot, at a whim and in
contradiction of that waiver, be resuscitated, dusted off, and re-asserted in a
post-trial motion[.]” Jones, supra at 93, 191 A.3d at 792.
As the trial court expressly stated that its award of a new trial was based
on the allegedly improper jury instruction, our scope of review is limited to
examining whether the record supports granting a new trial on that ground.
See Harman, supra. Because we conclude that the court abused its
discretion by considering a waived issue raised for the first time in Appellee’s
post-trial motion, we must reverse the court’s award of a new trial.6 See id.____________________________________________
6 Based on our disposition, we need not consider Appellant’s fourth argument
section (which does not correspond to one of the issues contained in the
(Footnote Continued Next Page)
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In his second issue, Appellant argues that he was entitled to delay
damages under Pa.R.C.P. 238. Appellant asserts that the court did not issue
an opinion regarding why it denied Appellant’s motion for delay damages in
February 2020. Appellant highlights that in its Rule 1925(a) opinion filed in
July 2020, the court stated it denied Appellant delay damages because the
court had awarded a new trial. Appellant suggests the court’s reasoning is
illogical because the court did not award a new trial until July 2020, over four
months after the court had already denied Appellant’s motion for delay
damages. Appellant claims that Appellee did not make a valid settlement offer
under Rule 238 to prohibit Appellant’s recovery of delay damages. Appellant
insists he had a statutory right to delay damages under Rule 238, and this
Court must reverse and remand for the award of delay damages. We agree
some limited relief is due.7
Pennsylvania Rule of Civil Procedure 238 provides:
Rule 238. Damages for Delay in Actions for Bodily
____________________________________________
statement of questions involved) claiming that the court abused its discretion
when it set aside the jury verdict. (See Appellant’s Brief at 26-33).
7 This Court issued a rule to show cause on September 16, 2020, noting that
although the July 6, 2020 order granting a new trial was an interlocutory
appeal as of right, the order denying Appellant’s motion for delay damages
did not appear to be final or otherwise appealable. Appellant responded on
September 25, 2020, stating that, should this Court overturn the order
granting a new trial, the order denying Appellant’s motion for delay damages
would be ripe for adjudication. We agree with Appellant that because we have
reversed the order granting a new trial, and in the interests of judicial
economy, we can now review the order denying Appellant’s motion for delay
damages.
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Injury, Death or Property Damage
(a)(1) At the request of the plaintiff in a civil action
seeking monetary relief for bodily injury, death or property
damage, damages for delay shall be added to the amount
of compensatory damages awarded against each defendant
or additional defendant found to be liable to the plaintiff in
the verdict of a jury, in the decision of the court in a nonjury
trial or in the award of arbitrators appointed under section
7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall
become part of the verdict, decision or award.
(2) Damages for delay shall be awarded for the period
of time from a date one year after the date original process
was first served in the action up to the date of the award,
verdict or decision.
(3) Damages for delay shall be calculated at the rate
equal to the prime rate as listed in the first edition of the
Wall Street Journal published for each calendar year for
which the damages are awarded, plus one percent, not
compounded.
(b)(1) The period of time for which damages for delay
shall be calculated under subdivision (a)(2) shall exclude the
period of time, if any,
(i) after the defendant made a written offer which
complied with the requirements of subdivision (b)(2),
provided that the plaintiff obtained a recovery which did
not exceed the amount described in subdivision (b)(3),
or
(ii) during which the plaintiff caused delay of the trial.
(2) The written offer of settlement required by
subdivision (b)(1)(i) shall contain an express clause
continuing the offer in effect for at least ninety days or until
commencement of trial, whichever occurs first, and shall
either
(i) be in a specified sum with prompt cash payment,
or
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(ii) contain a structured settlement plus any cash
payment. An offer that includes a structured settlement
shall disclose the terms of payment underwritten by a
financially responsible entity, the identity of the
underwriter and the cost.
(3) The plaintiff’s recovery required by subdivision
(b)(1)(i), whether by award, verdict or decision, exclusive
of damages for delay, shall not be more than 125 percent
of either the specified sum or the cost of the structured
settlement plus any cash payment to the plaintiff.
Pa.R.C.P. 238(a)-(b). “[T]he purpose of delay damages is to alleviate court
congestion by promoting earlier settlement of claims. The purpose is in no
way to punish a defendant.” Schrock v. Albert Einstein Medical Center,
Daroff Div., 527 Pa. 191, 196, 589 A.2d 1103, 1106 (1991) (internal citation
and footnote omitted). Consequently:
Defendants can readily protect themselves from the
assessment of delay damages by making a prompt
settlement offer in writing that bears a substantial
relationship to the actual damages in the case. Defendants
are further protected from the assessment of delay
damages where they can show that the conduct of the
plaintiff throughout the course of litigation has delayed trial.
Id. at 196-97, 589 A.2d at 1106.
Instantly, the court returned a verdict in favor of Appellant for
$255,000.00 in economic damages and $35,000.00 in non-economic damages
on January 22, 2020. Appellant timely filed a motion for delay damages on
January 24, 2020. In response, Appellee claimed that Appellant had caused
a 91-day delay in the case such that he should not be entitled to delay
damages for that period. By order dated February 24, 2020, and filed the
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next day, the court denied Appellant’s motion for delay damages. As Appellant
correctly observes, the court did not issue any accompanying opinion in
support of its order. In its Rule 1925(a) opinion, the court stated that
Appellant’s motion for delay damages was premature because no judgment
on the verdict had been entered yet. (See Rule 1925(a) Opinion at 3).8
Nevertheless, under Rule 238, “[i]f a motion for post-trial relief has been filed
under Rule 227.1 and a motion for delay damages is pending, a judgment
may not be entered until disposition has been made of all motions filed under
Rule 227.1 and this rule.” Pa.R.C.P. 238(c)(3)(i). “This provision ensures
that there will be but one appeal encompassing both the merits of the action
and the damages for delay.” Pa.R.C.P. 238, Explanatory Comment. Thus, we
disagree with the trial court’s statement that Appellant’s request for delay
damages was premature.
On this record, however, where Appellee disputed Appellant’s
entitlement to delay damages by claiming that Appellant caused 91 days of
delay, the best resolution of this matter is to remand for further proceedings.
See Tindal v. Southeastern Pennsylvania Transp. Authority, 560 A.2d
183 (Pa.Super. 1989) (remanding for evidentiary hearing to determine any
fault-based delay caused by appellees where parties disputed appellees’
____________________________________________
8 Although the court noted that it also awarded a new trial, contrary to
Appellant’s claim, the court does not state that it denied the motion for delay
damages because the court awarded a new trial. (See id. at 4).
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entitlement to delay damages; if, upon remand, trial court concludes that
fault-based delay on part of appellees exists, it shall subtract that period from
total delay time assessed against appellants). Accordingly, we reverse the
order awarding a new trial, remand for reinstatement of the jury verdict in
favor of Appellant, vacate the order denying Appellant’s motion for delay
damages, and remand for a hearing on Appellant’s entitlement to delay
damages.
Order granting new trial reversed. Order denying motion for delay
damages vacated. Case remanded for further proceedings. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2021
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