DocketNumber： 157, 158 Eastern District Appeal Dockets, 1984
Judges： Grillo, Wieand, Brosky, Cirillo
Filed Date： 8/30/1990
Status： Precedential
Modified Date： 10/19/2024
concurring:
I concur in the result reached by my esteemed colleague, Judge Wieand. I write separately to discuss certain issues that the majority opinion does not address. Specifically, the appellant has advanced constitutional challenges to Pennsylvania Rule of Civil Procedure 238. While previously I have dissented to majority opinions concerning Pa.R.C.P. 238, in the interests of uniformity and stability in the law, I will now concur.
My feelings on the constitutional infirmities of Pa.R.C.P. 238 have been duly recorded. See Dietrich et al. v. J.I. Case Co. et al., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (Cirillo, P.J., concurring and dissenting); Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875
I am aware that we, as Superior Court Judges, may not ignore holdings of our supreme court or en banc decisions of this court. Dietrich, supra; Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989). I am also aware, however, that “disagreement among judges is as true to the character of democracy, and as vital as freedom of speech itself.” Fuld, The Voices of Dissent, 62 Colum.L.Rev. 923, 926 (1962). Moreover, “we may remind ourselves, unanimity in the law is possible in only fascist and communist countries.” Id.
Having vehemently dissented on the constitutional debilities that I feel pervade rule 238, I now enter a reluctant concurrence. See Witkin, Manual on Appellate Court Opinions, § 118 (1977). Justice Traynor advises:
Once [the judge] has dissented ... he has had his day. He should yield to the obligation that it is upon him to*277 live with the law as it has been stated. He may thereafter properly note that he is concurring under compulsion, abiding the time when he may win over the majority, but he should regard dearly enough the stability of the law that governs all the courts in the state not to renew the rataplan of his dissent.
Traynor, Some Questions on the Work of State Appellate Courts, 24 U.Chi.L.Rev. 218, 219 (1957). Although I realize that stability is best served by the entry of an indisposed concurrence, I cannot remain silent. Consequently, I feel compelled to once again “renew the rataplan” of previous dissents.
Initially, appellant contends that because rule 238 makes defendants responsible for delays which they did not cause, it violates due process. The parties in Schrock, King, and Miller, did not engage in any conduct that delayed the trial of their cases. However, because rule 238 does not provide for the exclusion of periods of delay not caused by either party[,]” Miller, 381 Pa.Super. at 241, 553 A.2d at 446, delay damages were assessed against the defendants in each of those cases. Likewise here, a portion of the delay was not the fault of either party, yet rule 238 commands us to assess delay damages against the appellant for such delay when no adequate settlement offer has been made, and none of the delay was the fault of the plaintiff. Pa.R. C.P. 238(b)(1).
By merely subtracting the delay caused by the plaintiff from the overall delay, rule 238 makes defendants responsible for delays caused by neither party. Ceresini, 380 Pa.Super. at 421, 552 A.2d at 260 (Cirillo, P.J., dissenting). This calculation makes defendants culpable simply because they have chosen to defend their case. Id.; Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting).
The appellants additionally contend that, although procedural, rule 238’s application impacts the substantive rights of litigants.
*278 The Pennsylvania Constitution vests in the Supreme Court “the power to prescribe general rules governing practice, procedure and the conduct of all courts ... if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant ...” Const, art 5, § 10(c) (emphasis added). Pursuant to this power, the Supreme Court appointed a Civil Procedural Rules Committee to assist in the preparation and revision of the Rules of Civil Procedure, which were adopted by the Supreme Court. See, 42 Pa.C.S., Rules of Civil Procedure, at XXV.
The Constitution specifically states that the Rules of Civil Procedure do not enlarge the substantive rights of any litigant.
Svetlik v. Svetlik, 377 Pa.Super. 496, 500, 547 A.2d 794, 796-797 (1988). Because, in my opinion, rule 238 operates to alter the substantive rights of the parties, it exceeds the rulemaking authority of the Pennsylvania Supreme Court, and is therefore unconstitutional. Dietrich, 390 Pa.Super. at 491, 568 A.2d at 1280 (Cirillo, P.J., concurring and dissenting). The supreme court, in Craig v. Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), suspended former rule 238 under the following rationale:
There is no point in contending that a procedural rule may exist that punishes without fault, and is yet consistent with Due Process. Neither is there point in arguing that punishing a defendant qua defendant does not smack of a substantive enlargement of duties owed____ We today suspend the rule because experience shows that the ends sought run too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an [incontestable presumption that all fault lies with a defendant. There are too many reasons why such is not always the case ...
Id., 512 Pa. at 65, 515 A.2d 1353. The concerns that led to the demise of the old rule 238 are still present, albeit to a lesser extent, in the new rule. The current rule 238, in an
Moreover, the current rule 238 has become an “incontestable presumption” that all fault that is not the plaintiffs fault lies with the defendant. The instant matter, as well as Schrock, King, and Miller, illustrate that such is not always the case.
. The value, significance and influence of dissenting opinions in the development of the law are well known to the bench, the practicing bar, and the legislature. Musmanno v. Eldredge, 382 Pa. 167, 171, 114 A.2d 511, 512-513 (1955).
The dissenting opinion in Chisholm v. Georgia, 2 Dali. 419, [2 U.S. 419,] 1 L.Ed. 440 [ (1793) ], was a contributing factor in the passage of the Eleventh Amendment to the Constitution of the United States; the dissenting opinions in Scott v. Sandford, 19 How. 393, [60 U.S. 393,] 15 L.Ed. 691 [ (1857) ], produced the Fourteenth Amendment; the dissenting opinion in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429, 15 S.Ct. 673, 39 L.Ed. 759 [ (1895) ], became the law of the land by the Sixteenth Amendment----
Id., 382 Pa. at 171-172 n. 2, 114 A.2d at 512-513 n. 2.