Citation Numbers： 644 A.2d 1268, 435 Pa. Super. 127, 1994 Pa. Super. LEXIS 2236
Judges： Elliott, Sole, Wieand
Filed Date： 7/19/1994
Status： Precedential
Modified Date： 11/13/2024
concurring:
A review of the docket entries established that the jury returned its verdict on May 31, 1990 and Appellee filed timely Post-Trial Motions on June 11, 1990
The Majority concludes that the jury’s verdict was for the rental value of the property and, therefore, was not a proper item for imposition of Rule 238 delay damages. In addition, in footnote number 2 of its Opinion, the Majority seems to imply that Appellants’ Motion for Rule 238 delay damages should have been denied because it was untimely filed. I disagree with both of those conclusions.
The jury’s award was for damages to the real estate resulting from Appellee’s trespass. In its charge, the trial court did not state that the jury should establish a rental value for the property, rather it instructed the jurors that they could use the rental value of the property as a tool for determining the amount of damages. The court stated, in pertinent part, as follows:
COURT: Now, the law states that the owner of realty on which a trespass has been committed may recover from the trespasser damages for the loss of the use of that realty which may include an amount representing the value of the realty for rental purposes or any other purpose for which the owner may have utilized that particular portion of the property.
Notes of Testimony, dated May 30-31, 1990, Volume II, pages 162-163. Evidence of the property’s rental value was used only to determine the damages to the property. This loss falls within the scope of Rule 238 and delay damages should have been granted.
I also disagree with the Majority’s implied ■position that Appellants’ claim for Rule 238 damages should be denied because their Motion for delay damages was filed more than ten days after the jury’s verdict was announced. Rule 238(c)(1) provides that a defendant must file an answer to a plaintiffs motion for delay damages setting forth reasons why the delay damages should not be imposed. See Pa.R.C.P. No. 238(c)(1), 42 Pa.C.S.A. In the present case, however, Ap-pellee’s Answer did not raise an objection to the late filing of Appellants’ Motion. Furthermore, at the time Appellants’ Motion was filed, Appellee’s Post-Trial Motions were pending before the court, so no prejudice from the delayed fifing would have resulted.
However, I concur with the result reached by the majority because I believe that Appellants’ claim for delay damages has been waived. Subsection (c)(3)(i) of Rule 238 states that, “[i]f a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is opposed, a judgment may not be entered until all motions filed under Rule 227.1 and this rule have been decided.” Pa.R.C.P. No. 238(e)(3)(i), 42 Pa. C.S.A.
In the instant case, Rule 238 became inoperative when judgment was entered and an appeal was filed prior to the disposition of Appellants’ Rule 238 Motion. To allow a review of the trial court’s denial of Appellee’s Post-Trial Motions and then allow a second ■review of the court’s disposition of Appellants’ Rule 238 Motion, as occurred here, results in fragmented appeals and unnecessary delays. This is not the intent of the rules nor is it appropriate judicial administration. I conclude that the entry of judgment following disposition of post-trial motions, and the appeal and matter before disposition of the Rule 238 Motion, waives any claim for Rule 238 delay damages.
Accordingly, I concur in the result of this ease.
. The tenth day to file the motions fell on Saturday, June 9, 1990.