Baker v. S. & L. Service Co.

CAVANAUGH, Judge:

The sole issue in this appeal is the propriety of the award of delay damages by the court below. A verdict was entered in favor of the plaintiff below, who is the appellee herein, in the amount of $283,281.43. The court awarded delay damages on the amount of the verdict at the rate of ten (10%) per cent per year to be computed from May 17, 1986 through the date of payment.

An appeal from the award of delay damages was pending in this court on November 7, 1988 when new Rule 238 of the Pennsylvania Rules of Civil Procedure became effective. The instant case is controlled by this Court’s recent en banc decision in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) wherein we stated at page 380 Pa.Superior Ct. 418, 552 A.2d at 259:

In determining whether the new Rule 238 applies to the matter pending before us, we are guided by Pa.R.C.P. 52 which states:

*639Rule 52. Effective Date.

Application to Pending actions
(a) A rule or an amendment to a rule shall be effective upon the date specified by the Supreme Court.
(c) Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date. (Emphasis added.)
See also, Sherry v. Trexler Haines Gas, Inc., [373] Pa. Super. [330], 541 A.2d 341 (1988).
The Supreme Court has not directed otherwise and new Rule 238 applies to actions pending before us on the effective date of the Rule. (Emphasis added.)

We further stated in Ceresini, supra, 380 Pa.Superior Ct. at 419, 552 A.2d at 259:

The appropriateness of the award of delay damages is the only issue before us in this case. In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined, as in this case. (Emphasis added.)

In Ceresini, as in the instant case, the court below entered delay damages, and the issue on appeal was the appropriateness of the damages. We remanded in Ceresini, as we must in this case, for the court below to assess delay damages in accordance with new Rule 238.

The dissenting opinion states at page 569:

Once damages for delay have been “determined” by a trial court, in accordance with the provisions and procedures of the Craig case, the matter is not subject to reassessment merely because it was “pending” on appeal at the time that new Rule 238 became effective.

This is directly contrary to Ceresini v. Valley View Trailer Park, supra.

One further word must be added with respect to the majority’s discussion of Craig v. Magee Memorial Rehabili*640tation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and whether the trial court complied with the mandate of Craig. In Ceresini, supra, 380 Pa.Super. at 419, 552 A.2d at 259 we noted:

Since we must assume that the new Rule 238 is simply the embodiment of the changes contemplated by our Supreme Court in Craig, we see no reason why the scope of its effectiveness should be different from that enunciated in Craig.
Moreover, whether or not we apply the new Rule 238 to cases on appeal, the result is the same for if we were to ask if the lower court properly complied with the requirements of Craig, logically we would be compelled to find that the new Rule 238 is a specific promulgation of the Supreme Court’s intention as set forth in the Craig opinion.

Order reversed and case remanded for the assessing of delay damages in accordance with new Rule 238. We relinquish jurisdiction.

POPOVICH, J., files dissenting opinion.