dissenting.
This is an appeal from the judgment of the Court of Common Pleas of Philadelphia County awarding delay damages of $11,562.00 in favor of the appellee/Joseph R. Schrock and against the appellant/Albert Einstein Medical Center, Daroff Division.
I cannot join in the Majority’s rationale for affirming the issuance of delay damages in the absence of “fault” attributed to the appellant.
A review of the record indicates that a complaint in trespass was filed by the appellee on July 15, 1982, alleging that, as a direct result of the “carelessness, negligence and gross negligence” of the appellant (including Joseph L. Chapman, M.D.,1) in failing to recognize or identify the full extent of his injury for which he sought treatment — bullet wound to the left leg resulting in a fracture of the left femur sustained while attempting to stop a robbery — he incurred severe and disabling injuries for which he sought compensatory damages in excess of $20,000.00 together with interest, costs of suit and attorneys’ fees.
On August 5, 1982, the appellee filed objections to a portion of the appellant’s 19 pages of interrogatories, many of which were inapplicable to the case as evidenced by the “form” in which they appear of record. On August 25, 1982, an answer was submitted by the appellant denying the allegations in the complaint and seeking, in new matter, *222indemnification and/or contribution from Joseph L. Chapman, M.D., as the party purportedly primarily liable for injuries or damages suffered by the appellee.
On November 1, 1982, Doctor Chapman filed an answer to the complaint. On November 10, 1982, the appellant’s answers to the appellee’s interrogatories, save for #24, were filed. This prompted the appellee to file, on November 12, 1982, a motion seeking an order of court directing the appellant to answer interrogatory # 24. However, the requested order was rendered moot when, on December 1, 1982, a supplemental answer to the appellee’s interrogatory # 24 was presented by the appellant.
On March 28, 1983, the appellee filed a motion for sanctions with the court seeking to depose, for a second time, the radiologist who allegedly failed to detect, upon his reading of the x-rays taken of the appellee upon admission to the hospital, the presence of the broken left leg and permitting the appellee to walk upon it.
During the initial deposition, it was averred that counsel for the appellant prohibited the radiologist from giving responses to various questions claimed by counsel to warrant the proffering of an expert opinion, a matter on which the deponent purportedly was not qualified to speak.
On April 11, 1983, answers to the appellee’s two supplemental interrogatories were submitted by the appellant. Four days later, the appellant filed an answer to the appellee’s motion for sanctions contending that the questions posed to the radiologist were beyond the area of his expertise and were, therefore, not discoverable. An order dated September 2,1983, denied the appellee’s motion on the basis that the questions sought to be asked were answered at the initial deposition.
The record discloses that no further action took place in the case until March 13, 1986, the date the appellee’s supplemental interrogatories were answered by the appellant and Doctor Chapman. Thereafter, on March 2, 1987, a verdict in favor of Doctor Chapman and in favor of the *223appellee and against the appellant in the amount of $25,-000.00 was entered by a jury of eight after a four-day trial.
One learns from the trial court's opinion, which is based on evidence given at a hearing on April 1, 1987, as to what transpired before and after the verdict in regard to a settlement or the assessment of “fault” under Pa.R.Civ.P. 238, that an offer of $10,000.00 was made and rejected. Following the rendition of the verdict, delay damages pursuant to Rule 2382 were added to the verdict for a total *224award of $36,562.00. With the reduction of the verdict to judgment, a timely appeal was filed and the case was granted en banc consideration to review the question3 of whether the imposition of delay damages complied with the Supreme Court’s recent decision of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).
Before discussing the merits of the case, one needs to address the impact, if any, of the Pennsylvania Supreme Court’s promulgation of a new rule of civil procedure regarding delay damages. It became effective on November 7, 1988, and rescinded (the now former) Rule 238 (see note 2, supra) and substituted a new Rule 238 in its stead. One gains some insight as to the scope of new Rule 238 from its “Explanatory Comment”, which reads:
... [subdivision (f) of new Rule 238] is to indicate that the rule applies to pending as well as future actions but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig case. Once damages for delay have been determined under Craig, those proceedings are final and are not to be reopened under this rule. (Emphasis added)
From the preceding, one has direction from the Pennsylvania Supreme Court informing us that the provisions of new *225Rule 238 are not to be applied pro forma to every “pending” case involving a request for delay damages. Rather, where delay damages have been “determined” (be it to grant or deny them) pursuant to the provisions and procedures outlined in Craig, the matter is to be considered closed and not subject to reassessment under new Rule 238.
Instantly, it cannot be disputed that the trial court conducted a hearing to take testimony and hear argument on the plaintiffs request for delay damages, a proceeding held in accordance with the dictates (“provisions and procedures”) of Craig.
Albeit the present case was “pending” when new Rule 238 came into effect, this is only one facet of the equation in deciding whether the delay damages question should be “reopened” under this Rule. One must not lose sight of the admonition of the Supreme Court, speaking through the Civil Procedural Rules Committee via the Comment to the Rule, that delay damages “proceedings are final and are not to be reopened” under the guise of new Rule 238, as a matter of course, where the question has been “determined” at a “proceeding” adhering to Craig.
At bar, the “proceeding” was the hearing held below and participated in by both parties within the framework of Craig. The “determination” portion of the equation comes into play with the trial court’s “decision” awarding delay damages. Given the completion of the hearing and the entry of the trial court’s ruling, under the Comment to new Rule 238, those “proceedings are to be considered final and not subject to re-examination.”
If the Pennsylvania Supreme Court intended all delay damages cases to comply with the procedure enunciated in new Rule 238, it could have done so quite easily by directing that all pending actions involving delay damages (be they at the trial or appellate level) be controlled by new Rule 238. It chose not to do so, and the Comment portion of new Rule 238 is direct proof of that intention. To state otherwise would be pure speculation.
*226I perceive our function on appeal to be one of reviewing the trial court’s “determination” with Craig in mind, and not merely look to new Rule 238 without inquiring into the particular facts with Craig’s “fault-determination” as a criterion. I propose to do so now.
In Craig, the Court suspended the “mandatory” provisions of (former) Rule 238 which had, in the past, assessed delay damages against defendants without regard to fault. The Court put into place a procedure whereby a claim for delay damages would have to be presented by “petition” within five (5) days of a verdict. Thereafter, within the same time frame, the respondent would be required to submit an “answer”. If need be, the judge who presided over the trial could, prior to reaching a decision, hold a hearing to resolve any factual disputes. This occurred here.
In making its determination as to the plaintiff’s entitlement to delay damages, the trial court was directed by the Supreme Court to look to a list of criteria, albeit not exhaustive, to aid in the fact-finding process; to-wit: (1) the length of time between the starting date4 and the verdict; (2) the parties’ respective responsibilities in requesting continuances; (3) the parties’ compliance with rules of discovery; (4) the respective responsibilities for delay necessitated by the joinder of additional parties; and (5) other pertinent factors. 512 Pa. at 66, 515 A.2d at 1353.
Furthermore, and more importantly, Craig makes it quite clear that the imposition of delay damages without “fault” first having been established is inconsistent with Due Process principles, and punishment of a defendant merely because of his status as such smacks of a substantive enlargement of duties owed.
Instantly, the court below awarded the appellee/plaintiff delay damages despite its finding that the appellant/defendant was not at fault in causing the delay of some six (6) years from complaint to verdict — a delay attributable solely to congestion in the court system. Nonetheless, one cannot *227affirm such a ruling without running afoul of Craig. To elaborate, under Craig, only the “mandatory” provisions of Rule 238 were suspended so that a plaintiff could no longer “automatically” be awarded delay damages if his/her verdict exceeded by 125% the last offer of the defendant. No more needed to be shown ^re-Craig to entitle one to prejudgment interest under (former) Rule 238’s formula.
Justice Larsen’s dissent in Craig, joined by Papadakos, J., discounted the use of a petition, answer and hearing as merely protracting the ultimate receipt of money by the plaintiff without any countervailing benefit to the parties or the dispute-resolution system as a whole. He urged that the presentment of a “reasonable settlement” by the defendant would insulate him/her from having to pay delay damages, and, thus, “fault” need not be factored into the assessment of damages. The Majority in Craig rejected this position in favor of determining “fault” as a prerequisite to the imposition of damages under a prescribed set of facts.
At bar, after the submission of a timely petition, answer thereto and a hearing, the trial court concluded that neither party was responsible for unduly protracting the case (since eight years is the norm between the complaint and verdict in Philadelphia County), nor was the demand of the plaintiff/appellee or the offer of the defendant/appellant unreasonable.5 Nevertheless, the trial court wrote that:
*228It is the opinion of this court that the mere fact that a defendant is not at fault in causing the delay in a case does not automatically relieve the defendant from being assessed delay damages under Rule 238. Equally important to the analysis which must be made by the trial court is the responsibility of the plaintiff in causing delay. In a situation in which the plaintiff is partially or totally at fault, the assessment of delay damages may very well not be warranted. However, when both parties are blameless it would be unreasonable and unjust to deny delay damages. Fundamental fairness would require in the opinion of this Court, that the plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants who, of course, have had the use of that money.
******
When a plaintiff has not made an unreasonable demand to settle a case and is not otherwise at. fault for any delay, Rule 238 should be applicable. The assessment of delay damages in such situations is not for the purpose of punishing the defendant or to compel the defendant to settle unmeritorious cases. Rather, the rule is a legitimate attempt to make the plaintiff whole.
(Trial Court Opinion at 6 & 7)
If one were to embrace the position of the trial court (as the Majority does here) he/she would be, in essence, condoning the awarding of delay damages in the absence of “fault” having been first established on the part of the defendant/appellant. This, I find, is at odds with explicit language in Craig denouncing such a pro forma practice, even if its goal were to make the plaintiff/appellee whole, since “[tjhere is no point in contending that a procedural *229rule may exist that punishes without fault, and is yet consistent with Due Process.” 512 Pa. at 65, 515 A.2d at 1353. Thus, to the extent that new Rule 238 appears to be a reversion to pre-Craig days (of awarding delay damages without the presence of “fault”), I would read the Rule as supplementing Craig and not supplanting it to avoid any constitutional challenges thereto.
The assessment of fault having found to be totally lacking in the context of the case at bar, I would hold that the awarding of delay damages was improper under the dictates of Craig6 See Shellhamer v. Grey, 359 Pa.Super. 499, 519 A.2d 462 (1986) (allocatur denied 6/17/87), wherein a panel of this Court reversed a judgment (with delay damages) of $269,676.44 and remanded to allow the trial court to review the defendant’s contention of inability to pay damages pursuant to Rule 238 under the then two month old Craig decision. We also labelled the “fault” element “a condition precedent to the imposition of Rule 238 delay damages.” 359 Pa.Super. at 505, 519 A.2d at 465. Consistent therewith, we went on to write that:
On remand, if the defendant is found not to be at “fault”, under the factors made mention of in Craig, there would appear to be no reason to inquire further as to her ability to pay____
359 Pa.Super. at 506, 519 A.2d at 466. What is to be garnered from our mandate in Shellhamer is that there will be instances where delay damages will not be permitted to be imposed, the sine qua non being the initial compliance with the “fault” criteria enunciated in Craig and supplemented by this writer’s reading of Rule 238 today.
I have scrutinized the record and law on the issue posed for our review and conclude, contrary to the Majority and the court below, that where the parties to a lawsuit are “fault free” in the prolongation of the case to completion, Craig prohibits the affixing of delay damages to a jury verdict in favor of a plaintiff as a matter of course where *230no “fault”, as so defined in Craig, is evident. Thus for the reason herein stated, I would not affirm the entry of Rule 238 delay damages.
I would reverse the judgment of the court below as to delay damages and remand for the entry of judgment as to $25,000.00 only in favor of the plaintiff/appellee and against the defendant/appellant.
. Joseph L. Chapman, M.D., was named as a party to the suit but his exoneration from liability by the jury dispensed with the need for him to file an appeal from the judgment entered below. His appearance in the recitation of the facts is informational only.
. Pennsylvania Rule of Civil Procedure 238 provided:
(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L.390, 40 P.S. § 1301.101 et seq., shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision of a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
(b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
(c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
(d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
(f) If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a *224date six (6) months after the effective date of this rule, whichever date is later.
(g) This rule shall not apply to
(1) eminent domain proceedings;
(2) pending actions in which damages for delay are allowable in the absence of this rule.
. I note that in the appellant’s "Summary Of The Argument” in its brief at page 7, at points C & D, it assails the constitutionality of Pa.RXiv.P. 238 on grounds that it imposes additional liability on a defendant in any case where the plaintiffs demand exceeds the verdict and the procedure mandated by our Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986) creates an impermissible classification between plaintiff and defendant by imposing additional liability on a defendant which is unreasonable and arbitrary and not substantially related to any legitimate objective. Because these grounds for assailing the delay damages were neither presented to nor addressed by the court below, I would find them waived. Humphries v. Pittsburgh & Lake Erie Railroad Co., 328 Pa.Super. 119, 476 A.2d 919 (1984), cert. denied, 474 U.S. 863, 106 S.Ct. 179, 88 L.Ed.2d 149 (1985).
. See former Pa.R.Civ.P. 238(a)(2).
. At this point, I wish to note that the first written offer by the defendant, in the amount of $5,000.00, was made on April 21, 1986, almost four years after the complaint was filed. The second offer of $10,000.00 was made on October 10, 1986, and that was also rejected.
As for the plaintiff, he demanded $125,000.00 at first, and then lowered the amount to $50,000.00. This stayed in effect until the 20th of January, 1987. With the defendant’s failure to increase its offer, the plaintiffs demand rose, again, to $125,000.00. I also make mention for the record that in response to the appellant’s interrogatories regarding an itemization of his damages, the appellee did list the following:
(a) Lost earnings: $3,410.40 plus the value of fringe benefits;
(b) Future loss of earning capacity and other future loss related to his injury: undetermined;
(c) Medical and hospital expenses: $3,918.75; and
(d) Income for 1981: $6,409.00
*2281980: $3,563.00
1979: $3,454.27.
(See Appellee’s Answer to Appellant’s Interrogatories # 22 & # 26) It is interesting to observe that the appellant’s counsel stated, at the hearing of April 1, 1987, to assess the imposition of delay damages, that he considered the appellee’s case to be no more than a "nuisance” suit.
. As stated previously, this would dispense with a remand to comply with new Rule 238.