Miller v. Wise Business Forms, Inc.

CIRILLO, President Judge,

dissenting:

I must respectfully dissent from the result reached in the majority opinion. Once again, I note that I disagree with the majority’s application of the newly promulgated rule 238 to the proceedings in this case for reasons more explicitly outlined in my dissenting opinion in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 420-421, 552 A.2d 258. Although I agree that the supreme court’s decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), as elucidated by the newly promulgated rule, requires that the case be remanded for a proper determination of delay damages, I would not remand the case for determination under new rule 238. It seems clear to me that section (f) of the new rule and the comments to its other provisions are inapplicable in this case because the issue of delay damages has been determined by the trial court:

The purpose of [section (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 *244have 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.

Even though the delay damages determination was made using an improper standard, the determination was made, and the issue resolved. I would remand the case with instructions to determine the award of delay damages in accordance with the more general strictures of Craig, rather than under the inapplicable provisions of rule 238.