Tindal v. Southeastern Pennsylvania Transportation Authority

ROWLEY, Judge,

concurring:

I join in the Opinion of the majority, and write separately only in order to point out the distinction between the present case, in which plaintiffs/appellees were awarded prejudgment interest (“delay damages”) by the trial court and defendants/appellants’ request for remand was granted by this Court, and King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989), in which plaintiff/appellee was awarded *107prejudgment interest by the trial court but defendant/appellant’s request for remand was not granted by this Court.

The factor which distinguishes the two cases is the merit, or lack thereof, of the issues raised by the appellants. In the case before us, one of the issues raised by defendants/appellants is, as the majority explains, the trial court’s failure to assess plaintiffs/appellees' responsibility, if any, for pretrial delay. This claim for relief is a meritorious one under new Rule 238, which directs that periods of time during which the plaintiff caused delay of the trial shall be excluded from the period for which prejudgment interest is awarded. Remand to the trial court for the limited purpose of holding an evidentiary hearing to evaluate plaintiffs/appellees’ responsibility for delaying the trial is, therefore, necessary in the present case.1

In King v. SEPTA, by contrast, “[t]he sole issue presented for our review [by defendant/appellant SEPTA was] whether the trial court erred in awarding ‘delay damages’ to [plaintiff/appellee] after having found that the delay encountered in litigating the case was not the fault of either party.” Id., 383 Pa.Superior Ct. at 420, 557 A.2d at 11 (emphasis in original). Defendant/appellant conceded that plaintiff/appellee was not at fault in delaying the trial, but argued that its own lack of fault should bar any award of prejudgment interest. We held that this claim did not entitle defendant/appellant to relief, as the drafters of new Rule 238 “have not allowed for the exclusion of periods of delay not caused by either party.” Id., 383 Pa.Superior Ct. at 424, 557 A.2d at 13 (quoting Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 242, 553 A.2d 443, 446 (1989)). Because defendant/appellant was not entitled to relief under new Rule 238 and plaintiff/appellee sought *108none, remand to the trial court in King v. SEPTA, unlike in the present case, was unnecessary.

. There is, in particular, a suggestion in the majority opinion of fault on the plaintiffs’ part for failing to deliver promptly the tax returns that were essential to the determination of plaintiffs’ wage loss. On remand the trial court will have to determine 1) whether plaintiffs were in fact at fault in this regard and 2) if so, whether their dilatory response caused delay of the trial.