dissenting:
I must respectfully dissent.
*420The amendments to Rule 238, upon which the majority relies in remanding this case for a redetermination of delay damages, were promulgated by the supreme court in the wake of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), which held invalid on due process and equal protection grounds the mandatory provisions of former rule 238. These amendments, by their terms, are applicable only in cases “in which damages for delay have not been determined.” Pa.R.C.P. 238(f). In this case, delay damages were determined — by the trial court. I believe the majority ignores the plain meaning of this section in remanding this case for treatment under the new rule on the basis that such damages have not been “finally determined.” Had this result been intended, the language of the rule would have made it clear. Compare Craig, 512 Pa. at 65-66, 515 A.2d at 1353 (delineating prospective effect of that decision).
This is not to say, however, that the promulgation of the new rule has no effect upon our disposition of this appeal. In adopting new rule 238 as a cure for the constitutional infirmities addressed in Craig, the supreme court has given us guidance in interpretation of that decision which we may not ignore. Clearly, the supreme court is of the opinion that due process and equal protection are satisfied by a prejudgment interest rule which, although fault-based, assesses a penalty upon defendants based only upon a determination as to whether plaintiffs have been at fault in delaying resolution of a dispute. For us to interpret Craig as appellants would have us do, that is, to require the trial court to make a determination as to the extent of defendant’s fault in causing delay and to assess delay damages only for that delay, would fly in the face of the explication of Craig that is implicit in a new rule 238. Because the trial court here made its finding of fault precisely as the new rule and, by implication, Craig would require, and because appellant has challenged only the fault-finding process employed by that court, I would conclude that the judgment entered in the trial court must be affirmed.
*421I do not reach this conclusion with complete equanimity, however, and I feel constrained to point out what I see as serious constitutional problems with the new rule, and with interpreting Craig as the supreme court has intimated we must. It seems to me that the supreme court is authorizing the punishment of defendants qua defendants. Although that court evinced concern in Craig over the fault of defendants in assessing delay damages against them, merely subtracting plaintiffs time from the overall delay has the result of charging defendants with delay which was the fault of neither party. In doing so, it makes defendants culpable for the simple reason that they have chosen to defend their case. Clearly, this court is constrained to follow Craig as the supreme court intended it, and, here, no constitutional challenges to the old rule were raised. It is my belief, however, that the problem merely lies dormant.
I therefore conclude, albeit with reservations, that the judgment of the trial court should be affirmed.