dissenting:
I agree with the majority that the non-settling defendant, Strasburg Township, must pay delay damages under Rule 238 computed upon $75,000.00. I disagree, however, that its responsibility should be terminated as of March 6, 1982, *32the date of the plaintiff’s settlement with defendant, Simmons. Rather, I believe that Strasburg Township remains liable for delay damages up to the date of the jury’s verdict.
The primary purpose of Rule 238 is “to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981). More specifically, the Rule is designed to foster the early resolution of disputes, as evinced in drafter’s comments:
Statistics show that only 38 percent of these cases ever go to trial and 25 percent ever go to verdict. Thirty-eight percent are settled without going to trial. Some are settled through pretrial conciliation techniques, but in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion of the courts. The present practice provides no incentive for early settlement.
8 Pa.Admin.Bull. 2668 (1978) (emphasis added). In order to accomplish this goal of early settlement, the Rule seeks to penalize defendants who refuse to settle through the imposition of delay damages, and to encourage plaintiffs to accept reasonable settlement offers by cutting off the accrual of those delay damages.
I seriously question whether the majority’s application of Rule 238 where one defendant has settled furthers the espoused goal of prompting the seasonable disposition of cases. Under the majority’s holding, the reasonableness of a non-settling defendant’s offer to settle is determined in light of that defendant’s adjudged share of the verdict less any overpayment by a settling defendant. If the non-settling defendant’s offer is eighty percent or more of the adjusted figure, then according to the majority, the non-settling defendant’s delay damage liability is terminated as of the date of the accepted settlement.
My concerns with this result are several. . Under the majority’s approach, delay damages may accrue against a non-settling defendant up until the date that the plaintiff *33accepts the over-generous settlement offer of another defendant.1 Because of this, it will be in the plaintiffs best interest to delay acceptance of the overpaying settlement offer until the date of trial, thereby allowing Rule 238 damages to accumulate against the non-settling party.2 The plaintiff does not risk losing the opportunity to settle because under the terms of Rule 238, in order to avoid delay damages, the (settling) defendant must continue the offer in effect until the commencement of trial. Therefore, the majority’s rule may well have the effect of delaying the disposition of cases rather than prompting their early resolution as desired by the drafters of Rule 238.
My second concern is perhaps more philosophical. It is apparent from the Rule and its comments that the drafters sought to prompt all defendants to engage in reasonable settlement negotiations. Cf. Rule 238(c) (“damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action”). The majority holds that a non-settling defendant is entitled to the benefit of any overpayment by the settling defendant for Rule 238 purposes. This troubles me, for as Justice Musmanno so eloquently phrased it in a slightly different context, “[the non-settling defendant] seeks to benefit from a negotiation in which he played not the slightest part. He wants to travel on a train for which he purchased no ticket, he seeks to mount a horse which he did not feed, he desires to ride on a merry-go-round which, *34so far as he was concerned, might never have been built.” Daugherty v. Hershberger, 386 Pa. 367, 376, 126 A.2d 730, 735 (1956) (Musmanno, J., dissenting). It is not difficult to imagine the situation where, applying the majority rule, a non-settling defendant would be partially absolved of delay damage liability even though he made no offer of settlement at all. Such a turn of events would be present where the settling defendant, either through miscalculation or generosity, pays a settlement which satisfies the total judgment returned by the jury against all defendants. Because the majority would have the overpayment inure to the benefit of the non-settling defendants), that defendant need not make any offer of settlement to avoid delay damages. Surely, the drafters of Rule 238 could not have intended this result, for rather than relieving crowded dockets, such a case will more likely proceed to trial.
Finally, I think that it is important to note that the non-settling defendant’s ultimate financial responsibility is not diminished by a settling co-defendant’s overpayment. The Uniform Contribution Among Tort-feasors Act has been construed
to permit a right of contribution on the part of a settling tort-feasor, when by the settlement, the settling tort-feasor pays more than his share of the total liability ultimately found. In that situation the rule would thus allow the settling tort-feasor to seek contribution from a non-settling tort-feasor to the extent that the amount paid by the settling tort-feasor exceeds his percentage of negligence, but in no event more than the percentage of negligence attributable to the non-settling tort-feasor.
Charles v. Giant Eagle Markets, 330 Pa.Super. 76, 82, 478 A.2d 1359, 1362 (1984) (footnote omitted). See also Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962). Thus, for example, in the instant case defendant Simmons may have a right of contribution against Strasburg Township for $40,000.00. Because of this outstanding liability, I do not think it is realistic to expect and require, as the majority *35suggests, that the non-settling defendant will negotiate only with respect to its accountability to the plaintiff.
The language of Rule 238(e) is specific. A defendant may avoid or diminish delay damage responsibility by making a written offer of settlement that is not exceeded by an award of the arbitrators, verdict of a jury, or decision of the court in a nonjury trial, of more than 125% of the offer. To read into this straightforward rule a formula which considers settlements made by joint defendants unnecessarily and improvidently complicates the function and objective of Rule 238. It is enough to test the non-settling defendant’s offer against his judicially determined share of responsibility.3'4
*36For these reasons, I would affirm the order of the trial court in favor of settling defendant, Simmons. I would reverse and remand the case for the imposition of delay damages against Strasburg Township calculated on $75,-000.00 for the period from January 23, 1980 until April 27, 1982, the date of the verdict.
SPAETH, President Judge, and McEWEN and BECK, JJ., join in this dissenting opinion.. The non-settling defendant is not given credit for any overpayment by a settling co-defendant until the settlement offer is accepted. See 42 Pa.C.S.A. § 8326 (1982) ("A release by the injured person of one joint tort-feasor ... reduces the claim against the other tort-feasors____(emphasis added)). The date of the offer is therefore irrelevant as to the non-settling party.
. Of course, the non-settling defendant may limit the accrual of delay damages by himself “mak[ing] a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continu[ingj that offer in effect until commencement of trial ... and the plaintiff does not recover by award, verdict or decision ... more than 125 percent of the offer____” Rule 238(e). The “verdict" against which the offer is compared in my hypothetical case is not reduced even under the majority rule because there has been no overpayment by the other defendant.
. The majority reasons that "we must also give consideration to the provisions of the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321, et seq.” Majority op. at 5. This Act was originally adopted by the legislature in 1951 and later reenacted effective June 27, 1978. Rule 238 on the other hand was adopted after the UCATA on November 20, 1978. It is therefore particularly noteworthy that Rule 238 itself does not provide that the verdict be reduced by co-defendants’ overpayments when applying the 125% rule. Additionally, a panel of this court has previously ruled that decisions under the Uniform Contribution Among Tortfeasors Act and the Act itself are inapplicable to Rule 238 claims for delay damages because “neither considers the concern for alleviating court congestion held so central to Rule 238 in Laudenberger.’’ Lavin v. Mylecraine, 307 Pa.Super. 564, 569, 453 A.2d 1031, 1033 (1982).
. I acknowledge that calculating delay damages based on the unreduced verdict rendered against the non-settling defendant may result in something of a windfall to plaintiffs who have settled part of their claim since they have not been deprived of an ability to utilize at least a portion of the funds rightfully due them. However, the alternative of allowing the non-settling defendant to benefit from his eo-defendant’s overpayment fails to serve the principal goal of Rule 238 which is to encourage the early disposition of cases. ÍMudenberger v. Port Authority of Allegheny County, 496 Pa. at 56, 436 A.2d at 151. By allowing the overpayment to inure to the benefit of the non-settling defendant, that defendant’s delay damage liability is reduced and, in turn, so is the incentive for him to offer a reasonable settlement. Moreover, the drafters of Rule 238 recognized that certain inequities are necessarily inherent in the Rule. For example, the drafters made the following comment:
Fourth, recognizing that additional defendants may often be involved, and in some cases may even be joined after the initial one-year period has expired and damages for delay begin to accrue, an additional defendant who is joined at a late date must neverthe*36less protect himself by a written offer of settlement under subdivision (e). While there may be some equities in favor of an additional defendant who is joined at a much later date as to when damages for delay should accrue, the drafting of a rule to incorporate permutations and combinations of multiple defendant practice, depending upon the time at which they are joined and the nature of their alleged liability, introduces uncertainties in the application of the rule. The additional defendant can protect himself by making an adequate written offer of settlement.
Pa.Admin.Bull. 2668 (1978). Similarly, in the present situation, I do not believe that a possible windfall to the plaintiff is enough to justify the construction of the Rule espoused by the majority. I would opt for the most straightforward application of Rule 238, thereby avoiding any uncertainty in the calculation of delay damages.