2180 Proposed amendment of Rules 227.4 and 238 relating to business of courts; recommendation no. 140

Title 231--RULES OF
CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 200]

Proposed Amendment of Rules 227.4 and 238 relating to Business of Courts; Recommendation No. 140

[26 Pa.B. 6180]

   The Civil Procedural Rules Committee proposes that Rule of Civil Procedure 238 governing damages for delay and the note to Rule 227.4 governing post-trial practice be amended as set forth in this recommendation. The recommendation is being published to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than January 25, 1997 to: Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or E-Mail to [e-mail].

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 200.  BUSINESS OF COURTS

Rule 227.4.  Entry of Judgment upon Praecipe of a Party.

*      *      *      *      *

   (1)  *  *  *

   (a)  *  *  *

   (b)  *  *  *

   Official Note: If a motion for delay damages has been filed [and is opposed], judgment may not be entered until that motion is decided or otherwise resolved. See Rule 238(c)(3)(i).

*      *      *      *      *

Rule 238.  Damages for Delay in an Action for Bodily Injury, Death or Property Damage.

*      *      *      *      *

   (c)  Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation. The motion shall begin with the following notice:

NOTICE

   You are hereby notified to file a written answer to the attached motion for delay damages within twenty days from the filing of the motion or the delay damages sought in the motion may be added to the verdict or decision against you.

   (1)  Within [ten] twenty days after the motion is filed, the defendant may answer specifying the grounds for opposing the plaintiff's motion. The averments of the answer shall be deemed denied. If an issue of fact is raised, the court may, in its discretion, hold a hearing before entering an appropriate order.

   Official Note: An order of the court on the motion for delay damages shall not be subject to a motion for post-trial relief.

   (2)  If the defendant does not file an answer and oppose the motion, the [court] prothonotary upon praecipe shall add the damages for delay to the verdict or decision in the amount set forth in the motion.

   (3)(i)  If a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is [opposed] pending, a judgment may not be entered until disposition has been made of all motions filed under Rule 227.1 and this rule [have been decided].

   (ii)  If no motion for post-trial relief is filed within the ten-day period under Rule 227.1 but the defendant opposes the motion for delay damages, the plaintiff may enter judgment on the verdict or decision. Thereafter, upon deciding the motion for damages for delay, the court shall enter judgment for the amount of the delay damages, if any.

*      *      *      *      *

Explanatory Comment

   A party may enter judgment upon a verdict or decision under Rule 227.4(1)(b) when a motion for post-trial relief is not decided within a 120-day period. One court of common pleas has ruled that the entry of judgment under Rule 227.4 prior to the disposition of an unopposed motion for delay damages under Rule 238 precludes the award of such damages.

   This is a result the Committee did not intend. The following amendments are proposed to remedy this problem. First, Rule 238(c) will be revised by prescribing a form of notice to begin the motion for delay damages, advising the defendant to file an answer within twenty days or the damages for delay may be added to the verdict or decision. Second, Rule 238(c)(1) will be amended to enlarge from ten days to twenty days the time in which to answer a motion for delay damages. Third, Rule 238(c)(2) will provide that if the motion is not opposed by filing an answer, the prothonotary upon praecipe will add the delay damages as set forth in the motion. Finally, Rule 238(c)(3)(i) will prohibit the entry of judgment until there has been disposition of a pending motion for delay damages by order of court, by praecipe pursuant to Rule 238(c)(2) or by other resolution. The note to Rule 227.4(1)(b) will be revised to conform to the amended Rule 238(c)(3)(i).

By the Civil Procedural Rules Committee

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 96-2180. Filed for public inspection December 27, 1996, 9:00 a.m.]