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

(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.

(2) Damages for delay shall be awarded for the period of time from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.

(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.

(b)(1) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,

(i) after the defendant made a written offer which complied with the requirements of subdivision (b)(2), provided that the plaintiff obtained a recovery which did not exceed the amount described in subdivision (b)(3), or

(ii) during which the plaintiff caused delay of the trial.

Official Note

This rule does not preclude the suspension of damages for delay as a pre-trial sanction under Discovery Rule 4019.

In additional defendant proceedings, the additional defendant will be considered the defendant, for purposes of this subdivision, and the plaintiff will be considered either the original defendant if liability over is claimed, or the original plaintiff if direct liability is claimed, or both if both forms of liability are claimed.

(2) The written offer of settlement required by subdivision (b)(1)(i) shall contain an express clause continuing the offer in effect for at least ninety days or until commencement of trial, whichever occurs first, and shall either

(i) be in a specified sum with prompt cash payment, or

(ii) contain a structured settlement plus any cash payment. An offer that includes a structured settlement shall disclose the terms of payment underwritten by a financially responsible entity, the identity of the underwriter and the cost.

Official Note

The offer of the cost of the structured settlement and any cash payment must remain open for ninety days. The cost of the entire structured settlement must remain the same while the terms of the payment may vary and have to be recalculated at the time of acceptance due to market fluctuation over the ninety-day period during which the offer must remain open.

(3) The plaintiff’s recovery required by subdivision (b)(1)(i), whether by award, verdict or decision, exclusive of damages for delay, shall not be more than 125 percent of either the specified sum or the cost of the structured settlement plus any cash payment to the plaintiff.

(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 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 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 pending, a judgment may not be entered until disposition has been made of all motions filed under Rule 227.1 and this rule.

(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.

(d)(1) In an action heard by a board of arbitrators on which damages for delay are requested, at least twenty days prior to the hearing the plaintiff shall notify the defendant of the intention to request delay damages and the date from which they are to be calculated. A defendant who objects to the request shall submit to the plaintiff within ten days prior to the hearing a statement setting forth the objections and whether

(i) the defendant made an offer in writing and, if so, the amount and the date of the offer; and

(ii) there was a period of time during which delay of the arbitration hearing was attributable to the plaintiff. Each party shall submit to the board at the hearing a sealed envelope containing the plaintiff’s request and the defendant’s statement. Immediately upon making an award, the board of arbitrators shall review the contents of the envelopes and add damages for delay, if any, to the award. If the defendant opposes the request, the board may hold a hearing on the issue of damages for delay and shall immediately thereafter determine the amount of damages for delay, if any. Damages for delay shall be separately stated in the report and award of the arbitrators.

Official Note

This rule contemplates that the board of arbitrators will make its award immediately upon conclusion of the hearing and that it will then proceed to consider the issue of damages for delay.

(2) The damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.

(e) This rule shall not apply to

(1) eminent domain proceedings;

Official Note

See Article VI, section 611 of the Eminent Domain Code of 1964, Special Session, June 23, P. L. 84, 26 P. S. § 1-611, governing compensation for delay in payment.

(2) actions in which damages for delay are allowable in absence of this rule.

Official Note

See Marrazzo v. Scranton Nehi Bottling Co., Inc., 438 Pa. 72, 263 A.2d 336 (1970), for instances in which compensation for delay may be allowed in actions for destruction or involuntary conversion of property where the compensation can be measured by market value or other definite standards.

(f) This rule shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined.

Addendum to Explanatory Comment (2016)

The prime rate as set forth in the first edition of the Wall Street Journal for a particular year is the basis for calculating damages for delay under Pa.R.C.P. No. 238 as revised November 7, 1988. The prime rate published in the first edition of the Wall Street Journal for each of the years specified is as follows:

Date of Publication	Prime Rate Percentage
January 4, 2016	3 1/2
January 2, 2015	3 1/4
January 2, 2014	3 1/4
January 2, 2013	3 1/4
January 3, 2012	3 1/4
January 3, 2011	3 1/4
January 4, 2010	3 1/4
January 2, 2009	3 1/4
January 2, 2008	7 1/4
January 2, 2007	8 1/4
January 3, 2006	7 1/4
January 3, 2005	5 1/4
January 2, 2004	4
January 2, 2003	4 1/4
January 2, 2002	4 3/4
January 2, 2001	9 1/2
January 3, 2000	8 1/2
January 4, 1999	7 3/4
January 2, 1998	8 1/2

Official Note

The prime rate for the years 1980 through 1997 may be found in the Addendum to the Explanatory Comment published in the Pennsylvania Bulletin, volume 33, page 634 (2/1/03) and on the web site of the Civil Procedural Rules Committee at http://www.pacourts.us.

The provisions of this Rule 238 adopted November 20, 1978, effective April 16, 1979, 8 Pa.B. 3551; amended December 16, 1983, effective July 1, 1984, 13 Pa.B. 3999; amended November 7, 1988, effective immediately, 18 Pa.B. 5334. The provisions of the Addendum to the Explanatory Comment amended February 2, 1990, effective January 2, 1990, 20 Pa.B. 487; amended February 1, 1991, effective January 2, 1991, 21 Pa.B. 414; amended March 6, 1992, effective January 2, 1992, 22 Pa.B. 947; amended March 26, 1993, effective January 4, 1993, 23 Pa.B. 1443; amended February 18, 1994, effective January 3, 1994, 24 Pa.B. 960; amended January 27, 1995, effective January 3, 1995, 25 Pa.B. 316; amended February 9, 1996, effective January 2, 1996, 26 Pa.B. 585; amended January 17, 1997, effective January 2, 1997, 27 Pa.B. 293; amended September 24, 1997, effective January 1, 1998, 27 Pa.B. 5245; amended January 23, 1998, effective January 24, 1998, 28 Pa.B. 359; amended January 22, 1999, effective January 4, 1999, 29 Pa.B. 449; amended January 29, 2000, effective January 3, 2000, 30 Pa.B. 519; amended January 19, 2001, effective January 21, 2001, 31 Pa.B. 410; amended February 1, 2002, effective February 2, 2002, 32 Pa.B. 548; amended July 29, 2002, effective immediately, 32 Pa.B. 3885; amended January 31, 2003, effective January 2, 2003, 33 Pa.B. 634; amended January 31, 2004, effective January 2, 2004, 34 Pa.B. 557; amended January 21, 2005, effective January 3, 2005, 35 Pa.B. 500; amended January 20, 2006, effective January 3, 2006, 36 Pa.B. 272; amended January 19, 2007, effective January 2, 2007, 37 Pa.B. 312; amended January 18, 2008, effective January 19, 2008, 38 Pa.B. 337; amended January 16, 2009, effective January 17, 2009, 39 Pa.B. 304; amended January 22, 2010, effective January 23, 2010, 40 Pa.B. 518; amended January 14, 2011, effective January 15, 2011, 41 Pa.B. 333; amended January 20, 2012, effective January 21, 2012, 42 Pa.B. 377; amended January 25, 2013, effective January 26, 2013, 43 Pa.B. 525; amended January 17, 2014, effective January 18, 2014, 44 Pa.B. 323; amended January 16, 2015, effective January 17, 2015, 45 Pa.B. 291; amended January 15, 2016, effective January 16, 2016, 46 Pa.B. 332. Immediately preceding text appears at serial pages (377621) to (377622) and (376321) to (376322).