ARTICLE: Justice Delayed Is Still Compensable: Courts Rule on Damages During Shutdowns

Justice Delayed Is Still Compensable: Courts Rule on Damages During Shutdowns

By Daniel E. Cummins | June 09, 2022

Pennsylvania Law Weekly

Daniel E. Cummins

Now that more and more cases are reaching verdict on this side of the COVID-19 pandemic, the issue of whether or not the shuttering of the court system in Pennsylvania during the course of the pandemic should be considered in the calculation of delay damages in personal injury matters has come to the forefront.

In the decisions handed down so far by the trial and appellate courts, the ruling has been that defendants are not vaccinated against having to pay additional damages on personal injury awards to cover the interest owed to the plaintiff from the time after the suit has been filed up to the time of the verdict.

Delay Damages Under Rule 238

Under Pa.R.C.P. 238(a)(1) it is provided that, “at the request of the plaintiff in a civil action seeking monetary relief for bodily injury … 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 … and shall become part of the verdict, decision or award.”

The recognized, but arguably ineffective, purpose behind the delay damages rule found at Pa.R.C.P. 238 is to “alleviate court congestion by promoting earlier settlement of claims.”  See Schrock v. Albert Einstein Medical Center, 589 A.2d 1103, 1106 (Pa. 1991).

Under the rule, a trial court may award delay damages even if the defendant did nothing to delay trial, if trial was delayed because of a crowded docket, or due to other factors which were not the fault of the plaintiff or any party. 

Pick Up the Phone

In the case of Yoder v. McCarthy Construction, May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), Judge Angelo J. Foglietta of the Philadelphia Common Pleas Court issued a prescient Rule 1925 opinion requesting the Pennsylvania Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million verdict of the plaintiff.

In Yoder, the court rejected the defendant’s assertion that the trial court erred in awarding delay damages for the period that the court was closed due to the COVID-19 pandemic. 

The court ruled that the plain language of Rule 238 confirmed that delay damages are appropriate due to cover any delay that was not the fault of any party. The court found that a court closure due to a pandemic fell within this definition. 

Referencing the goal of the delay damages rule in promoting settlement discussions, the court additionally noted that the trial court’s closure during the pandemic “did not prevent defense counsel from picking up the telephone, scheduling a Zoom hearing, or sending a text message to opposing counsel indicating the desire to make an offer to settle this case.” 

Foglietta reasoned that the court’s closure could have served as an encouragement to the parties to settle and that, the fact that it did not, did not entitle the defendant to a reward of being excused from paying delay damages when the underlying purpose of delay damages is to discourage dilatory conduct during the course of a personal injury litigation.

It’s the Plaintiff’s Money

In the case of Getting v. Mark Sales & Leasing, No. 348 MDA 2021 (Pa. Super. April 7, 2022 Olson, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Kunselman, J.), the court addressed issues raised by a defendant following a trial at which a jury awarded the plaintiff over $2 million in damages for personal injuries and in which the defendant claimed that it should not owe the plaintiff delay damages for the length of time that the COVID-19 pandemic shuttered the Pennsylvania courts.

This case arose out of an accident during which the plaintiff was injured while using a rider mower rented from the defendant company. While the plaintiff was using the mower on a hill on his property, the mower rolled over and injured the plaintiff.

In post-trial motions that dealt, in part, with the plaintiff’s claims for delay damages, the defense asserted that delay damages should not be imposed against the defendant during the time period of the judicial emergency that was declared by the Pennsylvania Supreme Court on March 16, 2020, and extended by the trial court until the time of trial in this case.

The Pennsylvania Superior Court noted that, two days after it declared a judicial emergency on March 16, 2020, the Pennsylvania Supreme Court issued a March 18, 2020, order in which the courts in the commonwealth of Pennsylvania were closed, jury trials were suspended, and all events on the calendars of the courts were postponed.

The Superior Court confirmed that there were only two recognized periods of time that may be excluded from the calculation of delay damages: “any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever occurs first, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125% of the offer; and any periods of time during which the plaintiff caused the delay of the trial.” See Getting at p. 16 citing King v. SEPTA, 557 A.2d 11, 12-13 (Pa. Super. 1989) (en banc). In that previous King case, the Superior Court confirmed that Rule 238 has “not allowed for the exclusion of periods of delay not caused by either party.  

After reviewing the case before it and the applicable law, the Superior Court noted that the defense was not making a request to be excused from paying delay damages based upon either of the two recognized bases noted above. Accordingly, the appellate court affirmed the trial court’s decision that the Pennsylvania Supreme Court had not suspended the right of Plaintiff to collect delay damages during the 2020 judicial emergency.

The court in Getting noted that the plaintiffs had the right to be made whole for their injuries by an application of the delay damages rule. The court additionally noted that the COVID-19 pandemic and the ensuing judicial emergency it created did not prevent the defendants from engaging in settlement talks or making reasonable offers in an effort to try to alleviate the courts dockets.  

The court noted that the record before it confirmed that the plaintiff and the defendant had actually engaged in settlement talks during the pandemic. As such, the court in Getting pointed out that “simply because the flow of cases had temporarily stopped, it does not follow that all legal practice also ceased.” The court noted that the Defendant remained free at all times during the judicial emergency to increase its settlement offer to induce the plaintiffs to settle and thereby assist the defendant in avoiding additional delay damages.

The Superior Court otherwise indicated that the defendant was not entitled to an unjust windfall from the five-month delay caused by the judicial shutdown. Rather, the Superior Court in the Getting case noted that the defendant retained the unfettered use of the “plaintiff’s money throughout the judicial emergency.” As such, the Superior Court felt it appropriate that the defendant “must compensate the plaintiffs for using the plaintiff’s money during the judicial emergency” and thereby must pay the plaintiff to the fullest extent allowed under Pa.R.C.P. 238. 

Plan on Paying Delay Damages

Based upon the few cases handed down to date, it appears that the trial and appellate court judges will be rejecting efforts by defendants to point to the COVID-19 pandemic as a reason to suspend the application the interest allowed over time under Pa.R.C.P. 238 in terms of delay damages. Rather, it appears that the courts of Pennsylvania will be enforcing a plaintiff’s right to recover delay damages in personal injury matters.

Such a ruling applicable to the back end of personal injury litigations appears to be consistent with those other rulings by the courts of Pennsylvania applicable to the front end of cases in which the courts have refused to cut plaintiffs a break relative to service of process issues based upon delays caused by the pandemic.

In other words, in terms of the impact of the pandemic on Pennsylvania civil litigation matters, the courts, so far, have followed the principle that what’s good for the goose is good for the gander.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.