Delay Damages Claim Denied Based on Technical Defect to Delay Damages Motion

In a case of first impression in the case of Arreguin v. Kinsing, No. 889 EDA 2023 (Pa. Super. Nov. 5, 2024 Stabile, J, Dubow, J., and Sullivan, J.) (Op. by Sullivan, J.) (Stabile, J., dissenting), the Pennsylvania Superior Court ruled that a trial court’s finding that a Plaintiff’s failure to comply with the mandate of the delay damages Rule found at Pa. R.C.P. 238, requiring that a Motion for Delay Damages begin with a required Notice to the Defendant, should be affirmed.

According to the Opinion, the Plaintiff secured a non-jury trial verdict in the amount of $4.1 million dollars and then filed a Motion for Delay Damages.

Although the Motion for Delay Damages was timely filed, the trial court denied the Motion on a technicality where the Plaintiff did not follow the mandate of Rule 238(c) that the motion begin with the following notice to the Defendant: “You are hereby notified to file a written answer to the attached Motion for Delay Damages within twenty (20) 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.”

The Superior Court agreed with the trial court that the wording of Rule 238(c) unambiguously required that the “[t]he motion shall begin with the following notice.”  The Rule then includes the exact language and form for the mandated Notice.

In this case, the Plaintiff did not dispute the fact that she failed to attach the mandated Notice. Moreover, the court noted that the Plaintiff did not argue that the “shall” in the rule was ambiguous.

The Superior Court rejected the Plaintiff’s argument that the Rule’s plain language should be disregarded and that the court should instead look at the intent of the Pennsylvania Supreme Court enacting the delay damages Rule. The Plaintiff asserted that the intent of the Rule was to protect defendants from plaintiffs who seek delay damages without giving notice.

The Superior Court rejected the Plaintiff’s argument after finding that the Rule was unambiguous and did not require additional statutory construction.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. Court Denies Procedurally Deficient Request for Delay Damages in $4.1M Personal Injury Verdict.” By Rily Brennan Pennsylvania Law Weekly (Nov. 6, 2024).

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