Superior Court Affirms Award of Delay Damages Where Trial Court Carved Out The Time Period of The Covid-19 Pandemic

In the case of Heffelfinger v. Shen, No. 681 MDA 2024 (Pa. Super. July 21, 2025 Murray, J., King, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the appellate court affirmed the trial court’s entry of a judgment on a jury verdict in favor of the Plaintiffs in the amount of $11.4 million in a claim by a Plaintiff that the medical Defendants failed to diagnose or treat the Plaintiff’s oral cancer.

Of note, on appeal, the Superior Court held that the trial court did not err in imposing an award of delay damages where the trial court expressly stated that its award in this regard did not include the COVID-19 judicial emergency period in mid-2020. 

In addition to affirming the trial court's award of delay damages, the Superior Court went on to note that, regardless, the COVID-10 pandemic and the ensuing judicial emergency did not serve to diminish the rights of Plaintiff to be made whole or create an unjust windfall in favor of Defendant tortfeasors.

The court otherwise held on appeal that the Plaintiff’s evidence at trial amply supported the jury’s award of over $11.4 million dollars in compensatory and punitive damages.

The Superior Court otherwise affirmed the trial court’s decision in concluding that the jury’s verdict was not against the weight of the evidence.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Aug. 6, 2025).

Source of image:  Photo by Nick Fewings on www.unsplash.com.

Court Rules That Expert Testimony Not Required To Establish Defendant's Duty to Provide a Safe Workplace

In the case of Chirdon v. 3M Company, Inc., No. G.D. 22-16244 (C.P. Allegh. Co. March 24, 2025 Kline, J.), the trial court denied the Defendant’s post-trial motions in an alleged unsafe workplace trial involving allegations of asbestos exposure to a boilermaker.

According to the Opinion, the jury awarded $2.3 million dollars in compensatory damages and $1.5 million dollars in punitive damages against the Defendant employer.

In this Rule 1925 Opinion, by the trial court, the court addressed defenses raised with regard to statute of repose, the method in which the concept of outrageous conduct may be admitted into evidence at trial, issues regarding the bifurcation of the liability and punitive damages phases of the trial and challenges by the defense to the Plaintiff’s failure to utilize an expert to explain OSHA violations.

Notably the trial court rule that expert testimony was not required to establish the Defendant's duty to provide a safe workplace.  Rather, the court ruled that the duty to provide a safe workplace, as well as the applicable OSHA regulations were within the understanding of ordinary jurors.

Overall, the trial court ruled that the Defendant failed to meet the standard of review for a judgment notwithstanding the verdict or for a new trial.  As such, the Defendant's post-trial motions were denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Ken Behrend of the Behrend Law Group, LLC located in Pittsburgh, Pennsylvania for bringing this case to my attention.

Source of image:  Photo by Sylvia Brazzoduro from www.unsplash.com.

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).

Source of image:  Photo by Ahsanjay on www.unsplash.com.

2024 Addendum to Explanatory Comment to Delay Damages Rule

Here is a LINK to the 2024 Addendum to the Explanatory Comment issued by the Pennsylvania Supreme Court regarding the calculation of delay damages under Pa.R.C.P. 238 in a personal injury civil litigation matter.

Source of image:  Photo by John Guccione on www.pexels.com.

CORRECTED LINK To Yesterday's Post On Delay Damages Case

Yesterday's Tort Talk post was on the case of Sewell v. Riordon Materials Corp., Nov. Term 2018, No. 01642 (C.P. Phila. Co. Aug. 7, 2023 Kennedy, J.), in which the trial court issued a Rule 1925 Opinion addressing issues of delay damages following a motor vehicle accident trial and requested the Superior Court to reverse the trial court's decision in this regard.

Here is a corrected LINK  to that case so that you can review the same.  

Apologies for any confusion or consternation caused.

Trial Court Requests a Reversal of its own Decision on Motion for Delay Damages

In the case of Sewell v. Riordon Materials Corp., Nov. Term 2018, No. 01642 (C.P. Phila. Co. Aug. 7, 2023 Kennedy, J.), the trial court issued a Rule 1925 Opinion addressing issues of delay damages following a motor vehicle accident trial.

To its credit in this case, the trial court issued a Rule 1925 Opinion confirming that it had erred in originally denying the Plaintiff’s Motion for Delay Damages and that, after a review, it was the opinion of the trial court that the proper decision would have been to have granted the motion.

It is noted that the proper rule number for the delay damages rule is Pa. R.C.P. 238.

In any event, the trial court noted that, under subsection (b) of the applicable rule, there are two (2) instances where time for calculating delay damages should be excluded, that being where a Defendant made a written offer that has complied with the requirements of the rule and where the Plaintiff caused the delay of the trial.

Here, the trial court indicated that it had erred in denying the Plaintiff’s Motion for Delay Damages because neither of the exceptions applied.

Notably, the court noted that, when the defense counsel issued the settlement offers, neither of the emails presenting the offers contained the express clause required by the delay damages rule confirming that the offers would continue for at least ninety (90) days or until the commencement of trial.

The trial court also noted that, given that the jury’s award exceeded the settlement offer of the Defendant by more than 125%, that exception did not apply as well.

With regards to allegations by the defense that the Plaintiff caused the delay of the trial by, in part, relying upon arguments relative to the COVID-19 pandemic, the trial court noted that the appellate courts of Pennsylvania have held that, although the COVID-19 pandemic obviously impacted the case and prolonged the case due to a judicial emergency, such delays in that regard are not to be held against the Plaintiff relative to a claim or Motion for Delay Damages.

The court also rejected the defense attempt to blame some of the delays on the request by the Plaintiff’s attorney for a new trial date due to conflicts. The court rejected this argument and noted that the scheduling of a trial is set by the court regardless of any such claims of conflicts and that a movement of the trial in that regard would not be held against the Plaintiff.

Anyone wishing to review a copy of this Opinion may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 29, 2023).

Source of image:  Photo by John Guccione on www.pexels.com.

COVID-19 Pandemic Time of Court Closures Is Not To Be Subtracted From Delay Damages Calculation

In the case of Lynch v. Ducasse, No. 3:18-CV-2044 (M.D. Pa. July 25, 2023 Mariani, J.), the court granted a Plaintiff’s Motion for Delay Damages in a civil litigation matter arising out of injuries the Plaintiff allegedly suffered from the Defendant possession and discharge of handgun.

After the return of a multi-million dollar jury verdict, the Plaintiff asserted that he was entitled to delay damages from September of 2019 through June of 2023.

The Defendant challenged the Plaintiff’s calculation and argued that, due to the COVID-19 pandemic and the resulting suspension of proceedings in the court, the 472 days during which jury trials were “prohibited” during the pandemic had to be excluded from the delay damages calculation.

Judge Mariani found that the Defendant’s argument was not supported by the language of Pa. R.C.P. 238 or Pennsylvania case law.  In so ruling, Judge Mariani cited to the case of Getting v. Mark Sales & Leasing, 274 A.3d 1251 (Pa. Super. 2022) and other cases relying upon the Getting decision, in which the Pennsylvania state courts have repeatedly ruled that the time of court closures during the COVID-19 pandemic are not to be excluded from the delay damages calculation.

The rationale, according to the Getting decision, is that the delay damages Rule is not just about time but about making a Plaintiff whole relative to the injuries and damages sustained.     

As such, the court granted in this Lynch case granted the Plaintiff’s Motion for Delay Damages.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 8, 2023).

Avoid any Delay Damages issues by bringing your case to a close.

Call or Email to Schedule Your Mediation:

DanCummins@CumminsLaw.net

(570) 319-5899

ARTICLE: The COVID-19 Pandemic and Its Impact on the Law

 

Here is a LINK to my article published in the Pennsylvania Bar Association's March/April 2023 issue of The Pennsylvania Lawyer entitled "The COVID-19 Pandemic and Its Impact on the Law."

The article outlines the changes in Pennsylvania law and litigation as a result of the pandemic, some of which changes appear to be here to stay.

I send thanks to Patricia Graybill, the Editor of The Pennsylvania Lawyer magazine for selecting this article for publication.

Trial Court Refuses to Award Delay Damages Where Repeated Delays Were Caused by Plaintiff

In the case of Tyler v. Hoover, June Term, 2019, No. 06965 (C.P. Phila. Co. Aug. 19, 2022 Hill, J.), the court denied a Plaintiff’s Motion for Delay Damages following a trial in a rear-end accident case and wrote this Rule 1925 Opinion for appellate purposes.

The court, reviewing Rule 238, found that the Plaintiff’s request for delay damages was unwarranted because the Plaintiff’s noncompliance with the discovery rules and Orders of Court had led to certain delays in the matter.  According to the Opinion, the Defendant had to file numerous motions to compel and motions for sanctions relative to written discovery and depositions in order to push the case forward.

The court also emphasized that, even if the delay of the trial had been solely attributable to Defendants, the Plaintiffs in this matter had not provided any other basis to support their formulation of the alleged delay damages. 

As such, because the Plaintiff’s estimation of delay damages was not properly calculated to reflect the lengthy pre-trial history of the case, the court found that it would be “patently unjust” and an abuse of discretion to award delay damages in this matter.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 6, 2022).

Delay Damages To Be Calculated on UIM Award After Award Is Molded Down To Policy Limits

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Aug. 19, 2022 Nealon, J.), the court addressed issues regarding the molding of a jury verdict to the amount of the UIM carrier’s policy limits and how to handle a claim for delay damages based upon the verdict in this context.

According to the Opinion, there were two (2) separate jury trials in this matter given issues that were raised following the first trial.

After the juries in the separate UIM benefits trial awarded the Plaintiff $75,000.00 in economic damages and $175,000.00 in non-economic damages, for an aggregate gross award of $250,000.00, the combined verdicts were reduced to a net UIM award of $150,000.00 after the application of a credit for the tortfeasor’s liability insurance coverage limits of $100,000.00.

Thereafter, the UIM Defendant filed a Post-Trial Motion pursuant to Pa. R.C.P. 227.1(a)(4) seeking to mold the $150,000.00 net award further downward to the amount of the UIM coverage available of $100,000.00.

At the same time, the Plaintiff filed her own Post-Trial Motion requesting an award of delay damages under Pa. R.C.P. 238 based upon the higher net award of $150,000.00.

Judge Terrence R. Nealon
Lackawanna County

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed Pennsylvania precedent and confirm that, absent bad faith liability on the part of the UIM carrier, the law of Pennsylvania limits the maximum legally recoverable damages in a UIM trial to the UIM policy limits set forth in the insurance contract and requires that an award that is in excess of those policy limits be molded down to the amount of the UIM policy limits. 

 As such, the court agreed to grant the UIM carrier’s Motion to Modify the Net UIM Verdict of $150,000.00 down to the UIM policy limit of $100,000.00.

Relative to the claim for delay damages presented by the Plaintiff, the carrier initially asserted that delay damages are not recoverable in connection with a UIM benefits claim.

Judge Nealon disagreed and noted that, although arbitrators in a UIM Arbitration proceeding do not have the authority to award delay damages under Rule 238 unless the insurance contract grants the arbitrators that authority, the parties in this case chose to litigate the UIM claim in a civil action in the Court of Common Pleas, thereby rendering Pa. R.C.P. 238 applicable to the matter.

Judge Nealon further held that, since the UIM carrier did not make a written settlement offer and did not establish that the Plaintiff caused any delay of the trial, the Plaintiff’s Motion for Delay Damages was granted. 

However, the court noted that the delay damages would be calculated upon her legally recoverable damages of the $100,000.00 UIM policy limits, rather than the net award of $150,000.00.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Olia Danilevich on www.pexels.com.

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.

Another Court Rules That the Time Courts Were Closed Due to COVID-19 Pandemic Are Not To Be Deducted From the Delay Damages Computation

In the case of Yoder v. McCarthy Construction, Inc., May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), the trial court issued Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million dollar verdict of the Plaintiff.

Of note, 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 indicates that delay damages are appropriate due to the delay that is not the fault of any party. The court found that a court closure due to a pandemic falls within this definition. 

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.” See Op. at 11. 

The trial court judge indicated 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 when the underlying purpose of delay damages is to discourage dilatory conduct.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 19, 2022).

Court Shutdowns Due to COVID-19 Pandemic Did Not Stop The Time For Delay Damages

In the case of Getting v. Mark Sales & Leasing, Inc., 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 dollars 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.

After reviewing the case before it and the applicable law, the Pennsylvania Superior 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.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney John K. Shaffer from the Law Office of Lester G. Weinraub in Plymouth Meeting, PA for bringing this case to my attention.

Claims of Recklessness Again Allowed to Stand in Lackawanna County

In the case of Gawrys v. Zaffino, No. 21-CV-4129 (C.P. Lacka. Co. Feb. 11, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas allowed a claim for recklessness and a demand for punitive damages to go beyond Preliminary Objections in a premises liability case.

The court ruled in favor of the Plaintiff relative to the claim of recklessness and for punitive damages after noting that Pa. R.C.P. 1019(b) provides that conditions of mind may be averred generally and that, since a claim of recklessness is a claim regarding a condition of mind, that claim may be pled generally under Rule 1019(b).

The court noted that, since the landlord Defendant had not challenged the factual specificity of the allegations supporting the Plaintiff’s stated cause of action, the Preliminary Objection filed by the Defendant that sought to strike the Plaintiff’s general averments of recklessness and the derivative demand for punitive damages would be overruled by the court based upon Rule 1019.

In addressing this issue, the court made reference to the fact that, “During the past decade or more, disputes have arisen as to whether Plaintiffs who allege recklessness and seek punitive damages must state a certain degree of supporting “material facts” to withstand Preliminary Objections, or instead may generally aver such “conditions of [the] mind” in connection with a request for punitive damages.”  See Op. at p. 6 citing with “see” signal, Daniel E. Cummins “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93 Pa. B.A.Q. 32 (Jan. 2022).

Judge Nealon noted that, while there are differing Opinions from around the Commonwealth of Pennsylvania on this issue, the courts in Lackawanna County have uniformly followed the decision of Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), in overruling Preliminary Objections seeking to strike allegations of wanton, willful, or reckless conduct and to dismiss punitive damages claim based upon the alleged absence of substantiating factual allegations, provided that the Complaint generally avers willfulness, wantonness, or recklessness. [Other citations from Lackawanna County omitted].

Relative to other claims presented, the Plaintiff’s claim for “attorneys’ fees” was stricken due legal insufficiency (it is noted that the Plaintiff agreed to this result in its submissions).

The court otherwise overruled the Defendant’s demurrer to the Plaintiff’s claims for prejudgment interest under Pa. R.C.P. 238 and taxable costs pursuant to 42 Pa. C.S.A. §1726 and Lacka. Co. R.Civ. P. 275.

Anyone wishing to review a copy of this decision may click this LINK.

Judge Nealon of Lackawanna County Addresses Issues With Zero Verdict For Pain and Suffering Claim

In the case of Fertig v. Horace Mann Ins. Co., No. 16-CV-4801 (C.P. Lacka. Co. Jan. 18, 2022 Nealon, J.), the court granted in part and denied in part a Plaintiff’s Motion for Post-Trial Relief in a case involving an uninsured motorist claim against a carrier.

According to the Opinion, the jury in this UIM benefits trial rendered a verdict awarding the Plaintiff $75,000.00 for future medical expenses but $0 for past and future non-economic damages.

The jury entered this verdict even though the defense medical expert testified that the Plaintiff had unresolved injuries to her head, neck, and knee that were casually related to the accident. The court noted that the jury had been instructed, without objection, that it must award at least some damages for those uncontested injuries in this admitted liability case.  Nevertheless, the jury awarded $0 for pain and suffering.

After the verdict was molded to $0 to reflect the stipulated credit for the tortfeasor’s liability insurance coverage of $100,000.00, the Plaintiff filed a post-trial motion seeking a new trial on the issue of non-economic damages on the grounds that the verdict was against the weight of the uncontroverted medical evidence. The Plaintiff additionally requested an award of delay damages based upon the verdict of $75,000.00, that is, on the amount before the verdict was molded to zero.

The Defendant contended that the Plaintiff waived her right to secure a new trial by failing to object at the time the verdict was announced and by failing to request that the jury be sent back to resume its deliberations to correct a $0 verdict. The Defendant also asserted that the Plaintiff was not entitled to a new trial even if she did preserve her weight of the evidence challenge.

The defense additionally asserted that the Plaintiff cannot recover delay damages on a verdict that was molded to $0.

In addressing whether or not the Plaintiff had waived any arguments against the $0 verdict, the court cited, in part, to the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine for the proposition that one option a party has in a case involving a $0 verdict is to request the court to send the jury back out to deliberate further in an effort to avoid any post-trial issues that may be created by the entry of that $0 verdict.  However, as noted below, where a claim is made that a verdict was against the weight of the evidence, it is not required that such a request be made for the issue to be preserved.

The court in this case emphasized that the Plaintiff was asserting that the jury’s award was contrary to the weight of the evidence and shocked one’s sense of justice. The court noted that, where a party has asserted a weight of the evidence challenge, an objection filed of record before the jury is discharged is not required in order to preserve the issue for review during post-trial motions.

The court found that, since a verdict must bear some reasonable relation to the harm suffered as demonstrated by the uncontroverted medical evidence, and given that an award of $0 for past and future non-economic damages was found to be so disproportionate to the uncontested medical evidence so as to the defy common sense and logic, the court granted the Plaintiff’s request for a new trial non-economic damages.

On the issue of delay damages, Judge Nealon ruled that, given that delay damages under Rule 238 are to be calculated based upon a molded verdict, and given that the verdict in this case was molded to $0 following the stipulated offset for the liability insurance coverage limit, the Plaintiff was not entitled to any delay damages under Rule 238 and that, as such, this request was denied.

Anyone wishing to review a copy of this decision may click this LINK.

If you wish to read the article entitled “Litigating the Zero Verdict,” written by Daniel E. Cummins and Stephen T. Kopko which appeared in the Pennsylvania Lawyer magazine please click HERE.

Source of image: Photo by TBS 44 on www.unsplash.com.

A Word of Caution: Put All Objections On the Record At Trial, And Be Specific on the Nature of the Objection

In the case of Frisch v. James River Ins. Co., No. 1520 EDA 2020 (Pa. Super. Oct. 20, 2021McLaughlin, J., King, J., Pellegrini, J.) (Op. by King, J.), the Pennsylvania Superior Court ruled in a post-Koken case that a Defendant was not entitled to a new trial based upon the trial court’s failure to re-read to the jury the standard instructions for both pre-existing conditions and factual cause.

The Superior Court noted in its Opinion that, based upon the agreement of litigants, the court re-read to the jury only the instructions for pre-existing conditions after a request for the same was made by the jury during their deliberations.

However, the court noted that the Defendant had not objected at the time of trial regarding the trial court’s failure to read the factual cause instruction as well.

During the post-trial proceedings, Defendant argued that the jury might have been confused by the instructions for pre-existing conditions in the absence of the instruction regarding factual cause.

The Court rejected the request for a new trial and noted, in part, that Pa.R.C.P. 227(b) requires that "all exceptions to the jury charge shall be taken before the jury retires."    The appellate court noted that the failure of a party to raise a specific objection on the record results in a waiver of the issue.

The court otherwise addressed delay damages in this case as well and reviewed the current status of the law in Pennsylvania in that regard.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 16, 2021).

Photo by Ekaterina Bolovtsova from www.pexels.com.

Superior Court Addresses Issues Regarding Competency of Expert as well as Delay Damages

In the case of Povrzenich v. Ripepi, No. 1764 WDA 2019 (Pa. Super. March 19, 2021 Bowes, J., Olson, J., and Musmanno, J.) (Op. by Bowes, J.), the Pennsylvania Superior Court found that the trial court abused its discretion in precluding a certified life care planner from testifying in the Plaintiff’s medical malpractice case after the appellate court found that the expert had sufficient specialized knowledge and experience to offer an expert opinion regarding future medical expenses associated with the care at issue.

According to the Opinion, the Plaintiff argued that the trial court’s concerns went to the weight of the testimony rather than the admissibility of the expert opinion and that the exclusion of the evidence by the trial court led to the Plaintiff’s future medical damages not being submitted to the jury.

On appeal, the Superior Court found that evidence was presented to establish that the Plaintiff’s expert has sufficient specialized knowledge and experience to offer her expert opinions. The court found that the fact that the life care planner had little experience with regards to the particular types of patients at issue in this case did not disqualify the expert from using her skills and experience to analyze the cost that would be associated with the future medical treatment required.

Notably, the appellate court also agreed that the claim for damages for future medical expenses was sufficiently independent and discrete from the other damages to permit a new trial limited to future medical expenses issues only.

The appellate court also addressed delay damages issues. The Plaintiff asserted that the trial court had erred in calculated delay damages.

According to the Opinion, the trial court excluded from the calculations of delay damages, three periods of time when the Plaintiff sought and obtained discovery extensions. Those times periods were excluded from the calculation of delay damages because those delays were attributable to the Plaintiff.

The appellate court declined to follow the trial court’s position that every extension of discovery sought by a Plaintiff in a complicated medical malpractice action constituted a delay of trial. The court noted that the trial date had not yet been set in the matter until after discovery was closed.

The case was remanded to the trial court to determine whether the Plaintiff displayed a lack of due diligence that delayed the trial during the times that the Plaintiff sought and obtained discovery extensions.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 6, 2021).

Judge Williamson of Monroe County Molds Excess UIM Jury Verdict Down To Policy Limits and Then Allows Delay Damages

In the Post-Koken case of Kanyuck v. Hamilton, No. 83-CV-2018 (C.P. Monroe Co. March 4, 2020 Williamson, J.), Monroe County Court of Common Pleas Judge David Williamson agreed to mold an excess UIM jury verdict down to the policy limit and but also rejected the carrier's argument that delay damages cannot be applied to a jury award on an underinsured motorist claim.  The court did agree with the carrier's position that delay damages must be calculated based upon on the policy limits rather than the full amount of the verdict.

With regards to molding the jury's verdict down to the UIM policy limit, the Court noted that the defense had pled the policy limit as an affirmative defense in its New Matter pleading.  Applying contractual principles, the court found that the contractual language regarding the policy limit amounted to a cap on damages in this UIM matter.

However, the Court also allowed for Rule 238 delay damages even though those types of damages apply to negligence matters.  Judge Williamson noted that even though a UIM claim was a contract action, it was a claim that allowed recovery under tort principles.

The Court noted that “[t]he plaintiff must still prove negligence, causation and damages at trial as to the tortfeasor. The damages recoverable at trial are the same that the plaintiff seeks from the tortfeasor. For this reason, Pa.R.C.P. 238 was clearly intended to apply to UM and UIM claims. Here, a demand was made for policy limits, Progressive offered substantially less, and following a trial, plaintiff was awarded a great deal more. As such, delay damages are due.”

However, Judge Williamson, pointing to the Pennsylvania Supreme Court’s 2012 ruling in Marlette v. State Farm that delay damages in uninsured motorist cases are calculated based upon the UM policy limits, ruled UIM delay damages must be applied the same way.

Anyone who wishes to review this Kanyuck decision may click this LINK.

In the source March 19, 2020 Legal Intelligencer article entitled "Trial Judge Says Delay Damages Apply to UIM Jury Verdicts -- But Only on Policy Limits" by Zack Needles on this case it was noted that the Plaintiff had appealed this case up to the Superior Court.

The Tort Talk post on the Pennsylvania Supreme Court's decision in the Marlette case can be viewed HERE.

Also, here is a LINK to my previous article from January 8, 2013 on the issue of calculating delay damages in Post-Koken cases.

Judge Williamson of Monroe County Rejects Request for Attorney's Fees in Trip and Fall Matter

In the case of Ezro v. Buck, LP, No. 5279-CV-2019 (C.P. Monroe Co. Oct. 25, 2019 Williamson, J.), the court denied a demurrer asserted by the Defendants in this negligence slip and fall case. However, the court did sustain Preliminary Objections regarding the existence of an agency relationship as well as with respect to the Plaintiff’s claim for attorney fees.

The court granted the Plaintiff leave to file an Amended Complaint to more specifically list Defendants under an agency relationship.

Relative to the claim for attorney’s fees in this trip and fall matter, Judge David J. Williamson confirmed that the American Rule applied in Pennsylvania and generally holds that attorney’s fees are recoverable unless specifically provided by statute or by clear agreement of the parties. No such authorization for an attorney’s fee award was found in this case.

The court did otherwise note that the Plaintiff was entitled to pursue delay damages under Pa. R.C.P. 238(a)(1) and that a decision on the appropriateness of such damages would be reserved until after a verdict has been entered.

Anyone wishing to review a copy of this decision may click this LINK

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

Zero Verdict for Pain and Suffering Upheld Even Though Medical Expenses Awarded

In the case of Rabuh v. Hoobrajh, No. 3:17-CV-15 (W.D. Pa. Sept. 19, 2019 Gibson, J.), the court affirmed a verdict in favor of the Plaintiff in which a jury did not enter an award to the Plaintiff for pain and suffering damages even though it awarded medical expenses.

The court in Rabuh confirmed that a jury need not award pain and suffering damages every time it awards medical expenses. Rather, a jury, under Pennsylvania law, is free to reject the Plaintiff’s testimony on pain and suffering as a credibility determination.

The record before the court confirms that there were both credibility problems for the Plaintiff and also that the Plaintiff had a pre-existing condition that was put into evidence.

This decision is also notable in that the court denied an untimely Motion for Delay Damages after applying the ten (10) day deadline for such motions under Pa. R.C.P. 238.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.