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

May 14, 2021 | Civil Procedure, Pennsylvania

(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.
(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.
(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.
(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 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 227.1 and this rule.
(ii) If no motion for post-trial relief is filed within the ten-day period under 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.
(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;
(2) actions in which damages for delay are allowable in absence of this rule.
(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 (2021)

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, 2021 3 1/4
January 2, 2020 4 3/4
January 2, 2019 5 1/2
January 2, 2018 4 1/2
January 3, 2017 3 3/4
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

231 Pa. Code § 238

Amended by Pennsylvania Bulletin, Vol 46, No. 03. January 16, 2016, effective 1/16/2016
Amended by Pennsylvania Bulletin, Vol 47, No. 2. January 14, 2017, effective 1/14/2017
Amended by Pennsylvania Bulletin, Vol 48, No. 02. January 13, 2018, effective 1/13/2018
Amended by Pennsylvania Bulletin, Vol 50, No. 3. January 18, 2020, effective 1/18/2020
Amended by Pennsylvania Bulletin, Vol 51, No. 3. January 16, 2021, effective 1/16/2021