Pennsylvania Code
Title 231 - RULES OF CIVIL PROCEDURE
Part I - GENERAL
Chapter 200 - BUSINESS OF COURTS
Rule 238 - Damages for Delay in an Action for Bodily Injury, Death or Property Damage
Universal Citation: 231 PA Code ยง 238
Current through Register Vol. 54, No. 12, March 23, 2024
(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 (2024)
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.Civ.P. 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 2, 2024 | 8 1/2 |
| January 3, 2023 | 7 1/2 |
| January 3, 2022 | 3 1/4 |
| 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 |
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