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PA: Delay Damages

Wagner v. Orie & Zivic, 431 Pa. Super. 337 (Pa. Super. Ct. 1994)

PA Underlying Tort action

Student Contributor: Melissa Goldberg

Facts: Plaintiff suffered physical injuries resulting from a work-related accident. Plaintiff retained Defendant for the purpose of representing him in a personal injury action against the manufacturer, distributor, and/or shipper of the product alleged to cause the injury. Defendant never filed the complaint and the statute of limitations expired. A jury found for the Plaintiff in the legal malpractice suit. The Plaintiff requested that the trial court mold the verdict to award damages for delay pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure.

Issue: Whether Rule 238 of the Pennsylvania Rules of Civil Procedure provide for delay damages to be awarded in a legal malpractice action where the underlying claim resulted from improper handling of a personal injury claim.

Result: Rule 238 provides for an award of damages "in an action seeking monetary relief for bodily injury, death or property damage . . . ."
1) While the underlying cases which precipitated the instant action were both personal injury cases, the instant case was an action for legal malpractice.
2) The rule is explicitly limited by its own language, and it is not applicable to a legal malpractice action. "

Lesson: Rule 238 of the Pennsylvania Rules of Civil Procedure, in determining whether delay damages are available, will only look at the case at bar, and not the underlying action. Thus, it does not extend to Legal Malpractice cases. 

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Posted in: Damages, Pennsylvania