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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL and CHRISTINE :

LANCENESE, : CIVIL ACTION

:

Plaintiffs, :

: NO. 05-cv-5951

v. :

: 

VANDERLANS AND SONS, INC., :

:

Defendant. :

MEMORANDUM AND ORDER

Joyner, J. January 13, 2009

Before this Court is Plaintiffs’ Petition for Delay Damages

(Doc. No. 84), Defendant’s Answer to Plaintiff’s Petition for

Delay Damages (Doc. No. 86) and Plaintiffs’ Reply thereto (Doc.

No. 92).

Background

Following an incident in 2005 involving a domehead plug,

Plaintiffs Michael and Christine Lancenese filed suit against

Defendant Vanderlans and Sons. Plaintiffs ultimately brought

claims of negligence, implied warranty of merchantability, and

loss of consortium to trial. After a jury trial lasting seven

days, the jury found that defendant was negligent, that it had

breached its implied warranty of merchantability and that

plaintiff Christine Lancenese had suffered a loss of consortium. 

The jury apportioned the causal negligence for plaintiff Michael

Lancenese’s claims as follows: Defendant: 70%; Plaintiff Michael

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 1 of 7
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Lancenese: 30%. This Court entered judgment accordingly on

December 22, 2008. Plaintiffs filed a petition for delay damages

pursuant to Pa.R.C.P. 238; defendant disputes certain elements of

the delay damages and their calculation.

Discussion

Plaintiffs argue that they are entitled to delay damages

pursuant to Pa.R.C.P. 238 for damages awarded for negligence. As

Pennsylvania substantive law governed this action, Pa.R.C.P. 238

is applicable to the judgment in this matter. Moyer v. United

Dominion Industries, 2003 U.S. Dist. LEXIS 6248, at *4 (E.D. Pa.

Feb. 26, 2003) (citing Kirk v. Raymark Industries, Inc., 61 F.3d

147, 168 (3d Cir. 1995)). Plaintiffs also contend that the

damages awarded for breach of implied warranty should be

considered breach of contract damages and, as such, are entitled

to statutory pre-judgment interest as a matter of right.

Defendants agree that Pa.R.C.P. 238 applies to the present

matter, but disagrees as to the total length of time for which

delay damages should be awarded and whether delay damages should

be calculated for Michael’s Lancenese lost earnings, and

embarrassment and humiliation. 

Delay damages are awarded in line with Pa.R.C.P. 238 from

the day one year after the service of process up to the date of

the verdict. Pursuant to subsection (b), the Court must

determine (1) the date of the service of the Complaint, (2) the

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 2 of 7
As both parties agree that the verdict was more than 125% of the 1

settlement amount offered, the second consideration does not apply. 

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period of time after defendant made a written offer, if the

plaintiff's verdict is less than 125% of the amount offered; and

(3) the period in which the plaintiff caused delay of trial. In

this case, plaintiff served the Complaint on December 27, 2005,

and hence, delay damages would arguably be awarded from December

27, 2006 until the date of the verdict, November 25, 2008. 

I. Plaintiff’s Delay of Trial1

During the course of the case, plaintiffs, jointly with

defendant, motioned this Court to stay the case and the Court

granted such a stay that lasted from January 26, 2006, until

August 3, 2006, when the stay was lifted. See Lancenese v.

Vanderlans, No. 05-5951 (E.D. Pa. Jan. 27, 2006) (order staying

the action at request of parties); Letter from Plaintiffs’

Attorney (Doc. No. 84) (July 21, 2006) (letter requesting the

case be made active). Defendant contends, and plaintiffs does

not dispute, that plaintiffs asked for this stay to undergo

surgery. Def. Ans. Memo. 2. Hence, during this period of time,

plaintiff cause delay of trial. Pa.R.C.P. 238(b)(1)(ii) provides

that the period of time during which plaintiff caused delay of

trial shall be excluded from the period of time for which damages

for delay are calculated. Plaintiffs argue that this delay

occurred during the one year period following the service of the

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 3 of 7
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Complaint and, as such, should not be subtracted from the overall

period. However, there is no such qualification providing for an

exception in the rule and it seems to this Court that if the case

had not been stayed for these 189 days, then presumably, the case

would have progressed and come to verdict 189 days earlier than

it did. Hence, 189 days will be deducted from the period of time

for which delay damage are to be calculated in line with

Pa.R.C.P. 238(b).

II. Lost Earnings, Embarrassment and Humiliation

Plaintiffs contend that they are entitled to delay damages

in relation to the damages specified for lost earnings,

embarrassment and humiliation. Defendant argues that delay

damages should be limited to the damages specified for the past

medical expenses, future medical expenses, pain and suffering,

and loss of life's pleasures. The claim in this case was one of

negligence that resulted in bodily injury; hence, the total

damages awarded for this claim would constitute "monetary relief

for bodily injury, death or property damage" in accordance with

Pa.R.C.P. 238. In its Answer, defendant cites to cases in which

lost earnings, and embarrassment and humiliation, were

inappropriate under Rule 238; however, these actions were not

those contemplated in Rule 238 because they were not personal

injury torts. See Butler v. Flo-Ron Vending Co., 383 Pa. Super.

633, 653 (Pa. Super. Ct. 1989); Wainauskis v. Howard Johnson Co.,

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 4 of 7
Parties appear to agree that since the causal negligence of Michael 2

Lancenese was found to be 30%, the verdict for his injuries should be reduced

to $1,333,150.00. Def. Ans. Memo. 2; Pl. Reply Memo. 3.

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339 Pa. Super. 266, 283, 488 A.2d 1117, 1125 (1985) (Brosky, J.,

concurring); Contractor Utility Sales Co. v. Certain-Teed Corp.,

748 F.2d 1151 (7th Cir.1984). As the damages in this case were

awarded as part of the negligence damages, they are entitled to

be used in the calculation for delay damages. Hence, the total

negligence damages of $1,904,500.00, minus the plaintiff's

percentage of causal fault (30%), shall be used to calculate

delay damages.2

III. Breach of Implied Warranty

Finally, plaintiffs claim in their Reply that the implied

breach of warranty claim is a contract claim and, as such, should

not be entitled to delay damages, but should be entitled to 6%

interest as a matter of right from the time the debt accrued. 

Robert Wooler Co. V. Fidelity Bank, 479 A.2d 1027 (1984). 

However, on the verdict slip, the damages awarded to Michael

Lancenese are not specifically broken down between the negligence

claim and the implied breach of warranty claim and, as such, it

would be impossible to determine which of the damages could be

entitled to delay damages and which could be entitled to a 6%

statutory rate. Overall, the “total damages” for Michael

Lancenese’s bodily injury claim will be calculated to determine

delay damages, and we decline to separate a jury's total verdict

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 5 of 7
The rates are as follows: 3

YEAR PRIME RATE PLUS 1%

2006 7.25 % 8.25 %

2007 8.25 % 9.25 %

2008 7.25 % 8.25 %

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arbitrarily or award interest twice on the same damages. 

IV. Conclusion

Hence, plaintiffs are entitled to 70% of the total damages

for negligence and implied warranty ($1,333,150.00) during the

period of time starting one year after the service of the

Complaint until the verdict, less 189 days due to a delay imposed

by the plaintiffs. Pursuant to Pa.R.C.P. 238, the damages 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." 

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In assessing the delay damages, we will calculate the

damages from one year and 189 days after the service of the

Complaint: July 4, 2007. The total verdict used in the

calculation is $1,333,150.00 (70% of Michael Lancenese’s total

damages). Accordingly, the verdict shall be molded as follows:

YEAR Portion of Year Rate Delay Damages

2007 from 7/4 (180 days) 9.25% $60,813.54

2008 to 11/25 (329 days) 8.25% $99,137.04

TOTAL DELAY DAMAGES: $159,950.58

TOTAL DAMAGES AWARD: $1,493,100.58

TOTAL MOLDED VERDICT (inc. Loss of Consortium): $1,593,100.58

An appropriate Order follows.

Case 2:05-cv-05951-JCJ Document 95 Filed 01/16/09 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL and CHRISTINE :

LANCENESE, : CIVIL ACTION

:

Plaintiffs, :

: NO. 05-cv-5951

v. :

: 

VANDERLANS AND SONS, INC., :

:

Defendant. :

ORDER

AND NOW this 13th day of January, 2009, upon consideration

of Plaintiffs’ Petition for Delay Damages (Doc. No. 84),

Defendant’s Response to Plaintiff’s Petition for Delay Damages

(Doc. No. 86) and Plaintiffs’ Reply thereto (Doc. No. 92), and

for the reasons sets forth in the attached memorandum, it is

hereby ORDERED that Plaintiffs Petition is GRANTED and Plaintiffs

are awarded delay damages in the amount of $159,950.58. It is

further ORDERED that the verdict awarded to Plaintiffs shall be

molded to a total of $1,593,100.58 to reflect the delay damages,

the percentage of plaintiff’s causal negligence and plaintiff

Christine Lancenese’s Loss of Consortium award.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J. 

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