Damages for Delay In An Action Rule 238
Pa.R.C.P. 238 reads in pertinent part as follows:
(a)(2) Damages for delay shall be awarded for the period of time . . .
(ii) in an action commenced on or after August 1, 1989, 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 . . .
(b) the period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of . . .
(ii) a structured settlement underwritten by a financially responsible entity and continued that offer in effect for at least ninety days or until commencement of trial, which ever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of . . . the actual cost of the structured settlement plus any cash payment to the plaintiff . . .
In Arthur v. Kuchar, 546 Pa. 12, 682 A.2d 1250 (1996), the Court found that an oral settlement offer which had been placed on the record during trial and later transcribed in the notes of testimony was the functional equivalent of a written offer for purposes of the Rule.
The offer was conditioned on immediate acceptance of the proposal and termination of trial.
The Court found that because it was not specifically continued in effect for 90 days and trial had already commenced, the offer failed to satisfy the timing requirements of the Rule.