Barris v. Bob's Drag Chutes & Safety Equipment

• Citation: 717 F.2d 52
• Decision Date: 12 August 1983
• Docket Number: Nos. 82-5711,82-5836,s. 82-5711
• Parties: Barbara Ellen BARRIS, Administratrix of the Estate of Arnold Leroy Barris, III, Deceased v. BOB'S DRAG CHUTES & SAFETY EQUIPMENT, INC., a Michigan corporation and Stan Hoover, individually and t/d/b/a Stan Hoover, Jr. Racing Enterprises. Appeal of BOB'S SAFETY EQUIPMENT, INC., a Michigan corporation. Barbara Ellen BARRIS, Administratrix of the Estate of Arnold Leroy Barris, III, Deceased, Appellant, v. BOB'S DRAG CHUTES & SAFETY EQUIPMENT, INC., a Michigan corporation, and Stan Hoover, individually and t/d/b/a Stan Hoover, Jr. Racing Enterprises. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 52

717 F.2d 52

Barbara Ellen BARRIS, Administratrix of the Estate of Arnold

Leroy Barris, III, Deceased v. BOB'S DRAG CHUTES & SAFETY EQUIPMENT, INC., a Michigan

corporation and Stan Hoover, individually and

t/d/b/a Stan Hoover, Jr. Racing Enterprises.

Appeal of BOB'S SAFETY EQUIPMENT, INC., a Michigan corporation.

Barbara Ellen BARRIS, Administratrix of the Estate of Arnold

Leroy Barris, III, Deceased, Appellant, v. BOB'S DRAG CHUTES & SAFETY EQUIPMENT, INC., a Michigan

corporation, and Stan Hoover, individually and

t/d/b/a Stan Hoover, Jr. Racing Enterprises.

Nos. 82-5711, 82-5836.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Aug. 12, 1983.

Decided Sept. 6, 1983.

James D. Wines, Ann Arbor, Mich., for Bob's Safety Equipment, Inc.

Louis M. Tarasi, Jr., Tarasi & Tighe, P.C., Pittsburgh, Pa., for Barbara Ellen Barris, etc., et al.

Before ALDISERT and WEIS, Circuit Judges, and RE, Chief Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The major question for decision raised by these two appeals from a judgment in favor of plaintiff in a diversity action brought under Pennsylvania law is the extent to which delay damages may be awarded under Rule 238, Pa.R.Civ.P. ¹ . Here, defendant obtained a directed verdict at the close of the first trial, but, after a retrial was ordered by this court, ultimately lost on the merits. Because defendant lost and because he never made a settlement offer, plaintiff was awarded Rule 238 delay damages totaling $247,500. This award included damages for the time the case was on appeal from the directed verdict, but, because of plaintiff's mathematical miscalculation, did not include damages for the 17 days immediately preceding the final verdict. For these reasons, the defendant, at No. 82-5711, argues that the delay damages award was excessive and the plaintiff, at No. 82-5836, contends that it was insufficient.

I.

Because the facts giving rise to this case have been reported previously, Barris v. Bob's Drag Chutes & Equipment, 685 F.2d 94 (3d Cir.1982), we will only summarize them here. Arnold Barris was driving in a sprint car race on May 28, 1978, and was involved in an accident. His car flipped over several times, his shoulder harness broke, and, as a result of injuries suffered therefrom, he died. On May 21, 1979, his estate, represented by his wife, sued the manufacturer of the shoulder harness, Bob's Safety Equipment, Inc. (Bob's), and the seller, relying principally on the strict products liability doctrine of the Restatement (Second) of Torts, Sec. 402A, as adopted in Pennsylvania. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

Mrs. Barris contended that the harness manufactured by Bob's was defective and introduced an expert's report to prove that the stitching on the "Y" seam, where the shoulder straps connected to the backstrap, was not strong enough to withstand the force of the accident. Bob's contention was that the harness used by the decedent failed during the accident because it was old and had been cut prior thereto. At the close of the first trial, the district judge ruled that the evidence of Bob's liability was insufficient to go to the jury and entered a directed verdict in its favor. On plaintiff's appeal, this court disagreed and, on August 6, 1982, remanded for a new trial. At the retrial, the same evidence was presented with additional testimony on damages, and on November 1, 1982, the jury returned a verdict against Bob's in the amount of $825,000. On November 18, 1982, per petition of plaintiff, the court made a further award of $247,500 for delay damages under Rule 238. Both parties appeal.

II.

Plaintiff complains that the award of delay damages was too small. Although plaintiff's November 8, 1982 motion to the district court requested delay damages totaling $247,500, and although this amount was granted by the court, plaintiff now claims that she made a mathematical error in computing the amount. Because of plaintiff's admitted inadvertence, the requested amount did not include delay damages for the 17 days immediately prior to November 1, 1982, the date the final verdict was rendered against defendant. Plaintiff requests that we direct the district court to increase her award accordingly.

Bob's appeal, on the other hand, contends that the award was excessive. It claims that delay damages are only available to a prevailing party, and that until August 6, 1982, when this court vacated the directed verdict and ordered a new trial, it, and not plaintiff, had prevailed. Accordingly, Bob's argues, delay damages are only available from the date this court reversed the directed verdict. ²

Plaintiff also has filed a motion with this court asking that we quash the delay damage arguments in Bob's appeal. We will address that motion first.

III.

Barris moves to quash because Bob's appealed only from the November 1, 1982 judgment of compensatory damages and not from the judgment of delay damages entered on November 18, 1982. We deny this motion. As we have held, a post-judgment motion for Rule 238 delay damages is in the nature of a motion to correct clerical mistakes in judgment under Rule 60(a), F.R.Civ.P. Hayden v. Scott Aviation, Inc., 684 F.2d 270 (3d Cir.1982). Rule 60(a) provides that in cases where an appeal is taken, such clerical mistakes may be corrected, on motion by any party, until the appeal is docketed, and thereafter with leave of the appellate court. Also, a motion to correct a clerical mistake does not affect the finality of the original judgment, Albers v. Gant, 435 F.2d 146 (5th Cir.1970), nor does it toll the time limits within which an appeal must be taken, International Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir.1977), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978). For these reasons we hold that when, as here, a district court judgment is corrected by grant of a subsequent motion for Rule 238 delay damages, the order actually appealed from is that which originally issued from the district court. Therefore, defendant correctly appealed from the November 1, 1982 order and is not precluded from raising objections to the delay damage award announced November 18, 1982. We will now address the merits of these appeals, turning first to the arguments raised by Barris.

IV.

A.

The issue raised by Barris' appeal will not detain us long. In sum, although her motion for Rule 238 damages, timely filed on November 8, 1982, indicated that she was entitled to such damages from October 15, 1979 ³ to November 1, 1982, it only requested damages from October 15, 1979 to October 15, 1982. ⁴ Plaintiff admits that she miscalculated the amount requested, $247,500, yet she contends it was error for the district court to award only that amount. We will not reverse an award of Rule 238 delay damages unless there has been an abuse of discretion by the district court. American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050, 1057 (3d Cir.1982). We find no abuse where the court below gave plaintiff exactly what she requested.

B.

Bob's appeal, on the other hand, raises issues that go to the heart of Rule 238. Preliminarily, we note that this rule was adopted in Pennsylvania in 1978 and has been upheld as constitutional, against due process and equal protection attacks, by both the Pennsylvania Supreme Court, Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), and this court, Insurance Federation of Pennsylvania, Inc. v. Supreme Court of Pennsylvania, 669 F.2d 112 (3d Cir.1982). It is also settled that the rule applies to federal diversity cases brought under Pennsylvania law. Jarvis v. Johnson, 668 F.2d 740 (3d Cir.1982). While we normally look to the rules of decision from Pennsylvania to resolve issues of Pennsylvania law, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), research indicates that the precise question raised by Bob's is one of first impression. Accordingly, we approach this task of state court rule construction with the caution befitting a federal court compelled to apply the language to a particular factual situation for the first time.

We look first to the language of Rule 238. It provides that, in a case such as this, delay damages shall be computed from "a date six (6) months after the effective date of this rule," Rule 238(f), "up to the date of award, verdict or decision," Rule 238(a)(2). Bob's claims that implicitly the rule is designed to award delay damages only to a plaintiff who has prevailed on the merits and that it, and not the plaintiff, must be considered the prevailing party from the date the complaint was filed until this court remanded for a new trial. Because the language of the rule does not answer this concern, we must look to the rule's purpose for guidance.

Pennsylvania courts have explained that "the major purpose for placing damages for delay against a defendant who does not extend a reasonable settlement offer is to reduce congestion by encouraging early settlements." Salat v. Western Pennsylvania Hospital, 13 Pa.D. & C.3d 82, 85 (1982) (Allegheny County, Wettick, J.). In its explanatory note to Rule 238, the Pennsylvania Supreme Court's Procedural Rules Committee recognized that "[t]he judicial system has long been vexed by the problem of congestion and delay in the disposition of civil actions for bodily injury, death or property damages pending in the trial courts" and that a major cause for the congestion and delay is that the "present practice provides no incentive for early settlement" so that "in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion in the courts." Landenberger, 496 Pa. at 58, 436 A.2d at 150-51, quoting 8 Pa. Bulletin 2668 (1968). The drafters then designed the rule to serve the purpose of stimulating early...