Jarvis v. Johnson, Civ. A. No. 79-2
| Decision Date | 28 May 1980 |
| Docket Number | Civ. A. No. 79-2,79-99 Erie. |
| Citation | 491 F. Supp. 389 |
| Parties | Harold JARVIS, et ux v. Raymond E. JOHNSON et al. v. Lois E. GILLETTE. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
John Gent, Erie, Pa., for plaintiffs.
John Beatty, Erie, Pa., for defendants.
Donald Bebenek, Pittsburgh, Pa., Charles D. Marlett, Erie, Pa., for third party defendant.
We have a case here where the jury has found verdicts in favor of the plaintiffs in the amount of $72,750, $67,750 being entered in favor of plaintiff Harold L. Jarvis. The court reduced the verdict in his favor by $15,000 pursuant to the Pennsylvania no fault law, leaving a net award of $52,750 which, added to the $5,000 awarded his wife, gives a total amount involved of $57,750. Plaintiff, on April 1, 1980, the day after the verdict on March 31, 1980, filed a motion to amend judgment to add damages for delay from October 16, 1979.
Plaintiff's motion to amend was filed pursuant to Rule 238 Pa.R.C.P.
Subdivision (f) of Rule 238 is the portion applicable here and reads as follows:
"If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a date six (6) months after the effective date of this rule, whichever date is later."
This rule was adopted by the Pennsylvania Supreme Court on November 20, 1978, effective 120 days after December 16, 1978, which would make it effective April 15, 1979. Subdivision (f) is only applicable from a date 6 months after the effective date of the rule and it is agreed by all parties that October 16 is the date from which damages for delay are to be calculated.
Under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we apply the rule that the substantive law of Pennsylvania controls as to substantive matters whereas the procedural aspects of a case are governed by the federal rules. Royal Indemnity Co. v. Petrozzino, 598 F.2d 816 (3d Cir. 1979).
In other words, if Rule 238(f) is a procedural matter, Pennsylvania State practice does not control in federal courts where our procedure is governed by federal rules except where specific reference is made to application of a state rule. See Firich v. American Cystoscope Makers Inc., 482 F.Supp. 1043 (W.D.Pa.1980).
It will be noted that Mr. Justice Roberts did not join in the court's order promulgating Rule 238 being of the view that this was a matter of substantive law and not procedural. However, this may be, a majority of the court did adopt this rule and apparently consider it as a procedural matter to remove delays and log jams in the Pennsylvania State courts and this is stated as the reason for adoption of the rule by Goodrich Amram 2d § 238.1. If so, it clearly has no application...
To continue reading
Request your trial
-
Jarvis v. Johnson
...court under the doctrine first enunciated in Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Jarvis v. Johnson, 491 F.Supp. 389 (W.D.Pa.1980). Two other federal district courts in Pennsylvania have since come to the opposite conclusion, and have applied Rule 238 in t......
-
Fricke v. Lynch
... ... Civ. A. No. 80-214 ... United States District Court, D. Rhode Island ... ...
-
Bullins v. City of Philadelphia
...the prompt award of merited and sometimes economically required compensation by a wrongdoer to a victim. However, in Jarvis v. Johnson, 491 F.Supp. 389 (W.D.Pa.1980) the court held that rule 238 is procedural and inapplicable in federal diversity cases under the Erie doctrine. With respect,......
-
Cole v. Altieri, Civ. A. No. 78-2131.
...August 7, 1981); Bullins v. City of Philadelphia, 516 F.Supp. 728 (E.D.Pa.1981), thereby rejecting the holding of Jarvis v. Johnson, 491 F.Supp. 389 (W.D.Pa.1980). The Pennsylvania Supreme Court recently held that it properly promulgated Rule 238 pursuant to its constitutional power to esta......