May 3, 2022

Pennsylvania Superior Court Affirms Trial Court Order that Defendants Cannot Hide Behind Covid-19 and Judicial Shutdown to Avoid Delay Damages

In the recent case of Getting v. Mark Sales & Leasing, Inc., No. 348 MDA 2021 (Pa. Super. April 7, 2022 Olson, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Kunselman, J.), the Superior Court dealt with a Defendant/Appellee’s challenge to the trial Court’s order awarding the Plaintiff/Appellee over $2 million dollars in delay damages for personal injuries sustained when using a lawn mower leased by the Defendant/Appellant company. 

Specifically, the Court of Common Pleas of Lycoming County awarded Plaintiffs/Appellees, Harold and Veronica Getting, $2,047,217.51 in damages for personal injuries sustained by Harold Getting when driving a lawnmower that he leased from Defendant/Appellee, Mark Sales & Leasing Inc. (“the Rental Company”) per the recommendation of Defendant/Appellee, Lemuel Scott Barger, a sales associate of the Rental Company.

Mr. Getting sued the Rental Company on various negligence theories and his wife, Veronica Getting, brought a claim for loss of consortium. The case proceeded to a jury trial, which ran from August 31, 220 until September 4, 2020 (during the Covid-19 pandemic).

The Gettings sought delay damages following the jury’s finding that the Rental Company was 85% liable and Mr. Getting was 15% comparatively liable. The Rental Company argued that the time during which Pennsylvania courts were closed due to the Covid-19 pandemic should not count towards those damages. The trial court disagreed and awarded the Gettings delay damages in the amount requested and entered a judgment in their favor.

The Rental Company filed a timely appeal and raised four (4) issues, one of which being whether it was an error to award delay damages for the period of the judicial emergency declared by the Supreme Court of Pennsylvania. Specifically, the Rental Company relied upon the Supreme Court of Pennsylvania’s March 18, 2020 Order which closed all Pennsylvania Courts, suspended jury trials and continued or postponed all calendared events on the judicial dockets throughout the Commonwealth. The Order provided, “Unless otherwise indicated herein, all time calculations for purposes of time computation relevant to court cases or other judicial business, as well as time deadlines, are SUSPENDED” through the end of the judicial emergency. In re: General Statewide Judicial Emergency, March 18, 2020 Order at 4, Nos. 531 & 532 JAD (Pa. 2020).

Moreover, the Rental Company contended that the Order suspended the time for calculating delay damages under Pa. R.C.P. 238 and argued that the suspension lasted from the beginning of the judicial emergency (March 16, 2020) through the commencement of the jury trial (August 31, 2020). After conducting an analysis of Pa. R.C.P. 238, the Court found that although Rule 238 involves time calculations, calculating time is not the purpose of the rule, and the rule’s reliance upon time is “merely a product of the fact that interest accrues as a factor of time.”

The Court reasoned that Covid-19 and the judicial emergency it created (1) did not diminish the rights of plaintiffs to be made whole, and (2) did not prohibit defendants from engaging in settlement negotiations or making reasonable offers to help alleviate the Court of its crowded docket. Accordingly, the Superior Court affirmed the trial court’s award and held that the Supreme Court of Pennsylvania did not suspend the right of plaintiffs to collect delay damages during the 2020 judicial emergency.

Please find attached for your review a complete copy of the Court’s Opinion.

                                                                     O’BRIEN FIRM

                                                                        /s/ Matthew E. O’Brien

                                                                        MATTHEW E. O’BRIEN, ESQUIRE