PROCEDURE – DELAYED DAMAGES – DAMAGES

Arreguin v. Kinsing, 2025 Pa. Super. LEXIS 591 (December 23, 2025) Dubow, J.
Maria Esther Arreguin (“Ms. Arreguin”), on behalf of her minor child, P.A.B. (“Son”), appeals from the trial court’s denial of her motion for delay damages after the trial court entered judgment in her favor in this personal injury action against Charles Kinsing (“Appellee”). Upon careful review, we reverse the trial court’s denial of the motion for delay damages, vacate the judgment, and remand for further proceedings.
The relevant facts and procedural history are as follows. In July 2015, Appellee, who was severely intoxicated, rear-ended a car driven by Ms. Arreguin. Appellee’s rear-ending of Ms. Arreguin’s car caused a chain reaction collision in which six people sustained injuries. Son, who was then ten years old and was a passenger in his mother’s car, endured severe facial injuries necessitating multiple surgeries and causing permanent scarring.
Ms. Arreguin filed the instant personal injury action. Following a January 2023 non-jury trial, the trial court found in favor of Ms. Arreguin and awarded $4,111,746.38 in damages. Ms. Arreguin filed a timely motion for delay damages pursuant to Pa.R.Civ.P. 238(c).
The trial court found, and we agree, that, owing to its use of the word “shall,” our Supreme Court clearly and unambiguously intended to require that a party seeking delay damages pursuant to Rule 238 must provide notice in the form set forth in the Rule. See Rule 238(c) (“The motion shall begin with the following notice. . . “) (emphasis added). Our inquiry, however, does not end there. Rule 126(a), titled “Liberal Construction and Application of Rules,” directs courts to liberally apply the Rules “to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.Civ.P. 126(a). “The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties.” (emphasis added).
Our Supreme Court has explained that it promulgated Rule 126 to incorporate the equitable principle that the trial court should consider the doctrine of substantial compliance when applying the Rules of Civil Procedure.
Here, the trial court determined that Ms. Arreguin’s failure to include the requisite notice with the motion for delay damages was a fatal defect that precluded her recovery. The court did not, however, consider whether it could excuse this defect pursuant to Rule 126. Nevertheless, because we review the trial court’s interpretation and application of the Rules of Civil Procedure de novo, we shall consider whether the court abused its discretion when it declined to excuse Ms. Arreguin’s procedural misstep. In so doing, we consider whether Ms. Arreguin made a substantial attempt to conform with Rule 238 and whether the “procedural defect” affected or prejudiced Appellee’s substantive rights.
Following our review of the record we observe that Ms. Arreguin complied in all respects with Rule 238 except in providing the notice that Appellee had 20 days to respond in writing to the motion for delay damages. Since Ms. Arreguin’s motion for delay damages otherwise complied with Rule 238, we conclude that she made a substantial attempt to conform with Rule 238. We further find highly relevant that, notwithstanding Ms. Arreguin’s failure to notify Appellee that he had 20 days to respond in writing to the motion for delay damages, Appellee not only filed a timely response in opposition to the motion for delay damages, but also raised numerous grounds in support of his opposition, and filed a memorandum of law in support of his opposition to the motion. We note also that Appellee’s counsel appeared at the hearing to argue against the award of delay damages.
Based on these facts, Appellee suffered no prejudice from Ms. Arreguin’s failure to notify Appellee that he needed to respond to the motion for delay damages in writing in 20 days.
President Judge Lazarus, Judge Bowes, President Judge Emeritus Panella, Judges McLaughlin, Beck and Lane join.
Judge Sullivan files a Dissenting Opinion in which Judge King joins. Judgment Entered.
• Verdict was for over $4 million dollars.
• The Court denied delayed damages all together because of the fact that plaintiff failed to include requisite notice with a motion for delayed damages and that that was a fatal defect precluding recovery.
• The Superior Court reversed.
• The Trial Court abused its discretion.
• The plaintiff complied in all respects with Rule 238 except in providing the notice that appellee has 20 days to respond in writing to the motion for delayed damages.
• Plaintiff was otherwise in compliance.
• Appellee, however, did file a timely response.