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[J-230-99]] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

: : Appellant : : : v. : : : KENNETH E. MELLINGER AND : COMMONWEALTH OF PENNSYLVANIA, : DEPARTMENT OF TRANSPORTATION, : : Appellee : : :

ELIZABETH A. ALLEN,

Nos. 44 and 45 M.D. Appeal Dkts. 1999 Appeal from the Order of the Commonwealth Court entered August 20, 1998 at Nos. 2408 CD 1997 and 2310 CD 1997 affirming the judgment entered July 9, 1997 at Nos. 89-01668 and 89-01623 of the Court of Common Pleas of Lebanon County, Civil Division

ARGUED: November 15, 1999

CONCURRING AND DISSENTING OPINION MR. JUSTICE CAPPY DECIDED: November 20, 2001

I agree with the majority that the amount in Pa.R.Civ.P. 238 delay damages that a defendant owes a plaintiff in a negligence action is to be calculated in accordance with the factfinder's allocation of fault and that Rule 238 damages awarded against all defendants are to be aggregated with the verdict. For all of the reasons that follow, however, I disagree with and respectfully dissent from the remainder of the majority opinion. The majority resolves several questions relating to the collection or calculation of delay damages involving multiple defendants, who include a Commonwealth party. The majority does so by applying a statutory provision to each. First, the majority holds that under

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Pennsylvania Law