author: KELLY, Judge: TAMILIA, Judge,

text:
    556 A.2d 450
    Clara SHERRILL, Appellee, v. PORT AUTHORITY OF ALLEGHENY COUNTY, a Municipal Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1988.
    Filed March 28, 1989.

      James R. Duffy, Pittsburgh, for appellant.
    James B. Cole, Pittsburgh, for appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   KELLY, Judge:

Appellant, Port Authority of Allegheny County, appeals from judgment entered on July 23, 1987, on the molded verdict dated July 14, 1987, which granted appellee delay damages pursuant to Pa.R.C.P. 238. For the reasons that follow, we vacate the trial court’s order of July 14, 1987, and remand for proceedings consistent with this opinion.

The pertinent procedural history of this case is as follows. On February 15, 1980, appellee, Clara Sherrill, filed a complaint in trespass seeking recovery for injuries she sustained as a result of an accident between a Port Authority bus and a taxicab. At the time of the accident, appellee was a passenger on the bus.

Some time prior to trial, appellee’s counsel made a settlement demand of $22,500.00. Immediately prior to trial, appellant made an oral offer to settle for $10,000.00 which appellee refused. The case was tried, initially, in October of 1982, and resulted in a verdict in favor of appellee in the amount of $2,500.00. Timely post-trial motions were filed and denied. Judgment was thereafter entered on the verdict as molded by the trial court. Appellee subsequently appealed to this Court alleging an error in the trial court’s charge with reference to the application of the $15,000.00 No-Fault Wage Loss Deduction. On February 15, 1985, a majority of a divided three judge panel of this Court, filed a Memorandum Opinion and Order sustaining the appellee’s objection to the trial court’s charge, reversing the judgment, and remanding the case for a new trial on the issue of damages only.

During the pendency of the appeal, appellee underwent surgery, on May 23, 1983, for a removal of a disc between L-4, L-5 vertabra, which had been injured in the accident. As a result of this surgery, appellee’s known damages increased considerably. On May 20, 1983, appellant and appellant’s counsel were advised by appellee’s counsel of the impending surgery and further advised that all prior demands were withdrawn.

Prior to trial on remand, and as a result of the dramatic change in appellee’s known damages, appellee’s counsel made an oral demand of $175,000.00 which was reduced to $120,000.00 after the jury was chosen but prior to opening statements. No written offer of settlement was made by appellant. On December 3, 1986, the jury returned a verdict in favor of appellee in the amount of $72,536.00. Thereafter, appellee’s counsel presented the trial court with a timely petition requesting delay damages and appellant filed a timely response thereto.

In lieu of an evidentiary hearing, the parties filed a Stipulation of Facts regarding appellee’s claim for delay damages. Paragraphs thirteen and fourteen of the Stipulation of Facts provided:

13. No part of the passage of time between the filing of the complaint and the return of the verdict on December 3, 1986 was due to the fault of the plaintiff.
14. No part of the passage of time between the filing of the complaint and the return of the verdict on December 3, 1986 was due to the fault of the defendant.

(Stipulation of Facts at 3). On July 14, 1987, the trial court filed its opinion and order granting appellee delay damages in the amount of $32,154.31 for the period between the filing of the complaint and the jury verdict on December 3, 1986, excluding the period of time between the date the original verdict was entered and the date this Court remanded the matter for retrial. This timely appeal followed.

On appeal, appellant raises the following issues:

I. Did the trial court deprive the defendant of its constitutional right to due process and equal protection of the law in awarding delay damages and molding the jury verdict to reflect the award of delay damages without a finding of fault on the part of the defendant causing the delay?
II Did the court err in failing to apply the mandates of the Supreme Court of Pennsylvania in suspending the mandatory award of delay damages and in awarding delay damages in the face of a record stipulation of fact that no part of the passage of time between the filing of the complaint and the return of the verdict on December 8, 1986 was due to the fault of either the plaintiff or the defendant?
III. Did the trial court deny the defendant due process and equal protection of the law in calculating delay damages from the date of filing of plaintiffs complaint and on the total jury verdict on retrial when those damages arose from a dramatic change, over which the defendant had no control, in plaintiffs physical condition and when the retrial was as a result of trial court error, over which the defendant had no control, on an unrelated issue of law?

(Appellant’s Brief at 3).

I. LIABILITY FOR DELAY DAMAGES

Appellant’s first two issues on appeal address the same basic question, i,e. did the trial court err in awarding delay damages to appellee where there was no finding by the trial court that appellant was responsible for any delay and where the parties have stipulated that any delay encountered in litigating this case was not the fault of either party. For the reasons which follow, we find that an award of delay damages was appropriate.

While this case was pending before this Court, our Supreme Court promulgated the revised Rule 238, dated November 7,1988, effective Immediately. Subsection (£) of the rule provides that it “shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined.” Pa.R.Civ.P. 288(f). Since appellant’s liability for delay damages had not been finally determined when the new rale became effective, revised Rule 238 governs this case. Ceresini v. Valley View Trailer Park, 880 Pa.Super. 416, 552 A.2d 258 (1988) (en banc); Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en bane).

Revised Rule 238 subsection (b) provides:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of:
(1) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages, for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff, or

(2) during which the plaintiff caused delay of the trial. Pa.R.C.P. 238(b).

A review of the Explanatory Comment reveals that the above provisions provide the only basis upon which a defendant may oppose a motion for delay damages. Pa.R.C.P. 238, Explanatory Comment. Accordingly, we conclude that where the defendant has not made a settlement offer in accordance with Rule 238(b)(1) and the plaintiff is not responsible for any of the delay, the defendant is liable for delay damages. Miller v. Wise Business Forms, Inc., supra.

In the instant case, no written offer of settlement was made. Moreover, both parties stipulated that the plaintiff was not responsible for any delay encountered in litigating this case. As such, an award of delay damages in this case was appropriate. Pa.R.C.P. 238. See Miller, supra.

II. CALCULATION OF DELAY DAMAGES

Appellant contends that the trial court denied it due process of law and equal protection in calculating delay damages from the date of filing plaintiffs complaint and on the total jury award of $72,536.00 on retrial. Appellant maintains that appellee’s damages arose from a dramatic change in her condition after the original verdict was entered in October, 1982. As a result, appellant asserts, it was incapable of making an adequate offer of settlement prior to the first trial when the adequacy is measured against the total award. Thus, appellant argues the award should not include delay damages for the period between the filing of the complaint and the first verdict.

Review of the record in this matter reveals that the course and history of this particular case is quite unique. As the record discloses, prior to the first trial, appellee made a demand of $22,500.00 which we assume was based upon appellee’s best assessment of the settlement value of this case. Appellant countered with a oral offer of $10,-000.00 which appellee declined to accept. As a result, the matter proceeded to trial. The jury returned a verdict in favor of appellee and awarded her $2,500.00 in damages. Appellee exercised her right to appeal and successfully argued that the trial court’s instruction on damages was erroneous. Thereafter, the matter was remanded, by this Court, to the trial court for a new trial on damages.

However, subsequent to the first trial, appellee underwent surgery. As a result, her damages increased significantly which was reflected in the $70,000.00 increase in the jury verdict on retrial. Because no written offer of settlement was made, delay damages were assessed against appellant.

What makes this case so problematic is that in calculating delay damages for the period between the filing of the complaint and the entry of the first verdict, the trial court computed the amount by using $72,536.00 rather than using the amount of appellee’s damages which existed at that time. Thus, appellant was essentially assessed delay damages for failing to make a “reasonable” settlement offer, with reasonableness being determined by comparison of the amount offered and the second verdict of $72,536.00 which reflects the dramatic increase in appellee’s damages after the first trial. Therefore, the question we need to decide is whether our Supreme Court intended to impose delay damages to be calculated based upon the amount of the verdict on retrial, or whether damages should be calculated for the period from the filing of the complaint to the entry of the first verdict based on the damages reasonably ascertainable at that time.

A. Revised Rule 238

We look first to the statute itself. The relevant subsection of revised Rule 238 provide as follows:

(2) Damages for delay shall be awarded for the period of time.
(i) in an action commenced before August 1,1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision; or
******
(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for the least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or

(2) during which the plaintiff caused delay of the trial. Revised Pa.R.C.P. 288

Although the rule excuses defendants from paying delay damages only in a limited number of situations, all of which are enumerated in the rule, the clear language does not indicate how it applies to the unique circumstances of this case. Specifically, the rule is silent on the matter of defendants who are incapable of making an offer of settlement sufficient to toll the running of interest because the full extent of the plaintiffs injuries were unknown until well after the original verdict was entered. Because the words of the rule are not “clear and free from ambiguity,” we must resolve the issue by ascertaining the intent of the Supreme Court in promulgating Rule 238. See Pa.R.C.P. 127(c). Though this is a case of first impression under the revised rule, the Explanatory Comment to the revised rule notes that except where the rule specifies or clearly implies to the contrary, prior case law under the rule will be applicable to practice under the revised rule. Hence, we look to the case law construing the former rule to resolve appellant’s claim.

B. Pennsylvania Supreme Court Decisions

Shortly after the implementation of Rule 288, its constitutionality was challenged in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), on the grounds that our Supreme Court exceeded its rule-making authority in promulgating Rule 238, and that Rule 288 violated both equal protection and substantive due process under the Pennsylvania Constitution and the United States Constitution.

In upholding the constitutionality of Rule 288, vis-a-vis the Pennsylvania Supreme Court’s power to adopt it, the Court acknowledged that the Pennsylvania Constitution granted it exclusive power to promulgate rules of procedure but only where the rules “neither abridge, enlarge nor modify the substantive rights of any litigant....” Pa. Const. Art. V § 10(e). Thus, the Court was faced with the arduous task of determining whether Rule 238 was procedural or substantive.

In order to properly characterize the nature of Rule 238, the Court began its analysis by determining the purpose for promulgating Rule 238. The Court noted:

In September, 1978, the Civil Procedural Rules Committee proposed Rule 238 to this Court for its review and promulgation. In the accompanying explanatory comments, the Committee stated:
The 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. Various techniques, such as compulsory arbitration, have helped to dispose promptly of the bulk of such cases in amounts under $10,000 in Philadelphia and Allegheny Counties and under $5,000 in other counties which have adopted compulsory arbitration. Nevertheless, there is still a considerable residue of so-called major cases not presently subject to arbitration. There are also the appeals from arbitration which require further proceedings in the trial court.
Statistics show that ... [t]hirty-eight percent are settled without going to trial. Some are settled through pretrial conciliation techniques, but 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. The present practice provides no incentive for early settlement.
In the usual civil action for bodily injury, death or property damage there is no compensation to the successful plaintiff and no sanction against the defendant for the long delay between commencement of the action and the trial.
8 Pa. Bulletin 2668 (1978). These explanatory notes have not been officially adopted or promulgated by this Court, nor do they constitute part of the rule. However, they indicate the spirit and motivation behind the drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted.

436 A.2d at 150-151. The Court accepted as the underlying purpose of Rule 238 the expedition of cases through the court system by promoting early settlement.

Next, the Court reviewed the language of the rule itself. The Court concluded that by including a provision which tolls the running of interest where the verdict does not exceed the offer by twenty-five percent, the prominent goal of the rule is to foster early settlements, thereby reducing the congestion in the trial courts. 436 A.2d at 151. Although the Court conceded that “[u]ndeniably, this rules serves to compensate the plaintiff for the inability to utilize funds rightfully due him ...” it placed great emphasis on the fact that “... the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” 436 A.2d at 151. Thus, the Court concluded that Rule 238 is properly characterized as being procedural noting:

Undeniably, Rule 238 embodies both procedural and substantive elements. Its purpose and effect are procedural, yet its performance will touch upon substantive rights of both parties. However, the fact that a rule does involve the substantive rights of litigants should not mean that the rule is an inappropriate topic for Supreme Court rule-making. Most rules of procedure will eventually reverberate to the substantive rights and duties of those involved. We therefore must agree with our brethren in New Jersey that:
an absolute prohibition against rules which merely affect substantive rights or liabilities, however slight such effect may be, would seriously cripple the authority and concomitant responsibility which have been given to the Court by the Constitution.
State v. Leonardis, 73 N.J. 360, 375 A.2d 607, 614 (1977). See also Fehrenbach v. Fehrenbach, 42 Wis.2d 410, 167 N.W.2d 218 (1969). We certainly do not intend to, and will not, promulgate rules in contravention of the constitutional prohibition against abridging, enlarging or modifying substantive rights. However, to interpret this provision too narrowly effects an equally offensive circumscription of our constitutional duties. As we have stated previously, the legislature is forbidden to act in the field of procedure; we are bound to do so by the terms of our authority. This Court should not be prevented from exercising its duty to resolve procedural questions merely because of a collateral effect on a substantive right. Clearly, Rule 238, when viewed from the perspective of its purpose and goal, contributes to the orderly and efficient administration of justice in Pennsylvania, and must stand.

436 A.2d at 155. As such, the Court concluded it did not exceed its rule-making authority in promulgating Rule 238.

The Court reasserted this conclusion in responding to both equal protection and due process requirements. In its equal protection analysis, the Court rejected the argument used by the trial court that it must have discretion to assess fault for delay to make the rule constitutionally sound. The Court observed that the parties were not similarly situated. This conclusion was based upon the premise that there is a deliberate, profitable delay on the part of tortfeasors. The Court reasoned that disparate treatment resulting from adding delay damages without "discretion to all judgments where the defendant had not made a settlement offer pursuant to Rule 238(e) bears a fair and substantial relation to the rule’s articulated goal — “to encourage early activity on the part of the defendants to resolve legitimate claims in an expeditious fashion and deprives them of the opportunity to benefit from needless delays and last minute settlements.” 436 A.2d at 156. The Court also rejected the argument that delay damages are improperly assessed where the plaintiff causes the delay noting that a defendant can always protect himself from the assessment of prejudgment interest by extending a reasonable settlement offer in a timely manner.

As to the substantive due process challenge, the Court held that the rule serves the purpose intended, and that purpose, “the efficacious attempt to clear the dockets as soon as possible of those eases which can and should be settled is a legitimate and worthwhile governmental objective.” 486 A.2d at 157. In so holding, the Court noted that the defendants,

[mjisstate the aim of the rule by concentrating their attention on one by-product of the rule. It is true that Rule 288 does disgorge profit on funds placed in reserve by insurance companies for upcoming trials. However, while some defendants may in fact be uninsured, they have nonetheless caused the loss to the plaintiffs by their tortious conduct and owe compensation to their victims. Uniformly, the plaintiffs are the parties prejudiced by the long litigation process; whether the defendants are insured or uninsured does not lessen their loss. The only thing which reduces a plaintiffs loss is an early settlement of his damages. Rule 288 therefore must be viewed as comporting with the constitutional requirements of both equal protection and substantive due process.

436 A.2d at 157.

In Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1850 (1986), our Supreme Court accepted an invitation to reexamine the application of Rule 238 based on the experiences encountered during the five years since Laudenberger had been decided. In Craig, as in Laudenberger, the defendant challenged Rule 238 on grounds of equal protection, due process, and the contention that our Supreme Court slipped, under procedural cover, into definitive substantive law.

The Court began its analysis with the following observation of its decision in Laudenberger:

The Laudenberger Court accepted as an underlying reason for the Rule that there was deliberate, profitable delay on the part of tortfeasors. If one accepts that a refusal to settle is always prompted by such motives, then no wrong is done a wrongdoer, and the rationale of Laudenberger would have settled the argument presented for then and always.

515 A.2d at 1352. However, the Court recognized that the delay is not always attributable to the defendant, i.e. profit delay. The plaintiff may, as in the case before it, be responsible for the delay in getting the case to trial, thus contributing to the congestion in our trial court system which is the precise problem Rule 238 sought to alleviate.

The argument that a defendant’s failure to make a settlement offer sufficient to toll the accumulation of delay damages under Rule 238(e), is, of itself, adequate grounds for finding fault was expressly rejected by the Craig Court. It appears that the Craig Court did not accept profit as the sole motive for delay and therefore concluded that the rationale of Laudenberger did not settle the argument ‘for then and always.’

As to the aspect of this approach which tends to assess delay damages against a party not because that party is at fault, but because the other party is not at fault, the Court stated:

There is no point in contending that a procedural rule may exist that punishes without fault, and is yet consistent with Due Process. Neither is there point in arguing that a procedural rule that punishes a defendant qua defendant does not smack of a substantive enlargement of duties owed. We do not overrule the rationales of Laudenberger, for they have vitality of their own in the context of the ends sought. We today suspend the Rule because experience shows that the ends sought run too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an uncontestable presumption that all fault lies with a defendant. There are too many reasons why such is not always the case; and what is not always so may not be irrebuttable when a penalty follows.

515 A.2d at 1353 (emphasis added). Thus, for Rule 238 to continue to enjoy a clear constitutional bill of health, it cannot be seen to punish a party without a finding that that party has acted culpably.

Based upon our reading of Laudenberger and Craig, we observe that Rule 288 has withstood constitutional challenge because the rale as promulgated is responsive to the Court’s fundamental goal of prompting meaningful negotiations and early settlements so as to unclutter the courts. Although a by-product of this rule is the creation of a substantive right in the form of prejudgment interest, that fact alone does not render the rule unconstitutional. However, it is clear that this incidental right cannot be proffered as the sole justification for the award of delay damages. As Justice Hutchinson noted in his concurring opinion in Craig, “a salutory goal is not enough to override basic constitutional restraints.” Craig, supra, 515 A.2d at 1355 (Hutchinson, J., concurring). Such a substantive enlargement of a party’s rights by a Court generated rale would render the rule unconstitutional under the Pennsylvania Constitution. See Pa. Const. Art. V § 10(c). Therefore, we conclude to avoid constitutional challenge Rule 238 must be applied in a manner that promotes its intended objective.

Thus, the question to be resolved is whether our Supreme Court in promulgating Rule 238 intended to hold a defendant accountable for delay damages on the full amount of the second verdict for the time period between the date the complaint was filed and the date the first verdict was entered, when appellant was incapable of making a reasonable offer of settlement which would have been within 125 percent of the second verdict. Specifically, we must determine whether, by adopting such an approach, we would be fostering the clear cut goal of Rule 238 of promoting early settlement.

C. Pennsylvania Appellate Court Decisions

Following the decision in Laudenberger, this Court was called upon to consider, in Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986) (en banc); Hawthorne v. Dravo Corp. Keystone Division, 352 Pa.Super. 359, 508 A.2d 298 (1986); and Hughes v. GAF Corporation, 364 Pa.Super. 311, 528 A.2d 173 (1987), whether delay damages are appropriate where imposition of Rule 238 does not foster its goal of reducing congestion in our trial courts by encouraging early settlements. Although this particular claim does not fall squarely within the facts presented in these cases, we find them sufficiently analogous to come within their basic reasoning.

In Berry, this Court sitting en banc, considered “whether Rule 238’s goal of encouraging reasonable settlement offers in the nascent stages of lawsuits is met by penalizing a party incapable of making a ‘reasonable offer’ as defined by the Rule.” 502 A.2d at 720. In Berry, the amount which defendant Anderson would have had to offer to avoid delay damages was 1.6 million dollars (with prompt cash payment). The amount of the offer was $100,000.00 which defendant Anderson asserted constituted the full extent of her resources.

The Court en banc, refused to allow the assessment of delay damages against a defendant when it was shown that, financially, the defendant was not in a position to make a more substantial offer. 502 A.2d at 722. The Court reasoned that it would require a “brutal disregard for an individual’s special circumstances” to force a defendant to offer more than he can pay in order to escape the penalty of delay damages. 502 A.2d at 720. “Furnishing a person for failing to do that which he is incapable portends an impossibility for that person and an unreasonable result, both of which violate Rule of Construction 128.” 502 A.2d at 721. Thus, the Court en bane held:

To avoid demanding the impossible, then, we must first discern a defendant’s ability to make an offer that would have been sufficient to stay the operation of Rule 288. Such a determination will not only yield more equitable results, it will also permit the application of Rule 288 under circumstances in which the Supreme Court intended it to apply: to a defendant with sufficient assets to offer a reasonable settlement figure, but who, for whatever reason, chose not to make such an offer. The true purpose of the Rule will then be executed. ‘It is fundamental that a rale of law should not be applied where its application fails to serve the purpose for which it was designed.’ Commonwealth v. Beatty, 500 Pa. 284, 291, 455 A.2d 1194, 1198 (1983). We hold that a plaintiff shall not be awarded damages for delay pursuant to Pa.R.C.P. 288 after the date of the defendant’s offer when the court determines that, because of the defendant’s indigency, the offer was the full amount available for payment of the plaintiffs claim and it was impossible for the defendant to have offered more.

502 A.2d at 721-22 (emphasis added). See also Mecca v. Lukasik, 366 Pa.Super. 149, 580 A.2d 1334 (1987) (remand required for evidentiary hearing to determine financial status and ability of defendant to pay, so propriety of delay damages could be assessed); Shellhamer v. Grey, 859 Pa.Super. 499, 519 A.2d 462 (1986) (same).

In Hawthorne, supra, the trial court excluded from its calculation of the time period for which delay damages would be granted the period between the date on which the trial court entered a compulsory nonsuit in the defendant’s favor, and the date on which this Court remanded for a new-trial. On appeal, the plaintiff contended that the period was improperly excluded. This Court held that the trial court correctly omitted this period of time from its computation of delay damages relying primarily on a decision by the Third Circuit Court of Appeals in Barris v. Bob’s Drag Chute & Safety Equipment, 717 F.2d 52 (3rd Cir.1983). This Court explained:

In Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 717 F.2d 52 (3d Cir.1983), the Court of Appeals for the Third Circuit was faced with a similar issue and concluded that Rule 238 should not be applied to the period of time from the date the district court directed a verdict in defendant’s favor to the date the Court of Appeals ordered a new trial. The Court examined the purposes of Rule 238 and determined that the primary objective of the Rule is to encourage pre-trial settlements, thereby lessening congestion in the courts. Id. at 56. See: Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59-60, 436 A.2d 147, 151 (1981); Berry v. Anderson, 348 Pa.Super. 618, 502 A.2d 717 (1986). In light of this purpose, the court reasoned:
So long as the ultimate outcome of the case is reasonably in doubt the rule operates as an incentive for the defendant to consider seriously settlement as an alternative to a stalwart defense. Once the defendant obtains a favorable final judgment from the trial court, however, he has a reasonable basis to believe that the ultimate outcome is considerably less problematic. The defendant will quite rightly refrain from initiating any settlement activity and the burden shifts to the plaintiff to perfect an appeal and to persuade the appellate court that reversible error occurred. At this point ... the operation of Rule 238 no longer serves its purpose and should not be applied.
Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., supra at 56-57.

508 A.2d at 308. Based on the foregoing, this Court held that the defendant was entitled to rely on the validity of the compulsory nonsuit. Only after the nonsuit had been vacated and the case was remanded did the defense return to its original status of uncertainty making applicable the purpose of Rule 238. See Beary v. Container General Corporation, 368 Pa.Super. 61, 538 A.2d 716 (1987) (during the appeal period, the verdict winner is entitled to rely on the validity of the judgment and any delay during the appellate process is not a matter for the trial court to consider when assessing delay damages); See also Quach v. Filiaggi, 609 F.Supp. 847 (E.D. of Pa.1985) (same). As in Berry, the Court found that where the imposition of delay damages would not foster the basic aim of Rule 238 the assessment of delay damages was inappropriate.

Finally, in Hughes v. GAF Corporation, supra, the plaintiffs claimed that the damages should be calculated on the full amount of the verdict rather than only that portion of the molded verdict that the losing defendant is responsible. Plaintiffs cited the rationale of Rule 238, interpreted in Laudenberger, supra, as the reason for calculating delay damages on the total verdict. This Court disagreed and held that the trial court properly awarded delay damages based upon only the molded portion of the verdict reasoning.

Although the intent of Rule 238 is to encourage early settlements, we find it “unrealistic to require each defendant to offer nearly the full amount of damages ultimately recovered in an action where the amount finally attributed to each defendant is only a percentage of the total.” Korn v. Consolidated Rail System, 355 Pa.Super. 170, 174, 512 A.2d 1266, 1268 (1986) (citing Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 458, 474 A.2d 1181, 1196 (1984)). Furthermore, this court finds that “it would be anomalous to award a plaintiff delay damages on money already received from settling defendants.” Korn [355 Pa.Super.] at 174, 512 A.2d at 1268 (citing Rocco v. Johns-Manville Corp., 754 F.2d 110, 118 (3d Cir.1985)); see also Baciotti v. Simmons, 346 Pa.Super. 23, 498 A.2d 1351 (1985) (delay damages must be apportioned in the same manner in which the jury apportioned liability).

528 A.2d at 176-77.

Under the rule, “[defendants are given an opportunity to protect themselves from exposure to prejudgment interest by making a reasonable offer of settlement in good faith and in a timely fashion.” Baciotti v. Simmons, 346 Pa.Super. 23, 28, 498 A.2d 1351, 1353 (1985); Pa.R.C.P. 238(b). However, a party who is sued can only be charged with a duty to make a fair settlement offer when it can be said that he has a full opportunity to wholly assess the claim against him. This would include, for example, in a bodily injury action a review of the injuries and the prognosis, work loss, verified and related expenses and an assessment of the evidence as it bears on liability. Due to the unique circumstances of this litigation, however, appellant was incapable of wholly assessing the claim against it because the full extent of appellee’s injuries were unknown and unforeseeable prior to the first trial.

D. Application

In promulgating Rule 238, our Supreme Court intended to penalize defendants who make no offer at all and those who make inadequate offers, with inadequacy measured by comparison of the offered amount with the actual verdict and allowing up to 25 percent error in estimating the value of the claim. Mecca v. Lukasik, supra. In this case, appellant made an oral offer of $10,000.00 before the first trial and no offer was made prior to the second trial. Therefore, following the Rule in blind fashion, delay damages calculated upon the total verdict of $72,536.00 would automatically be awarded. In the instant case, however, the adequacy of any offer made would have been measured by comparison of the offered amount with the second verdict rather than the. actual amount of appellee’s damages which existed at the time. Certainly, for the period between the date the complaint was filed and the date the first verdict was entered, appellee’s ascertainable damages were not worth $72,536.00. On the contrary, the value of appellee’s claim increased significantly only after the first trial had been completed. To assess delay damages in that manner would unfairly penalize appellant. More importantly, such an approach would not foster the sole legitimate aim of Rule 238, as it would be capricious to have required appellant to offer 125 percent of the second verdict prior to the first trial where the full extent of appellee’s subsequently greatly increased damages were unknown and unforeseeable at that time.

The only plausible justification which can be proffered for imposing delay damages on the total verdict is that the successful plaintiff in a tort action should be made whole through an award of prejudgment interest. As we stated previously, however, reimbursement of the plaintiff cannot serve as the purpose for the rule if its promulgation is to remain constitutional. The fundamental fairness of such a purpose cannot be accepted as the rationale for overriding the basic constitutional constraints. Craig, supra (Hutchinson, J., concurring). Thus, to hold defendant liable for damages for failing to make a reasonable settlement offer on damages which were unknown and unforeseeable, based upon the reasoning that the plaintiff is entitled to compensation for money which was wrongfully withheld by the defendant, would make Rule 238 substantive and thus unconstitutional under the Pennsylvania Constitution. Pa. Const. Art. V § 10(c). If such a rule is to be adopted in order to ensure full compensatory relief to plaintiffs, it must be adopted by the legislature as a substantive right created by statute, and not as a collateral benefit caused by a procedural rule promulgated by our Supreme Court.

Thus, we conclude that the trial court (understandably) misapplied Rule 238 in assessing delay damages on the full amount of the second verdict. We do not intend to preclude, however, any award of delay damages for the time between the filing of the complaint and the first verdict. Because appellant’s oral offer of $10,000.00 prior to the first trial was insufficient to toll the running of interest pursuant to revised Rule 238(b), appellee is entitled to an award of delay damages calculated upon the amount of her damages which existed at that time. Succinctly, we find that the award of delay damages recoverable for the period of time should be limited to those damages which were foreseeable at that juncture. Accordingly, we reject appellant’s contention that no delay damages should be awarded from the date the complaint was filed up to the date this Court remanded the matter back for retrial.

Based upon the record before us, however, we are unable to determine what appellee’s damages actually were. Therefore, we are remanding the matter back to the trial court to conduct an evidentiary hearing. The purpose of this hearing is to determine what appellee would have recovered in terms of compensatory damages had the erroneous jury instruction, which necessitated a new trial, not been given. After the trial court has determined appellee’s damages for that period, it shall calculate an appropriate award of delay damages using that figure, for the period between the date the complaint was filed and the date the first verdict was entered. This amount shall then be combined with the amount calculated for the period between the date this matter was remanded back to the trial court and the date of second verdict for an appropriate award of delay damages.

CONCLUSION

While we find that an award of delay damages was appropriate in this ease, we find that the trial court’s calculation of the amount of the award was erroneous. Accordingly, we vacate the judgment entered on July 23, 1987, and remand for a hearing to be held in accordance with this opinion. Jurisdiction is relinquished.

TAMILIA, J., files a concurring statement.

TAMILIA, Judge,

concurring:

I join the majority Opinion but feel it necessary to again voice my dissatisfaction with our en banc Court’s decision in Ceresini v. Valley View Trailer Park Ephrata Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988). As I said in Slater v. Pennsylvania Power Company, 383 Pa.Super. 509, 557 A.2d 368 (1989):

Although the delay damages had been determined in the trial court prior to the effective date of the new rule, our Court, in Ceresini v. Valley View Trailer Park Ephrata Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988), found “the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined.” Id., 380 Pa.Superior Ct. at 419, 552 A.2d at 259.
While this holding is questionable in light of the explanatory comments to subdivision (f) of Rule 238 (see Ceresini, dissenting opinion, Popovich, J.), we are bound by Ceresini, which treats this case as a “pending case on or after the effective date” of the new rule.

      . Sherrill v. Port Authority of Allegheny, 343 Pa.Super. 628, 494 A.2d 492 (1985).

      . The trial court gave the following instruction:
      Members of the jury, I mentioned to you before that her insurance company is obligated to pay her $15,000 of her lost wages which she's not entitled to recover nor is her insurance company entitled to recover. So when you put together the figure for past loss of wages and future impairment of earning power, you will deduct from that $15,000. If the amount you have is in excess of $15,000, then of course you will add it to the other three items of damages. The amount you will end up with after deducting $15,000, if it is less than $15,000, then you do not add those two items to the other items of damages.

      (N.T. 10/05/82 at 134-35) (emphasis added). On appeal, a majority of a divided three judge panel of this Court found the instruction as given was subject to an erroneous application. Because the majority could not determine whether the jury followed the correct interpretation of the instruction, it reversed and remanded.

      . We note that delay damages were awarded on the verdict of $72,-536.00 for four years and one hundred fifty-eight days computed as follows: $72,536.00 at 10 percent per annum, equals $7,253.60 or $29,014.40 for four years and $7,253.60 per year divided by 365 days equals $19.72876 per day; this sum multiplied by one hundred fifty-eight days equals $3,139.91 for a combined total of $32,154.31.

      . In place of Rule 238, and until a new rule was promulgated, Craig directed that claims for delay damages were to be presented by petition within five days of the verdict or arbitration award; the opposing party would then have five days to respond. If the verdict arose from a jury trial, the trial judge would consider the opposing petition and answer, and order an evidentiary hearing if necessary to resolve issues of fact before rendering a decision. In making a decision on a plaintiffs entitlement to delay damages, the Craig Court instructed the trial court to consider: the parties’ respective responsibilities in requesting continuances, the parties’ compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors. 515 A.2d at 1353.

      . At this juncture we are only considering the calculation of delay damages for the period of time between the date the complaint was filed and the date the first verdict was entered.

      . Our decision is limited to the calculation of delay damages on the total verdict from the date the complaint was filed until the date the first verdict was entered. Because the full extent of appellee’s injuries were known to appellant at the time this Court remanded the matter and appellant made no written offer of settlement, we find that the calculation of delay damages for the period between the date this Court remanded the matter for a new trial and date of the second verdict based upon the total verdict was appropriate.

      . We remind the trial court that pursuant to revised rule 238(a)(3), the award "shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published each calendar year for which the damages are awarded, plus one percent not compounded.”

      . The purpose of this provision is to indicate that the rule applies to pending as well as future actions but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig [512 Pa. 60, 515 A.2d 1350 (1986) ] case. Once damages for delay have been determined under Craig, those proceedings are final and are not to be reopened under this rule.
      Explanatory Comment to Pa.R.C.P. 238(f).


source: Caselaw Access Project

author: BECK, Judge: WIEAND, Judge,

license: Public Domain

text:
    556 A.2d 462
    COMMONWEALTH of Pennsylvania v. Darryl E. WAGNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1988.
    Filed April 6, 1989.
    David R. Lynch, Assistant Public Defender, West Chester, for appellant.
    Nicholas J. Casenta, Jr., Assistant District Attorney, Downingtown, for Com., appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

Danyl Wagner was found guilty by jury of rape (accomplice liability), indecent assault (accomplice liability), and involuntary deviate sexual intercourse (accomplice liability). His post-verdict motions having been denied, he appeals.

The pertinent facts are as follows. The victim carrying her fourteen month-old son was walking to her parents’ home when Danyl Wagner called to her from his car and offered her a ride, which she accepted. She was acquainted with Darryl through her husband. Two of his friends were in the car with Danyl. The party drove to the home of the victim’s parents. No one was at home. Danyl then asked the victim if she would like to take a ride. She agreed. After the victim’s son started to cry, they drove back to the home of the victim’s parents, who had returned. The victim left the child with them. The victim then went for a drive with Darryl and his friends, who were drinking beer. The victim had one beer and stated that she had to go to the bathroom. Danyl stopped the car in a secluded field. Once in the field, Darryl told the victim that he needed to talk about his wife, with whom he had argued, and that he “needed someone else.” Darryl started to kiss victim, removed her clothes, and the two had consensual intercourse. When Darryl and the victim returned to the car, the party of four drove off in search of more beer. On the way to the store, Darryl spotted his two brothers who said they had beer. The group then returned to the field along with Darryl’s brothers.

When the beer supply ran out again, one of Darryl’s brothers and Danyl’s two Mends drove off to replenish the supply. Darryl and his brother Douglas remained in the field with the victim. Douglas began kissing the victim, who pushed him away. As Darryl held the struggling victim down by her arms, Douglas performed oral sex upon the victim and had intercourse with her.

Darryl appeals the judgment of sentence and raises four issues. Since the first issue is dispositive, we will not address the remaining ones. Danyl asserts that the trial judge erred in refusing to permit him to testify about an alleged blackmail offer. The offer was made to his family by an acquaintance of the victim, Billy Jean Guinn. She contacted Darryl’s mother, Hazel Mullens. She claimed that the victim would drop the charges against her two sons if Mullens paid Guinn $1,000.00. Darryl admits that after charges were lodged against him he fled the jurisdiction. He asserted that the blackmail was a factor in his fleeing the jurisdiction and that the testimony about the blackmail was essential to rebut the inference that his flight reflected a consciousness of guilt.

At trial, evidence of Darryl’s flight was placed on record by the Commonwealth through the testimony of Trooper Yoder and two supervisors who worked for Darryl’s former employer. Trooper Yoder, the investigating officer, testified that he was unable to arrest the Wagner brothers because he could not locate them. The Commonwealth underscored Darryl’s flight when it introduced the testimony of the two supervisors who stated that Darryl was absent from , work during the relevant period of time. The idea of the alleged blackmail also entered the prosecution’s part of the case in the cross-examination of the victim. The victim was asked whether she made any statement to Darryl or his family that in exchange for money she would not report the rape. She responded “No. That was not my idea.”

Darryl was asked on direct examination how he learned of the charges against him. He began to reply that Billie Jean Guinn had been to his house to see his mother. The prosecutor objected, and after a sidebar discussion, the objection was sustained. Darryl later responded that he left the area approximately a week after learning of the charges against him. When asked why he left, Darryl stated that he believed he would be incarcerated even if he was innocent.

Darryl asserts that he should have been given the chance to explain the alleged blackmail attempt because: (1) Guinn’s conversation with his mother was the way in which he learned that charges were being brought against him; and (2) the alleged blackmail attempt influenced his decision to leave the area. Darryl argues that the Commonwealth “opened the door” to such testimony when, during direct examination, Trooper Yoder testified that he was unable to locate Darryl and Ms two supervisors testified that he was absent from work. He contends that testimony relating to the alleged blackmail attempt was essential in order for him to refute the possible inference that he left the area because of consciousness of guilt.

We recognize that the decision whether or not to admit evidence is within the discretion of the trial court, and will not be reversed absent an abuse of that discretion. Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985). Evidence is relevant if it tends to establish a fact material to the case or tends to make facts at issue more or less probable. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). Reversal based on the exclusion of evidence requires a showing of abuse of discretion as well as a showing of actual prejudice. Commonwealth v. Sweger, 851 Pa.Super. 188, 505 A.2d 331 (1986).

As long ago as 1938, this Court recognized that “it is well settled that evidence of flight following the commission of a crime is admissible as having a tendency to prove the guilt of accused.” Commonwealth v. Myers, 131 Pa.Super. 258, 264, 200 A. 148, 146 (1938). See also Commonwealth v. Graham, 248 Pa.Super. 406, 407, 375 A.2d 161, 162 (1977); Commonwealth v. Liebowitz, 148 Pa.Super. 75, 83, 17 A.2d 719 (1940). In Myers, this Court noted that such evidence is equally admissible “where the accused flees after he has been arrested and admitted to bail.” Id. The court noted that when evidence of flight is introduced:

It would then be competent for appellant to show, if he could, that the reason for Ms avoidance was not a consciousness of guilt, but that it was due to some other cause consistent with his innocence, and to show what that cause was.

200 A. at 146, 181 Pa.Super. at 285.

In the instant case, Trooper Yoder’s and the two supervisors’ testimony raised the issue of Darryl’s flight and the inference that the flight reflected evidence of a consciousness of guilt. Once this testimony was introduced, it was necessary to permit Darryl to offer testimony about the alleged blackmail attempt to show “that the reason for his avoidance was not a consciousness of guilt, but that it was due to some other cause consistent with his innocence, and to show what that cause was.” Id.

In ruling on appellant’s post-verdict motions, the court held that the blackmail testimony was legally irrelevant because there was “no nexus to tie in that alleged blackmail with the victim.” In addition, the court explained that when Darryl was later asked why he left the area he responded: “because I knew if I was innocent or not they would put me in jail.” Based upon these facts, the trial court concluded that “any possible probative value [of the blackmail attempt] was grossly outweighed by the unfair prejudice that would be visited upon the Commonwealth.” The trial court’s ruling is contrary to established law in Pennsylvania.

Although we have located no recent caselaw addressing this issue, it is clear from reading Commonwealth v. Myers that where the Commonwealth offers testimony of a defendant’s flight, the defendant must be permitted to offer his explanation to rebut the inference that flight reflects consciousness of guilt. Appellant in this case was not given such an opportunity.

The trial court correctly noted that when Darryl was asked why he left the area, he did not mention the alleged blackmail threat. We point out, however, that he was asked this question after the court ruled that the blackmail testimony was inadmissible. He clearly could have concluded that it was improper for him to mention the blackmail threat. Furthermore, Darryl’s statement “I knew if I was innocent or not they would put me in jail”, cannot be said to be inconsistent with the possible explanation that he fled the area because of a threat of blackmail. For example, Darryl’s statement could be interpreted as indicating his belief that because he could not pay the blackmail he would be unjustly convicted on the basis of the blackmailer’s false testimony regarding the crime even though the blackmailer had no direct knowledge of the crime. Therefore, we find no basis for the trial court’s conclusion that Darryl's explanation of why he fled rendered the proffered blackmail testimony irrelevant. Whatever the explanation of how the blackmail threat induced his flight, Darryl had a right to offer it to rebut the inference of consciousness of guilt. The strength or weakness of his testimony on the blackmail question could be tested through cross-examination.

The trial court also noted that the blackmail testimony was inadmissible since there was no demonstrated nexus between the blackmail attempt and the victim. No nexus need be shown here. The blackmail testimony does not relate directly to the commission of the crime, but relates to matters external to the crime itself. It is relevant as to Darryl’s thought processes after the crime, i.e., the reason he thought he had to flee the jurisdiction.

For the above reasons we conclude that the trial court erred in refusing to admit testimony relating to the alleged blackmail.

As we have noted, reversal on the basis of exclusion of evidence requires not only a showing of abuse of discretion, but also requires a showing of resulting prejudice to the defendant. Commonwealth v. Sweger, supra. Appellant was clearly prejudiced in that he was not given the opportunity to rebut the inference of consciousness of guilt through flight.

The judgment of sentence is vacated and the case remanded for a new trial consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., files concurring opinion.

WIEAND, Judge,

concurring:

The Superior Court has frequently written, as does the majority in this case, that “whether or not to admit evidence is within the discretion of the trial court.” In my judgment, however, this is not a wholly accurate statement of the law. The law of evidence is made up of a body of rules. There are rules pertaining to hearsay evidence; there are rules pertaining to relevancy; there are rules pertaining to privileged communications; there are rules pertaining to the competency of witnesses, including witnesses who have been convicted of perjury, witnesses who have been hypnotized, and witnesses who are insane; there are rules pertaining to opinion testimony; there are rules requiring the authentication of documents; there are rules pertaining to the need to produce the “best evidence”; there is a rule pertaining to the non-admissibility of parol evidence; there are rules which require the exclusion of evidence which has been illegally obtained; there is an exclusion which has been created by the Dead Man’s Act; there is a rule which excludes evidence of prior sexual acts by victims of rape; there are rules pertaining to the impeachment and corroboration of witnesses; there are rules pertaining to the admissibility of character evidence; and there are many other rules which govern the admissibility of evidence during trials in the courts of this Commonwealth. To be sure, some of these rules require a trial court to exercise discretion. Other rules of evidence, however, leave little or no room for the exercise of discretion. To receive evidence excluded by a rule of evidence is error; the trial court may not, in its discretion, ignore the rule.

Professors Packel and Poulin, in discussing the relationship between the trial court’s discretion and the various rules of evidence, have said:

In reviewing the trial court’s rulings as to the admission or exclusion of evidence and the conduct of the trial, the appellate court will accord a large measure of discretion to the trial court. As the Supreme Court said in Com. v. Claypool [, 508 Pa. 198, 203-204, 495 A.2d 176, 178 (1985)]:
[W]e are guided by the rale of law that the admissibility of evidence is a matter addressed to the sound discretion of the trial court, and that an appellate court may reverse only upon a showing that the trial court abused its discretion.

Our courts have not clarified what is meant by the term “discretion of the trial court.” It might be read to mean that the trial judge is controlled by no fixed rules of evidence or trial procedure, but may act in each case as his judgment indicates. It seems clear that the term does not mean that there are no rales of evidence- — there are rules, and failure to observe them will be error. For example, if a trial court admits hearsay which is not subject to an exception, it will be found to have committed error. As the Superior Court said in Com. v. Haber [, 351 Pa.Super. 79, 83-84, 505 A.2d 273, 276 (1986)]:

Evidentiary rules, including the hearsay rule, have a ‘raison d’etre’. Experience has taught us that trials conducted in accordance with such rules increase the likelihood of a fair and just resolution of the issues by the trier of fact. Otherwise we would jettison the lot of them.

There is a more satisfactory explanation of the term “discretion of the trial court” as it applies to the law of evidence. Many of the decisions which a trial court must make are not pure questions of law. Often, the trial court is required to make a finding of fact or an estimate of the impact of evidence on the jury. The term “discretion of the trial court” reflects a recognition by the appellate courts that in many cases the appellate court will be unable to make a more accurate fact finding or estimate of the impact of evidence than that made by the trial court. In these cases, the appellate court is not deferring to the trial court’s “discretion” but to the trial court’s judgment based on hearing the evidence and seeing the witnesses and the jury. For example, in many cases the admissibility of evidence will turn on the determination of a preliminary question of fact. Where the appellate court defers to the discretion of the trial court,

it may simply be deferring to the fact finding of the trial court. In many cases, the law of evidence requires the trial court to weigh the probative value of evidence against its prejudicial danger. When the appellate court defers to the trial court’s discretion, it may simply be a recognition of the fact that its judgment may be no more accurate than that of the trial court. In some cases, the law of evidence requires the trial court to determine whether conduct will unfairly prejudice the jury, or whether a cautionary or limiting instruction will be effective. Appellate courts recognize that their judgment on these matters will often be no more accurate than that of the trial court.

Packel and Poulin, Pennsylvania Evidence, Ch. I, § 108.1, at 28-29 (1987) (footnotes omitted). Cf. 29 Am.Jur.2d, Evidence, § 249, at 297 (“It is obvious that a matter may be relevant to the issues of the case and yet incompetent and inadmissible as evidence by reason of established rules of evidence....”).

In my judgment, the courts should stop making the misleadingly broad statement that the admissibility of evidence is discretionary with the trial court. The admissibility of evidence is determined by the application of rules of evidence. Issues of relevancy, however, frequently require the exercise of discretion by a trial court, as do instances in which relevancy of evidence must be balanced against the prejudice to be caused thereby.

The issue in the instant case, as presented to the trial court, was not solely one of relevancy but also an issue of hearsay. The record shows that the defense attempted to show by the testimony of appellant, the accused, that his brother had told him that a third person, Billie Jean Guinn, had demanded money from appellant’s mother in order to avoid the accusation of rape being made against appellant. This line of inquiry proceeded as follows:

Q. How did you hear about these accusations against you?
A. I went up to my mother’s house, and my brother, he told me Billie Guinn came up to the house and said—
MR. HARMELIN: Objection.
THE COURT: State your ground.
MR. HARMELIN: It’s going to call for hearsay, and I think it’s going to get into an area that is inappropriate.

After the above objection had been lodged by the prosecuting attorney, a side-bar discussion was held during which defense counsel made the following offer of proof:

MR. LYNCH: Your Honor, I believe that what he would say is something to the effect that Billie Guinn told him, at that time, that if they didn’t pay $1,000, that they were going to report rape to the police. This is how he found about these accusations against him, and I would develop that to explain why he left the area.

Thereafter, the trial court sustained the prosecutor’s objection without stating specifically the reason for the ruling.

In my judgment, appellant’s response to the question asked was not excludable on the grounds that it was improper hearsay testimony. This testimony was not being offered for the truth of the matter asserted but, rather, to explain appellant’s course of conduct in fleeing the jurisdiction after hearing from his brother that an extortion demand had been made. “It is well settled that an out-of-court statement offered to explain a course of conduct is not hearsay.” Commonwealth v. DeHart, 512 Pa. 235, 254, 516 A.2d 656, 666 (1986). See also: Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983). See generally: Packel and Poulin, supra, Ch. VIII, § 801.2.

Following argument on appellant’s post-trial motions, the trial court opined that appellant's proffered testimony concerning the extortion demand had been properly excluded at trial for the following reasons:

With respect to the first argument propounded on behalf of the defendant Mr. Wagner as to the tie-in with the alleged Ms. Guinn, blackmail with the victim here, I note that, from the sidebar discussion set forth at pages 140 through 143 of the transcript, there is in fact no nexus to tie in that alleged blackmail with the victim and thus in my view it was legally irrelevant. A fortiori was that the case when one observes at page 145 of the transcript the statement adduced by Mr. Lynch from his client Mr. Wagner as to why he left the area and his client under oath says it had the nothing to do with blackmail. It doesn’t say it in so many words but he gives a reason. He says at line 7, “Question: Darryl, after you found out about these accusations, did you leave the area? Answer: After about a week, yes.
“Question: And why did you leave? Answer: Because I knew if I was innocent or not that they would put me in jail. That is the way it usually works, you are guilty until you are found innocent.” Then it goes on from there.
That is the sole reason asserted by the defendant for his reason for leaving the area: his fear that there is an alleged presumption of guilt in this county. There is no mention whatsoever of blackmail.
That, plus the inability in any way to tie in this third party, alleged tertiary blackmail occasion with the victim, caused the trial judge to determine that any possible minuscule probative value thereof was grossly outweighed by the unfair prejudice that would be visited upon the Commonwealth from the introduction of such evidence and thus objection thereto was sustained.

Thus, the trial court found it significant that appellant had been unable to tie the extortion demand to the victim.

I am unpersuaded by the trial court's rationale that appellant’s proffered testimony was legally irrelevant. The Commonwealth was permitted to introduce evidence that appellant had fled from the jurisdiction after learning of the accusation against him. “When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of guilt, and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Osborne, 433 Pa. 297, 302, 249 A.2d 330, 333 (1969), quoting Commonwealth v. Coyle, 415 Pa. 879, 393, 203 A.2d 782, 789 (1964). After the prosecution has offered evidence of the defendant’s flight, however, “the defendant is entitled to the benefit of any explanation which he may offer as to why he fled or concealed himself.... That the explanation for the defendant’s flight is fantastic does not affect its admissibility; rather, the reasonableness of the defendant’s explanation is for the jury in determining the weight to be attached to the circumstances of his flight.” 29 Am.Jur.2d, Evidence, § 283, at 331-332 (footnote omitted). See: Commonwealth v. Myers, 131 Pa.Super. 258, 265, 200 A. 143, 146 (1938).

In the instant case, appellant was prevented from offering to the jury his explanation for flight. This testimony was relevant and should have been allowed by the trial court. Thus, even though determinations of relevancy frequently require the exercise of discretion by the trial court, I would hold, under the facts of this case, that an abuse of discretion occurred. For the foregoing reasons, I concur in the result reached by the majority.

      . See: 42 Pa.C.S. § 5930.

      . See: 18 Pa.C.S. § 3104.

      . The victim had been asked about such a demand while being cross-examined and had denied being a part of any demand for money from appellant’s family.