Kincade v. Laurel Courts, Inc. , 435 Pa. Super. 127 ( 1994 )

WIEAND, Judge.

In this action for the wrongful use and occupancy of land, the trial court denied a petition by the successful plaintiffs to add delay damages to the amount of the jury’s verdict.¹ After careful review, we affirm.

On December 30, 1983, Robert G. Kincade and Sandra Lee Kincade, husband and wife, filed a civil action against Laurel Courts, Inc., a corporation, contending that the said defendant had improperly placed on plaintiffs’ land a portion of a sewer system which serviced a trailer park owned and maintained by the defendant. The defendant, plaintiffs alleged, had refused plaintiffs’ demands to either remove the sewer system or pay rent for plaintiffs’ land. As a consequence, they alleged, defendant had committed either a trespass or nuisance, had been “unjustly enriched” and had become liable to plaintiffs for “loss of use,” “loss of value,” “loss of rental value,” “taxes” paid by plaintiffs, and attorneys’ and experts’ fees. The defendant denied that a trespass had occurred and relied upon an alleged lease from a prior owner. A jury, by verdict on May 31, 1990, found that the defendant had committed a trespass, but not a nuisance, and awarded damages of $51,480.00. On June 12, 1990, the plaintiffs filed a motion to mold the verdict to include Rule 238 damages.² This motion was denied on October 8, 1993.

Pa.R.C.P. 238(a)(1) permits damages for delay “in a civil action seeking monetary relief for bodily injury, death or property damage.” The rule, however, has no application to actions for rent or rental value of real estate. It also has no application for the wrongful use and detention of real estate or for damages intended as restitution for unjust enrichment.

Pursuant to the averments contained in plaintiffs’ complaint, the trial court instructed the jury as follows:

Now, should you find that there is a trespass in this case, should you find that the Plaintiff has met their burden by [a] fair preponderance of the evidence relative to the trespass action, then you have to determine what damages that you would direct that the Defendant pay to the Plaintiff.

Now, the law states that the owner of realty on which a trespass has been committed may recover from the trespasser damages for the loss of the use of that realty which may include an amount representing the value of the realty for rental purposes or any other purpose for which the owner may have utilized that particular portion of the property.

It was in response to this instruction that the jury determined the amount of damages to be awarded to the plaintiffs.

It is readily apparent from the foregoing and also from the evidence during trial that plaintiffs’ claim was not for permanent injury to their property. Rather, the claim was for the fair rental value of their land, which the defendant had used and occupied. With respect to such a claim, Pa.R.C.P. 238 has no application. It has no greater applicability to this claim than it would have to any other claim for rent or the rental value of real estate.

Order affirmed:

DEL SOLE, J., files a concurring opinion.

1 . Appellants have assumed incorrectly that the record of the proceedings in the trial court are irrelevant to a determination of this issue. Although they have failed to reproduce any part of the record, this Court has had available for review the original record which was duly certified by the prothonotaty of Lawrence County.

2 . This motion was untimely. Pa.R.C.P. 238(c) requires that a written motion requesting damages for delay be filed "not later than ten days after the verdict.”