Oliver, J. v. Irvello, S. ( 2017 )

J-S29003-17
2017 Pa. Super. 184
JAMAR OLIVER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SAMUEL IRVELLO
Appellee No. 3036 EDA 2016
Appeal from the Judgment Entered August 12, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1916 August Term, 2013
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY LAZARUS, J.: FILED JUNE 13, 2017
Jamar Oliver (“Plaintiff”) appeals from the judgment,1 entered in the
Court of Common Pleas of Philadelphia County, denying his motion to correct
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*
Former Justice specially assigned to the Superior Court.
1
The order reads:
AND NOW, this 11th day of August 2015, after consideration of
Plaintiff’s Motion for Reconsideration regarding the Court’s Order
entered on August 5, 2015[,] denying Plaintiff’s Motion to
Correct the Record awarding Defendant’s attorney’s fees in the
amount of $500.00 for responding to the Motion, it is hereby
ORDERED that said Motion is DENIED.
Order, 8/11/15.
“As a general rule, an appellate court's jurisdiction extends only to review
of final orders.” Rae v. Pa. Funeral Directors Ass'n, 977 A.2d 1121,
1124–25 (Pa. 2008); see Pa.R.A.P. 341(a). An order denying a motion for
reconsideration is not a final order and, thus, not appealable. See
(Footnote Continued Next Page)
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the record to reflect that he was the verdict winner and awarding counsel for
Samuel Irvello (“Defendant”) $500.00 in counsel fees. After our review, we
affirm in part and reverse in part.
Plaintiff, who had elected the limited-tort2 option on his motor vehicle
insurance policy, filed a personal injury action against Defendant after a
motor vehicle accident on May 26, 2011. Following trial, the jury found
that: (1) Defendant was negligent; (2) Defendant’s negligence was a factual
cause of Plaintiff’s harm; and (3) Plaintiff “did not sustain a serious
impairment of a body function as a result of the accident[.]” See Jury
Verdict Form, 7/7/15 (emphasis added). Question #3 on the verdict form
_______________________
(Footnote Continued)
Cheathem v. Temple Univ. Hosp., 743 A.2d 518, 521 (Pa. Super. 1999).
“Except as otherwise prescribed by this rule, the notice of appeal . . . shall
be filed within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903(a). The filing of a motion for reconsideration does not
stay the appeal period. Pa.R.A.P. 1701(b)(3). Here, Plaintiff has captioned
his appeal as from the order denying his motion for reconsideration of the
order denying his motion for correction of the record. The appeal properly
lies from the August 12, 2016 judgment entered on the verdict in favor of
Irvello (“Defendant”). We have revised the caption accordingly and,
because the appeal was filed within 30 days of the date of entry of
judgment, the appeal is timely. See Pa.R.A.P. 903.
2
Section 1705(a)(1)(A) of the Pennsylvania Motor Vehicle Financial
Responsibility Law (MVFRL), provides that a driver who purchases limited-
tort coverage “may seek recovery for all medical and other out-of-pocket
expenses, but not for pain and suffering or other nonmonetary
damages unless the injuries suffered fall within the definition of
“serious bodily injury” as set forth in the policy[.]” 75 Pa.C.S.A. §
1705(a)(1)(A) (emphasis added).
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was followed with the statement that, if you answer “No,” Plaintiff cannot
recover. Thereafter, the trial court entered a verdict in favor of Defendant.
On July 10, 2015, Plaintiff filed a motion to correct the docket to
reflect that Plaintiff was the verdict winner, asserting that the error on the
docket precluded Plaintiff from recovering costs. See 42 Pa.C.S.A. §
1726(a)(2).3 See also Smith v. Rohrbaugh, 54 A.3d 892, 897 (Pa. Super.
2012) (“costs inherent in a law suit are awarded to and should be
recoverable by the prevailing party.”). Defendant filed a response, arguing
Plaintiff’s motion was unsupported by case law. Defendant filed a bill of
costs, to which Plaintiff filed exceptions; Defendant also filed a motion for
sanctions. Thereafter, the trial court denied Plaintiff’s motion to correct the
record and granted Defendant’s motion for sanctions, ordering Plaintiff to
pay Defendant’s counsel fees in the amount of $500.00.
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3
Section 1726(a)(2) of the Judicial Code provides:
(2) The prevailing party should recover his costs from the
unsuccessful litigant except where the:
(i) Costs relate to the existence, possession or disposition
of a fund and the costs should be borne by the fund.
(ii) Question involved is a public question or where the
applicable law is uncertain and the purpose of the litigants
is primarily to clarify the law.
(iii) Application of the rule would work substantial injustice.
42 Pa.C.S.A. § 1726(a)(2) (emphasis added).
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On August 9, 2015, Plaintiff filed a motion for reconsideration, which
the trial court denied on August 11, 2015. See note 1, supra. Plaintiff filed
an appeal. This Court quashed the appeal because the verdict was not
reduced to judgment.4 See Pa.R.A.P. 301; Pa.R.C.P. 227.4, 237.
Thereafter, Plaintiff filed a praecipe for entry of judgment on the verdict, and
the court entered judgment on the verdict on August 12, 2016. This appeal
followed. Plaintiff raises the following issues:
1. Did the trial court commit an error of law in denying the
Plaintiff’s motion to correct the record to reflect that the
Plaintiff was the verdict winner?
2. Did the trial court abuse its discretion in awarding the
Defendant attorney’s fees as a sanction under 42 Pa.C.S.A.
§ 2503 where the motion to correct the record was not
frivolous or done in bad faith, but instead was based on a
reasonable interpretation of the law and was supported by
case authority?
3. Did the trial court abuse its discretion in denying Plaintiff’s
motion for reconsideration where in the period between
the denial of the motion [to correct the record] and the
motion for reconsideration the Philadelphia Court of
Common Pleas in Bailey v. Pham, 2015 Phila. Ct. Com.
Pl. LEXIS 328, *4 (Oct. 20, 2015)[,] issued an opinion
supporting the Plaintiff’s potion on the underlying motion?
Appellant’s Brief, at 4.
Plaintiff argues that he is the “prevailing party” under section
1726(a)(2).” He states that although the jury found he had not suffered
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4
Oliver v. Irvello, 2745 EDA 2015 (unpublished memorandum, filed July
25, 2016).
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serious impairment to a bodily function and thus could not recover non-
economic damages, the jury did find liability on the part of Defendant. In
support of this argument, Plaintiff cites to a trial court decision, Bailey v.
Pham, 2015 Phila. Ct. Com. Pl. LEXIS 328, *4 (Oct. 20, 2015), and to the
unpublished memorandum decision of this Court that affirmed that decision.
Bailey v. Pham, No. 2526 EDA 2015 (filed June 29, 2016).
First, we note that Plaintiff is prohibited from relying on or citing to an
unpublished memorandum decision of this Court. The Superior Court
Internal Operating Procedure (IOP) § 65.37(A) provides:
An unpublished memorandum decision shall not be relied
upon or cited by a Court or a party in any other action or
proceeding, except that such a memorandum decision may be
relied upon or cited (1) when it is relevant under the doctrine of
law of the case, res judicata, or collateral estoppel, and (2) when
the memorandum is relevant to a criminal action or proceeding
because it recites issues raised and reasons for a decision
affecting the same defendant in a prior action or proceeding.
When an unpublished memorandum is relied upon pursuant to
this rule, a copy of the memorandum must be furnished to the
other party to the Court.
210 Pa. Code § 65.37 (emphasis added). We, therefore, will not address
this portion of Plaintiff’s argument.5
Next, Plaintiff argues that, notwithstanding the fact that the jury did
not award him compensatory damages, he was the verdict winner. Plaintiff
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5
In any event, we point out that Bailey v. Pham was not a limited tort
election case.
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insists that the damages question has no bearing on the liability issue, and
therefore he was the prevailing party. We find this argument unavailing as
well.
“It is a general rule in our judicial system, stemming from the Statute
of Gloucester, 6 Edw. Ch. 1, c. 1 (1275), that costs inherent in a law suit are
awarded to and should be recoverable by the prevailing party.” De Fulvio
v. Holst, 362 A.2d 1098, 1099 (Pa. Super. 1976). The issue, then, is
whether Plaintiff was a prevailing party in a limited tort case where he did
not meet his threshold burden of proving serious injury. Several cases have
addressed the issue of “prevailing party,” but not in the context of a limited
tort case.
In Zelenak v. Mikula, 911 A.2d 542 (Pa. Super. 2006), plaintiffs filed
a personal injury claim against defendant, seeking damages in excess of
$30,000.00. Prior to trial, defendant offered a settlement of $11,500.00.
The plaintiffs declined the offer and, following trial, a jury returned a verdict
in favor of plaintiffs in the amount of $7,000. Defendant sought costs,
arguing the trial court erred in determining that plaintiffs were the
“prevailing parties,” and citing the inequity of being forced to pay costs after
making an offer to settle the case for more than what the jury had awarded.
Id. at 545. On appeal, this Court, finding the argument meritless, stated:
“The plain meaning of ``prevailing part’ is the party who wins the lawsuit. In
this case, it was [plaintiffs], and consequently, they were entitled to record
costs.” Id.
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In Zavatchen V. RHF Holdings, Inc., 907 A.2d 607 (Pa. Super.
2006), this Court addressed what “substantially prevailing party” means
under the Contractor and Subcontractor Payment Act (CSPA). 73 P.S. §§
501-516. There, plaintiff filed a complaint seeking damages in the amount
of $89,369.33, plus legal interest, late charges and attorney’s fees under
section 512(b) of the CSPA. Section 512(b) states, in relevant part:
“Notwithstanding any agreement to the contrary, the substantially
prevailing party in any proceeding to recover any payment under this act
shall be awarded a reasonable attorney fee in an amount to be determined
by the court or arbitrator, together with expenses.” 73 P.S. § 512(b)
(emphasis added). Following trial, plaintiff was awarded $300.00.
Defendants then sought attorney’s fees, claiming they were the
“substantially prevailing parties” under the CSPA because plaintiff recovered
less than 1% of the amount he sought in his complaint. The trial court
denied defendants’ motion, and on appeal, we affirmed, stating:
While the mandatory language of section 512(b) requires an
award of attorney’s fees to a substantially prevailing party, . . .
the issue of whether any party to a lawsuit substantially
prevailed is left to the trial court’s discretion. See [Bridges PBT
v.] Chatta, 821 A.2d [590,] 593 (Pa. Super. 2003) . . .
Therefore, in the absence of an abuse of discretion, we will not
reverse a trial court’s determination of whether a party is a
substantially prevailing party for purposes of awarding attorney
fees under section 512(b) of the CSPA.
Zavatchen, 907 A.2d at 610.
We went on to state:
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The terms “prevailing party” and “substantially prevailing party”
have not been clearly defined with regard to the CSPA, especially
as they pertain to defendants. However, these terms have been
addressed in Pennsylvania and other jurisdictions where
contracts or statutes similar to the CSPA make the recovery of
attorney’s fees dependent upon a party's status as a
prevailing or a substantially prevailing party. In Profit
Wize Mktg. v. Wiest, 812 A.2d 1270 (Pa. Super. 2002), this
Court explained that:
[a] ‘prevailing party’ is commonly defined as ‘a party in
whose favor a judgment is rendered, regardless of the
amount of damages awarded.’ While this definition
encompasses those situations where a party receives less
relief than was sought or even nominal relief, its
application is still limited to those circumstances where the
fact finder declares a winner and the court enters
judgment in that party's favor.
[Id.] at 1275-76 (interpreting prevailing party in employment
agreement) (internal citations omitted).
Zavatchen, 907 A.2d at 610. See also 25A Standard Pennsylvania Practice
2d § 127:8 (defining “prevailing party” as “[a] party in whose favor a
judgment is rendered, regardless of the amount of damages awarded.”).
Section 1705 of the MVFRL sets forth the limited tort elector’s right to
recover, and clearly states that “unless the injury sustained is a serious
injury, each person who is bound by the limited tort election shall be
precluded from maintaining an action for any noneconomic loss.” 75
Pa.C.S.A. § 1705(d) (emphasis added). In order to recover on his claim for
noneconomic damages in a limited tort case, Plaintiff was required to prove
a serious injury. See id.; see also Cadena v. Latch, 78 A.3d 636, 639–40
(Pa. Super. 2013); cf. Washington v. Baxter, 719 A.2d 733, 740 (Pa.
1998) (threshold determination of whether plaintiff suffered serious
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impairment of body function should be made by jury in all but clearest
cases). Accordingly, Plaintiff’s claim is meritless.
The statutory language, as well as the above case law, leads us to the
conclusion that the trial court did not abuse its discretion in determining that
Defendant was the “prevailing party” in this limited tort case. Chatta,
supra. As a limited tort elector, Plaintiff chose not to limit his damages,
but to restrict his ability to maintain an action for noneconomic damages.
This is not a matter of the “amount of damages awarded,” even if zero or
nominal; Plaintiff did not prevail because the action could not proceed. 75
Pa.C.S.A. § 1705(d).
Next, Plaintiff argues the trial court abused its discretion in awarding
the Defendant attorney’s fees as a sanction under 42 Pa.C.S.A. § 2503.
Plaintiff contends his motion to correct the record was not frivolous or filed
in bad faith.
Our review of a trial court’s award of attorney’s fees is limited. We
may only consider whether the court “palpably abused its discretion in
making a fee award.” Thunberg v. Strause, 682 A.2d 295, 299 (Pa.
1996). The Judicial Code permits an award of reasonable counsel fees “as a
sanction against another participant for dilatory, obdurate or vexatious
conduct during the pendency of a matter.” 42 Pa.C.S. § 2503(7).
Here, the trial court awarded attorney’s fees as a sanction against
Plaintiff for filing his motion to correct the record, citing to section 2503(7).
The court stated: “The only case cited by Plaintiff did not address the issue
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raised by Plaintiff and therefore provided no support for his argument that
he was the verdict winner.” Trial Court Opinion, 1/14/16, at 8. Admittedly,
the case cited did not support Plaintiff’s argument, but we have found no
case addressing this particular issue in the context of a limited tort matter.
“The relentless pursuit of a claim which plainly lacks legal merit
warrants an award of counsel fees.” Miller v. Nelson, 768 A.2d 858, 862
(Pa. Super. 2001). “A suit is vexatious if brought without legal or factual
grounds and if the action served the sole purpose of causing annoyance.”
Id.
After review, we do not find Plaintiff’s petition to correct the record so
vexatious as to be “wholly without legal or factual grounds[.]” In re
Barnes Foundation, 74 A.3d 129, 136 (Pa. Super. 2014). Precisely due to
the lack of case law on this specific issue, we do not find that the petition
was brought purely for the purpose of annoyance, nor was it so plainly
obdurate or vexatious as to warrant the award of counsel fees. Id. We,
therefore, are constrained to find that the court abused its discretion in
awarding Defendant counsel fees under section 2502(7).6
We, therefore, affirm the court’s order denying Plaintiff’s petition to
correct the record, and reverse the court’s order granting Defendant counsel
fees.
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6
Based on our disposition, we find it unnecessary to address Plaintiff’s third
issue on appeal.
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Affirmed in part; reversed in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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