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FIFE v. GREAT ATLANTIC & PACIFIC TEA CO. ET AL. (07/19/51)

July 19, 1951

FIFE
v.
GREAT ATLANTIC & PACIFIC TEA CO. ET AL.



COUNSEL

William H. Eckert, Alexander Black, Jr., Smith, Buchanan & Ingersoll, Pittsburgh, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Rhodes

[ 169 Pa. Super. Page 112]

RHODES, President Judge.

Plaintiff, William E. Fife, has appealed from an order of the court below*fn1 dismissing exceptions to the action of the Prothonotary of the Court of Common Pleas of Allegheny County in taxing as costs fees paid by defendant The Great Atlantic & Pacific Tea Company to witnesses for attendance at two trials of the action between the parties. The taxation of costs is a matter for the exercise of judicial discretion. In the absence of manifest error of law the appeal will be dismissed. In re Sivak Estate, 161 Pa. Super. 323, 328, 53 A.2d 858, affirmed 359 Pa. 194, 58 A.2d 456; Hartley v. Weideman, 28 Pa. Super. 50, 54; Miskey's Appeal, 1 Sadler 407, 4 A. 744, 18 W.N.C. 100.

The action was in trespass for conspiracy. The first trial began on March 15, 1943, and on March 26, 1943, after the close of plaintiff's case, a compulsory non-suit was entered. On plaintiff's motion the court in banc removed the non-suit, and the case was tried again beginning January 21, 1946, and continuing to March 19, 1946, when the case was submitted to the jury. The jury was unable to agree on a verdict, and on March 23, 1946, it was discharged. On proper motion, judgment on the whole record was ordered on July 30, 1946, for all the defendants, and on August 7, 1946, judgment was entered for The Great Atlantic & Pacific Tea Company. See Act of April 20, 1911, P.L. 70, § 1, 12 P.S. § 684. An appeal was then taken by plaintiff, and the

[ 169 Pa. Super. Page 113]

    judgment was affirmed by the Supreme Court of Pennsylvania on March 24, 1947, 356 Pa. 265, 52 A.2d 24. Plaintiff's petition for certiorari to the Supreme Court of the United States was denied on October 13, 1947, 332 U.S. 778, 68 S.Ct. 42, 92 L.Ed. 362, and on November 10, 1947, his petition for rehearing was also denied, 332 U.S. 821, 68 S.Ct. 143, 92 L.Ed. 397. On December 29, 1947, the record was returned to the prothonotary of the court below. Pursuant to notice served on plaintiff's counsel, on June 3, 1949, witness bills for both trials were filed on June 7, 1949. Hearing before the prothonotary on plaintiff's objections was fixed for June 21, 1949. After hearing, the prothonotary, on September 20, 1949, filed an order taxing as costs a witness bill for the first trial of $133.60, and a bill for the second trial of $995.34.

The court below, in an opinion by Judge Soffel, dismissed the thirteen exceptions filed to the prothonotary's taxation of defendant's costs. Plaintiff's appeal is now before us.

Appellant's first contention is that there was error in taxing any costs by reason of the undue delay on the part of appellee in filing the bills for the respective trials. He asserts that the right to tax the costs for the first trial arose on entry of the non-suit on March 26, 1943, and that appellee's bill for these costs not having been filed until June 7, 1949, more than six years after such non-suit, was barred by the statute of limitations. 12 P.S. § 31. He also argues that appellee's delay in filing bill for its costs arising out of the second trial for almost three years after judgment on the whole record was ordered against him, and over a year and a half after the termination of the appeal proceedings, prevented the taxation of such costs. We find no merit in appellant's argument that the taxation of costs was barred by the statute of limitations. Even if we held, which we do not, that the statute providing for a six-year

[ 169 Pa. Super. Page 114]

    limitation to actions in assumpsit applies to the filing of bill of costs covering witness fees by the successful party and the taxation of his costs, the bill in the present case was filed in less than three years from August 7, 1946, the date judgment was entered for appellee. In any event, the liability to pay the costs would be fixed by the judgment rather than by the date of the non-suit which was removed by the court in banc. Likewise, we find no merit in appellant's assertion that appellee is precluded by laches from having its witness bills taxed as costs. The court below adequately disposes of this question in its opinion: 'There is no statute in Pennsylvania imposing a limitation on the time within which a witness bill must be filed or the costs in the case must be taxed. Nor is there any rule of the Court of Common Pleas of Allegheny County, imposing such limitation. It has been held that the costs of a case [need] not be taxed until after the case has been reviewed on appeal: Miskey's Appeal, 1 Sadler 407, 4 A. 744, 18 W.N.C. 100. The case at bar was decided by the Supreme Court on March 24, 1947, and on April 16, 1947, the remittitur was filed in the prothonotary's office of Allegheny County. Subsequently a certiorari was taken to the Supreme Court of the United States which was denied on November 10, 1947, the record being returned to the prothonotary's office on December 29, 1947. The proceedings before the prothonotary to tax witness bills as part of the costs were filed within a year and a half after the final decision in the Supreme Court. We would say that normally ...


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