submitted: March 10, 1982.
ANTHONY KOJESZEWSKI AND BEVERLY KOJESZEWSKI, APPELLANTS,
BRIGANTINE CASTLE AND AMUSEMENT CORPORATION
No. 1469 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County at No. 376 September Term 1977.
Edwin P. Smith, Philadelphia, for appellants.
Joel Feldscher, Philadelphia, for appellee.
Wickersham, Cirillo and Lipez, JJ. Lipez, J., files a concurring opinion.
[ 302 Pa. Super. Page 501]
On September 8, 1977, Anthony and Beverly Kojeszewski filed a complaint in trespass against Brigantine Castle and Amusement Corp. alleging basically that on or about June 30, 1977, Anthony Kojeszewski was a paying customer upon premises at 1400 Brigantine Avenue, Brigantine, New Jersey, which property defendant owned and operated as an amusement facility. On said occasion plaintiff alleged that he "was caused to fall down a flight of stairs due to the absence of illumination at said location." Beverly Kojeszewski joined in her husband's complaint alleging loss of society and consortium and other damages.
The case came on for jury trial before the Honorable Charles Wright and on March 7, 1980 a verdict was returned in favor of the plaintiff in the amount of $42,250.00.
[ 302 Pa. Super. Page 502]
Thereafter counsel for the plaintiffs filed a bill of costs as follows:
BILL OF COSTS
Sheriff's costs $17.35
Prothonotary costs 83.00
Witness fee-Anthony Kojeszewski, Jr. 5.00
Tobyhanna, Pa.; 200 miles 20.00
Oral depositions 98.15
Video depositions and testimony 722.55
to which defendants objected:
DEFENDANT'S OBJECTIONS TO PLAINTIFF'S BILL OF COSTS
Defendant also objects to the charge for the transcripts of the oral depositions and the costs of the video depositions and testimony in the amounts of $98.15 and $722.55, respectively as said items are not taxable.
Following the submission of briefs, Judge Wright issued an order dated June 6, 1980, denying the charge for deposition transcripts and the cost for video tape deposition and testimony. His order read as follows:
AND NOW, to wit, this /6/ day of /June/, 1980, it is hereby ORDERED AND DECREED that:
1. Plaintiffs' Bill of Costs namely:
(a) $98.15 charge for deposition transcripts, and
(b) $722.55 cost for video tape deposition and testimony
From this order this appeal has been brought.*fn1
Judge Wright, in his opinion sur. Pennsylvania Rule of Appellate Procedure 1925, filed October 31, 1980, said:
[ 302 Pa. Super. Page 503]
Plaintiffs, in their memorandum supporting the petition for bill of costs correctly state that at common law costs were not recoverable by either party to litigation and that the right to recover costs is purely statutory. Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521 (1943); Application of Smith, 381 Pa. 223, 112 A.2d 625 (1955). He states further that statutes which authorize the recovery of costs are to be liberally construed. Rush v. Allegheny County, 159 Pa. Super. 163, 48 A.2d 46 (1946) . . . .
Although the Pennsylvania Rules of Civil Procedure prescribe the transcribing of testimony in mandatory terms, the rules do not provide generally for the assessment of costs of depositions. Pa.R.C.P. 4017(b). See also Goodrich Amram, 2d 4020(a):15. Reference to assessment is found only in Pa.R.C.P. 4019(d) in the case of unjustified refusal to admit under Pa.R.C.P. 4014. Except in this special situation the assessment of costs is to follow the practice prior to the adoption of the Rules of Civil Procedure. Goodrich Amram 2d 4020(a):15. A study of the practice preceding the adoption of the rules shows that the costs of recording and transcribing the deposition cannot be assessed as costs in the action.
The Court finds that this refusal is further supported by reason and equity. In this case by virtue of depositions and videotapes, the plaintiff had available as part of his case testimony of two witnesses one lay and one expert and highly qualified. Unquestionably, the expert witness would have required sums far in excess of the usual witness fee to make a personal appearance in court to give testimony. No part of this fee would, however, be recoverable as costs. Clearly the cost of taking depositions and videotapes was far less than would have been the cost to plaintiff to produce this witness in court at the time of
[ 302 Pa. Super. Page 504]
trial. We, therefore, have no hesitancy in concluding that the taxation of the costs of taking and transcribing the depositions in this matter is improper and that these costs must be disallowed.
Lower ct. op. at 2-5.
Appellant urges upon us in his brief that the Statute of Gloucester, 6 Edw. I, C. 1, Rob. Dig. 107 is in force in Pennsylvania and authorizes the recovery of full costs where the damages are recovered in a common law forum, unless this right be restricted by statute.
In Richmond v. Pennsylvania Higher Education Assistance Agency, 6 Pa.Commw. Ct. 612, 297 A.2d 544 (1972), it was held that:
We are urged to accept the Statute of Gloucester, 6 Edw. 1, c. 1 (1275), which is still in force in Pennsylvania (but ceased to have effect in England after 1875), as requisite statutory authorization. It is true that this statute and several other ancient English acts initiated the principle that a prevailing party is entitled to his costs, and, as a general rule of law, this principle still obtains in the Commonwealth. See Taged, Inv. v. Zoning Board of Adjustment and Shields, 6 Pa. Commonwealth Ct. 331, 295 A.2d 339 (1972). But the Statute of Gloucester extends only to cases where damages are recovered in a common law forum, and then only if the damages were recoverable at common law. Black's Appeal, 106 Pa. 344, 15 W.N.C. 308 (1884); Cameron v. Paul, 11 Pa. 277 (1849); see also Annot., 12 A.L.R. 721, 723 (1921). As Sir Edward Coke said, '[I]t extendeth to all the legall cost of the suit, but not to the costs and expences of his travell and losse of time . . . .' E. Coke, Second Institutes 288 (1642) (emphasis added). [L]iberal construction is to be given statutes providing for costs, Steele v. Lineberger, 72 Pa. 239 (1872), . . . .
Id. 6 Cmwlth.Ct. at 615, 297 A.2d at 546.
At common law, costs were not recoverable by either party to the action. If plaintiff failed in his action, he was punished by amercement pro falso clamore, and if the
[ 302 Pa. Super. Page 505]
judgment was against the defendant, he was punished in misericordia cum expensis litis, but costs were not expressly given by name.
The right to recover costs in litigation is, therefore, purely statutory; normally costs can be imposed only by statute, and the power to impose costs in a proceeding based on a statute must be found in the statute. In the absence of express statutory authorization, a successful party cannot recover costs. Further, the right exists only to the extent authorized by the legislative enactment.
Originally costs were given rather as a punishment of the defeated party for causing the litigation than as a recompense to the successful party for the expense to which he had been subjected.
Although the courts have no implied or inherent power to award costs, statutes which make it the duty of the court to decide and direct who shall pay costs place the matter of costs within the control of the court.
9 P.L.E. Costs, §§ 4, 11-12 (footnotes omitted).
Pennsylvania was one of the first states to authorize videotape depositions. Although adopted in April, 1973 as part of a 2-year experimental program, Rule 4017.1 appears to have worked well in practice. As a result, the Rule was not changed by the 1978 amendments.
Some States have adopted elaborate and detailed rules for videotape procedure, designed to cover minute details of its use. Rule 4017.1 adopts the alternative procedure of providing a skeleton of the essential features which must be regulated, and no more. The rest is left for development in actual practice with specific authorization to the trial courts to try out various methods of solving the problems which will arise.
Goodrich-Amram 2d, § 4017.1:1.*fn2
In Guido v. Greensburg Salem School District, 7 D. & C.3d 73 (1978) (Westmoreland County, opinion by President Judge
[ 302 Pa. Super. Page 506]
Keim), plaintiff brought a trespass action for personal injuries and settlement was reached. On the same day that settlement was approved by the court, plaintiffs filed a bill of costs which included three items which defendants claimed they were not obligated to pay.
Those items relate to certain deposition expenses incurred by plaintiffs prior to trial, namely, (a) The costs to plaintiffs of a videotape deposition of Dr. John Gaisford in the
[ 302 Pa. Super. Page 507]
amount of $220.20; (b) The costs to plaintiffs for cancellation of a videotape deposition of Dr. Gaisford in the amount of $37.50; and (c) The cost to plaintiffs of obtaining a transcript of the deposition of Mary Ellen Guido in the amount of $53.20.
It is axiomatic that no costs were allowed in any proceeding at common law and the right to costs is dependent upon statute or rules of court. See Costs, 20 C.J.S. § 2, 259; Tunison v. Com., 347 Pa. 76, 31 A.2d 521 (1943).
This court most certainly agrees that the videotape deposition is an indispensable tool in the litigation process and that it is an efficient utilization of witness time. However, as is pointed out by plaintiffs and defendants, it is a substitution for actual appearances of the witness in court. As defendants argue, utilization of the videotape deposition makes it unnecessary for the witness to appear in court. If the witness were to appear in court, the only cost to be imposed would be a mileage fee and a standard witness fee. Defendants argue, and with defendants' argument, the court must agree, that the fact that a videotape deposition is made should create no greater obligation on defendants in this case beyond the mileage and standard witness fee. Defendants cannot be taxed with costs beyond that point in this particular case.
The court, therefore, finds that as a matter of law, those witness fees claimed by plaintiffs as a result of the videotape deposition are not taxable costs.
Id. at 7 D. & C.3d at 74-79.
We conclude that, absent an agreement between the parties to the contrary, the expenses relating to videotape depositions shall be borne by the party utilizing such process under and pursuant to Rule 4017.1 of the Pennsylvania Rules of Civil Procedure. Accordingly, we affirm the order of June 6, 1980 of Judge Wright denying plaintiffs' bill of
[ 302 Pa. Super. Page 508]
costs, including a charge for deposition transcripts and an item for videotape deposition and testimony.
Order of the lower court affirmed.
LIPEZ, Judge, concurring:
Costs may be collected only where authorized by statute. 9 P.L.E. Costs § 96, see Commonwealth v. Gill, 288 Pa. Super. 538, 432 A.2d 1001 (1981). There is no statutory authority for the allowance of the costs herein claimed and hence the lower court properly disallowed them.