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.
Oliver ("Plaintiff") appeals from the judgment,
entered in the Court of Common Pleas of Philadelphia County,
denying his motion to correct 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.
who had elected the limited-tort 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 was
followed with the statement that, if you answer "No,
" Plaintiff cannot recover. Thereafter, the trial court
entered a verdict in favor of Defendant.
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). 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.
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. 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
Appellant's Brief, at 4.
argues that he is the "prevailing party" under
section 1726(a)(2)." He states that although the jury
found he had not suffered 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).
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) §
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
Plaintiff argues that, notwithstanding the fact that the jury
did not award him compensatory damages, he was the verdict
winner. Plaintiff insists that the damages question has no
bearing on the liability issue, and therefore ...