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Oliver v. Irvello

Superior Court of Pennsylvania

June 13, 2017

JAMAR OLIVER Appellant
v.
SAMUEL IRVELLO Appellee

         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

          LAZARUS, J.

         Jamar Oliver ("Plaintiff") appeals from the judgment, [1] 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.

         Plaintiff, who had elected the limited-tort[2] 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.

         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.

         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 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 insists that the damages question has no bearing on the liability issue, and therefore ...


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