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
____________________________________________


*
    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.

____________________________________________


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

____________________________________________


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


____________________________________________


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. 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.

____________________________________________


6
  Based on our disposition, we find it unnecessary to address Plaintiff’s third
issue on appeal.



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J-S29003-17



     Affirmed in part; reversed in part.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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