HomeMy WebLinkAbout2009-1518
MAURA TOBIN DONLEY, : IN THE COURT OF COMMON PLEAS OF
Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
:
v. : CIVIL ACTION - LAW
:
PAUL FORSYTHE d/b/a/ PROFORMA : No. 09-1518 - Law
FORSYTHE MARKETING, :
Defendant. : JURY TRIAL DEMANDED
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
HESS, P.J., March 22, 2011.
In this civil case, Plaintiff filed an action alleging the breach of an oral contract for media
and public relations services. (Plaintiff’s Complaint, filed Apr. 2, 2009). During a December 6,
2010, jury trial, the undersigned entered an order directing a verdict in favor of Plaintiff and
against Defendant in the amount of $7,100.00 together with interest at the legal rate from and
after August 30, 2008. (Order of Court, Dec. 6, 2010). On January 7, 2011, Plaintiff filed a
Motion for Award of Counsel Fees which sought to recover costs under 42 Pa.C.S. § 2503(7),
(9). (Plaintiff’s Motion for Award of Counsel Fees From and Against Defendant and
Defendant’s Counsel Jointly and Severally Pursuant to Section 2503 of the Pennsylvania Judicial
Code, filed Jan. 7, 2011). On January 18, 2011, Defendant filed a Motion for a New Trial
alleging error with this Court’s denial of an earlier Motion In Limine. (Defendant’s Motion for a
New Trial, filed Jan. 18, 2011). On January 26, 2011, the undersigned entered an order denying
Defendant’s Motion for a New Trial as untimely. (Order of Court, Jan. 26, 2011). From the
entry of that order, Defendant now appeals to the Pennsylvania Superior Court. (Defendant’s
Notice of Appeal, filed Feb. 9, 2011).
The bases for appeal have been expressed in a statement of matters complained of on
appeal as follows:
The trial court committed error by denying Defendant’s motion for post-trial
relief when it was filed within 10 days of Plaintiff filing a motion for post-trial
relief. This Court entered a directed verdict on the record, in open court, on
December 6, 2010. On January 7, 2011 Plaintiff filed a motion which seeks to
add taxable costs under 42 Pa.C.S. § 2503. The Plaintiff specifically identified
her motion as a motion for post-trial relief, and it is, in fact, such a motion as
defined by Pa.R.C.P. 227.1(a). While 227.1 allows only ten days after the entry
of a verdict, Plaintiff filed her post-trial motion 32 days after the entry of the
verdict, and yet the Court is entertaining the motion. As the Court did not deny
Plaintiff’s post-trial motion as untimely, Rule 227.1 allows Defendant to file a
post-trial motion “within ten days after the filing of the first post-trial motion.”
Said differently, the deadline for Defendant’s post-trial motion does not accrue
from the date of the entry of the verdict, but accrues from the date of Plaintiff’s
post-trial motion. Defendant’s post-trial motion was filed within 10 days of
Plaintiff’s post-trial motion, and is, therefore, timely.
(Appellant’s, Paul Forsythe d/b/a Proforma Forsythe Marketing’s, Statement of Matters
Complained Of Pursuant to Pa.R.A.P. No. 1925(b), filed March 7, 2011).
The facts of this case are only tangentially relevant to the instant appeal. It is the motions
of the parties following the entry of a verdict that are the issue. Defendant appeals from our
denial of his post-trial motion, arguing that, because we are entertaining Plaintiff’s Motion for
Award of Counsel Fees, filed January 7, 2010, and since his post-trial motion, filed January 18,
2010, was filed within 10 days of Plaintiff’s motion it is, therefore, timely. We continue to be
satisfied, however, that the Plaintiff’s Motion for Award of Counsel Fees is not a post-trial
motion subject to the time requirements of Pa.R.C.P. 227.1. As a result, Defendant’s post-trial
motion was not filed within 10 days of either the entry of a final verdict (December 6, 2010) or
Plaintiff’s filing of a post-trial motion. Pa.R.C.P. 227.1(c).
Pursuant to Pennsylvania Rule of Civil Procedure 227.1, after trial and upon the written
Motion for Post-Trial relief filed by any party, a court may:
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
2
Pa.R.C.P. 227.1(a). The purpose of Rule 227.1 is to “provide the trial court with an opportunity
to correct errors in its ruling and avert the need for appellate review.” Warfield v. Shermer, 2006
Pa. Super. 303 ¶ 9, 910 A.2d 734, 737 (citing Chalkey v. Roush, 569 Pa. 462, 467 n.9, 805 A.2d
494, 495 n.9 (2002)).
The explanatory note following §227.1(a) explains that the Rule 227.1 Motion for Post-
Trial Relief was intended to replace “the following motions and exceptions: motion for new trial,
motion for judgment notwithstanding the verdict, motion upon the whole record after
disagreement of a jury, motion in arrest of judgment, motion to remove a nonsuit and exceptions
following the decision of the judge in a trial without jury.” Official Note of the Civil Procedural
Rules Committee Note to Pa.R.C.P. No. 227.1(a). These previous motions and exceptions were
repealed by Section 2(a) of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L.
202, as amended, 42 P.S. §20002(a). See Crawford v. Commonwealth, 125 Pa. Cmwlth. 85, 87,
556 A.2d 547, 547 (1989). The rule also provides time limits for a party desiring to file a post-
trial motion. Subsection (c) provides as follows:
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit
in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial
without jury.
If a party has filed a timely post-trial motion, any other party may file a post-trial
motion within ten days after the filing of the first post-trial motion.
Pa.R.C.P. 227.1(c). It is clear, therefore, that if a party files a post-trial motion more than ten
days after a verdict, or after a 10 day period following an opposing party’s post-trial motion, the
trial court should deny the post-trial motion as untimely. Pa.R.C.P. 227.1(c).
3
A Motion for Award of Counsel Fees is not a post-trial motion falling within the ambit of
Rule 227.1. Instead, the award of counsel fees is authorized by statute, specifically, 42 Pa.C.S. §
2503. In this case, Plaintiff invokes subsections (7) and (9), which provide, in pertinent part, as
follows:
The following participants shall be entitled to a reasonable counsel fee as part of
the taxable costs of the matter:
. . .
(7) Any participant who is awarded counsel fees as a sanction against another
participant for dilatory, obdurate or vexatious conduct during the pendency of
a matter.
. . .
(9) Any participant who is awarded counsel fees because the conduct of
another party in commencing the matter or otherwise was arbitrary, vexatious
or in bad faith.
42 Pa.C.S. §2503(7), (9).
As opposed to the purpose of Rule 227.1, which is to allow a trial court to correct its own
errors and avoid the need for appellate review, the award of counsel fees “is intended to
reimburse an innocent litigant for expenses made necessary by the conduct of an opponent.” Am.
Mut. Liab. Ins. Co. v. Zion & Klein, P.A., 339 Pa. Super. 475, 480, 489 A.2d 259, 262 (1985). In
addition to the fact that a Motion for Award of Counsel Fees is not included in the list of Rule
227.1 post-trial motions, the underlying rationale of the two different types of after-trial practice
are simply not the same.
Our Pennsylvania Supreme Court has also held as much. The case of Miller Elec. Co. v.
DeWeese is slightly procedurally different from the case sub judice in that Miller Elec. Co. dealt
with the timeliness of an appeal and a motion to quash that appeal, as well as the post-trial
practice of a motion for attorney’s fees pursuant to Section 2503. Miller Elec. Co. v. DeWeese,
4
589 Pa. 167, 171, 907 A.2d 1051, 1053 (2006). In that case, Miller unsuccessfully attempted to
collect a judgment it had received against DeWeese, the president of Birmingham Bistro, Inc.
Id. at 169. As a result, Miller instituted garnishment proceedings against Birmingham and
claimed that it was entitled to garnish compensation and benefits paid by Birmingham to
DeWeese and to attach property held by Birmingham. Id. The trial court disagreed and entered
a verdict for Birmingham on February 14, 2002. Id. The next day, Birmingham filed a motion
for attorney’s fees pursuant to 42 Pa.C.S. §2503(3). Id. at 170. On February 26, 2002, Miller
filed a motion for post-trial relief. Id. That post-trial motion contained a motion for judgment
notwithstanding the verdict, a motion to compel, and a motion for attorney’s fees. Id. Because
the trial court never entered an order disposing of Miller’s post-trial motion, it was deemed
denied on June 26, 2002, 120 days after it was filed, pursuant to Pa.R.C.P. 227.4. Id. On June
27, 2002, Birmingham filed a praecipe to enter judgment on its verdict and the prothonotary
entered final judgment in favor of Birmingham. Id. On July 10, 2002, the trial court entered an
order denying Birmingham’s Feb. 15 motion for attorney’s fees. Id. On August 8, 2002,
Birmingham filed a notice of appeal from the July 10 order, and Miller moved to quash the
appeal as untimely. Id. The Pennsylvania Supreme Court took the case as a result of the
“procedural conundrum” that resulted when the prothonotary entered judgment in favor of
Birmingham on June 27, 2002, and the trial court denied Birmingham’s motion for attorney’s
fees on July 10, 2002. Id. at 171.
Birmingham argued that its notice of appeal was timely because a motion for attorney’s
fees under 42 Pa.C.S. § 2503(3) is not a post-trial motion, and, as a result, was not disposed of by
entry of final judgment. The Pennsylvania Supreme Court agreed and held that “[a] motion for
fees under §2503(3) is not a post-trial motion. . . .” Id. The Court also held that a Motion for
5
Attorneys fees under § 2503 is “not a separate suit for fees, but rather, a matter that is connected
but ancillary to the underlying action. . . .” Id. at 176. A request for attorneys fees is not the type
of matter addressed in Rule 227.1. Rather, it involves an “ancillary” issue relating to the conduct
of an opposing party. See Am. Mut. Liab. Ins. Co., 339 Pa. Super. at 480.
Accordingly, Defendant’s Motion for a New Trial, filed January. 18, 2011, is untimely
because it was not filed within 10 days of either the entry of a final verdict (December 6, 2010)
or Plaintiff’s filing of a post-trial motion (which did not occur).
March 22, 2011 _________________________
Kevin A. Hess, P.J.
Carol Steinour Young, Esquire
For the Plaintiff
Matthew Menges, Esquire
For the Defendant
:rlm
6