Corabi v. Curtis Publishing Co.

262 A.2d 665, 437 Pa. 143, 1970 Pa. LEXIS 860

• Court: Supreme Court of Pennsylvania
• Decided: January 20, 1970
• Docket: Appeals, 487, 499 and 529
• Status: Published

Opinions

Opinion by

Mr. Justice Eagen,

Lillian Reis instituted this suit on her own behalf and on behalf of her two daughters, as parent and guardian, seeking damages in five counts from the defendant, Curtis Publishing Company, for publication of an article in the October 26, 1963 issue of The Saturday Evening Post entitled “They Call Me Tiger Lil.” The complaint charged that the said article: (1) constituted unfair competition with Lillian Reis (publication of a false and misleading biography); (2) was defamatory of Lillian Reis; (3) invaded the right of privacy of Lillian Reis; (4) plagiarized from Lillian Reis; and, (5) invaded the privacy of the two daughters of Lillian Reis.

A jury trial resulted in a verdict in favor of the plaintiffs and against the defendant. Damages were awarded as follows on the various claims:

(1) On the claim of Lillian Reis for unfair competition, $25,000 compensatory damages and $75,000 punitive damages;

(2) On the claim for defamation of Lilliam Reis, $250,000 compensatory damages and $500,000 punitive damages;

(3) On the claim for the invasion of the privacy of Lillian Reis, $25,000 compensatory damages and $50,-000 punitive damages;

(4) On the claim for the invasion of the privacy of Lillian Reis’ daughter, Barbara Corabi, $100,000 compensatory damages and $200,000 punitive damages;

(5) On the claim for the invasion of the privacy of Lillian Reis’ daughter, Michael Corabi, $200,000 compensatory damages and $400,000 punitive damages.

Timely motions were filed by the defendant for judgment notwithstanding the verdict or a new trial as to all claims. Subsequently, the court en banc below, after consideration of these motions, filed joint orders in which it entered judgment for the defendant notwithstanding the verdict in the actions involving Lillian Reis’ claim for unfair competition and invasion of privacy; upheld the finding of the jury that Lillian Reis was entitled to damages from the defendant for defamation, but ruled that the verdict of the jury was excessive and should be reduced to $100,000 compensatory and $200,000 punitive damages; upheld the finding of the jury that Barbara Corabi was entitled to damages from the defendant for invasion of privacy, but ruled that the verdict was excessive and should be reduced to $15,000 compensatory damages and $25,-000 punitive damages; upheld the finding of the jury that Michael Corabi was entitled to damages from the defendant for invasion of privacy, but ruled that the verdict was excessive and should be reduced to $25,000 compensatory damages and $50,000 punitive damages.¹

The foregoing “orders” closed with the following:

“Appropriate remittitur in compliance with these reductions of the verdicts shall be filed by the plaintiffs within thirty (30) days hereof and in the event of noncompliance, the defendant is granted a new trial.”

Subsequently, counsel for the plaintiffs filed with the Prothonotary a document entitled “Acceptance of Remittiturs,” which stated in part:

“The undersigned hereby accept the following remittiturs required by the Orders of the Court dated June 24, 1969, without prejudice to whatever rights plaintiffs might have to have the remittiturs reviewed on appeal.”²

At the same time, a praecipe signed by plaintiffs’ counsel was also filed directing the Prothonotary to enter judgments against the defendant in favor of Lillian Reis in the sum of $300,000; in favor of Barbara Corabi in the sum of $40,000; and, in favor of Michael Corabi in the sum of $75,000, and judgments were entered.

Subsequently, the defendant filed timely appeals from the judgments entered in favor of alL plaintiffs. Lillian Reis also filed appeals on her own behalf from the lower court’s orders which, inter alia, directed a reduction in the jury’s verdict. No appeals were filed on behalf of Barbara Corabi and Michael Corabi. In the appeals filed by Lillian Reis, the assignments of error challenge the correctness of the orders in the court below: (1) reducing the jury’s verdict in her action for defamation and, (2) entering judgment n.o.v. in the action involving her claim for unfair competition.

When these appeals came before this Court for oral argument, we concluded it Avise to resolve preliminarily two questions raised by the defendant before proceeding to a consideration of the merits. Hence, oral argument at that time Avas limited to these issues, and it is to a disposition thereof that our present decision is directed.

The defendant first contends that the judgments entered in favor of the plaintiffs should be stricken because of unauthorized entry. As noted before, these judgments Avere entered by the Prothonotary at the direction of plaintiffs’ counsel through praecipe. The court did not enter the judgments or direct such entry. Citing Lambert on National Bank v. Shakespeare, 321 Pa. 449, 184 A. 669 (1936), the defendant submits that folloAving the disposition of a motion for judgment n.o.v., the judgment must be entered by the court itself or by its officer at its express direction.

The authority of a party litigant to move for judgment n.o.v. and the poAver of the court to grant such a judgment is provided for by the Act of April 22, 1905, P. L. 286 (commonly known as The Non Obstante Veredicto Act), as amended by the Act of April 9, 1925, P. L. 221, 12 P.S. §681. This act provides that in passing on a motion for judgment n.o.v., “it shall be the duty of the court, if it does not grant a new trial, to . . . certify the evidence, and to enter such judgment as should have been entered upon that evidence. . . .”

In Lamberton National Bank v. Shakespeare, supra, a verdict for the plaintiff Avas returned by the jury and the defendants moved for judgment n.o.v. The court denied the motion, but failed to enter a judgmeat in favor of the plaintiff or to order its entry. Plaintiff’s counsel then directed the Prothonotary to enter the judgment and the Prothonotary complied. The defendants then moved to strike the judgment, and the court granted the motion ruling that, under the circumstances, the Prothonotary lacked the authority to enter the judgment. On appeal, we affirmed, stating in part at 451: “This unauthorized entry by the clerk was of course properly stricken off when brought to the attention of the court.” Cf. Watkins v. Neff, 287 Pa. 202, 134 A. 625 (1926); Balch v. Shick, 147 Pa. Superior Ct. 273, 24 A. 2d 548 (1942).

The weakness of the defendant’s position on this issue is that the question was not raised timely in the court below. In this respect, the instant situation differs materially from that presented in Lamberton National Bank v. Shakespeare, supra. While it is true that the defendant did move to strike the judgments in the court below, this was “not done until after the defendant had filed and perfected its appeals therefrom. In view of the appeals pending in this Court, the lower court was then without jurisdiction to act on the motion. See Commonwealth v. Tabb, 417 Pa. 13, 207 A. 2d 884 (1965); Kingsley Clothing Mfg. Co. v. Jacobs, 344 Pa. 551, 26 A. 2d 315 (1942); Gilbert v. Lebanon Val. St. Ry. Co., 303 Pa. 213, 154 A. 302 (1931). Under such circumstances, the defendant did not raise the issue properly and is precluded from raising it now. It is fundamental that on appeal we will not consider a question raised by the appellant which was not properly raised in the court below. Brunswick Corporation v. Key Enterprises, Inc., 431 Pa. 15, 244 A. 2d 658 (1968).

The final and more important question presently before us for decision is whether or not plaintiffs filed proper remittiturs, thereby consenting to a reduction in the jury verdicts, such as to deny defendant’s right to a new trial under the orders of the court below. It is clear that the “Acceptance of Remittiturs” was not an unqualified acceptance of or consent to the reductions the court ordered. The letter forwarded by plaintiffs’ counsel to defendant’s counsel enclosing a copy of the “Acceptance of Remittiturs” plainly so indicates. And it is rendered even more clear as to the claim of Lillian Reis on her own behalf by her appeal from the order of the court below wherein she challenges the correctness of the court’s order in directing the reduction.

Acceptance of a remittitur, like the final judgment on a verdict, constitutes a full satisfaction of a plaintiff’s claim against a defendant on a particular cause of action. A plaintiff cannot be deemed to have “accepted” the remittitur in full satisfaction of his claim and yet assert that he is entitled to more. Lillian Reis’ very conduct in this case belies any real compliance with or acceptance of the remittitur. Under the circumstances, we conclude that the plaintiffs did not consent to the reductions ordered by the court.

An order by the trial court reducing a jury’s verdict is the equivalent of a certificate that, in the opinion of that court, the original verdict cannot be supported. Ralston v. Phila. R. T. Co., 267 Pa. 278, 110 A. 336 (1920). Where the trial court orders that the plaintiff consent to a reduction in the verdict or suffer a new trial, the plaintiff has the choice of accepting the reduction, suffering a new trial or seeking appellate review of the court’s order granting a new trial. If the plaintiff consents to the reduction and files a proper remittitur, he has no standing to appeal from the court’s order reducing the verdict. Gough v. Halperin, 306 Pa. 230, 159 A. 447 (1932). But if he refuses to accept or consent to the reduction, he is bound by that election and is left to the choice of suffering a new trial or seeking reversal on appeal of the court’s order granting the new trial. Cf. Clarkson v. Crawford, 285 Pa. 299, 132 A. 350 (1926).

It may be argued, as it is by the plaintiffs in this case, that none of the options outlined before, i.e., acceptance of the reduced verdict, rejection of the reduction with a consequent new trial, or an appeal from the court’s order granting a new trial provide a verdict winner with, a viable means to protect his interests. In this connection, it is asserted: (1) that if the verdict winner accepts unqualifiedly the reduction, he consents to receive an amount he deems inadequate; (2) that if the verdict winner rejects the reduction, he is forced to undergo the expense, time and risks of a second trial; (3) that if the verdict winner appeals from the order of the court granting a new trial (resulting from the rejection of the remittitur), he is bound to defend the reasonableness of the verdict even though he may himself consider it excessive in some amount, as well as defend the verdict from attack on every other ground asserted for a new trial by the losing party.

In the instant case, this argument may seem cogent at first blush in view of the large amount of the reduction ordered by the court in the award given Lillian Reis for defamation, i.e., approximately 60% or $450,000.

However, this position misinterprets the discretion and purposes of ordering a remittitur. As stated in Hollinger v. York Railways Co., 225 Pa. 419, 74 A. 344 (1909) at 426 “[that] when it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the court should set aside or reduce the verdict.” (Emphasis added.) In other words, when the trial court concludes that the sole and exclusive basis for the granting of a new trial is the excessiveness of the verdict, it may set aside the verdict entirely or give the verdict winner the option of accepting a reduced verdict in lieu of a new trial. Bell v. Yellow Cab Co., 399 Pa. 332, 160 A. 2d 437 (1960). This power to offer the option of a remittitur is a discretionary one. Clarkson v. Crawford, supra; Cox v. Pennsylvania R. R. Co., 240 Pa. 27, 87 A. 581 (1913). The court is not always required to exercise the power.

It is out of fairness to the verdict winner and for his benefit that the court attempts to expedite and resolve the controversy by reducing the verdict to an amount the record supports and thereby save the difficulties incident to a second trial. The verdict winner has no claim to a remittitur as a matter of right. If he is dissatisfied with the amount of the remittitur, he may reject it. He is then faced with a new trial, or an appeal from the order granting a new trial, the same situation had no remittitur been offered by the court.

Viewed in this light, the claim of hardship by Lillian Reis as a result of the court’s action in ordering a new trial upon the failure of “acceptance” of a reduced verdict is without merit.

Having concluded that the conditional acceptance of the reduced verdicts by Lillian Reis on her claim of defamation and by Barbara Corabi and Michael Corabi on their respective claims of invasion of privacy did not constitute an “acceptance” of these reduced verdicts, the judgments entered on these claims are stricken from the record. As to the claims of Barbara Corabi and Michael Corabi, no appeals having been filed from the order below granting a new trial, a second trial must ensue. However, as to the claims of Lillian Reis on her own behalf, she is entitled to proceed and have considered her appeals from the orders below granting a new trial in the action seeking damages for defamation and entering judgment n.o.v. in the action involving her claim for unfair competition.

It is so ordered.

1 Tbe sum effect of the court’s orders was to reduce the total of the awards given to the plaintiffs by the jury from $1,825,000 to $415,000.

2 On or about the same day this document was filed, the defendant’s counsel received from the plaintiffs’ counsel a copy of this “Acceptance of Kemittiturs” with the following letter:

“Enclosed is your copy of an Acceptance of Remittiturs which we have this day filed with the Court.

“While we have attempted to phrase the Acceptance in a manner which will preserve any right which our clients might have to appeal the reductions in the verdicts, we have adopted this wording only as a cautionary measure.

“We have also reviewed the Orders in detail with Miss Reis and have been authorized to state that our clients are willing to compromise and settle this case in accordance with the Court’s Orders,”