Kojeszewski v. Brigantine Castle & Amusement Corp.

449 A.2d 28, 302 Pa. Super. 500, 1982 Pa. Super. LEXIS 4828
CourtSuperior Court of Pennsylvania
DecidedJuly 30, 1982
DocketNo. 1469
StatusPublished
Cited by3 cases

This text of 449 A.2d 28 (Kojeszewski v. Brigantine Castle & Amusement Corp.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kojeszewski v. Brigantine Castle & Amusement Corp., 449 A.2d 28, 302 Pa. Super. 500, 1982 Pa. Super. LEXIS 4828 (Pa. Ct. App. 1982).

Opinions

WICKERSHAM, Judge:

On September 8, 1977, Anthony and Beverly Kojeszewski filed a complaint in trespass against Brigantine Castle and Amusement Corp. alleging basically that on or about June 30, 1977, Anthony Kojeszewski was a paying customer upon premises at 1400 Brigantine Avenue, Brigantine, New Jersey, which property defendant owned and operated as an amusement facility. On said occasion plaintiff alleged that he “was caused to fall down a flight of stairs due to the absence of illumination at said location.” Beverly Kojeszewski joined in her husband’s complaint alleging loss of society and consortium and other damages.

The case came on for jury trial before the Honorable Charles Wright and on March 7,1980 a verdict was returned in favor of the plaintiff in the amount of $42,250.00.

[502]*502Thereafter counsel for the plaintiffs filed a bill of costs as follows:

BILL OF COSTS
Sheriff’s costs $ 17.35
Prothonotary costs 83.00
Witness fee-Anthony Kojeszewski, Jr. 5.00
Tobyhanna, Pa.; 200 miles 20.00
Oral depositions 93 ^5
Video depositions and testimony 722.55
T0TAL $946.05

to which defendants objected:

DEFENDANT’S OBJECTIONS TO PLAINTIFF’S BILL OF COSTS
Defendant also objects to the charge for the transcripts of the oral depositions and the costs of the video depositions and testimony in the amounts of $98.15 and $722.55, respectively as said items are not taxable.

Following the submission of briefs, Judge Wright issued an order dated June 6, 1980, denying the charge for deposition transcripts and the cost for video tape deposition and testimony. His order read as follows:

ORDER
AND NOW, to wit, this /6/ day of /June/, 1980, it is hereby ORDERED AND DECREED that:
1. Plaintiffs’ Bill of Costs namely:
(a) $98.15 charge for deposition transcripts, and
(b) $722.55 cost for video tape deposition and testimony is denied.

From this order this appeal has been brought.1

Judge Wright, in his opinion sur. Pennsylvania Rule of Appellate Procedure 1925, filed October 31, 1980, said:

[503]*503Plaintiffs, in their memorandum supporting the petition for bill of costs correctly state that at common law costs were not recoverable by either party to litigation and that the right to recover costs is purely statutory. Tunison v. Commonwealth, 347 Pa. 76, 31 A.2d 521 (1943); Application of Smith, 381 Pa. 223, 112 A.2d 625 (1955). He states further that statutes which authorize the recovery of costs are to be liberally construed. Rush v. Allegheny County, 159 Pa.Super. 163, 48 A.2d 46 (1946). . . .
Although the Pennsylvania Rules of Civil Procedure prescribe the transcribing of testimony in mandatory terms, the rules do not provide generally for the assessment of costs of depositions. Pa.R.C.P. 4017(b). See also Goodrich Amram, 2d 4020(a) :15. Reference to assessment is found only in Pa.R.C.P. 4019(d) in the case of unjustified refusal to admit under Pa.R.C.P. 4014. Except in this special situation the assessment of costs is to follow the practice prior to the adoption of the Rules of Civil Procedure. Goodrich Amram 2d 4020(a):15. A study of the practice preceding the adoption of the rules shows that the costs of recording and transcribing the deposition cannot be assessed as costs in the action.
The Court finds that this refusal is further supported by reason and equity. In this case by virtue of depositions and videotapes, the plaintiff had available as part of his case testimony of two witnesses one lay and one expert and highly qualified. Unquestionably, the expert witness would have required sums far in excess of the usual witness fee to make a personal appearance in court to give testimony. No part of this fee would, however, be recoverable as costs. Clearly the cost of taking depositions and videotapes was far less than would have been the cost to plaintiff to produce this witness in court at the time of [504]*504trial. We, therefore, have no hesitancy in concluding that the taxation of the costs of taking and transcribing the depositions in this matter is improper and that these costs must be disallowed.

Lower ct. op. at 2-5.

Appellant urges upon us in his brief that the Statute of Gloucester, 6 Edw. I, C. 1, Rob. Dig. 107 is in force in Pennsylvania and authorizes the recovery of full costs where the damages are recovered in a common law forum, unless this right be restricted by statute.

In Richmond v. Pennsylvania Higher Education Assistance Agency, 6 Cmwlth.Ct. 612, 297 A.2d 544 (1972), it was held that:

We are urged to accept the Statute of Gloucester, 6 Edw. 1, c. 1 (1275), which is still in force in Pennsylvania (but ceased to have effect in England after 1875), as requisite statutory authorization. It is true that this statute and several other ancient English acts initiated the principle that a prevailing party is entitled to his costs, and, as a general rule of law, this principle still obtains in the Commonwealth. See Taged, Inv. v. Zoning Board of Adjustment and Shields, 6 Pa. Commonwealth Ct. 331, 295 A.2d 339 (1972). But the Statute of Gloucester extends only to cases where damages are recovered in a common law forum, and then only if the damages were recoverable at common law. Black's Appeal, 106 Pa. 344, 15 W.N.C. 308 (1884); Cameron v. Paul, 11 Pa. 277 (1849); see also Annot., 12 A.L.R. 721, 723 (1921). As Sir Edward Coke said, ‘[I]t extendeth to all the legall cost of the suit, but not to the costs and expences of his travell and losse of time.. . . ’ E. Coke, Second Institutes 288 (1642) (emphasis added). [L]iberal construction is to be given statutes providing for costs, Steele v. Lineberger, 72 Pa. 239 (1872),

Id. 6 Cmwlth.Ct. at 615, 297 A.2d at 546.

At common law, costs were not recoverable by either party to the action. If plaintiff failed in his action, he was punished by amercement pro falso clamore, and if the [505]*505judgment was against the defendant, he was punished in misericordia cum expensis litis, but costs were not expressly given by name.
The right to recover costs in litigation is, therefore, purely statutory; normally costs can be imposed only by statute, and the power to impose costs in a proceeding based on a statute must be found in the statute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Menard v. PennyMac Loan Services, LLC
30 Pa. D. & C.5th 225 (Lackawanna County Court of Common Pleas, 2013)
Parkinson v. Lowe
760 A.2d 65 (Superior Court of Pennsylvania, 2000)
Thompson v. Monetary Management Corp.
44 Pa. D. & C.4th 401 (Delaware County Court of Common Pleas, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
449 A.2d 28, 302 Pa. Super. 500, 1982 Pa. Super. LEXIS 4828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kojeszewski-v-brigantine-castle-amusement-corp-pasuperct-1982.