J-A03003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS WILLIAMS,                            :   IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF              :        PENNSYLVANIA
GARDENIA WILLIAMS, DECEASED                 :
                                            :
                     Appellant              :
                                            :
               v.                           :
                                            :
PENN CENTER FOR REHABILITATION              :
AND CARE; HOSPITAL OF THE                   :
UNIVERSITY OF PENNSYLVANIA;                 :
TRUSTEES OF THE UNIVERSITY OF               :
PENNSYLVANIA; MANORCARE OF                  :
YEADON, LLC AND MANOR CARE                  :
INC. D/B/A MANOR CARE HEALTH                :
SERVICES                                    :
                                            :
                     Appellees              :         No. 2259 EDA 2017

                   Appeal from the Order Entered June 23, 2017
               In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): May Term, 2011 No. 3790


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED JUNE 20, 2018

      Appellant, Thomas Williams, Administrator of the Estate of Gardenia

Williams, deceased, appeals from the order entered in the Philadelphia

County Court of Common Pleas, which awarded record costs under 42

Pa.C.S.A. § 1726, in favor of Appellee, Penn Center for Rehabilitation and

Care in the amount of $794.02; and in favor of Appellee, Hospital of the

University of Pennsylvania; Trustees of the University of Pennsylvania, in the

amount    of    $563.30,   following   disposition   of   the   underlying   medical

malpractice case. We affirm.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03003-18


      The trial court opinion correctly set forth the relevant facts and

procedural history of this case. Therefore, we have no need to restate them.

We add that the court ordered Appellant, on July 6, 2017, to file a concise

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b).

Appellant timely complied on July 26, 2017.

      Appellant raises the following issue:

         WHETHER THE TRIAL COURT              ERRED   IN   GRANTING
         APPELLEES’ BILLS OF COST?

(Appellant’s Brief at 3).

      Following a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Daniel J.

Anders, we conclude Appellant’s issue merits no relief.        The trial court

opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, dated September 25, 2017, at 1-7)

(finding: recovery of record costs is established exception to American Rule;

Deputy Director of OJR adjudicated $794.02 of record costs and $0.00 of

non-record costs to Appellee Penn Center for Rehabilitation and Care, and

$563.30 of record costs and $0.00 of non-record costs to Appellee Hospital

of University of Pennsylvania; trial court had no discretion to deny record

costs; when court denied Appellant’s motions to strike Appellees’ bills of

costs, court merely enforced generally established exception to American

Rule; this case did not involve any exemption to award of standard taxable

costs under 42 Pa.C.S.A. § 1726; case was private, medical professional

                                     -2-
J-A03003-18


liability action, in which law is generally certain; bills of costs did not impose

on Appellant “actual costs or a multiple thereof as a penalty”; Deputy

Director of OJR found in favor of Appellees and awarded only those costs

reflected in record; Appellees submitted appropriate verifications with their

respective bills of costs; regarding hardship, Appellant failed to submit

anything to court to support his claim that limited awards of costs would

impose substantial hardship or injustice). Accordingly, we affirm based on

the trial court’s opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/18




                                      -3-
                                                                                                                                Circulated 06/05/2018 01:57 PM




         IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
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                                TRIAL DIVISION-CIVIL

                    THOMAS WILLIAMS, ADMINISTRATOR OF THE                                                           2259 EDA 2017
                    ESTATE OF GARDENIA WILLIAMS, DECEASED,
                               Plaintiff/Appellant,                                                                 Trial Court Case No. 110503 790

                     v.

                    PENN CENTER FOR REHABILITATION AND CARE,                                                                            :,
                                                                                                                                        , ..
                    HOSPITAL OF THE UNIVERSITY OF                                                                                                  " .. t
                    PENNSYLVANIA, TRUSTEES OF THE UNIVERSITY
                    OF PENNSYLVANIA, MANORCARE OF YEADON,
                    LLC, and MANOR CARE INC. D/B/ A MANOR CARE
                    HEALTH SERVICES,
                                Defendants/ Appellees.
                                                                                                                                                    .)


                                                                                   OPINION                                                     I    )




                            Plaintiff Thomas Williams, Administrator of the Estate of Gardenia Williams, Deceased

                   appeals the trial court's denials of both Plaintiff's Motion to Strike Defendant Penn Center for

                   Rehabilitation and Care's Bill of Costs and Plaintiff's Motion to Strike Defendant Hospital of the

                   University of Pennsylvania and Trustees of the University of Pennsylvania's Bill of Costs; For

                   the reasons herein, the Superior Court should affirm the trial court's denials of Plaintiffs

                   Motions to Strike Defendants' Bills of Costs.

                   FACTUAL AND PROCEDURAL HISTORY

                             As the prevailing party in the underlying medical professional liability action, Defendants

                   filed Bills of Costs with Plaintiff. After Plaintiff filed exceptions and objections to both Defendants'

                    Bills of Costs, Deputy Director of the Office of Judicial Records (''Deputy Director of OJR") heard

                    oral argument on April 21, 2017. On April 26, 2017, the Deputy Director of OJR adjudicated

                    Defendants' Bills of Costs and found in favor of Defendants. See Adjudications Sur Bills of Costs

                    (adjudicating $794.02 ofrecord costs and $0.00 of non-record costs to Defendant Penn Center for

                                                               Williams V• Penn Center For Rehab1litat1on A-OPFLD




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Rehabilitation and Care, and $563.30 of record costs and $0.00 of non-record costs to Defendant

Hospital of the University of Pennsylvania and Trustee of the University of Pennsylvania).

        On May 5, 2017, Plaintiff filed a Notice of Appeal from both Adjudications Sur Bills of

Costs with the Court of Common Pleas of Philadelphia County. On June 22, 2017, the trial court

denied Plaintiffs Motions to Strike Defendants' Bills of Costs. On June 30, 2017, Plaintiff filed

a timely Notice of Appeal with the Superior Court of Pennsylvania.

DISCUSSION

        On appeal, Plaintiff claims the trial court erred as follows: 1 (1) the trial court created a

new taxable cost rule without having had the authority to do so under 42 Pa. C.S.A. § 1726(a)

and, through that rule, violated 42 Pa. C.S.A. § 1726(a)(2)(ii), 42 Pa. C.S.A. § 1726(a)(3), and

the "American Rule;" (2) Defendants miscategorized the costs Defendants listed as "record

costs" on their Bills of Costs; and (3) the trial court violated 42 Pa. C.S.A. § l 726(a)(2)(iii) and

worked "substantial injustice" by imposing record costs on Plaintiff, a single retiree on a fixed

income.




I Plaintiff also claims that when the trial court denied Plaintiffs motions, the trial court erred because Defendants'
Affidavits to the Bills of Costs were not sworn to. See Plaintiffs Statement of Matters Complained of on Appeal
Pursuant [to] Pa. R.A.P. 1925(b) at 3. This claim of error is without merit because Defendants' Bills of Costs did
contain the appropriate signed Verifications using the prescribed form. See Philadelphia Local Rule of Civil Procedure
§ 227.S(D); See Bill of Costs of Defendants, Hospital of the University of Pennsylvania and Trustees of the University
of Pennsylvania, to Plaintiff, at 5; See Bill of Costs of Defendant, Penn Center for Rehabilitation and Care, at 5.
                                                         -2-
         1.        The Trial Court did not create a new taxable cost rule or violate the "American



         Plaintiff claims that trial court erred because it created a new taxable cost rule under 42

Pa. C.S.A. § 1726( a) and, through that rule, violated 42 Pa. C.S .A. § 1726( a)(2)(ii)2, 42 Pa.

C.S.A. § 1726(a)(3)3, and the "American Rule."

          "Section 1726 of the Judicial Code authorized the governing authority (the Pennsylvania

Supreme Court) to promulgate general rules governing the imposition of costs. This section also

set forth guidelines for the Supreme Court to consider in prescribing its rules." Arbuckle v. Com.,

Unemployment Comp. Bd. of Review, 478 A.2d 545, 546 (Pa. Commw. Ct. 1984). Plaintiff is

correct that "[s]ection l 726(a) does not purport to set forth governing substantive standards, but

instead is directed at [the Supreme Court of Pennsylvania] (or an entity within the Unified

Judicial System to which [the Supreme Court of Pennsylvania] delegate[s] the authority), as the

defined "governing authority," when prescribing "general rules" on the subject of assessing

costs. In re Farnese, 17 A.3d 357, 370 (Pa. 2011). Plaintiff is also correct that "the list of

considerations enumerated in Section 1726(a) does not create any substantive right in a

prevailing party to recover costs in Pennsylvania." Id.

         However, there are more established rules than just 42 Pa. C.S.A. § 1726 that govern the

taxation of costs. There is also the "American Rule" and its generally established exceptions.



2
  The trial court did not violate 42 Pa. C.S.A. § 1726(a)(2)(ii) because this case never involved "a public question"
nor was it a case "where the applicable law is uncertain and the purpose of the litigants is primarily to clarify the law."
This was a standard, private, medical professional liability action, the law is generally certain, and neither litigants'
primary purpose was to clarify the law. Therefore, this claim of error is without merit.
3
  The trial court did not violate 42 Pa. C.S.A. § 1726(a)(3) because the trial court's denials of Plaintiffs motions did
not impose any "actual costs or a multiple thereof' on Plaintiff. The Deputy Director of the Office of Judicial Records
did not find in favor of Defendants for any of Defendants' actual costs or non-record costs. The Deputy Director of
OJR found in Defendants' favor only for Defendants' record costs. See Adjudication Sur Bill of Costs (adjudicating
$794.02 of record costs and $0.00 of non-record costs to Defendant Penn Center for Rehabilitation and Care, and
$563.30 of record costs and $0.00 of non-record costs to Defendant Hospital of the University of Pennsylvania and
Trustee of the University of Pennsylvania). Therefore, this claim of error is without merit.
                                                           -3-
Plaintiff is correct that "[g]enerally, Pennsylvania adheres to the 'American Rule,' which states

that litigants are responsible for their own litigation costs and may not recover them from an

adverse party 'unless there is express statutory authorization, a clear agreement of the parties, or

some other established exception."' Id. at 3 70. But, in such a case as when there is "some other

established exception," "[i]t is a general rule in our judicial system ... that costs inherent in a law

suit are awarded to and should be recoverable by the prevailing party." Smith v. Rohrbaugh, 54
A.3d 892, 897 (Pa. Super. Ct. 2012).

        It is important to note that the costs inherent in a lawsuit are different and distinct from

the costs associated with the preparation, consultation, and fees of a lawsuit generally. Id. Record

costs (such as filing fees) are "costs inherent in a law suit," "the costs of proceeding in court," or

"[a]ll costs of record appearing on the docket." Id.; Philadelphia Local Rule of Civil Procedure§

227.5(C)(l). On the other hand, actual costs or non-record costs (such as transcript costs and

witness fees) are the costs of ''preparation, consultation, and fees generally" or "[ c ]osts not

appearing of record." Smith, 54 A.3d at 897; Philadelphia Local Rule of Civil Procedure§

227.5(C)(2). The award and recovery of''record costs is one such [established] exception" to the

general "American Rule." Smith v. Rohrbaugh, 54 A.3d 892, 901 (Pa. Super. Ct. 2012) (Wecht,

J., concurring).

        Furthermore, generally, the trial court has no discretion to award or deny proper costs like

record costs to the prevailing party as "[ a]t law the general rule is that [proper] costs follow as a

matter of course,'' not as a matter of the trial court's discretion. Id. at 897. Therefore, the trial

"court has no discretion to award or deny [proper costs]" like record costs to the prevailing party.

Id. at 897-8.

        Here, the Deputy Director of OJR adjudicated $794.02 of record costs and $0.00 of non-

record costs to Defendant Penn Center for Rehabilitation and Care, and $563 .30 ofrecord costs
                                                   -4-
and $0.00 of non-record costs to Defendant Hospital of the University of Pennsylvania and

Trustee of the University of Pennsylvania. See Adjudications Sur Bills of Costs. The trial court

denied Plaintiffs motions on the basis that those record costs "follow as a matter of course," not

as a matter of the trial court's discretion. Smith, 54 A.3d at 897. The trial court, therefore, had no

discretion to deny the record costs sought by Defendants.

        Thus, when the trial court denied Plaintiff's motions, the trial court did not create a new

taxable cost rule under 42 Pa. C.S.A. § l 726(a) and did not violate 42 Pa. C.S.A. §

l 726(a)(2)(ii), 42 Pa. C.S.A. § l 726(a)(3), or the "American Rule." Rather, the trial court

enforced a generally "established exception" to the "American Rule." As a result, this claim of

error is without merit.

        2.      The Bills of Costs correctly categorized the costs as "Record Costs"

        Plaintiff claims that trial court erred when it denied Plaintiffs motions because Defendants

incorrectly categorized the costs Defendants listed as "record costs" on their Bills of Costs.

        As stated earlier, record costs (such as filing fees) are "costs inherent in a law suit," "the

costs of proceeding in court," or"[ a]ll costs ofrecord appearing on the docket." Id.; Philadelphia

Local Rule of Civil Procedure§ 227.S(C)(l). On the other hand, actual costs or non-record costs

(such as transcript costs and witness fees) are the costs of"preparation, consultation, and fees

generally" or"[ c ]osts not appearing of record," Smith, 54 A.3d at 897; Philadelphia Local Rule

of Civil Procedure§ 227.5(C)(2). Attorney's fees and costs related to the existence, possession,

or disposition of a fund are generally not an item ofrecoverable taxable costs. 42 Pa. C.S.A. §

1726(a)(l) - (2)(i).

        But, here, all of the costs Defendants categorized as "record costs" (first filing fees and

motion fees) are ''costs ofrecord appearing on the docket." See Bill of Costs of Defendants,

Hospital of the University of Pennsylvania and Trustees of the University of Pennsylvania, to
                                                  -5-
Plaintiff, at 5; See Bill of Costs of Defendant, Penn Center for Rehabilitation and Care, at 5. As

such, this claim of error is without merit.

        3.       The Trial Court did not err in finding no "substantial injustice" in imposing record

        costs

        Plaintiff claims that trial court erred when it found no "substantial injustice" in imposing

the record costs.

        "[T]he decision that the imposition of costs would work substantial injustice is within the

discretion of the court, and should be based upon the facts and circumstances of the particular

case." Arbuckle v. Com., Unemployment Comp. Bd. of Review, 478 A.2d 545, 547 (Pa. Cornrow.

Ct. 1984). Generally, when a party seeks relief from court costs due to a financial inability to

pay, for example, to proceed in forma pauperis, the moving party must submit an affidavit

swearing under oath that the party is unable to pay such costs. See Pa. R.C.P. No. 240. The

affidavit serves as some evidence of the veracity of the party's claim.

        Here, Plaintiff's counsel did not submit anything in support of her claim that imposition

of costs would work a substantial financial hardship on her client. Plaintiffs counsel did not

submit any financial statements or an affidavit by Plaintiff to substantiate the claim that Plaintiff

cannot pay Defendants' record costs. As a result, there was no absolutely no evidence from

which a trial court may reliably determine that Plaintiff cannot pay Defendants' record costs.

Instead, there was a mere assertion from Plaintiffs counsel that could not be investigated,

verified, or corroborated. Without any such evidence, the trial court properly exercised its

discretion in finding that Plaintiff did not meet his burden of demonstrating that imposition of

record costs on Plaintiff would work a "substantial injustice." As such, this claim of error is

without merit.



                                                  -6-
CONCLUSION

       Based on the foregoing, the Superior Court should affirm the trial court's denials of

Plaintiffs Motions to Strike Defendants' Bills of Costs.




                  S, JUDGE
Dated: September 25, 2017