Corabi v. Curtis Pub. Co.

• Decision Date: 20 January 1970
• Docket Number: 499,529 and B,Nos. 499,Nos. 487,A,529,No. 487,487,s. 499,s. 487
• Citation: 437 Pa. 143,262 A.2d 665
• Parties: Lillian Reis CORABI a/k/a Lillian Reis, Appellee atppellant atarbara Corabi and Michael Corabi, by Lillian Reis Corabi, their parent and guardian, Appellees at, v. CURTIS PUBLISHING COMPANY, Appellant at, Appellee at
• Court: Pennsylvania Supreme Court

Page 665

262 A.2d 665

437 Pa. 143

Lillian Reis CORABI a/k/a Lillian Reis, Appellee at No. 487 Appellant at Nos. 499, 529 and Barbara Corabi and Michael Corabi, by Lillian Reis Corabi their parent and guardian, Appellees at No. 487, v. CURTIS PUBLISHING COMPANY, Appellant at No. 487, Appellee at Nos. 499, 529.

Nos. 487, 499, 529.

Supreme Court of Pennsylvania.

Jan. 20, 1970.

Rehearing Denied March 20, 1970.

Harold E. Kohn, Helen H. Stern, Philadelphia, for Curtis Publishing company.

Thom P. Monteverde, Jerome J. Shestack, Robert F. Simone, Philadelphia, for Lillian Reis Corabi.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN, Justice.

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 Lillian 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 damaes 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 wise to resolve preliminarily two questions raised by the defendant before proceeding to a consideration of the merits. Hence, oral argument at that time was 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 were entered by the Prothonotary at the direction of plaintiffs' counsel through praecipe. The court did not enter the judgments or direct such entry. Citing Lamberton National Bank of Franklin v. Shakespeare, 321 Pa. 449, 184 A. 669 (1936), the defendant submits that following 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 power 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 of Franklin v. Shakespeare, supra, a verdict for the plaintiff was returned by the jury and the defendants moved for judgment n.o.v. The court denied the motion, but failed to enter a judgment 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, 321 Pa. at 451, 184 A. at 670: '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.Super. 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 of Franklin 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 Valley 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 was 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. Philadelphia Rapid Transit 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...