IN THE COURT OF COMMON PLEASOF PHILADELPHIA COUNTY

CIVIL TRIAL DIVISION

SHAMELL SAMUEL-BASSETT:JANUARY TERM, 2001on behalf of herself and all others:similarly situated::vs.::KIA MOTORS AMERICA, INC.:NO. 2199

OPINION

This case was tried to verdict in May, 2005. On October 24, 2007 and February 8, 2008 that verdict was affirmed by the Superior Court. On December 2, 2011, that affirmance was itself affirmed by the Supreme Court of Pennsylvania.[footnoteRef:1] That Supreme Court Order required a new order be entered by the trial court. [1: 34 A.3d 1 (Pa. 2011). ]

On March 6, plaintiff filed a Motion for Adjustment of Award of Attorneys Fees and Costs. By response filed on March 21, 2012, defendant claimed that an automatic supersedeas remained in effect even though the judgment had been affirmed by the Supreme Court of Pennsylvania. They claim that a judgment, ordered to be modified by the trial Court is stayed because KMAs counsel has advised plaintiffs counsel of KMAs intent to file with the United States Supreme Court a petition for writ of certiorari, which is due before April 23, 2012. [footnoteRef:2] There is no authority cited. Neither is there any authority for the proposition that any intent to file effects a supersedeas. The service of a writ of error, or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is an indispensible prerequisite to a supersedeas. Kitchen v. Randolph, 93 U.S. 86 (1876). It is well-established that a prerequisite to the issuance of a supersedeas is the existence of a valid appeal. Fiore v. Oakwood Plaza Shopping Center, Inc., 585 A.2d 1012 (Pa Super. 1991). [2: Defendants response to Motion for Adjustment of Award of Attorney Fees and Costs.]

There was no impediment to following the directions of the Supreme Court since this court concluded that plaintiff had properly calculated post judgment interest. The defendants answer to the motion provides no substance as to calculation beyond the bare allegation that plaintiff has not properly calculated.Plaintiff has not waived its right to prejudgment interest. This award is mandatory.[footnoteRef:3] [3: See Truserv Corp. v. Morgans Tool and Supple Co., Inc., 212 WL 716639 (Pa. February 21, 2012; Metropolitan Edison Co. v. Old Home Manor, Inc., 482 A.2d 1062 (Pa. Super. 1984); Kessler v. Old Guard Mutual Insurance Co., 570 A.2d at 569]

Finally, Defendant continues to argue that a claim proceedings has not occurred. This is quite simply the resurrection of arguments specifically rejected by the Supreme Court of Pennsylvania. While counsel may claim that the final decision of the Supreme Court of Pennsylvania is wrong, that contention itself is wrong as a matter of Pennsylvania Constitutional law. Therefore the Orders entered by the Court were permissible and proper when entered.BY THE COURT

________________________________________DATEMARK I. BERNSTEIN