Appeal, No. 194, Jan. T., 1959, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1957, No. 7883, in case of Kathie V. Syme et al. v. Bankers National Life Insurance Company. Order affirmed.
Samuel P. Lavine, with him Sigmund H. Steinberg, and Blanc, Steinberg, Balder & Steinbrook, for appellant.
Owen B. Rhoads, with him William H. Lowery, and Barnes, Dechert, Price, Myers & Rhoads, for appellee.
Before Jones, C. J., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiffs sued defendant on a life insurance policy on the life of M. Herbert Syme who died on August 17, 1956. This Court directed that judgment be entered for the plaintiffs "for such sum as to right and justice may belong, unless other legal or equitable case be shown to the court below why such judgment should not be so entered." Syme v. Bankers National Life Insurance Company, 393 Pa. 600, 144 A.2d 845. The Court below thus states the facts:
"Pursuant to this decision, no legal or equitable cause being shown why judgment should not be entered, this Court ordered judgment in favor of plaintiffs and against defendant in the sum of $13,250 as the amount presently due upon the contract of insurance, and adjudged that the contract of insurance remain a binding and valid contract unchanged by either the judgment or satisfaction thereof."
Appellants are attorneys for plaintiffs. They filed a petition to establish an attorney's charging lien upon the proceeds of the life insurance policy which was payable to plaintiffs, as above set forth. Appellants recited in their petition that as a result of their efforts plaintiffs will receive the sum of $76,750 from defendant. Plaintiffs orally agreed to pay appellants a contingent fee of 25% "payable out of the insurance policy proceeds," together with the sum of $450 advanced by appellants for costs and expenses. Each plaintiff receives $125 per month under the policy and pays 25% thereof, or $31.25, to appellants. The final payment of appellants' fee is payable from the lump sum payment of $25,000 due to plaintiffs under the policy in 1965.
Defendant filed an answer to the petition. Plaintiffs filed a consent to appellants' petition, agreeing therein that the defendant insurance company pay to appellants out of the sums due to plaintiffs certain specified amounts from time to time and agreed further to execute assignments to appellants of these aforesaid amounts as they became due and payable. The appellants did not make any claim under the proposed or actual assignment for the obvious reason, as we shall see, that an assignment could not be sustained either under the insurance contract or under the law. The appellants have been paid by their client the agreed upon contingent fee as and whenever payments were received from the defendant by the plaintiffs. There is no fund in existence, or payable at the present time by defendants to plaintiffs, in which the appellants have any interest. The lower Court dismissed the petition.
The law of Pennsylvania, contrary to that in a number of other jurisdictions, is that an attorney has no lien upon a judgment recovered by him for a client in a common law action: Ruzyc v. Brown, 327 Pa. 61, 192 A. 876, Zinsser v. Zinsser, 83 Pa. Superior Ct. 461. In Ruzyc v. Brown, the Court said: "The argument that plaintiffs' attorneys have an interest in the judgment to the extent of their fee is without merit. Whatever be the law in other jurisdictions, it is well settled in our own state that an attorney has no lien upon a judgment recovered by him for a client in a commonlaw action: Zinsser v. Zinsser, 83 Pa. Superior Ct. 461. Indeed the statute attempting to establish such a lien was declared unconstitutional: Laplacca v. Philadelphia Rapid Transit Co., 265 Pa. 304...."
In Zinsser v. Zinsser, supra, the attorney of record for the plaintiff made a claim against the judgment he obtained for the ...