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OSTROFF ET AL. v. YASLYK (09/17/64)

decided: September 17, 1964.

OSTROFF ET AL., APPELLANTS,
v.
YASLYK



Appeal from judgment of County Court of Philadelphia, June T., 1963, No. 10022 B, in case of Isidor Ostroff et al. v. Ilko Semenovich Yaslyk et al.

COUNSEL

James Francis Lawler, for appellants.

Francis J. Gafford, Deputy Attorney General, with him Herbert W. Salus, Jr. and Melvin E. Soll, Special Assistant Attorneys General, and Walter E. Alessandroni, Attorney General, for Commonwealth, intervenor-appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J. Dissenting Opinion by Wright, J.

Author: Ervin

[ 204 Pa. Super. Page 68]

The appellants, who are attorneys, instituted a suit for their attorneys' fees against their client, Ilko Yaslyk, by filing a writ of foreign attachment against the funds in the hands of the administratrix of the estate of Dymytry Yaslyk on deposit in the Philadelphia Saving Fund Society. The Commonwealth of Pennsylvania intervened and filed preliminary objections, which were sustained by the court below and the attorneys have taken this appeal.

The appellants represented their client in his claim as an heir of the estate of Dymytry Yaslyk, a brother, who had died intestate and whose estate was in the Orphans' Court of Philadelphia County for settlement. The complaint of the attorneys set forth that they are residents of the Commonwealth of Pennsylvania and citizens of the United States of America, and that they had rendered legal services to Ilko Yaslyk, a resident and citizen of the U.S.S.R., by establishing his right as an heir in his brother's estate over the objections of the Commonwealth of Pennsylvania and some first cousins who were American citizens. The complaint had attached to it a power of attorney which authorized the attorneys to appear for and represent their client against the estate of his deceased brother and provided for an attorneys' fee of 25 per cent of the amount actually recovered from the estate.

On July 8, 1963 Judge Bolger of the Orphans' Court of Philadelphia awarded "to the Commonwealth of Pennsylvania, one-half thereof for the benefit of Ilko Yaslyk in accordance with the Act of July 28, 1953, to be held until such time as Ilko Yaslyk can prove that he will have the use, benefit, control and enjoyment thereof. . . ."

The fund at the time of the service of the writ of foreign attachment was in the possession of Anastasia Murianka, the administratrix, and she had it on deposit

[ 204 Pa. Super. Page 69]

    with the Philadelphia Saving Fund Society. Anastasia Murianka resides in Philadelphia County and was served with the writ of foreign attachment in that county. The Philadelphia Saving Fund Society maintained the aforesaid account in Philadelphia County and was served with the writ of foreign attachment in that county. The appellants had presented a claim for attorneys' fees to the Orphans' Court and the Orphans' Court, in its adjudication, said: "The Auditing Judge does not make any finding concerning the representation by Ostroff & Lawler, Esqs., for Ilko Yaslyk since it is unnecessary to do so in view of the awards that will be made hereinafter." The County Court sustained the preliminary objections because (1) it believed that the action of the Philadelphia Orphans' Court made the matter res judicata, and (2) it believed that the fund was in custodia legis and therefore immune from attachment.

The adjudication of the Orphans' Court in the estate of Dymytry Yaslyk did not make this present claim in the County Court res judicata. "Ordinarily the orphans' court has no jurisdiction to determine fees between a distributee and his attorney. Such a situation arises between living parties which can only be settled in an action at law where either party has a constitutional right to trial by jury: . . . ." Purman Estate, 358 Pa. 187, 191, 56 A.2d 86; Way Estate, 379 Pa. 421, 435, 109 A.2d 164; Hunter O.C. Com. Bk., 2d ed., Vol. 1, page 146, ยง 4(a).

President Judge Taxis, in a well-considered opinion in Zubko Estate, 12 Pa. D. & C. 2d 557, 562, in a claim very similar to the present one, stated: "I conclude, however, that the orphans' court has no jurisdiction to ...


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