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LINSENBERG v. FAIRMAN ET UX. (03/18/65)

decided: March 18, 1965.

LINSENBERG
v.
FAIRMAN ET UX., APPELLANTS



Appeal from judgment of Court of Common Pleas of Montgomery County, No. 62-4242, in case of Herbert M. Linsenberg v. Charles Fairman et ux.

COUNSEL

Edward I. Weisberg, with him Alan K. Silberstein and James Fox, for appellants.

Walter W. Rabin, with him Marlyn F. Smith, and Meltzer & Schiffrin, for appellee.

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

Author: Watkins

[ 205 Pa. Super. Page 137]

This is an appeal from the judgment of the Court of Common Pleas of Montgomery County, entered in favor of Herbert M. Linsenberg, plaintiff-appellee, and against Charles Fairman and Joyce Fairman, his wife, defendants-appellants, in the amount of $3144.61 for counsel fees; and from the dismissal of motions for judgment non obstante veredicto and for a new trial.

This appeal arises out of an action in assumpsit brought by the plaintiff, a member of the bar of Philadelphia, against the defendants, husband and wife, for services rendered to the wife in matters that grew out of marital difficulties between the parties, and none of the services were in connection with or involved in a divorce action.

The proceedings instituted against the husband on behalf of the wife were over a period of marital difficulties beginning September 20, 1960 and ending October 11, 1961, and were, an action under The Penal Code of 1939, June 24, P. L. 872, § 733, 18 PS § 4733; an action in Philadelphia County Court under the Act of 1907, May 23, P. L. 227, as amended, 48 PS § 131; defense of action by husband seeking injunctive relief against the Philadelphia proceeding; hearing on support action in Montgomery County; representation of wife in husband's unsuccessful appeal to the Superior Court from the support order of Montgomery County,

[ 205 Pa. Super. Page 138]

    as reported in Com. v. Fairman, 195 Pa. Superior Ct. 170, 169 A.2d 311 (1961); petition and hearing for increase of support; petition under the Act of 1907, supra, to attach husband's interest in the parties' real estate; suit in equity to establish wife's interest in certain securities; and negotiations for the sale of the parties' real estate.

The parties reconciled and returned to live together in the family home on November 1, 1961.

The plaintiff sought a total fee of $3000 based on these services which were itemized by case in his complaint but during the course of the trial he changed to time and costs and asked the jury to pay him on a thirty-dollar hourly basis. The jury found for the plaintiff in approximately the amount claimed in his complaint or $3144.61.

The general rule in Pennsylvania is that a court is powerless to grant counsel fees in the absence of statutory authorization or contractual obligation. 15 Standard Pa. Practice, Ch. 73, § 96 (1939); Com. ex rel. Kralik v. Kralik, 137 Pa. Superior Ct. 565, 568, 9 A.2d 921, 922 (1939). In Drummond v. Drummond, 414 Pa. 548, 200 A.2d 887 (1964), an action for nonsupport, the court below awarded support plus counsel fees. The Supreme Court vacated the award of counsel fees. Com. ex rel. Kralik v. Kralik, supra, cited with approval by the Supreme Court in the Drummond case, supra, held: "There is no authority, statutory or judicial, which requires, or even authorizes, the court to direct a defendant in a proceeding brought by the wife against her husband for support and maintenance, under the Act of April 13, 1867, P. L. 78, and its supplements, to pay for the services of her ...


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