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OSTROFF v. YASLYK (ET AL. (09/29/65)

decided: September 29, 1965.

OSTROFF
v.
YASLYK (ET AL., APPELLANT)



Appeal from order of Superior Court, Oct. T., 1964, No. 268, reversing order of County Court of Philadelphia, June T., 1963, No. 10022B, in case of Isidor Ostroff, James Francis Lawler and Marvin S. Baker, trading as Ostroff, Lawler and Baker, v. Ilko Semenovich Yaslyk, Philadelphia Saving Fund Society, Anastasia Murianka, administratrix of estate of Dymytry Yaslyk, et al.

COUNSEL

Francis J. Gafford, Deputy Attorney General, with him Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

James Francis Lawler, with him Ostroff & Lawler, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 419 Pa. Page 184]

This case presents the question of whether a fund awarded by an orphans' court to the Commonwealth as custodian to be held for an Iron Curtain distributee is subject to foreign attachment in the County Court of Philadelphia by persons seeking to recover legal fees for their services as counsel for the distributee.

Dymytry Yaslyk died December 20, 1956, intestate, a resident of Philadelphia County. The Orphans' Court of Philadelphia found that he was survived by a brother, Ilko, who resides in Russia, and that he had another brother, Michael, whose whereabouts was unknown at the time of the audit.

Appellees are attorneys-at-law and acted on Ilko's behalf to secure his share of his brother's estate. This they did by designation of a New York law firm which, in turn, acted under a power of attorney purportedly

[ 419 Pa. Page 185]

    executed by Ilko in Russia. The power authorized the New York firm, or its designated counsel, to represent Ilko's interest in the decedent's estate for a contingent fee of "25% of the amount actually recovered from the estate."

The orphans' court awarded the entire distributable estate, without escheat, to the Commonwealth of Pennsylvania as custodian. One half of the estate ($9,985.97) was directed to be held for the benefit of Ilko under the provisions of the Pennsylvania "Iron Curtain Act"*fn1 and the other half was directed to be held for the benefit of Michael under ยง 1314 of The Fiscal Code.*fn2

In its adjudication, the orphans' court stated that "the Auditing Judge does not make any finding concerning the representation of . . . [appellees] for Ilko Yaslyk since it is unnecessary to do so in view of the awards that will be made hereinafter." No exceptions were filed to that adjudication nor was an appeal taken. However, shortly after the orphans' court adjudication, appellees instituted an action by foreign attachment against Ilko in the County Court of Philadelphia for their claimed fee of 25% ($2,500) of the award for Ilko's benefit. The administratrix of the decedent's estate and the bank where the funds were deposited*fn3 were named as garnishees.

The Commonwealth of Pennsylvania was granted leave to intervene in the attachment proceedings and filed preliminary ...


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