Appeal from judgment of Court of Common Pleas of Schuylkill County, Nov. T., 1959, No. 324, in case of Ed. J. Belfonte v. Myrna L. Miller.
John E. Lavelle, for appellant.
Louis Cohen, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J. Montgomery, J., would affirm on the opinion of the court below. Dissenting Opinion by Hannum, J. Wright, P. J., joins in this dissenting opinion.
[ 212 Pa. Super. Page 509]
This is an appeal from an order of the Court of Common Pleas of Schuykill County granting plaintiff's motion for judgment on the pleadings. The cause of action is in assumpsit for proceeds due under the terms
[ 212 Pa. Super. Page 510]
of a written contract*fn1 between plaintiff-appellee, a realtor, and defendant-appellant. The sole defense is that the contract is contrary to public policy and unenforceable.
Appellant hired appellee to make an appraisal of her real estate for the purpose of obtaining damages in previously instituted eminent domain proceedings, appellee also agreeing to testify should it prove necessary. The payment stipulated in the agreement was a designated percentage of any amount appellant received from the eminent domain proceedings plus $50*fn2
[ 212 Pa. Super. Page 511]
for each day or part thereof spent by appellee offering testimony before either a Board of View or a court. Appellant ultimately received $15,000 from the Commonwealth of which appellee claims 10% plus $50 for one day's testimony.
Seeking now to avoid payment, appellant alleges that the contract is contrary to public policy as champertous or otherwise harmful to the administration of justice.
Black's Law Dictionary (4th ed.) defines champerty as a "bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered." See also Jamison Coal & Coke Co. v. Goltra, 143 F. 2d 889 (8th Cir., 1944). "While there has been some relaxation in the application of the common law doctrines of champerty and maintenance in this, as well as in other jurisdictions, champerty, repugnant to public policy, is still ground for denying the aid of the court [citations omitted]. . . . 'A bargain to endeavor to enforce a claim in consideration of a promise of a share of the proceeds, or of any other fee contingent on success, is illegal, if it is also part of the bargain that the party seeking to enforce the claim shall pay the expenses incident thereto' (Restatement, Contracts, section 542) unless such party (section 543) already has or reasonably believes he has an interest recognized by law in the claim." Ames v. Hillside Coal and Iron Co., 314 Pa. 267, 272, 171 A. 610 (1934). There are three ...