Appeal from order of Orphans' Court of Delaware County, No. 111 of 1967, in re estate of Margaret Pozzuolo, deceased.
Joseph Patrick Gorham, for appellant.
Roy H. Davis, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Roberts.
Margaret Pozzuolo (decedent), a Delaware County resident, died intestate on February 15, 1961, as the result of an airplane crash in Brussels, Belgium. Decedent was survived by her husband, Joseph, a minor at the time, and her parents, Elliott and Margaret Lovering. Elliott Lovering and Elizabeth Nudo, Joseph Pozzuolo's grandmother, were appointed co-administrators of decedent's estate.
The co-administrators entered into a contingent fee agreement with Joseph Patrick Gorham, a member of the Philadelphia Bar (appellant). Under this contingent fee agreement, attorney Gorham was to institute a trespass action for damages arising from decedent's death against Sabena World Airlines, the owner of the ill-fated airplane; for his services attorney Gorham was to receive one-third (1/3) of the amount recovered in the action.
Attorney Gorham retained a New York law firm to institute a suit against Sabena in the United States District Court in New York City on behalf of decedent's personal representatives, such firm to receive twelve (12%) per cent contingent fee. This firm suggested that attorney Gorham also retain the services of Kriendler and Kriendler. Kriendler and Kriendler, a firm well known for its legal work in aviation crash suits, was then handling several other suits arising from the same Sabena plane crash and had gathered valuable information concerning the cause of the crash which would enhance the strength of the decedent's personal representatives' claim for damages. From the information garnered by Kriendler and Kriendler, it was indicated that the crash had resulted from a defect in the construction of the particular airplane, and, on the basis of this information, suit could be justified not only against Sabena but also against Boeing Airplane Company, manufacturer of the plane.
Kriendler and Kriendler agreed to supply its information and to aid in the litigation for a contingent fee of ten (10%) per cent. With the potential cost of the litigation rising, attorney Gorham approached decedent's personal representatives for the purpose of having his contingent fee agreement revised; the parties agreed that attorney Gorham would now be paid fifty (50%) per cent of whatever amount would be recovered by way of damages for decedent's death.
Suit was instituted against Sabena and Boeing in the United States District Court in New York City and was eventually settled for $45,000.00. After deducting twenty-two (22%) per cent in contingent fees for bringing the suit, the New York law firm sent attorney Gorham a check for $34,949.38.*fn1 Attorney Gorham deposited this check in his own attorney's account.*fn2
At this stage attempts were instituted to settle the estate. Attorney Gorham took the position that he and the estate were to split the net amount recovered, to wit, $34,949.38, each to receive $17,474.69. Elliott Lovering, one of the co-administrators, contended that the estate was entitled to fifty (50%) per cent of the gross amount recovered, or $22,500.00.
Some nine months after the $34,949.38 check was received by attorney Gorham, Roy Davis, Esquire, attorney for co-administrator Lovering, requested the Orphans' Court of Delaware County to issue a citation directing that Elizabeth Nudo, the co-administratrix, show cause why she should not ...