Appeal from orders of Court of Common Pleas of Allegheny County, Oct. T., 1969, No. 731, in case of Kenneth W. Behrend v. Yellow Cab Company.
Mark B. Aronson, for appellant.
Richard S. Dorfzaun, with him Dickie, McCamey & Chilcote, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this dissent.
By a power of attorney dated October 17, 1968, one Walton C. Warman retained Mark B. Aronson, Esquire, and Kenneth W. Behrend, Esquire, the appellant, both lawyers, to prosecute a claim in trespass for
damages against the Yellow Cab Company, the appellee, in consideration of Warman's agreement to pay to Aronson and Behrend forty per cent of any sum realized by settlement, suit or otherwise. Thereafter, Warman allegedly released Yellow Cab from all liability in return for $1,000 and Yellow Cab's promise to pay on Warman's behalf all medical and related expenses and "reasonable attorney's fees." Following Warman's settlement with Yellow Cab, Behrend, as plaintiff, brought this suit in trespass, alleging that Yellow Cab had tortiously induced Warman to breach his contract with Behrend; Behrend was represented in this action by his partner, Aronson. The appellee filed preliminary objections to Behrend's initial complaint, the complaint was amended, and appellee filed preliminary objections in the nature of a demurrer, contending that the complaint failed to state a claim upon which relief could be granted.
After argument before the court en banc, the amended complaint was dismissed without leave to amend by order dated December 2, 1969, one judge dissenting. The court en banc determined that there was no basis to appellant's action, because the appellant had specifically averred in his complaint that the defendant had promised to pay Warman's reasonable counsel fees as part of its settlement. Thus, in the court's view, the appellee had recognized the validity of the appellant's contract with Warman to furnish legal services. Rather than inducing a breach of contract or representing to Warman that the power of attorney was invalid or that he had no obligation to Behrend, appellee, by appellant's allegations, had recognized and assumed the obligation created by Warman's contract.
Following the action of the court en banc, appellant petitioned another judge of the Common Pleas Court of Allegheny County for leave to file a second proposed
amended complaint, copy of which was attached to the petition as an exhibit. The judge, by order entered December 19, 1969, denied plaintiff's petition, reasoning that the matter had already been determined by the court en banc in its final order of December 2, 1969.
The appeal before us purports to be not only from the order of the court below dated December 2 but also from its order dated December 19, 1969. The only appeal properly before us, however, is that from the order of December 2 which sustained defendant's demurrer and dismissed plaintiff's complaint, as amended.*fn1 Appellant does not contend that the court acted incorrectly in sustaining defendant's demurrer, and in our view such a contention could not succeed. The power of attorney running from Warman as client to Messrs. Behrend and Aronson as attorneys did not deprive Warman of the power to settle any claims he had against Yellow Cab. See Wahl v. Strous, 344 Pa. 402, 25 A.2d 820 (1942); Restatement 2d, Agency, § 449 (1958).*fn2 It provided only that Messrs. Behrend and Aronson should be entitled to "forty per cent (40%) of any sum realized by settlement, suit ...