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LODOWSKI v. O'MALLEY (06/14/73)

decided: June 14, 1973.

LODOWSKI, APPELLANT,
v.
O'MALLEY



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1971, No. 3161, in case of Robert N. Lodowski v. W. L. Roenick and Evelyn O'Malley.

COUNSEL

Louis Vaira, with him Edward O. Spotts, Charles S. Morrow, and Spotts, Gill and Morrow, for appellant.

Thomas W. Smith, with him Theodore O. Struk, and Dickie, McCamey & Chilcote, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J.

Author: Watkins

[ 227 Pa. Super. Page 569]

This is an appeal by Robert N. Lodowski, the plaintiff-appellant, from an order of the Court of Common Pleas of Allegheny County directing enforcement of a settlement of a trespass action.

The facts that bring this matter to our attention are as follows: On September 22, 1969, the plaintiff was involved in an automobile accident in which his vehicle was struck from behind by a school bus operated by the defendant, Evelyn O'Malley. The plaintiff thereafter received payment from the defendant insurance carrier under an advance payment program without prejudice to his right to file a suit.

Edward Spotts, Esquire, had been retained as counsel by the plaintiff and on June 7, 1971, a Power of Attorney was executed by the plaintiff in favor of Spotts. The Power of Attorney strictly provided that no settlement was to be made without the client's authorization. Suit was instituted and in the normal course of procedure a pretrial conference was scheduled before Judge Doyle of the Allegheny County Court.

A Mr. Gill, an attorney in the same firm with Mr. Spotts, represented the plaintiff at the said conference. During the proceedings a settlement sum of $1400 plus the amount already advanced was discussed. Defendant's attorney contacted Mr. Gill the next day stating to him that the proposed settlement provisions had been approved by the defendant, his client. Mr. Gill then notified Judge Doyle's secretary of the discussion with counsel for the defendant and indicated to her that the case could probably be settled for the $1400 figure.

At this time, Mr. Gill was unaware of a doctor's report that indicated that the plaintiff would have to

[ 227 Pa. Super. Page 570]

    have a spinal fusion. Mr. Gill was relying on another doctor's report which showed only a cervical sprain.

Upon obtaining this report, Mr. Gill immediately notified the defendant's attorney that the case could not be settled for $1400. The defendant's attorney took the position that the case had been settled and that the settlement was binding on the plaintiff. On October 12, 1972, a hearing was held on the matter of the enforceability of the settlement, before Judge John McLean. Judge ...


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