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MARLENE C. JOHNSON v. SCOTT E. STEIN AND WHITEHALL EMERGENCY SQUAD (04/13/78)

decided: April 13, 1978.

MARLENE C. JOHNSON, ADMRX. OF THE ESTATE OF CARL K. JOHNSON, DEC'D, AND WILLIAM P. JOHNSON, A MINOR, BY MARLENE C. JOHNSON, HIS PARENT AND NATURAL GUARDIAN AND CRAIG TRUSKEY, A MINOR, BY DANIEL TRUSKEY
v.
SCOTT E. STEIN AND WHITEHALL EMERGENCY SQUAD, INC. APPEAL OF MARTIN H. PHILIP



COUNSEL

Albert J. Feldman, Philadelphia, with him F. Paul Laubner, Allentown, for appellant.

Jackson M. Sigmon, Bethlehem, with him William G. Ross, Bethlehem, for appellee, Marlene C. Johnson.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Spaeth

[ 254 Pa. Super. Page 42]

This is a fee dispute between two attorneys. Initially, appellant was the plaintiffs' attorney in a tort case, on a contingent fee. In the court below, he sought an equitable charging lien on the fund recovered by the plaintiffs, asking that that percentage of the fund which represented the contingent fee be apportioned between himself and appellee, whom the plaintiffs had subsequently retained, and who in mid-trial had negotiated a settlement.

When the plaintiffs retained appellant, appellee was an associate attorney in appellant's office, and was assigned by

[ 254 Pa. Super. Page 43]

    appellant to work on the case. (The trial judge made no finding about how much work appellee did.) In January of 1975, appellant gave appellee notice that his employment with appellant's office would be terminated as of February 28, 1975. By letters dated February 24, 1975, appellee notified the plaintiffs that he was leaving appellant's office, adding: "Since your present fee agreement is with Martin H. Philip [appellant], your case will remain in his office, and my connection with it will terminate as of February 28, 1975, unless you direct otherwise." He then stated his office and home telephone numbers, should the plaintiffs wish more information. By two separate but identical letters dated March 1, 1975, the plaintiffs discharged appellant and requested a statement of expenses incurred on their behalf. Thereafter they were represented by appellee, who went to trial with the case and negotiated the settlement. When appellant filed a "Notice of Attorney's Lien" in the Office of the Prothonotary, the defendants received permission to pay the proceeds of the settlement ($62,336.33) into court. On January 27, 1976, the court entered an order striking the "Notice of Attorney's Lien." This appeal is from that order.

Pending disposition of his appeal, appellant petitioned the lower court for an order of supersedeas staying distribution of the fund. The court refused the petition, and on February 4, 1976, ordered distribution of the fund. Thereupon the fund was disbursed to appellee, who distributed it to the plaintiffs after first paying to himself the percentage of the fund representing the contingent fee, and reimbursing appellant for advanced costs.

1

In Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 168 A.2d 134 (1961), the Supreme Court set out the requirements for an attorney's equitable charging lien:

A review of these authorities illustrates that before a charging lien will be ...


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