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FRED LOWENSCHUSS ASSOCIATES v. MILDRED WISE DEPALLO (01/11/80)

filed: January 11, 1980.

FRED LOWENSCHUSS ASSOCIATES, APPELLANTS,
v.
MILDRED WISE DEPALLO, PETER ANTHONY DEPALLO, ARLENE FRANCES DEPALLO, MILDRED ANN DEPALLO, DIANE DEPALLO, AND CAROL JOY DEPALLO



No. 2844 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Trial Division, Law, Civil Action, entered November 13, 1978 at No. 76-06786 - Montgomery

COUNSEL

Fred Lowenschuss, Philadelphia, for appellants.

Richard D. Winters, Norristown, for appellees.

Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., files a concurring opinion.

Author: Stranahan

[ 274 Pa. Super. Page 292]

This case raises three procedural issues which arise from a rather complicated factual and procedural background. These background facts must be set forth in some detail in order to fully understand the questions presented.

In 1974 Mildred Wise DePallo retained the services of the plaintiffs' law firm on a contingent fee arrangement to represent her in filing an election against the will of her husband, Anthony J. DePallo. Plaintiffs also agreed to attempt to obtain support for Mrs. DePallo from her five grown children,*fn1 Peter, Arlene, Mildred Ann, Diane and Carol Joy DePallo, who were the primary beneficiaries under the terms of the will.

After plaintiffs had invested considerable effort in prosecuting her claim, Mrs. DePallo, apparently at the urging of her children, withdrew her election against the Estate of Anthony J. DePallo leaving the plaintiffs with no money to show for their efforts. This course of action prompted the present lawsuit.

In May, 1976, plaintiffs filed their original complaint in this action. It consisted of two counts, a count in assumpsit and a count in trespass. The first count in assumpsit named Mildred Wise DePallo and all of her five children as defendants. This count as against Mrs. DePallo was based on the breach of the contingent fee agreement. As to the children, the first count in assumpsit was premised on their obligation to pay for necessary services rendered on behalf of their

[ 274 Pa. Super. Page 293]

    indigent mother by the plaintiff law firm in pursuing her claim against the estate.

The second count in trespass, which named only the five children as defendants, claimed they tortiously interfered with the attorney-client relationship which existed between plaintiffs and Mrs. DePallo.

Preliminary objections to this complaint were filed on behalf of Mildred Wise DePallo and also Arlene, Peter, Mildred Ann, Diane and Carol DePallo in August, 1976. After argument before the Court of Common Pleas of Montgomery ...


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