began as an action seeking, on the basis of the (void) attorney consent clause, to prevent Mattioni's client and others from consummating a negotiated settlement; many of the original defendants have been dropped from this litigation, but the client-Ecological-remains as the principal defendant and, indeed, as the only target of Mattioni's motion for partial summary judgment.
In sum, after reconsidering my earlier decision, I reach the same conclusion: A Pennsylvania court faced with the specific facts of this case would find (a) that the attorney-consent clause contravened public policy, and (b) that plaintiff's reliance on that clause was a proper ground for refusing to enforce the remaining contingent fee provisions, thereby limiting plaintiff's recovery to quantum meruit.
Plaintiff has also moved, in the alternative, for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Here I think plaintiff is on sound ground.
Before certifying a question to the Court of Appeals, a trial judge must determine that (a) the certified order involves a controlling question of law; (b) there is substantial ground for difference of opinion with respect to that question; and (c) immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b) See generally Zenith Radio Corp. v. Matsushita Electric Indus. Co., 478 F. Supp. 889, 943-46 (E.D.Pa.1979). In addition, a district court must keep in mind the Third Circuit's admonition that section 1292(b) "is to be used only in exceptional cases where an intermediate appeal may avoid protracted and expensive litigation." Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958). See also Mazzella v. Stineman, 472 F. Supp. 432, 436 (E.D.Pa.1979).
With respect to the first consideration, it is apparent that the question whether plaintiff's recovery should be framed by the contingent fee agreement or cast in quantum meruit is a controlling question of law. Since my conclusion on the severability question "if erroneous, would be reversible error on final appeal," Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S. Ct. 152, 42 L. Ed. 2d 125 (1974), the first condition for certification pursuant to section 1292(b) has been met.
Second, while I remain convinced that my conclusion concerning the application of the Richette decision to this case is correct, I also recognize that the case could be interpreted differently and that there is authority in other jurisdictions which supports an alternative remedy that would involve severance of void clauses and enforcement of the remainder of the contract. Therefore, a sufficiently substantial ground for difference of opinion exists to warrant certification of this question.
Third, an interlocutory appeal at this point in the litigation appears to be an appropriate device to advance materially the ultimate resolution of the case. Pursuant to my September 9 Order, a substantial amount of trial time would be devoted to determining the reasonable value of the legal services rendered by plaintiff under a quantum meruit theory. By contrast, if that order were found to be erroneous and recovery grounded instead on the contingent fee contract, the factual inquiry at trial would be confined to the relatively simpler calculation of damages based directly on the contract. Thus, the overall duration of this case could be reduced significantly if the question of the appropriate remedy were resolved now, rather than waiting for an appeal from a final judgment and a possible reversal which would require a new trial on a different set of factual issues. There are, of course, other triable issues in this case-in particular, those concerning plaintiff's conspiracy allegations-but, as the extensive briefing on the cross motions for summary judgment suggests, the question of the appropriate remedy is at the heart of this case.
Finally, I must address the additional consideration imposed by the Third Circuit that certification be used sparingly and reserved therefore for exceptional cases. Milbert v. Bison Laboratories, supra, 260 F.2d at 433. Compared to large antitrust cases, which require an unusual amount of stamina and time on the part of both courts and attorneys, see, e.g., Zenith Radio Corp. v. Matsushita Electric Indus. Co., 494 F. Supp. 1190, 1244 (E.D.Pa.1980), this is not an obviously "exceptional" case. However, the sizable damages that are at stake and the considerable effort that has already been devoted to this case convinces me that this is not merely ordinary litigation. In my judgment, the question presented by the order which is sought to be certified is vitally important to the expeditious resolution of this case and the authority is sufficiently divided that certification is appropriate.
For the foregoing reasons, I will certify, in the accompanying Order, the following controlling question of law: When an attorney seeks to enforce against his client a contingent fee agreement containing a void attorney-consent clause, is the proper remedy under Pennsylvania law (a) severance of the void clause and enforcement of the remaining contract, or (b) recovery based on quantum meruit ? See Third Circuit Rule 23.