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ANTHONY J. MIERNICKI v. FRANK SELTZER AND ATKIN SELTZER T/D/B/A SELTZER COAL COMPANY AND AMERICAN BANK & TRUST CO. PA. AND BENJAMIN STONE (03/25/83)

filed: March 25, 1983.

ANTHONY J. MIERNICKI, ESQUIRE AND WILBUR H. RUBRIGHT, ESQUIRE
v.
FRANK SELTZER AND ATKIN SELTZER T/D/B/A SELTZER COAL COMPANY AND AMERICAN BANK & TRUST CO. OF PA. AND BENJAMIN STONE, VICE-PRESIDENT OF AMERICAN BANK & TRUST CO. OF PA. APPEAL OF ANTHONY J. MIERNICKI, ESQUIRE



No. 741 Philadelphia, 1981, Appeal from Decree of the Court of Common Pleas, Civil Division, of Schuylkill County, No. S-695 May Term, 1978

COUNSEL

Jack E. Feinberg, Philadelphia, for appellant.

Joseph P. Semasek, McAdoo, for Frank Seltzer, appellee.

John T. Pfeiffer, III, Pottsville, for Atkin Seltzer et al., appellees.

Wieand, Beck and Hoffman, JJ.

Author: Wieand

[ 312 Pa. Super. Page 169]

In this appeal from a final decree in equity, we are required to review the trial court's resolution of a complicated fee dispute arising subsequent to eminent domain proceedings resulting in the recovery of damages for land taken for highway purposes in Schuylkill County.

Frank Seltzer and Atkin Seltzer are brothers who owned coal land in Schuylkill County. The land was condemned by the Commonwealth of Pennsylvania on December 1, 1965 for construction of a limited access highway known as Interstate Route 81. After litigation spanning a period of approximately twelve years, the owners were able to effect a combined recovery of $1,208,372.15. Anthony J. Miernicki, Esquire, commenced an action in equity by which he sought to impose an attorney's lien against these moneys in the hands of American Bank and Trust Company. Atkin Seltzer filed an answer to Miernicki's complaint in equity by which he denied any liability to Miernicki for counsel fees. Frank Seltzer filed no answer to the complaint, and a default judgment was entered against him on May 18, 1978, with damages being assessed by the prothonotary at $131,625.89. On January 22, 1979, Frank Seltzer filed a petition to strike and/or open the default judgment. This petition was ultimately denied, but the court did strike the prothonotary's assessment of damages. Wilbur Rubright, Esquire, who had provided extensive legal services to Frank Seltzer throughout the eminent domain proceedings was added as a claimant.*fn1 After a full hearing, the court held that Frank Seltzer was liable to Miernicki for $32,500.00 and to Rubright for $80,000.00, which sums were to be paid from moneys being held by the bank. Atkin Seltzer, the court held, had no liability to pay counsel fees to Miernicki or

[ 312 Pa. Super. Page 170]

Rubright. Exceptions were dismissed, a final decree entered, and Miernicki appealed.*fn2

In general, the procedure in equity actions is in accordance with the rules pertaining to the action of assumpsit. See: Pa.R.C.P. 1501. However, a default judgment is controlled specifically by Pa.R.C.P. 1511. This rule, as it existed on May 18, 1978, when appellant took a default judgment, provided as follows:

"(a) The prothonotary, on praecipe of the plaintiff, shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint (endorsed with notice to plead). In all other cases of default or of admission the judgment shall be entered by the court.*fn3

(b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its ...


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