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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 (08/08/84)

decided: August 8, 1984.

ANTHONY J. MIERNICKI, ESQ., AND WILBUR H. RUBRIGHT, ESQ.,
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., APPELLEES. APPEAL OF ANTHONY J. MIERNICKI, ESQ.



Appeal No. 74 E.D. Appeal Dkt. 1983; from the Order of the Superior Court of Pennsylvania No. 741, Philadelphia 1981, Affirming in part and Reversing in part and Remanding the Final Decree of the Court of Common Pleas of Schuylkill County at May Term, 1978, No. S-695. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, J., did not participate in the consideration or decision of this matter. Larsen, J., files a dissenting opinion in which Papadakos, J., joins. Papadakos, J., joins in the opinion of Larsen, J., and files a separate dissenting opinion.

Author: Per Curiam

[ 505 Pa. Page 323]

ORDER

The Order of the Superior Court is affirmed.

[ 505 Pa. Page 324]

LARSEN, Justice, dissenting.

I dissent to the affirmance of the Superior Court's decision.

The defendant/appellee, Frank Seltzer, did not file an answer to the complaint of plaintiff/appellant, Anthony Miernicki, seeking counsel fees allegedly owed him for services rendered. Because he did not file an answer, a default judgment was entered against appellee. The Superior Court correctly reasoned that:

For purposes of determining the amount of appellant's counsel fees, the court was required to treat as admitted all averments of fact contained in the complaint. (Citations omitted.) Thus, it was a fact, admitted by Frank Seltzer, that appellant had been "retained upon a contingency basis of ten percent (10%) of the total recovery."

312 Pa. Super. 166, 170-171, 458 A.2d 566 at 568-69. (Emphasis added).

Nevertheless, the Superior Court held that appellant was entitled to only 10% of Frank Seltzer's portion of the total recovery. The total recovery was on behalf of both Frank Seltzer and his brother, Atkin Seltzer. The Superior Court's reasoning was that, since Frank Seltzer had no actual or apparent authority to bind Atkin to pay any portion of his (Atkin's) recovery to appellant for appellant's services, the ten percent agreed to "can reasonably refer only to the amount recovered by Frank Seltzer." 312 Pa. Superior Ct. at 175, 458 A.2d at 571.

In so reasoning, the Superior Court ignored the legal effect of Frank Seltzer's "admission" that he had agreed to pay appellant ten percent of the total recovery. While

[ 505 Pa. Page 325]

Frank Seltzer was not able to legally obligate Atkin Seltzer to pay any percentage of his portion of the recovery to appellant, Frank Seltzer was certainly able to bind himself to pay appellant a ...


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