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WILLIAM UBER v. PHILADELPHIA TRANSPORTATION COMPANY. APPEAL PAUL PRUSS (10/05/84)

filed: October 5, 1984.

WILLIAM UBER, JR., LATE A MINOR AND HIS PARENTS AND NATURAL GUARDIANS, WILLIAM UBER, SR. AND GAIL UBER AND WILLIAM UBER, SR. AND GAIL UBER IN THEIR OWN RIGHT
v.
PHILADELPHIA TRANSPORTATION COMPANY. APPEAL OF PAUL PRUSS, JR., GUARDIAN



No. 3181 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 957 March Term 1968.

COUNSEL

Irwin Paul, Philadelphia, for appellant.

Daniel M. Rendine, Philadelphia, for participating party.

Wickersham, Wieand and Hoffman, JJ.

Author: Wickersham

[ 333 Pa. Super. Page 554]

OPINION

Paul Pruss, Jr., guardian of the estate of William Uber, Jr., appeals from the decision of the Court of Common Pleas of Philadelphia County denying his petition to modify a prior order of the court incorporating a settlement agreement entered into by the parties.

In March of 1968, the law firm of Bernstein & Gembala brought an action on behalf of William Uber, Jr., then a minor, and his parents in their own right, against the Philadelphia Transportation Company for injuries sustained by the minor in an automobile accident. In March of 1981, William Uber, Jr. was declared an incompetent and Paul Pruss, Jr. was appointed as his guardian. Following a lengthy series of negotiations, the parties entered into a settlement agreement in May of 1981. The settlement agreement and release resulted from conferences between Bernstein and Gembala, plaintiffs' attorneys, and the defendant corporation. Irwin Paul, Esquire, attorney for Paul Pruss, Jr., guardian, participated in the negotiations.

In May of 1981, a settlement hearing based on these prior negotiations was held. The parents of William Uber, Jr., his guardian, the guardian's attorney, the attorneys for the plaintiffs, and the attorney for the defendant attended. On May 14, 1981, the court entered an order approving the settlement agreement.

On August 25, 1982, the guardian, Paul Pruss, Jr., appellant herein, filed a petition to amend the order of May 14, 1981. Appellant based this request on the case of Johnson v. Sears, Roebuck, and Co., 291 Pa. Super. 625, 436 A.2d 675 (1981), a decision of this court filed on October 30, 1981, which set out a formula for computation of attorneys fees based on the facts of that case. Appellant argued that the Johnson case controlled the settlement agreement herein, and that therefore, the settlement agreement should

[ 333 Pa. Super. Page 555]

    be amended to conform with Johnson. The court granted a hearing but limited it to legal argument only. On October 14, 1982, the lower court filed an opinion denying appellant's petition to amend the court's order of May 14, 1981. This appeal followed.*fn1

Appellant states the sole issue in this appeal as follows: Where the Superior Court has fixed a formula for determining counsel fees in a case where the settlement is funded by a downpayment of cash plus the purchase of an annuity insurance policy, may the ...


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