Appeal from Order Entered September 6, 1984 Court of Common Pleas, Civil Division, Philadelphia County, No. 5204 June Term, 1983
James J. Martin, Philadelphia, for appellants.
Vincent V. Carissimi, Philadelphia, for appellees.
Cavanaugh, Olszewski and Tamilia, JJ.
[ 353 Pa. Super. Page 131]
The undisputed facts in the case before us are that Emil Harman died on June 22, 1982, leaving a last will and testament in which he named the appellants, Charles H. Dorsett and Charles H. Dorsett, Jr. who are attorneys, as executors of the estate. The deceased also named Frances Newman Hughes and her husband, Harry G. Hughes, as executors. The will was drawn by Charles H. Dorsett, the father of Charles H. Dorsett, Jr. Although both Mr. Dorsetts are lawyers licensed to practice law in Pennsylvania, they are not associated in the practice of law and maintain separate offices.
After Mr. Harman died, it was agreed between the parties that Harry G. Hughes would serve as sole executor and the other named executors would renounce and they did in fact renounce. It was also agreed by Mr. Hughes that Charles H. Dorsett, Sr. would serve as the attorney for the estate. At this point the clear waters of agreement become muddied by conflicting allegations. There is controversy as to the amount of compensation to be paid to Mr. Dorsett, notwithstanding that all of the parties on appeal agree that Charles H. Dorsett, Sr. was to be retained as attorney for the estate and that Harry G. Hughes would serve as sole executor.*fn1 Mr. Hughes claims that he retained Mr. Dorsett to represent him in his capacity as executor of the estate with no agreement as to fee. Mr. Dorsett claims that he was to receive a fee based on the gross value of the estate.
Both Mr. Dorsetts and Frances Newman Hughes filed renunciations of their right to serve as executor and letters testamentary were issued on June 17, 1982 to Harry H. Hughes by the Register of Wills. Shortly thereafter, Mr. Hughes decided to retain other counsel and on August 2,
[ 353 Pa. Super. Page 1321982]
, he wrote to Mr. Dorsett telling him that he had retained new counsel for the estate and requesting that all files be turned over to his new counsel.
After Mr. Dorsett was dismissed as counsel for the estate, he commenced an action in assumpsit in July, 1983, seeking damages in the amount of $18,175.43 representing 7% of the gross value of the estate which the appellants allege was $259,649.64.*fn2 In their complaint in assumpsit the appellants stated:
4. After the death of Emil Harman, Charles H. Dorsett, Harry H. Hughes, and Frances Newman Hughes met to plan the administration of the Estate.
5. The parties present agreed that Charles H. Dorsett, Jr., Charles H. Dorsett and Harry H. Hughes would resign as Co-Executors and that Frances Newman Hughes would be sole Executrix. The parties agreed further that Charles H. Dorsett would be retained as attorney for the Estate and that the combined attorney's fee and ...