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decided: August 4, 1986.


Appeals from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 623 July Term, 1979.


Herbert Braker, Philadelphia, for appellants (at 1882) & for appellees (1944).

Jeffrey R. Lerman, Philadelphia, for appellant (at 1944) and for appellee (at 1882).

Wickersham, Wieand and Popovich, JJ. Wieand, J., files a concurring opinion. Popovich, J., files a dissenting opinion.

Author: Wickersham

[ 357 Pa. Super. Page 58]

Before us are cross-appeals from the judgment of the Court of Common Pleas of Philadelphia County in this legal malpractice case. For convenience, we shall refer to Frank

[ 357 Pa. Super. Page 59]

    and Lena Rizzo as appellants and Barton Haines as appellee.

The genesis of this case began nearly two decades ago, when in September of 1968, Frank L. Rizzo,*fn1 a 24 year-old, off-duty Philadelphia police officer while driving in his private vehicle, was rear-ended by a City of Philadelphia police vehicle. Mr. Rizzo, who received neck, back, and arm injuries as a result of the collision, retained Anthony J. Caiazzo, Esquire, to represent him in a suit against the City for his personal injuries, and in related matters,*fn2 on a fifty percent contingent fee basis. Mr. Caiazzo filed a tort action against the City on July 2, 1969, and continued to file various pleadings until July of 1970, when Mr. Rizzo became represented, apparently with Caiazzo's consent, by B. Nathaniel Richter, Esquire, of the firm of Richter, Syken, Ross & Levant, on a forty percent contingent fee basis.*fn3

During 1971, the case of Rizzo v. City of Philadelphia was assigned to an associate in the Richter firm, Barton A. Haines, Esquire, appellee herein. Shortly before appellee took over the case, Mr. Rizzo underwent several operations which ultimately resulted in the partial paralysis of the right side of his body, rendering him totally disabled in October 1971 at the age of 27. The operations were necessitated by the neck and back injuries Mr. Rizzo had received in the 1968 auto accident.

In early 1973, the relationship between appellee and the Richter office soured and the association terminated. When appellee left the Richter firm, he took with him the Rizzo file, among others. The Rizzos, who by this time had become personal friends of appellee's, decided to remain

[ 357 Pa. Super. Page 60]

    with appellee, and Mr. Rizzo signed a one-third contingent fee agreement with appellee on February 13, 1973. From that point until the instigation of the instant suit in 1979, appellee continued to represent Mr. Rizzo in the City case, and both Rizzos*fn4 in a second action, begun in October of 1973, against the surgeon, H.T. Wycis, M.D. and the hospital (hereinafter "the Wycis case") for medical malpractice.*fn5

The City case went forward while appellee and defense counsel in the Wycis case agreed to hold the latter case in abeyance. The City case was tried before the Honorable Merna B. Marshall and a jury from April 21, 1975 thru May 1, 1975. On May 1, 1975, the jury returned a verdict in favor of Mr. Rizzo and against the City in the amount of $450,000. Appellee recommended that the Rizzos take the money rather than appeal and neither side filed post-trial motions. Thereafter, appellee entered a judgment on the verdict, but due to an ensuing fee dispute among appellee, Caiazzo, the Richter estate, and the Richter firm, approximately one-third of the verdict was placed in escrow and the balance of $291,262.35 was paid to the Rizzos.

The lawyers agreed to submit their fee dispute to Judge Marshall for binding decision, and following hearings in January and February of 1976, Judge Marshall entered an order for distribution of the fee on July 20, 1976. Because of her dissatisfaction with both the conduct of the lawyers, and the poor negotiating skills of appellee, she ordered a return from the escrow fund of $50,000 to Mr. Rizzo and divided up the remaining $108,163.16 among the four lawyer litigants. The fee decision was not appealed. Shortly

[ 357 Pa. Super. Page 61]

    thereafter, appellee, who had received approximately $35,000 as his share of the fee, procured from Mr. Rizzo, supposedly as a gift, the $50,000 awarded back to him after the fee dispute.

On January 23, 1978, the Wycis case was dismissed by the Honorable Harry A. Takiff on a summary judgment motion by defense counsel, on the basis that, inter alia, the satisfaction of judgment in the City case barred the Rizzos from further recovery. See Rizzo v. Rohrback, 8 D. & ...

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