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JAMES ROMANO v. SIMON M. LUBIN (08/28/87)

filed: August 28, 1987.

JAMES ROMANO, JR., A MINOR, BY HIS P/N/G LISA AND JAMES ROMANO, AND LISA AND JAMES ROMANO IN THEIR OWN RIGHT
v.
SIMON M. LUBIN, D.O., AND SAUL JECK, D.O., AND PETER A. MOLLE, D.O., AND LESTER A. RUPPERSBERGER, D.O., AND DELAWARE VALLEY MEDICAL CENTER. APPEAL OF BEASLEY, HEWSON, CASEY, COLLERAN, ERBSTEIN AND THISTLE



Appeal from the order Entered December 9, 1986 in the Court of Common Pleas of Bucks County, Civil No. 82-9293-12-2.

COUNSEL

James E. Beasley, Philadelphia, for appellant.

Donald L. Toner, Doylestown, for Romano, appellees.

Cirillo, President Judge, and Tamilia and Hoffman, JJ.

Author: Cirillo

[ 365 Pa. Super. Page 628]

This case concerns whether the trial court abused its discretion in reducing an attorney's fee from $363,034.52 or 21% of a $1.75 million settlement in a medical malpractice case to $227,500.00 or 13% of the settlement, pursuant to Pa.R.C.P. 2039, which requires court approval of any settlement of a claim brought by a minor. The case is before this court on appeal from the order of the Court of Common Pleas of Bucks County.

Appellant, Beasley, Hewson, Casey, Colleran, Erbstein and Thistle represented a minor and his mother in a medical malpractice action seeking to recover for permanent brain damage they each suffered when an anesthetic was improperly administered to the mother during the birth of the child. The firm accepted both cases pursuant to contingent fee agreements, whereby the attorneys would receive a specified percentage of any settlement or verdict. A settlement of $1.75 million dollars was agreed to before trial on the minor's claim. After a review of the law firm's records,

[ 365 Pa. Super. Page 629]

    the trial court awarded approximately $227,000.00 in counsel fees, though the settlement agreement called for the firm to receive approximately $363,000.00.

The court stated that its decision was based upon the considerations enunciated in LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968), which include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money involved; the skill and standing of the attorney; and the client's ability to pay. Id., 431 Pa. at 546, 246 A.2d at 339. The trial court calculated that counsel spent 182 hours working on the minor's claim. The firm's requested fee would thus have been $1,994 per hour. The fee awarded by the court resulted in an hourly rate of $1,250. The court was guided by the fee schedule in ยง 602 of the Health Care Services Malpractice Act of 1975, Act 15, P.L. 390, No. 111, declared unconstitutional on other grounds in Heller v. Frankston, 504 Pa. 528, 533, 475 A.2d 1291, 1294 (1984). In its opinion, the trial court stated that it weighed the interests of the brain damaged child against the interests of his law firm. The court stated that it was required to "scrupulously [protect]" the rights of the child and therefore, felt duty bound to reduce the attorneys' fee so as to increase the minor-client's share of the settlement.

The trial court and appellee guardian ad litem claim that under the Pennsylvania Rules of Civil Procedure, the trial court has broad discretion in setting counsel fees in cases involving minors.

Pa.R.C.P. 2039 provides that:

(a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition ...


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