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EVAN E. LLOYD v. RALPH T. FISHINGER AND ROSEMARY FISHINGER (01/06/89)

filed: January 6, 1989.

EVAN E. LLOYD, ESQ. AND LESLIE D. MICHEL, ESQ., APPELLANTS,
v.
RALPH T. FISHINGER AND ROSEMARY FISHINGER, HIS WIFE, APPELLEES



Appeal from Order February 19, 1988, in the Court of Common Pleas of Allegheny County, Civil No. G.D. 87-18588.

COUNSEL

John G. Arch, Pittsburgh, for appellants.

Paul G. Kachulis, Pittsburgh, for appellees.

Olszewski, Kelly and Hester, JJ.

Author: Olszewski

[ 380 Pa. Super. Page 508]

This is an appeal from an order of the trial court sustaining appellees' preliminary objection in the nature of a demurrer. Appellants challenge the constitutionality of 42 Pa.C.S.A. § 7101, which provides that when a person is injured and confined as a patient to a hospital, an attorney cannot, during the first 15 days of confinement, enter into an agreement relating to compensation with the patient in connection with his injuries. For reasons discussed below, we find that the statute is unconstitutional; accordingly, we vacate and remand.

On June 6, 1987, appellee, Ralph T. Fishinger, was seriously injured in a motorcycle accident. Appellant, Evan E. Lloyd, Esquire, visited appellee, Mrs. Rosemary Fishinger, in her home on June 8, 1987, and obtained her signature on a contingent fee agreement. In the four days that followed, Mr. Lloyd approached Mr. Fishinger in the hospital, discussed representing him, and obtained his signature on the contingent fee agreement. As a result of being sedated for surgery earlier that day, Mr. Fishinger had no recollection of signing the agreement. Upon being discharged from the hospital on July 9, 1987, Mr. Fishinger informed Mr. Lloyd that he did not want appellants to represent him. Appellants, however, refused to withdraw and, acting upon the agreement, received a verbal offer from the tortfeasor's insurance company to settle for $100,000.

Appellants filed this action to recover 37.5% of the $100,000 for their services pursuant to the contingent fee agreement. Appellees, in a preliminary objection to appellants' complaint in the nature of a demurrer, contended that such an agreement was forbidden by 42 Pa.C.S.A. § 7101. In its

[ 380 Pa. Super. Page 509]

    opinion dated April 15, 1988, the trial court sustained appellees' demurrer based upon 42 Pa.C.S.A. § 7101, which provides in pertinent part:

§ 7101. Settlements and other agreements with hospitalized persons

(a) General rule . . . .

(3) Where a person is injured and confined as a patient to a hospital or sanitarium due to such injuries, no attorney shall, during the first 15 days of confinement of such patient, enter or attempt to enter into an agreement relating to compensation wholly or partly on ...


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