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12/23/97 FRANCIS J. BERNHARDT III P.C. VS ABRAHAM

December 23, 1997

FRANCIS J. BERNHARDT, III, P.C. VS ABRAHAM T. NEEDLEMAN, S. ALLEN NEEDLEMAN AND NEEDLEMAN AND NEEDLEMAN, P.C., APPELLANTS; FRANCIS J. BERNHARDT, III, P.C., APPELLANT VS ABRAHAM T. NEEDLEMAN, S. ALLEN NEEDLEMAN, AND NEEDLEMAN AND NEEDLEMAN, P.C.


Appeal from the Order entered November 26, 1996 In the Court of Common Pleas of Philadelphia County, Civil No. 3329 October Term, 1994. Before ROSENBERG, J.

Before: Cirillo, P.j.e., and Saylor and Olszewski, JJ. Opinion BY Cirillo, P.j.e. Saylor, J., concurs in the result.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

Filed December 23, 1997

Francis Bernhardt, III, P.C. (Bernhardt) brought this action seeking recovery of an unpaid referral fee under breach of contract and conversion theories. The Court of Common Pleas of Philadelphia County awarded damages on the breach of contract claim, but dismissed the conversion claim. The court entered judgment against Abraham Needleman, S. Allen Needleman, and Needleman & Needleman, P.C. (collectively "Needleman") in the amount of $9,184.00 plus interest. Needleman filed a post-trial motion for relief, and that motion was denied. Needleman now appeals from the order denying the post-trial motions and Bernhardt cross-appeals from that same order. We affirm in part, reverse in part and remand with instructions to award punitive damages, attorney's fees, and costs against Needleman.

Both parties to this appeal are attorneys. Kathleen White retained the firm of Bowers & Keogh, P.C. to represent her in a personal injury action. Bowers & Keogh subsequently became D. Webster Keogh Associates, P.C. *fn1 While in the employ of D. Webster Keogh Associates, P.C., Bernhardt referred Mrs. White's lawsuit to S. Allen Needleman in exchange for 40% of the 40% contingent attorneys' fee or 16% of the gross recovery. Needleman settled the case in June of 1992 and failed to advise Bernhardt of the settlement. Bernhardt learned of the settlement from the client sometime in October of 1992, whereupon he wrote to Needleman requesting information on the status of his share of the proceeds. Needleman replied by advising Bernhardt that the matter was settled and the total attorneys' fees were $22,960.00. Needleman acknowledged that Bernhardt was entitled to the referral fee, but stated that no money was set aside for the referral fee due to the very poor financial condition of his firm. Needleman concluded by stating that Bernhardt could either accept a reduced fee or litigate the matter to which Needleman would raise a quantum meruit defense.

Bernhardt refrained from bringing suit for over one year. Meanwhile, Needleman continued to assert the poor financial condition of his firm, promised big settlements on the horizon that would enable him to pay the fee, and vacationed in Florida. Bernhardt finally suggested that he would have to bring this matter before the court prior to expiration of the statute of limitations. While continuing to acknowledge his obligation, Needleman responded: "Rest assured that I will vigorously oppose any form of litigation." Thus, he brings this appeal.

This appeal raises questions of law, admission of evidence, and findings of fact. Our standard of review on questions of law is simple. If a trial court erred in its application of the law, an appellate court will correct the error. Hatalowich v. Redevelopment Auth. of Monessen, 454 Pa. 481, 312 A.2d 22 (1973); Cowen v. Krasas, 438 Pa. 171, 264 A.2d 628 (1970). When reviewing the trial court's admission of evidence, we must determine whether the trial court abused its discretion or committed an error of law. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985); Snyder v. Snyder, 427 Pa. Super. 494, 629 A.2d 977 (1993); Strickler v. Huffine, 421 Pa. Super. 463, 618 A.2d 430 (1992). Finally, when reviewing a trial court's findings of fact, our only function is to determine whether there is competent evidence in the record from which facts necessary to sustain the judgment might properly be found. Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969).

Needleman first claims that the trial court lacked jurisdiction because (a) Bernhardt did not plead or prove its standing to sue and is not the real party in interest, and (b) Bernhardt failed to join D. Webster Keogh Associates, P.C. as an indispensable party. *fn2 We take these arguments together because the defense that the plaintiff is not the real party in interest, when raised by preliminary objection, is essentially the objection that plaintiff failed to join an indispensable party. 6 Goodrich Amram 2d § 2003:2 n.87; see also Hess v. Harleysville Mut. Casualty Co., 15 D & C 2d 313 (1957).

Needleman erroneously contends that "Rule 1019 (a) of the Pennsylvania Rules of Civil Procedure requires that all complaints be plead [sic] factually and more importantly, specifically." That rule provides that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.C.P. 1019 (a). Bernhardt satisfied the requirements of Rule 1019 (a) by averring "Bernhardt P.C. is the successor corporation to D. Webster Keogh Associates, P.C." Therefore, Needleman's argument must fail.

Even if the trial court erred, we would not reverse the judgment of a trial court where the error was harmless. Whistler Sportswear, Inc., v. Rullo, 289 Pa. Super. 230, 247, 433 A.2d 40, 49 (1981) (stating "where [an] error has worked no injury to the appellant, the judgment will not be reversed"). A copy of the corporate name change was admitted into evidence and the trial Judge was satisfied that Bernhardt was the successor to D. Webster Keogh Associates P.C. and Keogh & Bernhardt, P.C. Even if the trial Judge sustained Needleman's preliminary objection, Bernhardt would have been granted leave to establish the proper joinder as he did at trial. This argument fails because the trial Judge properly found that all indispensable parties were properly represented and, therefore, any error "worked no injury to the appellant." Whistler Sportswear, (supra) .

Needleman next asserts that the trial court erred by admitting evidence pertaining to Bernhardt's rights under the contingent fee agreement. Needleman essentially complains that the contingent fee agreement was negotiated with Bowers & Keogh, yet the pleadings indicate only that Francis J. Bernhardt & Associates was the successor to D. Webster Keogh and Associates. This issue is similarly without merit. Needleman admitted at trial that his referral fee agreement was with D. Webster Keogh and Associates. D. Webster Keogh and Associates was the corporate successor to Bowers & Keogh. Again, the trial Judge's findings were supported by competent evidence and worked no injury to Needleman. Whistler Sportswear, (supra) .

Needleman urges that the court erred in awarding damages in an assumpsit action in excess of the plaintiff's prayer for relief. In support of this proposition, Needleman cites House of Pasta v. Mayo, 303 Pa. Super. 298, 449 A.2d 697 (1982). Needleman's reliance on House of Pasta is misplaced. House of Pasta discusses the trial Judge's discretion to mold a jury verdict to conform to the jury's intent. In the present case, Needleman was put on notice that the claim could exceed the stated amount by Bernhardt's prayer for "whatever other relief this court deems just and proper." See, e.g., Donlin v. J.J. Newberry Co., 319 Pa. Super. 310, 466 A.2d 174 (1983) (holding that loss of earnings was sufficiently encompassed by general prayer for relief). Accordingly, Needleman's argument on this point is without merit. Donlin, (supra) .

Needleman's fourth issue address the propriety of holding S. Allen Needleman, Esquire, personally liable for his actions where he was acting on behalf of Needleman & ...


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