Angino v. Jeffrey R. Lessin & Associates
131 A.3d 502
Pa. Super. Ct.
2016
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ANGINO & ROVNER, Appellant, v. JEFFREY R. LESSIN & ASSOCIATES, et al., Appellees.

Superior Court of Pennsylvania.

Argued Dec. 10, 2014. Filed Jan. 5, 2016.

131 A.3d 502

Richard C. Angino, Harrisburg, for appellant.

Mark T. Richter, Philadelphia, for appellee.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STABILE, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant Angino & Rovner P.C. (“Angino“) appeals from the order entered on May 27, 2014,1 in the Court of Common Pleas of Dauphin County, denying Angino‘s and granting appellee Monsour Zarreii‘s (“Zarreii“)2 motions for partial judgment on the pleadings.3 This case involves a fee dispute between Angino and Zarreii, its former client. Upon review, we affirm.

The facts and procedural history underlying this appeal are undisputed.4 In June 2007, Zarreii engaged Angino—specifically Richard C. Angino, Esq.—to represent him in litigation stemming from a motor

vehicle accident which occurred in April of 2006. In this regard, on June 21, 2007, Zarreii executed a contingency fee agreement (“Agreement“) with Angino containing a termination provision, which provided:

If for any reason I (we) take my (our) case to another attorney or law firm including a former A & R 5 attorney or handle it myself (ourselves), I (we) recognize that A & R has, in good faith, expended money and time for my (our) benefit and I(we) therefore agree to pay, or have my (our) new attorney pay, immediately upon severing the A & R attorney/client relationship, all the out-of-pocket expenses incurred on my (our) case plus interest at the rate of 6% per annum from the date of each expenditure. In addition, when the case is successfully concluded, I (we) agree to pay or direct my (our) new attorney to pay as a fee 20% of the gross recovery to A & R.

Contingency Fee Agreement, 5/21/07 at ¶ 15 (emphasis added). On November 21, 2007, Angino obtained an offer of the policy limits of $100,000 from the tortfeasor‘s insurance carrier, Progressive Insurance, in exchange for a full release from liability relating to the motor vehicle accident. On December 20, 2007, Zarreii accepted Progressive‘s offer. Because the matter was settled with Progressive prior to the commencement of a civil action, Angino received a fee of 30%—or $30,000—under the Agreement.

Angino thereafter pursued an underinsured motorist (“UIM“) claim under Zarreii‘s motor vehicle insurance policy. As a result, Angino engaged the services of expert witnesses, and negotiated with Zarreii‘s insurance carrier, Erie. Because Zarreii‘s insurance policy required arbitration for UIM claims before a panel of three arbitrators6 prior to filing a civil suit, Angino selected an arbitrator and scheduled the matter for arbitration.

Before the arbitration could be conducted, however, Zarreii, by letter dated March 30, 2010, terminated his relationship with Angino and retained Lessin to represent him in his UIM case against Erie.7 By letter dated March 2, 2012, Zarreii‘s new counsel informed Angino that arbitration in Zarreii‘s UIM case was scheduled for March 27, 2012. Additionally, new counsel stated in the letter, “[s]ince you chose Mr[.] Zarreii‘s arbitrator and you have a 50% stake8 in the outcome of the case, I would like you to attend [the] same.” (Letter to Angino from Jeffrey R. Lessin, 3/2/12.)

On August 31, 2012, the arbitrators issued an award in favor of Zarreii and against Erie for $635,650. The arbitrators also awarded Zarreii‘s wife, Marilin Zarreii, $50,000 on her loss of consortium claim against Erie. The total award, therefore, was $685,650. Erie, however, was entitled to offset the $100,000 already received by Zarreii under the tortfeasor‘s insurance policy. As a result, the total

amount at issue in this fee case was $585,650. By letter dated September 4, 2012, Zarreii‘s new counsel informed Angino that Angino was not entitled to receive a fee of 20% under the termination provision of the Agreement, despite the fact Zarreii terminated his representation with Angino, subsequently engaged Lessin, and settled his UIM case against Erie.

On September 11, 2012, Angino filed a complaint in the trial court, alleging that Zarreii breached the Agreement when he failed to pay Angino a contingency fee of 20% of the gross arbitration award ($585,650) in the UIM case. In other words, Angino alleged that Zarreii failed to pay him $117,130 under the termination provision of the Agreement. In addition, Angino alleged that Zarreii‘s subsequent counsel—i.e., Lessin—also breached a verbal contract with Angino whereby Lessin had agreed to share with Angino 50% of its fees received from Zarreii.

Subsequently, Zarreii and Lessin filed separate yet identical answers to the complaint, generally denying Angino‘s allegations and raising new matter. The parties thereafter each filed motions for partial judgment on the pleadings9 under Pa.R.C.P. 1034 with respect to Zarreii‘s breach of the Agreement. On May 27, 2014, the trial court issued an order and memorandum opinion, granting Zarreii‘s and denying Angino‘s motion for partial judgment on the pleadings. The trial court agreed with Zarreii‘s argument that under Pennsylvania law, an attorney, or in this case Angino, may recover only on a theory of quantum meruit, regardless of a termination provision in a contingency fee agreement, when a client terminates an

attorney, engages the services of other counsel, and subsequently settles the case. (See trial court opinion, 5/27/14 at 4.) In so doing, the trial court principally relied upon three Pennsylvania Superior Court decisions: , appeal denied, ; , appeal denied, ; and , appeal denied, . The trial court observed Angino failed to assert a quantum meruit claim against Zarreii in this case. (See trial court opinion, 5/27/14 at 4.) The trial court, therefore, denied relief to Angino.

On May 30, 2014, Angino filed a praecipe dismissing its breach of contract claim against Lessin,10 thereby rendering final the trial court‘s May 28, 2014 order disposing of the parties’ motions for partial judgment on the pleadings. Angino timely filed a notice of appeal. Although the trial court did not direct Angino to file a Pa.R.A.P.1925(b) statement of errors complained of on appeal, the trial court filed a Rule 1925(a) opinion, by which it merely adopted its memorandum opinion in support of its May 27, 2014 order.

On appeal, Angino raises a single issue for our review:

Did the trial court err in granting Summary Judgment in favor of Mr. Zarreii and denying Summary Judgment to [Angino] where the facts are undisputed that Mr. Zarreii, an adult, knowingly and voluntarily entered into a contingent fee agreement with [Angino] that re-

quired the payment of a 20% fee if Mr. Zarreii [terminated] [Angino] and secured other counsel, particularly under the circumstances where [Angino] had prepared the underinsured motorist case completely to the point of selecting arbitrators and awaiting an arbitration hearing?

Angino‘s brief at 4.11

In reviewing a trial court‘s grant of a motion for judgment on the pleadings, our scope of review is plenary. See (en banc), appeal denied, . We apply the “same standard employed by the trial court.” (citations omitted), appeal granted in part, , appeal discontinued, No. 29 EAP 2013 (Pa. September 18, 2013). “A motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.” (citation omitted).

To determine whether there are disputed issues of fact, we must confine the scope of our review to the “pleadings and documents properly attached thereto.” (citation omitted). Accordingly, “[we] must accept as true all well[-]pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” (citations omitted). No factual material outside of the pleadings may be considered in determining whether there is an action under the law. See . “We will affirm the grant of such a motion only when the moving party‘s right to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless exercise.” .

With our standard of review in mind, we summarize the issue and arguments on appeal before us. Angino seeks to recover damages under the termination provision of the Agreement. Angino argues Zarreii entered into an enforceable contingency fee agreement with Angino, which Zarreii breached when he terminated Angino, engaged the services of Lessin, and subsequently failed to pay to Angino a fee of $107,130,12 which represents 20% of

the gross arbitration award after it is reduced by the $100,000 settlement received by Zarreii from Progressive under the tortfeasor‘s policy. Angino argues any violations of the Agreement must be construed according to established contract principles. Specifically, Angino disagrees with Zarreii‘s position, accepted by the trial court, that, notwithstanding an arguably valid contingency fee agreement, terminated attorneys are entitled only to a quantum meruit recovery for their fees when their clients replace them with other counsel or proceed pro se, and ultimately obtain relief in their case.

At the outset, we observe attorneys are allowed to enter into contingency fee agreements because they provide attorneys with the potential for a higher fee, which compensates the attorneys for assuming the risk of nonpayment for services in the event a case is lost. See Lester Brickman, ABA Regulation of Contingency Fees: Money Talks, Ethics Walks, 65 FORDHAM L. REV. 247, 271 (1996) (“The ethical justification for these approvals necessarily lies in the assumption that the lawyer‘s risk of receiving no fee, or a fee that effectively will be well below her normal hourly rate or opportunity cost, merits compensation in and of itself: Bearing the risk entitles the lawyer to a commensurate risk premium.“). Clients, however, are largely shielded from incurring a financial loss resulting from an unfavorable outcome.

Nonetheless, “under Pennsylvania law, a client has the absolute right to terminate an attorney-client relationship,

Pleadings, 1/23/14 at ¶ 25 (emphasis added); see also trial court opinion, 5/27/14 at 3 n. 2 (“In its [c]omplaint, [Angino] requests monetary relief in the amount of $117,130, representing twenty percent of the Zarreii‘s total arbitration award, less the payment made by Progressive. [The trial court] note[s], howev-

regardless of any contractual arrangement between the two parties.” ; see Pa.R.P.C. 1.16 cmt. [4] (“A client has a right to [terminate] a lawyer at any time, with or without cause, subject to liability for payment for the lawyer‘s services.“). Upon a client‘s termination of an attorney-client relationship prior to the occurrence of the contingency set forth in a fee agreement, the client is not relieved of his or her obligation to compensate the attorney for services rendered until the time of termination. In such situations, the terminated attorney generally has a claim in quantum meruit to recover his fees. See (noting the contingency contemplated in the agreement was not satisfied). ”Quantum meruit is an equitable remedy[, which] is defined as ‘as much as deserved’ and measures compensation under an implied contract to pay compensation as reasonable value of services rendered.” (citation omitted), appeal granted, . The issue presently before us is whether an attorney only has resort to quantum meruit for a fee recovery even where a contingency fee agreement, like the one at issue here, contains a termination provision governing the termination of the attorney-client relationship prior to the occurrence of the contingency.

A client‘s right to discharge his attorney for any or no reason and without penalty is an implied term of every attorney-client engagement contract and is

er, that [Angino], in its [c]ross-[m]otion, seeks only $107,130, disregarding the portion of the arbitration award entered in favor of [Mrs. Zarreii].“).) Accordingly, we conclude Angino seeks to recover from Zarreii only $107,130 as its contingency fee under the Agreement.

based on the unique concepts of trust and confidence that flow from this fiduciary relationship. “Therefore, when a client exercises this implied contractual term it is not a breach of contract, and hence there is no liability for contract damages.” Lester Brickman, Setting The Fee When The Client Discharges A Contingent Fee Attorney, 41 Emory L.J. 367, 370 (1992).

Without question, contingency fee agreements serve a salient purpose. Besides compensating attorneys for assuming the risk of nonpayment in the event the case is lost, such arrangements allow for the vindication of legal rights and enable injured persons access to both counsel and the courts.

In exchange for assuming the risk of no or low recovery, as well as the risk of having to devote considerably more time to the venture than anticipated, the attorney charges a risk premium:

That premium is both payment for the lawyer‘s lending of services to the client and assumption of the recovery and time expenditure risks. A contingent fee is, therefore, a financing device which provides access to the courthouse for both the impecunious client and the risk-averse client ...

Id. at 379-380 (footnotes omitted).

With a contingency agreement, an attorney will evaluate the risks related to a recovery in a case and what percentage of an award will best compensate the attorney and the firm for their labors. The attorney accepts the risk that if there is no recovery, then the attorney receives no compensation.

Examining the contract provision in question, upon Zarreii‘s termination of the relationship, the firm is entitled to quantum meruit damages. In addition, if recovery is had by the client through the efforts of another attorney, then Angino is

also entitled to a 20% fee on that award, presumably half of the firm‘s standard contingency fee of 40%. As this contingency does not actually reflect the efforts and contributions made toward the client‘s ultimate recovery, this latter provision must be characterized as nothing more than a penalty on the client for severing the relationship with Angino. Clearly, a discharged contingency fee lawyer is entitled to just compensation and this is had through quantum meruit. See (“It is well-settled that ‘a client may terminate his relation with an attorney at any time, notwithstanding a contract for fees, but if he does so, thus making the performance of the contract impossible, the attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services he has rendered.‘“), quoting (Joyce, concurring) (citations omitted). To add a contingency fee charge on any subsequent recovery to the quantum meruit amount is additional compensation without any additional legal services performed. Additionally, it may well inhibit the client from engaging another lawyer to pursue his claim.

Angino makes much of the trial court‘s failure to apply basic contract principles to this engagement contract. Angino asserts that this contract was an arm‘s length agreement between two adults. Angino argues that the latter provision is there to specifically protect the firm against the long-standing line of cases in Pennsylvania holding that the only remedy available to a discharged attorney, on a contingency or any other contract with a client, is through quantum meruit. This is precisely why the contract provision is unenforceable.

In a fiduciary relationship, such as attorney and client, attorneys are not free to impose any terms they wish on

their clients. Rather, the Rules of Professional Responsibility and the very nature of the relationship based on confidence and trust set the limits of engagement contracts. Just as a lawyer may not charge an exorbitant fee or place a “no termination” clause in the contract or assert a vested interest in a client‘s claim, a lawyer may not penalize a client for discharging him or her. It is of no moment that Zarreii did not challenge the contract as unconscionable or violative of the rules for attorney conduct. The assertion of quantum meruit as the only recovery available to Angino, as a matter of law, is all that is necessary to establish the lack of enforceability of the contract. This unenforceability is based on unconscionability and a violation of the fiduciary relationship between attorney and client.

Angino distinguishes Mager because the contingency contract involved did not contain a termination provision. (Angino‘s brief at 23.) This is not surprising considering the long-standing precedent in this Commonwealth referenced above. However, we cannot so easily dismiss the rationale of the decision:

No Pennsylvania appellate court has ever awarded a proportionate share of a contingency fee to a firm discharged by the client well prior to the occurrence of

the contingency, for the simple reason that a client may discharge an attorney at any time, for any reason. Once the contractual relationship has been severed, any recovery must necessarily be based on the work performed pursuant to the contract up to that point. Where the contingency has not occurred, the fee has not been earned.

An attorney, contrary to the argument urged upon us by ML & W, does not acquire a vested interest in a client‘s action. To rule otherwise would make fiction of the oft-repeated rule that a client always has a right to discharge his attorney, for any reason or for no reason, ; . Surely, to accept the argument of appellant would be to impose a penalty on the exercise of that right.[Footnote 14]

[Footnote 14] In fact, Mr. Fox, counsel for ML & W argued to the trial court that “the client had a right to leave, but the client has to leave with the consequences of leaving.”

(footnote 13 omitted).13

at 1048. Clearly, the court was looking to the liquidated damages clause in the contingency contract as allowing Mr. Capek to recover for his time and effort in his representation of his client. The contract provided for something more than an hourly rate calculation. Rather, Mr. Capek would receive a percentage of the settlement offer he supposedly negotiated or a fee based upon his prevailing rate. Our Supreme Court, while deciding that the liquidated damages provision was not interpreted correctly by the Superior Court, did not enter an award on appeal for Mr. Capek. Rather, as noted by the dissent, the court remanded to determine if the Agreement was unconscionable, illegal, and/or violated the Rules of Professional Conduct and to determine the validi-

However, an important aspect of Judge Joyce‘s concurrence in Mager is the idea that a quantum meruit recovery need not be limited to an hours and expenses analysis. As discussed by Judge Joyce, quantum meruit is an equitable action and principles of fairness should prevail. . Depending on the nature of the case, merely multiplying the hourly rate by the number of hours worked may be too narrow of an approach. Id. at 961-962. In Judge Joyce‘s opinion, deciding the reasonable value of an attorney‘s services requires the court to take into consideration the particular circumstances of the case before it, including the complexity of the litigation and the results achieved:

[I]n the absence of a special agreement, an attorney is entitled to be paid the reasonable value of his services. In addition to the labor and time involved, other factors must be taken into consideration, such as the character of services rendered, the importance of the litigation, the skill necessary, the standing of the attorney, the benefit derived from the services rendered and the ability of the client to pay, as well as the amount of money involved. The question of reasonableness is within the sound discretion of the trial court.

Id. at 960-961 (Joyce, J., concurring), quoting .

The facts of this case represent a compelling reason to award Angino more than an hours and expenses quantum meruit

ty of the alleged settlement agreement. This case hardly represents a ringing endorsement of the liquidated damages provision in the contingency agreement. The court in Capek merely determined that the trial court and the Superior Court had erred in interpreting the “no recovery no fee” provision in the contract as precluding Mr. Capek from receiving any

recovery. As set out above, Angino successfully pursued an insurance liability case against the tortfeasor‘s insurer for which he received a percentage fee. However, a great deal of the work devoted to this claim was relevant and important to the UIM action. Angino participated in the selection of two of the arbitrators who would eventually render a substantial award to Zarreii, and the Lessin firm implicitly recognized Angino‘s contributions to the case when they asked Angino to attend the arbitration. The facts of this case would clearly support the notion that quantum meruit recovery should be based on a fair assessment of the contributions of the discharged attorney to any eventual award in the case. We make no determination as to whether such a recovery is still available to Angino in this case.

Since the termination penalty imposed by the contingency contract in this case is unenforceable, we affirm the trial court‘s order granting Zarreii‘s and denying Angino‘s motion for partial judgment on the pleadings.

Order affirmed.

SHOGAN, J. joins the Opinion.

STABILE, J. files a Dissenting Opinion.

DISSENTING OPINION BY STABILE, J.:

I respectfully dissent from the learned Majority‘s decision because it fails to enforce a termination provision contained in a duly executed contingency fee agreement between Angino and Zarreii.1 The Majori-

compensation for his services if discharged by his client.

ty believes that attorneys are prohibited per se from including a fee recovery provision in contingency fee agreements that governs the termination of the attorney-client relationship prior to the occurrence of the contingency. Thus, it is the Majority‘s conclusion that discharged attorneys, like Angino, are entitled only to the equitable remedy of quantum meruit for services rendered to former clients. I find no support in our law for this limitation of remedies where a termination provision is included in a contingency fee agreement and that provision is not challenged and established to be either excessive or unconscionable.

Contrary to the Majority‘s view, it is well-settled that a claim premised on quantum meruit may be asserted only when “one sounding in breach of express contract is not available.” . It is undisputed that the issue in this case is not whether Angino is entitled to payment for services rendered to Zarreii or whether Zarreii is liable to pay for the services received. Rather, as the Majority recognizes, the issue presently before us is whether an attorney only has resort to quantum meruit for a fee recovery even where a contingency fee agreement, like the one at issue here, contains a termination provision governing the termination of the attorney-client relationship prior to the occurrence of the contingency. After a careful review of applicable law, I conclude that attorneys are not precluded per se from providing a termination fee provision in a contingency fee agreement. Our case law does not dictate that counsel, upon termination by a client, only has resort to quantum meruit in a contingent fee case when a termination

the ability of counsel to collect under a termination provision in a contingent fee agree-

provision has been agreed to between the parties. Accordingly, I disagree with the Majority‘s decision and would reverse the trial court‘s order granting Zarreii‘s and denying Angino‘s motion for partial judgment on the pleadings.

Briefly, Angino seeks to collect its fee from Zarreii based on the termination provision of the Agreement. The termination provision of the Agreement, which Zarreii duly executed, provided in pertinent part that Zarreii agreed “to pay or direct [his] new attorney to pay as a fee 20% of the gross recovery” to Angino in the event of a successful outcome in the case. Contingency Fee Agreement, 5/21/07, at ¶ 15. Thus, only the occurrence of the condition precedent, i.e., resolution of the case favorable to Zarreii, would trigger the percentage fee outlined in the termination provision of the Agreement. It is uncontested in the case sub judice that Zarreii indeed settled his case through representation by Lessin for a substantial amount of money. As a result, as Angino argues, the settlement of Zarreii‘s case triggered Angino‘s right to receive payment for services under the termination provision of the Agreement.

In , our Supreme Court entertained a fee dispute arising out of a contingency fee agreement containing a termination provision. A client entered into a contingency fee agreement with the appellant (an attorney) in connection with a personal injury action. Subsequently, the appellant agreed to a settlement figure of $275,000.00. The client refused to accept it because the settlement was reached without the client‘s authorization. Following the appellant‘s unsuccessful efforts to confirm the settlement, the client termi-

ment.

nated the appellant and retained new counsel. The client ultimately reached a settlement in excess of four million dollars. The appellant filed an action to recover his fees under the contingency fee agreement. In particular, the appellant sought $86,500.00 in fees because that figure represented thirty percent of the settlement offer that he had negotiated with the defendant. Because the agreement contained a “no recovery no fee” clause, the trial court entered summary judgment in favor of the client because, inter alia, the appellant had not obtained relief on behalf of the client. This Court affirmed the trial court‘s ruling. Our Supreme Court, however, disagreed. In describing the terms of the agreement at issue, the Court noted:

[I]t is evident from the Agreement that the parties intended to provide for payment to [the appellant] in the event of two possible outcomes: (1) when it is the case that [the appellant] is retained until resolution of the litigation, and (2) when the Agreement is terminated prior to resolution of the litigation. In the event that [the appellant] is retained until the claim‘s resolution, the “no recovery no fee” provision (in conjunction with the 30% contingency fee clause) establishes that [the appellant] will be paid 30% of any amount [the client] receives, only if there is recovery by suit or settlement; if there is no recovery, then [the client] pays no fee. In contrast, in the event that the Agreement is prematurely terminated, the liquidated damages clause establishes that [the appellant] will receive the greater of 30% of a negotiated settlement offer or a fee based upon his prevailing rate.

at 1050 (emphasis added). Using contract principles to construe the agreement, the Court concluded that this Court‘s interpretation of the agreement “improperly nullified the ... liquidated damages [ (or termination)] provision, which addressed

the specific outcome that occurred in this case—a termination of the [a]ppellant‘s services.” (emphasis added). In other words, the Supreme Court did not determine the termination provision to be unenforceable or unlawful. Instead, the Court remanded the matter to the lower courts to consider, inter alia, outstanding issues relating to whether the agreement was unconscionable and whether it complied with the Rules of Professional Conduct. at 1051 n. 4.

Like the attorney in Capek, Angino premises its contract claim on Zarreii‘s breach of the termination provision contained within the parties’ contingency fee agreement. The parties do not contest that Zarreii engaged Angino to represent him, signed a contingency fee agreement featuring a termination clause, terminated representation by Angino, hired Lessin, and subsequently refused to pay Angino for legal fees following the settlement of the underlying case. Thus, what the parties contest is the enforceability of the termination provision of the Agreement. As noted earlier, in Capek, our Supreme Court had an opportunity to assess the enforceability or validity of a termination provision in a contingency fee agreement. Although the Court was not asked to approve explicitly the use of such a provision in contingency agreements, the Court did so tacitly by upholding counsel‘s right to claim fees under the termination provision. The Court held the attorney could proceed on his breach of contract claim triggered by the client‘s failure to honor the termination provision, so long as the lower courts determined the agreement was not unconscionable or against the Rules of Professional Conduct. Unlike the client in Capek, however, Zarreii here did not challenge the Agreement as unconscionable or violative of the Rules of Professional Conduct before the trial court. Nonetheless,

consistent with our Supreme Court‘s decision in Capek, I conclude that Angino properly based its contract claim on Zarreii‘s alleged breach of the termination provision of the Agreement. Accordingly, given the facts of this case, I cannot agree with the Majority‘s conclusion that Angino‘s recovery in this case is limited to quantum meruit.

Notwithstanding the Capek decision, the Majority insists that discharged attorneys are entitled only to quantum meruit relief and that termination provisions per se amount to a penalty imposed upon former clients. The Majority characterizes termination provisions as penalties, because it believes they “inhibit the client from engaging another lawyer to pursue his claim.” Maj. Op. at 509. Although the Majority recognizes the importance of contingency fee agreements generally and the salient purpose they serve specifically, it suggests that attorneys hold an unfair advantage vis-à-vis their clients, resulting in the possibility that attorneys could impose unfair terms of representation. Thus, to protect clients, the Majority has embraced the equitable remedy of quantum meruit.

In applying quantum meruit sub judice, however, the Majority recognizes that a strict adherence to quantum meruit is unfair. Citing Judge Joyce‘s concurring opinion in , appeal denied, , the Majority proposes a holistic approach to calculating quantum meruit. at 510. Specifically, the Majority suggests that more than “an hours and expenses quantum meruit” must be established to determine Angino‘s fees. In so doing, the Majority recognizes Angino‘s efforts and contributions to Zarreii‘s ultimate recovery in this case. The

issue here therefore, is not whether a termination fee is permissible, but rather whether the basis for that fee may be agreed to between the parties prior to termination of a representation.

I emphasize I agree with the Majority that clients hold an inalienable right to discharge their attorneys regardless of any contractual arrangements between the parties, and that in doing so, a client does not stand in breach of a representation agreement. I, however, disagree with the Majority that from this it naturally follows that attorneys do not have a right to impose a reasonable termination provision in a contingency fee agreement.2 The right to terminate a representation without breach exists apart from an independent obligation to honor a payment term, the failure of which may establish a breach. Instantly, the termination provision provides that 20% of Zarreii‘s arbitration award be due to Angino. As noted, Zarreii does not challenge the amount due to Angino. To the extent the Majority invokes the Rules of Professional Conduct, those rules have not been raised or relied upon by Zarreii to challenge the Agreement. Moreover, I must underscore the fact that this case did not arise within a disciplinary context. “Ethical considerations are aspirational in character” and do not represent mandatory laws. . Nonetheless, it certainly is conceivable that using the Majority‘s own calculation of quantum meruit, Angino could receive 20% or more of the arbitration award.

In support of quantum meruit, the Majority primarily relies upon , appeal denied,

of former clients to challenge an agreement necessarily acts as a deterrent for attorneys to avoid unreasonable termination provisions.

; , appeal denied, ; and Mager. The Majority‘s and Zarreii‘s reliance on Mager, Fowkes, and Hiscott is inapposite, and those cases are readily distinguishable. In Mager, a law firm employed an attorney who entered into a contingency fee agreement with a client in a qui tam case involving the client‘s former employer. After the attorney left his prior law firm to start his own firm, the client terminated his representation by the law firm. The client, however, continued to be represented by the attorney who had departed from the law firm. The attorney ultimately settled the client‘s case and received a contingency fee for his services. Thereafter, the law firm sued, among others, its former attorney and the client seeking the full contingency fee the attorney had earned in the case.

On appeal, this Court vacated the trial court‘s judgment that the law firm was entitled to 25% of the contingency fee and remanded the matter to the lower court to enter a quantum meruit fee based on a computation using a fair hourly rate and number of hours worked. In so doing, this Court recognized that the contingency fee agreement at issue did not contain a termination provision that would have triggered a breach of contract claim. See (noting that “[n]o provision was made in the [agreement] for termination of representation by the client prior to the resolution of the case“). The Mager Court noted that “[b]ecause the contingency fee agreement did not provide for any monies to be paid if the [law firm] was terminated prior to a verdict or settlement in the action, the [law firm] has no claim against [its former client] for breach of contract.” (emphasis added).

Stated differently, given the circumstances in Mager, we determined that to hold the client to the contingency fee agreement whose provisions did not survive the termination of the attorney-client relationship would amount to the courts’ reviving an agreement that “no longer existed,” when the client discontinued his representation by the law firm prior to the occurrence of the contingency. at 957. This Court, therefore, concluded the law firm was entitled only to recovery of fees in quantum meruit for the services rendered to the client until the time when the client severed the relationship. at 957 (“While the termination of the [agreement] by [the client] created an immediate right in [the law firm] to compensation for all work performed and costs incurred pursuant to that [agreement], that right included only quantum meruit compensation which is to be calculated based on the number of hours worked multiplied by a fair fee.“).

Finally, to the extent we remarked in Mager that “[a]n attorney ... does not acquire a vested interest in a client‘s action,” for it would amount to a penalty against the client‘s right to terminate the attorney-client relationship, at 958, such remark was within the factual context of that case. Our remark was premised on the recognition that, because the contingency triggering the fee under the agreement was not satisfied at the time of termination, the law firm was not entitled to recovery on a contractual basis.

In Fowkes, terminated attorneys initiated a quantum meruit action against the client‘s subsequent attorney, after the successor attorney settled the client‘s personal injury case. See . In affirming the trial court‘s grant of summary judgment in favor of the subsequent attorney, this Court concluded the terminated attorneys’ quantum meruit ac-

tion lay properly against their former client and not the subsequent attorney. See Additionally, this Court determined the trial court did not abuse its discretion in denying the terminated attorneys’ request to amend their complaint to include the former clients, because their quantum meruit claim against the former clients was time-barred. See at 880. The circumstances in Fowkes are inapposite to the present action.

In Hiscott, terminated attorneys filed a complaint against their former client, who settled the case through the engagement of a subsequent attorney, to recover “a fair and equitable fee based on the relative value of services performed.” . The terminated attorneys entered into a contingency fee agreement with their former client, which provided for percentage fees to the attorneys depending on when the case settled. The trial court granted a directed verdict in favor of the former client because under the fee agreement the terminated attorneys were not entitled to collect a fee. Thereafter, the terminated attorneys filed post-trial motions challenging the trial court‘s ruling. The trial court granted the post-trial motion by entering an order “to resolve the issue of the nature and amount of the compensation to be afforded to [the terminated attorneys] outside of the scope and terms of the contingency fee agreement.” Thus, the trial court ordered relief in quantum meruit to the terminated attorneys, calculated by multiplying the hourly rate by the number of work hours.

On appeal, we recognized that under the terms of the contingency fee agreement, the terminated attorneys were not entitled

to collect a fee because the contingency contemplated by the agreement was not met. See at 1237 (noting the client terminated the fee agreement “when, under its terms, there was nothing due to [the terminated attorneys] as compensation“). We, therefore, concluded, inter alia, that the trial court did not abuse its discretion in rendering a directed verdict in favor of the former client. See Moreover, we concluded that the trial court also did not abuse its discretion in granting the terminated attorneys post-trial relief in the nature of quantum meruit, which is all they were entitled to in that case. See at 1237-38 (noting that “[i]n light of the case law set forth above, it is clear that [the terminated attorneys are] limited to a quantum meruit-based recovery“).

Here, unlike the fee agreements in Mager, Fowkes, and Hiscott that did not contain a termination provision, Angino sought relief based on Zarreii‘s alleged breach of the Agreement occasioned by Zarreii‘s refusal to honor the termination provision. In Mager, Fowkes, and Hiscott, the appellants sought relief in quantum meruit because there was no contractual right to relief.3 It bears repeating that a claim anchored in quantum meruit may be asserted only when one sounding in contract is unavailable. See . As noted above, consistent with our Supreme Court‘s decision in Capek, I conclude Angino asserted a colorable right to relief under the termination provision of the Agreement. Therefore, the case sub judice is distinguishable from our decisions in Mager, Fowkes, and Hiscott. Additionally, I note that I am unable to find any support in our case law that

former client. As stated, they merely sought to include the former client in their quantum meruit action.

prohibits per se a contingent fee agreement from providing for a termination fee prior to the occurrence of a fee contingency.

In light of my conclusion that, under the circumstances of this case, Angino is entitled to pursue recovery of its fees in accordance with the termination provision of the Agreement, I next address the legal question whether Zarreii indeed breached the Agreement. It is settled that “[t]hree elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” (citations omitted).

In the instant case, based on the pleadings, I observe Zarreii does not contest the existence or validity of the Agreement or that a breach thereof has occurred. As noted earlier, the parties do not contest that Zarreii engaged Angino to represent him, signed a contingency fee agreement containing a termination provision, terminated representation by Angino, hired Lessin, and subsequently refused to pay $107,130.00 to Angino for legal fees following the settlement of the underlying case. I agree with Angino that, in so refusing, Zarreii breached the termination provision of the Agreement, which obligates Zarreii to pay a 20% fee to Angino upon the resolution of the UIM case. Accordingly, I conclude Zarreii breached the Agreement and Angino was entitled to have judgment on the pleadings entered in its favor.

In sum, unlike the learned Majority, I hold that the trial court erred in concluding that once a client terminates representation by a law firm prior to the occurrence of the fee contingency, the terminated law firm may recover its fees

only in quantum meruit, regardless of any termination provision in a contingency fee agreement. Based on Angino‘s properly pursued contractual claim, I conclude Zarreii breached the Agreement when he failed to pay to Angino 20% (or $107,130.00) of his $535,650.00 arbitration award.

Accordingly, I would reverse the trial court‘s order and remand the case for further proceedings.

J.V. LOUNGE, INC. v. PENNSYLVANIA LIQUOR CONTROL BOARD, Appellant.

Commonwealth Court of Pennsylvania.

Argued Nov. 17, 2015. Decided Dec. 10, 2015. Publication Ordered Feb. 5, 2016.

Notes

1
The trial court docket indicates Angino filed, on May 30, 2014, a praecipe to enter judgment in favor of the appellee. We consider the judgment entered to be superfluous to this appeal, since judgment need not be entered on an order granting judgment on the pleadings. See Pa.R.C.P. 227.1. Accordingly, we have corrected the caption in this case. It is worth noting that Zarreii limits his challenge to Angino‘s demand for payment under the Agreement to the argument that Angino is entitled only to a quantum meruit claim for services. Thus, I will not address any other defenses or rules that might affect
2
Appellee Monsour Zarreii is also known as Michael Zarreii. If a former client deems a termination provision to be unreasonable, he or she always has a right to challenge the same. The ability
3
On May 30, 2014, Angino filed in the trial court a praecipe to dismiss its outstanding claim against appellee Jeffrey R. Lessin & Associates, P.C. (Lessin). As a result, Lessin is not a party to the instant appeal. Even if the statute of limitations had not run in Fowkes, the facts of that case do not indicate that the terminated attorneys sought to bring a breach of contract action against their
4
Unless another source is cited, the facts are taken from the trial court‘s memorandum opinion, 5/27/14 at 1-2.
5
A & R is an abbreviation for Angino Angino & Rovner, P.C.
6
Of the three arbitrators assembled, one is selected by each party, and the third is selected by both parties to serve as the neutral arbitrator on the panel.
7
Zarreii apparently terminated his relationship with Angino because of a disagreement over the valuation of his UIM case.
8
According to Angino, 50% of the total fees received by Lessin in connection with Zarreii‘s UIM case amounts to a fee of 20% under the termination provision of the Agreement. (See Angino‘s brief at 11.) It would thus appear Lessin was to be paid a 40% contingency fee.
9
Angino filed what it termed “Plaintiff‘s Renewed Cross-Motion for Partial Judgment on the Pleadings.”
10
Lessin agreed, pending resolution of this dispute, to escrow that portion of Zarreii‘s settlement proceeds from the arbitration award that would represent Angino‘s 20% termination fee.
11
Angino mistakenly refers to the underlying cross-motions for partial judgment on the pleadings as motions for “summary judgment.” Our review of the docket does not indicate the filing of any summary judgment motions by either party in this case. Accordingly, we shall disregard any references to summary judgment and address this case under the standards governing motions for judgment on the pleadings.
12
In its brief to this court, Angino determines its contingency fee under the termination provision of the Agreement to be either $117,130 or $107,130. (See Angino‘s brief at 25, 30.) We, however, observe Angino abandoned in its renewed cross-motion for partial judgment on the pleadings its demand for a $117,130 contingency fee, which included 20% of the $50,000 received by Mrs. Zarreii for loss of consortium. Specifically, Angino alleged in the motion that “[p]ursuant to [the Agreement], [Angino] is entitled to [20%] of the gross arbitration award (less payment of the underlying award and less the $50,000.00 award for Mrs. Zarreii who did not sign [the Agreement]). In other words, [Angino] is entitled to [20%] of $535,650.00, which equals $107,130.00.” (Angino‘s Renewed Cross-Motion for Partial Judgment on the
13
We cannot agree with our esteemed colleague‘s reliance on , to support the position that such contract provisions as involved herein are valid and enforceable. Our Supreme Court‘s decision in Capek clearly sets out the issue to be decided by the court in the first paragraph of the Opinion.

The issue presented is whether the lower courts erred in awarding summary judgment to Appellee Jennifer Devito, thereby precluding Appellant, an attorney, from claiming a fee under a contingency fee agreement (“Agreement“) that included the language “no recovery no fee“, where the Agreement also provided for recovery of a fee under the doctrine of quantum meruit.

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