Mongeluzzi v. Pansini

61 Pa. D. & C.4th 52, 2001 Pa. Dist. & Cnty. Dec. LEXIS 161
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedDecember 10, 2001
Docketno. 3501
StatusPublished

This text of 61 Pa. D. & C.4th 52 (Mongeluzzi v. Pansini) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mongeluzzi v. Pansini, 61 Pa. D. & C.4th 52, 2001 Pa. Dist. & Cnty. Dec. LEXIS 161 (Pa. Super. Ct. 2001).

Opinion

JONES II, J.,

I. INTRODUCTION

This is a dispute between two law firms over the division of $6 million in attorneys’ fees generated by the settlement of three lawsuits that were filed against PECO Energy Company in the wake of a December 1995 gas explosion in Norristown, Pennsylvania. Plaintiffs Robert Mongeluzzi and Saltz Mongeluzzi Barrett & Bendesky, bring this action for unjust enrichment, and seek an accounting and the imposition of a constructive trust to recover their share of the fees received by defendants as generated by the PECO actions. Plaintiff Robert Mongeluzzi claims that he prepared a letter dated February 22, 1999, to confirm an oral “agreement to agree,” not a contract, reached at a meeting on February 16,1999 regarding the division of counsel fees, and that the letter defers agreement on that division until the cases were resolved.

Defendants Pansini & Lessin, Michael O. Pansini and Jeffrey R. Lessin, claim that they reached an enforceable oral contract with plaintiff Mongeluzzi at that same meeting of February 16,1999, and that plaintiff Mongeluzzi’s letter of February 22, 1999 was a written confirmation of some of the terms of the contract.

The critical issues presented are: (1) whether a contract exists. If so, all parties agree that plaintiffs’ action must be dismissed and judgment entered for defendants; (2) if a contract does not exist, whether plaintiffs are entitled to compensation based upon an hourly rate, or a percentage of the total sum of attorneys’ fees collected [55]*55by the defendants, or an amount based upon “the value of the plaintiffs’ services.”

II. PROCEDURAL HISTORY

On October 4, 2001, upon consideration of plaintiffs’ motion to strike defendants’ jury demand, and the withdrawal of opposition thereto by the defendants, this court issued an order granting plaintiffs’ motion, and also ordered that all motions in limine currently held under advisement by this court were denied as drafted, however the substance of each motion would be addressed at the time of trial, which was scheduled for Tuesday, October 9,2001. See order dated October 4,2001. Plaintiffs were permitted to withdraw their contract, conversion, and replevin claims at law, and were permitted to proceed in equity. Plaintiffs concede that a finding that a contract exists would preclude recovery by them in this action. However, plaintiffs argue that a contract does not exist, and therefore request this court to order: (1) a constructive trust, (2) an accounting, and (3) a monetary award predicated on their claim of unjust enrichment (quantum meruit). N.T. 10/2/01, pp. 39-40, 42, 48, 56-57, 58-59.

The defendants seek a dismissal of plaintiffs’ claim based upon the following: (1) a contract exists, and that the existence of an enforceable contract precludes recovery under an unjust enrichment theory; (2) plaintiff Mongeluzzi is equitably estopped from denying that he should be paid for his time; (3) plaintiff Mongeluzzi’s “impact evidence,” meaning the impact his presence had upon the increase in the settlement value of the case, was speculative at best; (4) evidence of the “value of services” of plaintiff Mongeluzzi was insufficient; (5) [56]*56plaintiff Mongeluzzi is limited to participating — if he is allowed to participate at all — only in the settlement proceeds of the Keysers, because they are the only parties for whom he entered an appearance; and, (6) plaintiff Mongeluzzi cannot seek the equitable relief he has requested because he has unclean hands.

Before trial, defendants moved in limine, inter alia, to preclude PECO’s counsel, William J. O’Brien or the mediator, former Judge David Murphy, from expressing any view on the “impact” of plaintiff Mongeluzzi on the settlement of the underlying PECO cases. This court ruled that it would not hear any “impact” evidence “unless a member of counsel who negotiated with or against Mr. Mongeluzzi is going to testify in this case ... unless the person or persons testified, it would not be admissible evidence.” N.T. 10/12/01 (a.m.), pp. 7-8. This court precluded the testimony of Bernard Smalley, Esquire regarding purported unethical conduct by the defendant Michael O. Pansini. Id. at 8. This court ruled that evidence of the value of services provided by plaintiffs was properly admissible at trial. Id. at 8. Last, this court ruled that the mediation privilege1 precludes evidence of communications made during and related to, mediations. Therefore, such evidence would not be admissible at the trial. N.T. 10/12/01 (p.m.), pp. 64-67.

III. FINDINGS OF FACT

(1) Defendants Pansini, Lessin, and Mezrow are personal injury attorneys. Defendant Pansini & Lessin is a partnership engaged in the practice of personal injury [57]*57law. In February 1997, just before filing suit in the Costello/Keyser action, Pansini & Lessin hired a third, non-equity attorney, defendant Steven Mezrow. See N.T. 10/29/01 (a.m.), pp. 114-15; N.T. 11/14/01 (p.m.), p. 4.

(2) Norristown, Pennsylvania firemen James Costello and Craig Keyser, and Norristown resident Irvin Byrd, retained Pansini & Lessin to represent them in connection with the injuries they sustained in the Norristown explosion under written contingency fee agreements. These agreements entitled defendants to 40 percent of any recovery obtained by suit or post-litigation settlement, as well as “all costs and expenses incidental to any litigation or negotiation of settlement.” The agreements did not cover compensation for any potential appeals. See plaintiffs’ proposed finding of fact and conclusions of law, exhibits 153, 154, 155.2

(3) In April 1997, James Costello and Craig Keyser filed suit in Philadelphia County against PECO. Venue in that particular action was subsequently transferred to Montgomery County.3 In August 1997, Irvin Byrd, a Norristown resident, also filed suit in Philadelphia County against PECO. In December 1997, Louise Byrd [58]*58(Irvin Byrd’s mother) and Irvin Byrd filed suit against PECO in Federal District Court for the Eastern District of Pennsylvania. N.T. 10/23/01 (a.m.), pp. 3-5. In August 1998, James Costello, Craig Keyser and the Byrds, as well as several police and firefighter organizations, petitioned the Pennsylvania Public Utility Commission in connection with a prior PUC proceeding involving PECO. N.T. 10/23/01 (a.m.), p. 35.4

(4) During the course of the PECO actions, Pansini & Lessin retained several other attorneys to assist with the prosecution of those cases. In each case, defendants chose these third-party counsel on the basis of their ability to lend their legal expertise or personal reputation and credibility to defendants’ efforts. William J. O’Brien, Esquire and Howard Kline, Esquire are attorneys and members of the law firm retained by PECO to represent its interests in the PECO actions, and other matters.5

(5) In December 1997, defendants hired Frank Finch, Esquire, a civil rights practitioner, because they needed someone to draft the federal civil rights complaint and [59]*59assist with the claim on behalf of the Byrds. Defendants do not practice civil rights law, and needed to retain someone who was familiar with that field.

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Bluebook (online)
61 Pa. D. & C.4th 52, 2001 Pa. Dist. & Cnty. Dec. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mongeluzzi-v-pansini-pactcomplphilad-2001.