Opinion
Civil Action No. 03-5103.
March 23, 2005
MEMORANDUM/ORDER
Currently before the court is Plaintiffs Motion to Approve Attorney Fee and Costs Pursuant to Local Rule 41.2c submitted by Thaddeus Bartkowski, counsel for Lonshya Bradley and Donna Rosas, plaintiffs in the above-captioned case. Local Rule 41.2(c) states that [n]o counsel fee, costs, or expenses shall be paid out of any fund obtained for a minor, incapacitated person or such decedents estate as a result of a compromise, settlement, dismissal or judgment unless approved by the court. Ms. Bradley is an incapacitated adult; Ms. Rosas is her mother and guardian. Defendant GMAC is the automobile insurer of Maurice O Donoghue, who hit Ms. Bradley with his car, and thereby caused the accident underlying this suit.
In a letter dated August 11, 2004, Mr. Bartkowski informed the court that the parties had settled out of court, with GMAC agreeing to pay $225,000. The Department of Public Assistance required plaintiffs to pay $112,500 for medical costs that Ms. Bradley incurred as a result of the accident, leaving plaintiffs with the remaining $112,500 from the settlement.
In the currently pending motion, counsel asks the court to approve a distribution that would provide him with attorneys fees of 40%, or $45,000, of the settlement award, and costs of $381.74. This distribution would leave plaintiffs with $67,118.26, or 59.7% of the award amount.
The court has authority to review and/or modify a contingent fee agreement entered into with clients who are unable to bargain equally with their attorneys and who, as a result, are especially vulnerable to overreaching. Dunn v. H.K. Porter Co. Inc., 602 F.2d 1105, 1109 (3d Cir. 1979). See also Schlesinger v. Teitelbaum, 475 F.2d 137, 139 (3d Cir., 1973) (It is well recognized that the court has the power to set fees in cases involving persons of presumed incapacity to look after their affairs intelligently.) (citing a report of the American Bar Association on contingent fee agreements).
As the Third Circuit stated in Polselli v. Nationwide Mut. Fire Ins. Co., 126 F.3d 524, 532 (3d Cir., 1997), courts deciding cases under Pennsylvania law are guided by Pennsylvania Rule of Civil Procedure 1716 when considering the amount of a reasonable fee:
In all cases where the court is authorized under applicable law to fix the amount of counsel fees it shall consider, among other things, the following factors:
(1) the time and effort reasonably expended by the attorney in the litigation;
(2) the quality of the services rendered;
(3) the results achieved and benefits conferred upon the class or upon the public;
(4) the magnitude, complexity and uniqueness of the litigation; and
(5) whether the receipt of a fee was contingent on success. Pa. R. Civ. Proc. 1716.
Mr. Bartkowski has not provided the court with any documentation that would allow the court to apply the factors contained in Pa. R. Civ. P. 1716 to his attorneys fee request.Compare Nice v. Centennial Area Sch. Dist., 98 F. Supp. 2d 665, 671 (E.D. Pa., 2000) (Although afforded an opportunity to do so at a hearing, counsel provided no information concerning the customary hourly rates in plaintiffs' counsel's relevant geographic area or the customary rates for similar work. Thus, the court was unable to validate its judgment on the reasonableness of the fee by comparing the customary hourly rate in the relevant market to the presumptive lodestar adopted by the Court of Common Pleas of Bucks County.). Accordingly, it is hereby ORDERED that Mr. Bartkowski shall revise his attorney fee petition such that it describes the work he performed on the above-captioned case in light of the factors enumerated in Pa. R. Civ. Proc. 1716. The revised fee petition is to be filed within twenty days from the date of this memorandum/order.