Behrend v. Yellow Cab Co.

• Decision Date: 12 November 1970
• Parties: Kenneth W. BEHREND, Appellant, v. YELLOW CAB COMPANY.
• Court: Pennsylvania Supreme Court

Page 241

271 A.2d 241

441 Pa. 105

Kenneth W. BEHREND, Appellant, v. YELLOW CAB COMPANY.

Supreme Court of Pennsylvania.

Nov. 12, 1970.

Mark B. Aronson, Pittsburgh, for appellant

Richard S. Dorfzaun, Dickie, McCamey & Chilcote, Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

POMEROY, Justice.

By a power of attorney dated October 17, 1968, one Walton C. Warman retained Mark B. Aronson, Esquire, and Kenneth W. Behrend, Esquire, the appellant, both lawyers, to prosecute a claim in trespass for damages against the Yellow Cab Company, the appellee, in consideration of Warman's agreement to pay to Aronson and Behrend forty per cent of any sum realized by settlement, suit or otherwise. Thereafter, Warman allegedly released Yellow Cab from all liability in return for $1,000 and Yellow Cab's promise to pay on Warman's behalf all medical and related expenses and 'reasonable attorney's fees.' Following Warman's settlement with Yellow Cab, Behrend as plaintiff brought this suit in trespass, alleging that Yellow Cab had tortiously induced Warman to breach his contract with Behrend; Behrend was represented in this action by his partner, Aronson. The appellee filed preliminary objections to Behrend's initial complaint, the complaint was amended, and appellee filed preliminary objections in the nature of a demurrer, contending that the complaint failed to state a claim upon which relief could be granted.

After argument before the court En banc, the amended complaint was dismissed without leave to amend by order dated December 2, 1969, one judge dissenting. The court En banc determined that there was no basis to appellant's action, because the appellant had specifically averred in his complaint that the defendant had promised to pay Warman's reasonable counsel fees as part of its settlement. Thus, in the court's view, the appellee had recognized the validity of the appellant's contract with Warman to furnish legal services. Rather than inducing a breach of contract or representing to Warman that the power of attorney was invalid or that he had no obligation to Behrend, appellee, by appellant's allegations, had recognized and assumed the obligation created by Warman's contract.

Following the action of the court En banc, appellant petitioned another judge of the Common Pleas Court of Allegheny County for leave to file a second proposed amended complaint, a copy of which was attached to the petition as an exhibit. The judge, by order entered December 19, 1969, denied plaintiff's petition, reasoning that the matter had already been determined by the court En banc in its final order of December 2, 1969.

The appeal before us purports to be not only from the order of the court below dated December 2 but also from its order dated December 19, 1969. The only appeal properly before us, however, is that from the order of December 2, which sustained defendant's demurrer and dismissed plaintiff's complaint, as amended. ¹ Appellant does not contend that the court acted incorrectly in sustaining defendant's demurrer, and in our view such a contention could not succeed. The power of attorney running from Warman as client to Messrs. Behrend and Aronson as attorneys did not deprive Warman of the power to settle any claims he had against Yellow Cab. See Wahl v. Strous,344 Pa. 402, 25 A.2d 820 (1942); Restatement (Second) of Agency § 449 (1958). ² It provided only that Messrs. Behrend and Aronson should be entitled to 'forty per cent (40%) of any sum realized by settlement, suit or otherwise.' Appellant's first amended complaint alleged that Yellow Cab promised to pay, on Warman's behalf, reasonable counsel fees. This is not an allegation of a tortious inducement of breach of contract, but rather of an acceptance of Warman's contractual burden by Yellow Cab. As such, it might provide a basis for a claim by appellant for attorney's fees owed him pursuant to the power of attorney, but it does not support a claim in tort for damages, punitive or otherwise.

The undertaking as to counsel fees is the sole contractual duty imposed upon Warman by the terms of the power, and Warman's payment of that fee would complete his performance of the contract. By the same token, appellee's assumption and payment on Warman's behalf of appellant's lawful fee would complete Warman's performance of the contract. The payment of the fee, therefore, cannot be equated, as the dissenting opinion attempts to do, to payment of damages for some unidentified breach of contract; there is no breach of contract indicated by the pleading, and no question of damages.

Appellant's position, as stated in his brief, is that he 'has filed this appeal asking * * * for leave to file and proceed upon the proposed Amended Complaint.' Amendment of a complaint should be freely allowed, ³ and a claim ought not be jeopardized by minor defects in pleading or technical errors of counsel. But liberality of pleading does not encompass a duty in the courts to allow successive amendments when the initial pleading indicates that the claim asserted cannot be established. The view of the court En banc that the instant case presented such a claim was fully warranted in view of the pleadings then of record; it is further confirmed by the plaintiff's proposed second amended complaint which was prepared subsequent to and with the benefit of the majority and dissenting opinions of the Court en banc. ⁴ That proposed complaint contains the allegation that the defendant Yellow Cab 'promised Walton C. Warman that his obligation under written agreement with plaintiff would be discharged by them.' If anything, this is a more explicit undertaking to take care of Warman's counsel fee liability than that set forth in the pleading before the court En banc. An action for tortious inducement of breach of contract could not be maintained in the face of such an allegation.

The dissenting opinion relies upon Richette v. Pennsylvania R.R., 410 Pa. 6, 182 A.2d 910 (1963), in support of the proposition that the acts alleged in the proposed second amended complaint constituted a tortious inducement of breach of contract. In Richette, the plaintiff alleged, and proved to the satisfaction of the jury that the defendant had by acts of coercion induced the donor of a power of attorney to revoke that power and to breach his obligation under it to pay his attorney one-third of any realized by settlement or suit. In that case there was no suggestion that the defendant assumed the donor's contractual burden as to counsel fees, and Richette is therefore manifestly distinguishable from the case at hand.

We conclude that the lower court did not err in sustaining defendant's preliminary objection in the nature of a demurrer and in dismissing appellant's complaint without leave to amend.

The order of December 2, 1969 is affirmed. To the extent that this appeal is from the order of December 19, 1969, the appeal is quashed.

O'BRIEN, J., filed a dissenting opinion in which ROBERTS, J., joined.

O'BRIEN, Justice (dissenting).

I do not agree with the conclusion of the majority that 'the initial pleading indicates that the claim asserted cannot be established.' I cannot, of course, quarrel with the decision of the majority of the court en banc to sustain the demurrer in view of the pleadings then on file. Nor can I disagree with the majority's statement of disapproval of the procedure followed by appellant. In view of the fact, however, that I believe that a cause of action can be made out and that the proposed second amended complaint makes out such a cause of action, I am loath to prevent its proper determination in view of the fact that appellee would in no wise be prejudiced by reaching the substantive issue.

In Quaker City Chocolate & Confectionery Co. v. Delhi-Warnock, 357 Pa. 307, 53 A.2d 597 (1947), we said that 'where there appears a possibility of recovery under a better statement of the facts an opportunity to file an amended (complaint) must be granted.' In the instant case the majority of the court en banc concluded that the majority of this court concludes that appellant's two unsuccessful attempts to state a cause of action indicate that there is ...