J-A11035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TOMASKO & KORANDA, P.C., RONALD T.            IN THE SUPERIOR COURT
    TOMASKO, AND MICHAEL KORANDA                     OF PENNSYLVANIA

                             Appellants

                        v.

    IRA H. WEINSTOCK, P.C.

                             Appellee                No. 116 MDA 2018


               Appeal from the Order Entered December 27, 2017
                In the Court of Common Pleas of Dauphin County
                        Civil Division at No: 1997 EQ 5402


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED: NOVEMBER 5, 2019

        Appellants, Tomasko & Koranda, P.C., and Ronald T. Tomasko1 appeal

from the December 27, 2017 accounting order directing Appellants to

distribute $3,900.00 to Appellee, Ira H. Weinstock, P.C. We affirm.

        The record reflects that Tomasko and Koranda were employees of

Appellee, a law firm, prior to January 3, 1997, on which date they formed their

own law firm. On January 16, 1997, Appellants commenced this equity action

(the “Equity Action”) with an emergency petition to compel transfer of files of

clients who chose to have Appellants continue to represent them. On January

21, 1997, the trial court ordered Appellee to transfer several files, and on

February 2, 1997, the trial court ordered Appellants to escrow 40% of the

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1    Michael Koranda is deceased.
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“settlement resolution” of each transferred case. On January 6, 1998, the

trial court entered an order directing that Appellee receive 75 percent and

Appellant receive 25 percent of the funds in escrow.2          The trial court also

ordered cessation of payments into escrow and directed that for “all

settlements occurring on or after October 21, 1997, on files which were

transferred pursuant to the February 6, 1997 order, [Appellants] shall pay

30% of the fees directly to [Appellee]. [Appellants] will retain 70% of the fees

for its own use.”      Order, 1/6/98.      “The distribution of fees subsequent to

October 21, 1997, shall be without prejudice to either party to subsequently

litigate the actual interest of either side in the fees.” Id. As we will discuss

in more detail below, the parties have disputed the extent to which Appellants

complied with their post-October 21, 1997 payment obligations.                See

Appellee’s Motion for Contempt, 1/19/99; Appellants’ Answer to Motion for

Contempt, 2/4/99.

       This action     has    proceeded alongside     Appellee’s lawsuit against

Appellants (the “Action at Law”), in which Appellee alleged causes of action

against Appellants for interference with contractual relationships, unjust

enrichment, and quantum meruit, among others.               One such contractual

relationship was with Cathy Wamsley, a client of Appellee who chose to have

Appellants represent her after their departure. In August of 1997, a worker’s

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2   This disbursement created a 70/30 split between Appellants and Appellee.



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compensation judge approved a payment to Wamsley of $65,000 in

settlement of a wage loss claim.3              The worker’s compensation judge also

approved a $13,000 attorney’s fee to Appellants (the “Wamsley Fee”).

Appellee claimed it was entitled to the entire Wamsley Fee in light of the hours

and expenses incurred in that case prior to Appellants’ departure. The trial

court ordered that the entire Wamsley Fee be placed into escrow, where it

remains, pending final resolution of this appeal. The Action at Law languished

for years without activity, and the trial court ultimately entered a judgment of

non pros on April 4, 2014.               This Court affirmed in an unpublished

memorandum filed on July 26, 2016.

       On January 13, 2017, after the final resolution of the Action at Law,

Appellants filed a motion for accounting and return of escrowed funds in this

Equity Action. Appellants seek the return of all money paid to Appellee in

connection with the February 2, 1997 and January 6, 1998 orders. They also

seek the entirety of the Wamsley Fee, which is the only fee remaining in

escrow. In the order on appeal, the trial court directed that Appellee receive

30% ($3,900.00) of the Wamsley Fee. The trial court did not order that any

other funds change hands, concluding that fee and settlement disputes related

to the transferred files had long since been resolved, and no funds other than

the Wamsley Fee remained in escrow. This timely appeal followed.


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3 Appellants represent that the medical expense portion of Wamsley’s claim
remains pending. Appellants’ Brief at 19.

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      Appellants present two questions:

      A. Did the trial court err, as both a matter of law and fact, in not
         ordering [Appellee] to account for all monies received pursuant
         to the trial court’s various escrow orders after [the Superior
         Court’s] order filed July 26, 2016 in the matter of [Ira H.
         Weinstock, P.C. v. Tomasko, 2016 WL 4919464 (Pa. Super.
         July 26, 2016) (unpublished memorandum)]?

      B. Alternatively, did the trial court err, as both a matter of law
         and fact, in awarding [Appellee] an ‘origination’ fee in a
         worker’s compensation matter that had been settled in part by
         [Appellants] back in 1997 when a worker’s compensation judge
         had actually heard testimony and reviewed documentary
         evidence on the matter and circulated a decision, dated
         November 10, 1999, that concluded that [Appellee] had been
         overpaid for any and all legal representation in the matter?

Appellants’ Brief, at 2-3 (underscoring in original).

      We conduct our review as follows:

            In equity matters, appellate review is based on a
      determination by the appellate court of such questions as whether
      (1) sufficient evidence supports the findings of the judge; (2) the
      factual inferences and legal conclusions based on those findings
      are correct; [and] (3) there has been an abuse of discretion or an
      error of law. Generally, in an appeal from a trial court sitting in
      equity, the standard of review is rigorous. The function of this
      Court on an appeal from an adjudication in equity is not to
      substitute its view for that of the lower tribunal; our task is rather
      to determine whether a judicial mind, on due consideration of all
      the evidence, as a whole, could reasonably have reached the
      conclusion of that tribunal.

Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 557–58 (Pa. Super. 2004).

      First, Appellants argue that the trial court should have forced Appellee

to return the money Appellee received pursuant to the trial court’s orders of

February 2, 1997 and January 6, 1998 in light of the non pros in the Action at

Law. We begin with a look at the text of the order on appeal:


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       AND NOW, this 25th day, December, 2017,[4] upon consideration
       of [Appellants’] Motion for Accounting and Return of Escrow Funds
       […] and an attempt by this court to put to rest the long extended
       contention between the parties, HEREBY orders the distribution
       which arises from this court’s initial segregation of amounts
       awarded as attorney fees from [the Equity Action] to reflect the
       court’s then intended financial resolution to begin at a point of the
       acknowledged origination basis of 30% be assessed to be directed
       to [Appellee], and that any additional amounts to be determined
       and/or resolved by the then litigation or settlement. Given the
       non pros being entered, any amounts more have been resolved.
       Accordingly, this Court directs $3,900.00 (30% of $13,000) be
       distributed to [Appellee] and the remaining balance to
       [Appellants].

Order, 12/27/17.

       We glean several important points from the trial court’s order. First, the

trial court’s January 6, 1998 order—in which the court directed disbursement

of escrowed money and directed that, thereafter, Appellants would pay

Appellee 30% of the attorney’s fees from the transferred files—represented

the court’s “then intended financial resolution” based on “the acknowledged

origination basis of 30%.” Id. Second, the Action at Law (i.e., “the then

litigation”) would resolve any dispute regarding the fairness of the 30%

origination credit in a specific case. Third, one such disputed amount was the

Wamsley Fee, to which both parties presently claim a 100-percent interest.

Fourth, given the non pros in the Action at Law, Appellee could not recover

more than its 30% origination credit from the Wamsley Fee. Finally, given

the foregoing, the trial court divided the Wamsley Fee according to the


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4   The order was docketed on December 27, 2017.

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previously established 70/30 formula and declared the matter at an end. To

obtain relief under the rigorous standard of review applicable to the decision

of an equity court, Appellants must establish that the court, upon due

consideration of all available evidence, could not reasonably have reached this

conclusion. In our view, Appellants have failed.

      Legally, Appellants’ challenge to the trial court’s order rests entirely on

the proposition that an equity award cannot stand if there is no evidence in

the record to support it. Appellant’s Brief at 13, 16 (citing Lilly v. Markvan,

763 A.2d 370 (Pa. 2000)).        In Lilly, an adverse possession case, the

Pennsylvania Supreme Court partially vacated a finding of adverse possession

where there was no evidence the claimants ever occupied a half-acre portion

of the real estate in dispute. Here, in contrast, the trial court found that the

parties acknowledged a 30% origination credit payable to Appellee for

transferred files, and the fact that Appellants acted in accord with that

arrangement—without objection, appeal, or any apparent insistence that all

disputed amounts remain in escrow until a full and final resolution of all

pending litigation—supports the trial court’s finding. We glean from the order

on appeal and the parties’ course of conduct that the adequacy of the 30%




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credit, as to certain cases, was in dispute in the Action at Law, particularly in

Appellee’s quantum meruit and unjust enrichment claims.5

       A review of the parties’ competing contempt and sanction motions, filed

in early 1999, illustrates the parties’ dispute.       Appellee filed a motion for

contempt on January 19, 1999, alleging that Appellants were failing to forward

30% of all incoming fees from transferred cases in accord with the trial court’s

January 6, 1998 order.           Appellants, in their February 4, 1999 answer,

documented their pre- and post-October 21, 1997 compliance with the trial

court’s fee distribution scheme. Appellants’ Answer to Motion for Contempt,

2/4/99, at Exhibits A-F.         Specifically, Appellants categorized clients into

contingent fee clients, hourly clients, worker’s compensation clients, and

clients allegedly not subject to the trial court’s orders. Id. Appellants claimed

they paid Appellee in full for settled contingent fee cases. Id. at 3. For hourly

clients, Appellants alleged Appellee had billed the clients for services rendered

prior to the transfer of the case to Appellants, and therefore had been

compensated in full.       Id. at 3-4.     In a cross petition for contempt and/or

sanctions filed on February 5, 1999, Appellants claimed Appellee failed to

provide itemized statements (time spent and money received from certain

clients) in support of its claims of compensation due and owing from


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5  See Hiscott and Robinson v. King, 626 A.2d 1235 (Pa. Super. 1993)
(holding that an attorney hired on a contingent fee basis and dismissed prior
to settlement may recover in quantum meruit for the time and expenses
devoted to the case), appeal denied, 644 A.2d 163 (Pa. 1994).

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Appellants. Appellants’ Cross-Petition for Contempt, 2/5/99. The parties also

disputed the appropriate division of proceeds in cases that settled shortly after

Appellants’ departure from Appellee.           The trial court ultimately denied all

petitions and cross petitions for sanctions in an order dated April 8, 2000.6

        Regardless of the relative merit of either party’s position in these 20-

year-old motions, they illustrate that Appellants paid Appellee what they

believed they owed, and declined to pay what they believed they did not owe.

To the extent Appellants argue that the trial court’s January 6, 1998 order

permitted them to make payment subject to a reservation of rights,7

Appellants never have established any right to recoup prior payments.

Appellants would have us conclude that Appellee’s failure in the Action at Law,

in and of itself, required them to remit all monies received pursuant to the

orders in this Equity Action. The record does not support this claim. While

Appellee failed to establish, through the Action at Law, that it was entitled to

more than 30%, Appellants never established that Appellee was entitled to

less.   Appellants filed a counterclaim in the Action at Law, but the record

before us does not divulge its particulars. Appellants obtained a non pros in

the Action at Law rather than litigate the merits. Given the state of the record


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6 On October 30, 2001, this Court affirmed, concluding that an order that
made no finding of contempt and imposed no sanctions was not appealable.

7  We observe that there is nothing in the record to support a conclusion that
the pre-October 21, 1997 payments were made subject to a reservation of
rights.

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and the parties’ course of conduct during this extensive litigation, we conclude

the trial court acted reasonably in leaving the parties as it found them with

respect to all prior disbursements.

      In hope of avoiding this conclusion, Appellants reference an order, time

stamped April 21, 2000, providing that “after an extended period of time has

passed for completion of discovery on the underlying main action, this court’s

orders directing distribution/escrow of contested file claims are hereby

rescinded.   All monies heretofore escrowed are to remain escrowed until

further order of this court.” Order, 4/21/00. We do not believe this order

supports Appellants’ argument for        repayment of amounts previously

disbursed. Rather, it simply required that all amounts in escrow remain there

pending the resolution of the “underlying main action,” i.e., the Action at Law.

The Action at Law ended with neither party prevailing on any claim against

the other. At the time of the April 21, 2000 order (and at present), the only

money in escrow was the Wamsley Fee. The April 21, 2000 order therefore

has no bearing on Appellants’ claimed entitlement to remittance of prior

disbursements.

      Regarding the Wamsley Fee, Appellants claim in their second argument

that the trial court erred in awarding Appellee a 30% share because a worker’s

compensation judge concluded that Appellee had been overpaid in connection

with the Wamsley matter. By letter dated May 15, 1997, Appellants’ counsel

offered to place 40% of the Wamsley fee in escrow, in accord with the


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governing trial court order as of that date.       Appellants’ Brief in Support of

Release of All Escrowed Attorneys’ Fees, 3/15/17, at Exhibit B. By letter dated

May 29, 1997, Appellee declined and demanded that the full Wamsley Fee be

placed in escrow. Id. at Exhibit C. The parties disputed the issue before the

Bureau of Worker’s Compensation, which found, in a decision issued on

November 10, 1999, that Appellee was not entitled to any portion of the

Wamsley Fee. Id. at Exhibit D. The Bureau noted that Appellee, primarily by

and through Appellant Koranda, represented Wamsley in her worker’s

compensation matter from October 21, 1991 through December 30, 1996.

Id. at Exhibit D, page 2-4. On July 2, 1997, Wamsley agreed to a settlement,

negotiated by Appellant Koranda, of her compensation claim. Id. at Exhibit

D, page 5. The Bureau found that Appellee played no role in the settlement

negotiation.    Id.    The Bureau also found that Appellee had received over

$10,000.00 in fees in the Wamsley matter and was not entitled to further

compensation.8 Id. at Exhibit D, page 5-9.

       The record, therefore, fully supports Appellants’ claim that they

prevailed in this fee dispute in the worker’s compensation matter.            But

Appellants do not explain why the decision from the Worker’s Compensation

Bureau binds the trial court in this Equity Action. Notably, the trial court, at



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8 Appellee was further ordered to remit a payment of $519.84 that it received
after Wamsley terminated Appellee’s representation. Id. at Exhibit D, page
4, 9.

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the hearing on the parties’ competing sanctions motions, told the parties it did

not believe it would be bound by the Bureau’s decision. N.T. Hearing, 9/28/99,

at 21. Moreover, the issue of origination credit was not before the Worker’s

Compensation Bureau. Appellants have failed to establish that the outcome

of the fee dispute before the Bureau has any bearing on the outcome here.

      For reasons we have already explained, Appellee’s failure in the Action

at Law did not preclude application of the trial court’s 70/30 fee division.

Presumably, Appellants could have relied on the worker’s compensation

decision in support of a counterclaim in the Action at Law, had they chosen to

litigate that action on the merits. Instead, the parties proceeded in accord

with the trial court’s 70/30 formula with neither side successfully establishing

another appropriate fee division.     Thus, Appellants have failed to establish

that the trial court erred in applying the 70/30 formula to the Wamsley Fee.

      For all of the foregoing reasons, we conclude that the trial court acted

reasonably in light of all of the available evidence. Appellants criticize the trial

court for lacking any evidentiary basis for its decision, but in our view it is

Appellants who have failed to put forth any evidentiary or legal basis for the

relief they seek. Nothing in the record supports a conclusion that Appellee’s

ability to retain all prior disbursements was dependent upon its success in the

Action at Law. Were that the case, Appellants should have exhausted all legal

avenues in an attempt to ensure that any disputed funds remained in escrow

until the conclusion of the Action at Law.       They did not.     In this appeal,


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Appellants have failed to articulate any legal or factual basis sufficient to

overcome the rigorous standard of review applicable to the decision of an

equity court. We therefore affirm the trial court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2019




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