dissenting.
I dissent to the affirmance of the Superior Court’s decision.
The defendant/appellee, Frank Seltzer, did not file an answer to the complaint of plaintiff/appellant, Anthony Miernicki, seeking counsel fees allegedly owed him for services rendered. Because he did not file an answer, a default judgment was entered against appellee. The Superior Court correctly reasoned that:
For purposes of determining the amount of appellant’s counsel fees, the court was required to treat as admitted all averments of fact contained in the complaint. (Citations omitted.) Thus, it was a fact, admitted by Frank Seltzer, that appellant had been “retained upon a contingency basis of ten percent (10%) of the total recovery.”
312 Pa.Super. 166, 170-171, 458 A.2d 566 at 568-69. (Emphasis added).
Nevertheless, the Superior Court held that appellant was entitled to only 10% of Frank Seltzer’s portion of the total recovery. The total recovery was on behalf of both Frank Seltzer and his brother, Atkin Seltzer. The Superior Court’s reasoning was that, since Frank Seltzer had no actual or apparent authority to bind Atkin to pay any portion of his (Atkin’s) recovery to appellant for appellant’s services, the ten percent agreed to “can reasonably refer only to the amount recovered by Frank Seltzer.” 312 Pa.Superior Ct. at 175, 458 A.2d at 571.
In so reasoning, the Superior Court ignored the legal effect of Frank Seltzer’s “admission” that he had agreed to pay appellant ten percent of the total recovery. While *325Frank Seltzer was not able to legally obligate Atkin Seltzer to pay any percentage of his portion of the recovery to appellant, Frank Seltzer was certainly able to bind himself to pay appellant a fee based upon a percentage of the total recovery.
I would reverse the Superior Court and remand the case to the Court of Common Pleas of Schuylkill County for entry of a decree awarding counsel fees to appellant in accordance with this opinion.
PAPADAKOS, J., joins in this dissenting opinion.