J-A08032-21

2021 PA Super 100

VINCE AUSTIN

v.

THYSSENKRUPP ELEVATOR 

CORPORATION

APPEAL OF: ANDREW J. SCHNEIDER, 

ESQ.

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 772 EDA 2020

Appeal from the Order Entered January 22, 2020

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 160700347

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED: MAY 14, 2021

Appellant, Andrew J. Schneider, Esquire (“Attorney Schneider”), appeals 

from the order entered in the Court of Common Pleas of Philadelphia County 

denying his motion for imposition of an attorney’s charging lien. After a 

careful review, we reverse and remand for proceedings consistent with this

decision. 

The relevant facts and procedural history are as follows: On February 

19, 2016, Vince Austin (“Austin”) sustained injuries while he was riding in an 

elevator, which suddenly and violently dropped. The elevator was owned and 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-A08032-21

- 2 -

maintained by Thyssenkrupp Elevator Corporation (“tkE”).

1 On February 29, 

2016, Austin retained Attorney Schneider to pursue a personal injury claim 

against tkE. On that same date, Austin signed a contingency fee agreement 

confirming that Attorney Schneider’s law firm would receive “forty (40%) of 

any and all sums recovered.” Contingency Fee Agreement, dated 2/29/16.

On July 7, 2016, Attorney Schneider filed a civil complaint on behalf of 

Austin and against tkE. Discovery commenced, and following a dispute 

resolution proceeding on November 30, 2017, tkE and Austin reached an oral

settlement agreement in the amount of $60,000.00 in the underlying personal 

injury lawsuit. 

Accordingly, on December 19, 2017, Attorney Schneider advised the 

trial court, in advance of a settlement conference scheduled for that day, that 

Austin and tkE had reached a settlement. In response, the trial court marked 

the case as settled on the docket and removed the matter from the trial list.

Thereafter, Austin changed his mind regarding the settlement, and on 

January 11, 2018, Austin informed Attorney Schneider that he did not intend 

to execute the written release. 

____________________________________________

1 As discussed infra, issues underlying the instant matter were previously 

presented to this Court. Austin v. Thyssenkrupp Elevator Corp., No. 2080 

EDA 2018 (Pa.Super. filed 5/1/19) (unpublished memorandum). Therein, we 

referred to Thyssenkrupp Elevator Corporation as “tkE,” and for the sake of 

consistency, we shall continue to do so.
J-A08032-21

- 3 -

On May 4, 2018, tkE filed a motion to enforce the settlement reached 

between it and Austin. Therein, tkE indicated the “communications and 

releases exchanged by counsel for the parties confirm that the parties agreed 

to the material terms of settlement and fully intended to be bound by those 

terms.” TkE’s Motion to Enforce Settlement, 5/4/18, at ¶ 10. Moreover, tkE 

attached exhibits to its motion, including a letter from the dispute resolution 

service confirming amicable resolution of the case, as well as various emails 

exchanged between counsel for tkE and Austin regarding the proposed 

release. In one such email, dated March 22, 2018, Attorney Schneider 

informed tkE’s counsel that Austin “is now balking at the settlement, so he 

hasn’t signed the release. Rest assured that I have no intention of trying to

renege on our settlement agreement. The only question for me is if I can 

convince [Austin] to sign what he previously agreed to.” TkE’s Motion to 

Enforce Settlement, 5/4/18, (exhibit). Accordingly, tkE sought judicial 

intervention to enforce the settlement.

By order entered on June 1, 2018, the trial court granted tkE’s motion 

and enforced the settlement agreement orally reached between tkE and 

Austin. Further, the trial court directed Austin to execute the written release 

and tkE to deliver a settlement check thereafter. Austin, however, continued 

to refuse to execute the written release. Further, on June 29, 2018, Austin 

discharged Attorney Schneider and his law firm. 
J-A08032-21

- 4 -

Austin retained new counsel, Charles W. Campbell, Esquire, who entered 

his appearance on behalf of Appellant on July 2, 2018. On that same date,

Attorney Campbell filed on behalf of Austin a timely notice of appeal to this 

Court from the trial court’s June 1, 2018, order. 

On appeal, this Court affirmed the trial court’s order granting tkE’s 

motion to enforce the settlement agreement. See Austin v. Thyssenkrupp 

Elevator Corp., No. 2080 EDA 2018 (Pa.Super. filed 5/1/19) (unpublished 

memorandum). Relevantly, we agreed with the trial court that tkE and Austin 

entered into an oral settlement agreement. Id. Moreover, we found no error 

in the trial court directing Austin to sign the settlement release so that tkE 

could release the settlement money. Austin did not file a petition for allowance 

of appeal with our Supreme Court.

On August 15, 2019, Attorney Schneider filed a motion to assert an 

attorney’s charging lien.

2

 Therein, Attorney Schneider indicated that, as of 

the filing of his motion, Austin had not yet complied with the court’s order 

directing him to sign the settlement release. Also, he relevantly averred the 

following:

18. Plaintiff Austin has failed to honor the terms of the fee 

agreement[.]

19. Per the terms of the agreement, the services rendered and 

costs expended, Vince Austin owes [Attorney Schneider’s law 

____________________________________________

2 While Austin’s appeal in the underlying matter was pending in this Court, 

Attorney Schneider filed two motions for an attorney’s charging lien. Since an 

appeal was pending, the trial court denied the first motion without prejudice. 

Attorney Schneider withdrew the second motion. 
J-A08032-21

- 5 -

firm] $24,000.000 in attorney’s fees and costs in the amount of 

$6,304.01. ($2,468.75 mediation fee, $2,497.00 elevator expert 

fee, plus filing fees, deposition transcripts, etc.). 

20. The total attorney’s charging lien requested totals $30,304.01.

21. Vince Austin has not paid for the legal services rendered by 

[Attorney Schneider’s law firm].

22. Vince Austin has not reimbursed [Attorney Schneider’s law 

firm] for costs expended.

23. [Attorney Schneider] requests the [trial] court impose a lien 

on the settlement funds payable to Vince Austin in this matter.

Attorney Schneider’s Motion, filed 8/15/19, at ¶¶ 18-23.

On October 30, 2019, the Honorable Denis P. Cohen entered an order 

denying Attorney Schneider’s motion, and on November 11, 2019, Attorney 

Schneider filed a motion for reconsideration. On November 18, 2019, Judge 

Cohen vacated the October 30, 2019, order. On January 22, 2020, Judge 

Cohen vacated the November 18, 2019, order and denied Attorney 

Schneider’s motion for an attorney’s charging lien.3

This timely appeal followed. The trial court did not direct Attorney 

Schneider to file a Rule 1925(b) statement, and consequently, no such 

____________________________________________

3 For reasons unclear from the record, Attorney Schneider’s motion was 

assigned to two separate trial court judges: Judge Cohen and the Honorable 

Shelley Robins-New. Both judges initially entered orders denying Attorney 

Schneider’s motion. Thereafter, Attorney Schneider filed motions for 

reconsideration with both judges. Judge Robins-New vacated her order, and 

as discussed supra, Judge Cohen entered an order on January 22, 2020, 

denying the motion. 
J-A08032-21

- 6 -

statement was filed. However, on November 6, 2020, the trial court filed a 

Pa.R.A.P. 1925(a) opinion in support of its order. 

On appeal, Attorney Schneider sets forth the following issue in his 

“Statement of the Questions Involved” (verbatim):

1. Did the Trial Court abuse its discretion in denying Appellant’s 

motion for attorney charging lien?

Attorney Schneider’s Brief at 4 (suggested answer omitted).4

In the case sub judice, Attorney Schneider contends the trial court erred 

in failing to impose an attorney’s charging lien against the funds of 

$60,000.00, which represents the amount of the oral settlement agreement 

between tkE and Austin. “Equitable principles govern whether a charging lien 

is enforceable.” Smith v. Hemphill, 180 A.3d 773, 776 (Pa.Super. 2018) 

(citation omitted). Specifically, in its seminal case on the issue, our Supreme 

Court held that, before a charging lien will be recognized and applied, it must 

appear:

(1) that there is a fund in court or otherwise applicable for 

distribution on equitable principles, (2) that the services of the 

attorney operated substantially or primarily to secure the fund out 

of which he seeks to be paid, (3) that it was agreed that counsel 

look to the fund rather than the client for his compensation, (4) 

that the lien claimed is limited to costs, fees or other 

disbursements incurred in the litigation by which the fund was 

raised and (5) that there are equitable considerations which 

necessitate the recognition and application of the charging lien.

____________________________________________

4 We note that neither Austin nor tkE filed a brief in the instant matter.
J-A08032-21

- 7 -

Recht v. Urban Redevelopment Authority of City of Clairton, 402 Pa. 

599, 168 A.2d 134, 138–39 (1961). See Smith, supra.

We review decisions relating to charging liens for an abuse of discretion. 

See Molitoris v. Woods, 618 A.2d 985, 992 (Pa.Super. 1992). An abuse of 

discretion “is not merely an error of judgment, but if in reaching a conclusion, 

the law is overridden or misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown 

by the evidence or the record, discretion is abused.” Id. (citation omitted). 

With these standards in mind, we examine the five factors set forth supra in 

Recht to determine whether the trial court abused its discretion in holding 

Attorney Schneider failed to demonstrate his entitlement to an attorney’s

charging lien.

With regard to the first Recht factor, whether there is a fund in court or 

otherwise applicable for distribution on equitable principles, the trial court held 

as follows:

[I]t is unclear to [the trial] court whether [Austin] had 

executed the release necessary for [tkE] to distribute [Austin’s] 

settlement funds such that an attorney’s charging lien could be 

imposed under [the] first factor. [Attorney Schneider] fails to 

demonstrate to [the trial] court that a settlement fund subject to 

distribution existed such that the [trial] court could impose a 

charging lien on such fund. At the time of [Attorney Schneider’s] 

Motion, [Austin] refused to execute the release necessary to 

finalize settlement and create a settlement fund subject to 

distribution. [Austin] indicates in his Answer to [Attorney 

Schneider’s] Motion that he intended to execute the release the 

week of September 2, 2019. However, [Attorney Schneider] does 

not allege any facts in [his] Motion [for an attorneys’ charging 

lien] or subsequent filings demonstrating to the [trial] court that 
J-A08032-21

- 8 -

[Austin] had indeed executed the release and that a settlement 

fund subject to distribution had been established. [The trial] court 

cannot grant and impose a charging lien without an established 

fund subject to distribution upon which to impose the lien. 

[Attorney Schneider’s] Motion was thus properly denied at the 

time it was decided under the first factor[.]

Trial Court Opinion, filed 11/6/20, at 5-6 (citations omitted). 

Attorney Schneider contends the trial court erred in its analysis of the 

first Recht factor. Specifically, he contends that he proved there is a 

settlement fund of $60,000.00 “otherwise applicable for distribution on 

equitable principles.” Attorney Schneider’s Brief at 14-15. Specifically, he 

asserts that a fund was established upon the oral settlement agreement

reached between Austin and tkE (as previously confirmed by this Court). He 

further notes tkE’s willingness to make payment of the settlement proceeds, 

as well as tkE’s efforts to enforce the settlement agreement. Moreover, he 

notes the trial court marked its own docket to reflect that Austin’s personal 

injury lawsuit had settled. Attorney Schneider avers that the fact the 

settlement money is still in the possession of tkE, due to Austin’s failure to

sign the settlement release as court-ordered to do so, does not require a 

finding that there is no fund for purposes of Recht’s first factor. We agree 

with Attorney Schneider’s argument.

In Appeal of Harris, 323 Pa. 124, 186 A. 92 (1936), our Supreme 

Court broadened the scope of an attorney’s charging lien. Therein, an 

attorney, after litigation, secured a favorable award in the condemnation 

proceeding for the owner of the condemned property. After the award was 
J-A08032-21

- 9 -

made, but before it was paid by the city, the holder of a mortgage on the 

property filed a petition to have the whole award paid to it as lien creditor. 

Our Supreme Court, however, held that the award, although not yet paid, 

constituted a fund, which was first subject to the attorney’s claim for the 

reasonable value of his services. See id. 

Our Supreme Court recognized:

The charging lien, originally, was defined to be the right of an 

attorney at law to recover compensation for his services from a 

fund recovered by his aid, and also the right to be protected by 

the court to the end that such recovery might be effected. Unlike 

the retaining lien, the charging lien does not depend upon 

possession, but upon the favor of the court in protecting 

attorneys, as its own officers, by taking care, ex oequo et bono, 

[according to the right and good] that a party should not run away 

with the fruits of the cause without satisfying the legal demands 

of the attorney by whose industry those fruits were obtained.

Appeal of Harris, supra, 186 A. at 95 (italics in original). See Johnson v. 

Stein, 385 A.2d 514 (Pa.Super. 1978). As the appellate courts have 

indicated, the attorney’s charging lien arises out of the equities of the 

situation. Id.

In the case sub judice, as this Court previously held in affirming the trial 

court’s order granting tkE’s motion to enforce the $60,000.00 settlement, a 

valid settlement agreement was orally reached between tkE and Austin in the 

underlying lawsuit. See Austin, supra. We specifically disagree with the 

trial court that the fact the settlement proceeds are still in the possession of 

tkE, and have not yet been paid out due to Austin’s failure to sign the release, 

results in the conclusion there is no “fund.” Rather, as the Supreme Court 
J-A08032-21

- 10 -

held in Appeal of Harris, supra, where there is an award or, as in the case 

sub judice, settlement proceeds that have not yet been paid out, a fund exists 

for purposes of the first Recht factor. Simply put, in the case sub judice, a 

“fund,” which is in the possession of tkE, exists.

With regard to the second, third, and fourth Recht factors, the trial 

court suggested that (assuming there is a fund) there is no dispute that the 

second, third, and fourth factors were met by Attorney Schneider. With regard 

to the second Recht factor, we agree the record reveals the services of 

Attorney Schneider, who undisputedly represented Austin from the 

commencement of the underlying personal injury lawsuit until after tkE and 

Austin reached the oral settlement agreement, operated substantially or 

primarily to secure the fund out of which he seeks to be paid. See Recht, 

supra; Smith, supra. 

Further, with regard to the third Recht factor, it is undisputed Austin 

and Attorney Schneider entered into an express written contingency fee 

agreement on February 29, 2016, related to the underlying personal injury 

lawsuit. The contingency fee agreement specifically provided Austin “agree[s] 

to pay a legal fee in the amount of forty (40%) of any and all sums recovered.” 

Contingency Fee Agreement, dated 2/29/16.5 Therefore, we agree the record 

____________________________________________

5 The contingency fee agreement also provided specific provisions related to 

the payment of “out of pocket” costs, expenses, and medical charges from 

“any and all settlements and/or verdict and/or judgments[.]” Contingency 

Fee Agreement, dated 2/29/16.
J-A08032-21

- 11 -

reveals Attorney Schneider would look to the fund (i.e., the proceeds of the 

settlement agreement) rather than Austin for his compensation. See Recht, 

supra; Smith, supra. 

Moreover, with regard to the fourth Recht factor, it is undisputed that, 

in his motion to assert an attorney’s charging lien, Attorney Schneider sought 

costs, fees, or other disbursements exclusively related to the settlement 

agreement reached between tkE and Austin. He did not seek fees or costs for 

any unrelated matters. Therefore, we agree the record reveals the lien claimed 

by Attorney Schneider is limited to costs, fees, or other disbursements 

incurred in the litigation by which the fund was raised. See Recht, supra; 

Smith, supra.

With regard to the fifth Recht factor, whether there are equitable 

considerations which necessitate the recognition and application of the 

charging lien, the trial court held as follows:

[Attorney Schneider] fails to establish any reason as to why 

equitable considerations necessitate the imposition of an 

attorney’s charging lien on [Austin’s] settlement funds under 

Recht’s fifth factor. [Attorney Schneider] fails to establish that 

either (1) [Austin’s] settlement fund is subject to depletion by 

creditors, (2) [Austin] is insolvent, (3) [Austin] is attempting to 

defraud [Attorney Schneider], or (4) [Attorney Schneider] would 

be precluded from enforcing the contingency fee agreement 

against [Austin] directly. [Attorney Schneider] has not sufficiently 

established that equity demands a lien be placed on [Austin’s] 

settlement funds for satisfaction of [Austin’s] contractual 

obligations to [Attorney Schneider]; while [Attorney Schneider] 

may have a claim at contract against [Austin] pursuant to the 

contingency fee agreement, there has been no established 

urgency to the claim that such a lien is necessary, for there is no 

suggestion in the record that [Austin] will not be able to pay 
J-A08032-21

- 12 -

[Attorney Schneider] if in response to an appropriate action a 

court so orders. 

Trial Court Opinion, filed 11/6/20, at 6 (citation, quotation marks, and 

quotation omitted). 

Attorney Schneider contends the trial court erred in its analysis of the 

fifth Recht factor. Specifically, he contends the trial court’s analysis 

improperly and unreasonably limits the “equitable considerations” to four 

distinct categories without recognizing there are other situations which qualify 

as “equitable considerations.” Moreover, Attorney Schneider avers he 

demonstrated “equitable considerations which necessitate the recognition and 

application of the charging lien” as required by Recht and its progeny. We 

agree with Attorney Schneider’s argument. 

Initially, we agree with the trial court that potential depletion by 

creditors, a client’s insolvency, a client’s attempt to defraud an attorney, and 

an attorney’s inability to enforce a contingency agreement are all valid 

considerations in determining whether equity necessitates the recognition and 

application of the charging lien. See generally Johnson, supra. However, 

to the extent the trial court limits the “equitable considerations” inquiry to 

these four situations, we conclude the trial court erred. 

As this Court has recognized:

The imposition of a charging lien is based upon the interest of the 

courts “in protecting attorneys, as its own officers,” and in 

assuring that a party “not run away with the fruits [of a lawsuit] 

without satisfying the legal demands of the attorney by whose 

industry those fruits were obtained.” 
J-A08032-21

- 13 -

Molitoris, 618 A.2d at 992 (quotations omitted). Thus, in addition to the 

situations set forth by the trial court supra, this Court has considered other 

situations and found the necessary “equitable considerations” to impose a 

charging lien. See Molitoris, supra (holding enforcement of attorney’s 

charging lien must be governed by equitable principles and, since a subrogee 

insurer has an equitable duty to share in costs of attaining a recovery, it would 

be inequitable to not permit attorney’s charging lien to ensure payment to 

attorney).

With these precepts in mind, we agree with Attorney Schneider that 

there are equitable considerations necessitating the recognition and 

application of an attorney’s charging lien in the instant case. Specifically, it is 

clear from the record that if the attorney’s fees are not paid from the 

settlement agreement proceeds, no compensation will be paid to Attorney 

Schneider. Austin and tkE reached the oral settlement agreement on 

November 30, 2017, and on May 1, 2019, this Court expressly held that such 

an agreement existed. Thereafter, for almost two years, and for reasons 

unknown, Austin refuses to sign the written release. Meanwhile, Attorney

Schneider has not been paid for his efforts, which directly resulted in the 

settlement agreement. Further, inasmuch as Austin discharged Attorney 

Schneider after the settlement agreement was reached, Attorney Schneider is 

no longer the counsel to whom the proceeds will be distributed, in the event 

Austin signs the written release. Thus, Attorney Schneider is faced with the 
J-A08032-21

- 14 -

prospect of watching Austin “run off with the fruits” of the lawsuit. Molitoris, 

618 A.2d at 992. Given this scenario, we conclude there are “equitable 

considerations” which necessitate the recognition and application of the 

charging lien, and the trial court erred in holding otherwise.6

In light of the aforementioned, we reverse the trial court’s January 22, 

2020, order, which denied Attorney Schneider’s motion for imposition of an 

attorney’s charging lien against the $60,000.00 settlement proceeds. As 

indicated supra, Attorney Schneider demonstrated his entitlement to a 

charging lien under the Recht factors. Accordingly, we remand for the trial 

court, upon consideration of the contingency fee agreement between Austin 

and Attorney Schneider, to determine the appropriate amount of the 

attorney’s charging lien. 

Order Reversed; Case Remanded; Jurisdiction Relinquished.

____________________________________________

6

In its Rule 1925(a) opinion, the trial court urges this Court to deny Attorney 

Schneider relief on the basis that “in Philadelphia, fee disputes between 

counsel and their client(s) as non-adversaries are often best resolved through 

the Philadelphia Bar Association’s Lawyer-Client Fee Dispute Resolution 

Program.” Trial Court Opinion, filed 11/6/20, at 7. While such alternative 

dispute resolution methods may be available, we conclude this does not 

preclude Attorney Schneider from seeking an attorney’s charging lien as 

permitted by our Supreme Court. Recht, supra.
J-A08032-21

- 15 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/14/21