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HomeMy WebLinkAbout98-07046 4 t'~:':':"".";'':'\. i~ i~ \ ~ i ~ i If I~ ; " !::s ] ) ,. ! ~ , 1 ....: I ~ I~ . III I :It i~ j I ... I 12t " ;j -' f./) .'1 ~ ~ ~ ~ ( ... ~ - .~ , ~ ....) '> c t- . u... C- ~ \ suit in Adams County against Wilson on Wanyo's behalf, and the defendants obtained a $75,000 settlement offer on August 15, 1996. The Defendants attempted to communicate the offer to Wanyo, who was unresponsive. In January of 1997, Wanyo retained Saidis, and terminated her client-attorney relationship with defendants. On December 12, 1997, Saidis settled Wanyo's action against Wilson for $90,000. On January 27, 1998, Saidis sent Wanyo a check for $59,086.96, or 65.65 percent of the $90,000 settlement agreement. Said is has not received its full fee for settling Wanyo's case. Defendants Semasek and Urban contend that one-third of the $75,000 settlement offer negotiated by them is due to them from the plaintiffs escrow account. Said is offered to pay Defendants on a quantum meruit basis for time expended and costs, but Defendants refused to submit a statement of such. Wanyo instructed Saidis not to make any payments to the defendants. Part of the disputed monies is being held in plaintiff Saidis's escrow account in Cumberland County. The plaintiffs filed for declaratory relief from this court to determine how the settlement proceeds should be divided. Discussion For Declaratory Judgment, ..... the practice and procedure shall follow, as nearly as may be, the rules governing the Action in Equity." Pa. R. Civ. P. 1601 (a). For an action in equit~'. "[eJxcept as otherwise provided by an Act of Assembly, Rule of the Supreme Court or by Subdivision (b), (c) or (d), an action may be brought only in a county in which (1) the defendant or a principal 2 defendant may be served, or (2) the property or a part of the property which is tl1e subject matter of the action is located." Pa. R. Civ. P. 1503(a). The plaintiffs contend that the subject matter of the dispute is an escrow account. Plaintiffs claim the escrow account is located in Cumberland County because a bank branch is located here. The plaintiffs cite the equity rule for venue, claiming that the location of the escrow legitimates venue in Cumberland County.' We agree that the subject matter of the dispute is the escrow account. However, an escrow account is an intangible legal concept - not a fixed and immovable property. Plaintiff's argument notably lacks supporting case citations. The reason the plaintiffs have not cited any cases is that the equity cases determining venue do not favor them. Cases discussing where venue should lie according to Pa. R. Civ. P. 1503, based on the location of the subject matter, typically involve fixed and immovable property. Graham v. Graham, 452 Pa. 404, 305 A.2d 48 (1973) (finding that venue for a property settlement appropriately lies in the county in which the realty is located); Rosenwald v. Rosenwald, 42 Del.Co. 284, 4 D.&C.2d 163 (1955) (finding that venue lies in the county where the land is located or where the defendant is properly served under this rule). If venue could properly reside at the "location" of a bank account, plaintiffs could transfer funds , In the defendant's Preliminary Objections, defendants incorrectly base their argument for lack of venue on the rules of a civil action in law. Since the relief sought here is declaratory relief, venue will be determined by the rules of procedure for equity. Pa. R. Civ. P. 1601(a). 3 ANll10NY URBAN LAW OnlCES, P.C. BY: AN11IONY JAMES URlIAN, ESQUlnE PA Supreme Coun 1.0. No. 73249 474 Nonh Cemer Street lllird Floor, P.O. Box 890 POllsville, Pennsylvania 1790 J '{)890 Ph. (570) 622-1247 Fax (570) 622-4255 Anomey (or Ihe Defendants SAID IS, SHUFF AND MASLAND and MARY E. W ANYO, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION DECLARATORY ,JUDGMENT .' ANTHONY J. URBAN, ESQUIRE and JOSEPH SEMASEK, ESQUIRE, No. 98-7046 r. ~ ~ :;; '" ~ ~ Defendants ,JURY TRIAL DEMANDED :: -<; CERTIFICATE OF NON-PRIOR PRESENTATION z ~ ~ ~ ;.. ~ ~ I HEREBY CERTIFY that the within Motion is being presented for the lirsltime. Respectfully Submitted, c: Z ..; ANTHONY UlmAN LAW OFFICES, P.C. II I I II II :1 'I 1 ,I ,! 'i Ii " ,I BY: ~ ~ " r---_______ ANTHONY ',lAMES URBAN, ESQUIRE 474 North Center Street Third Floor, P.O. Box 890 Pottsville, PA 17901-0890 Attorney for the Defendants , .1 'I !i I " I :j I I ANTHONY URBAN LAW OFFICES, (',C. BY, AN'mONY .JAMES URBAN. ESQUIRE PA Supreme COllrt LD. Nn. n241J 474 North Center Slree! TIlird Floor, P.O. Box 890 POliS vi lie. Pennsylvania 17901-0890 Ph. (570) 622-1247 Fax (570) 622-4255 AlInrney "If Ihe Defendants SAIDIS, SHUFF AND MASLANI> and MARY E. W ANYO, IN THE COURT OF COMMON I'LEAS CLJMllF.RLANI> COUNTY, I'F.NNSYLV ANIA Plaintiff.~ v. CIVIL ACTION DECLARATORY ,JUDGMENT ANTHONY .J. URBAN, ESQUIRE and .JOSEPH SEMASEK, ESQUIRE, No. 98-7046 r ~~ Defendants .IURY TRIAL DEMANDED ~ "- "" ::: :.- ~ CERTIFICATE OF SEIWICE ;.: -<: '" :< :... :.- ~ ~ I. ANTHONY .JAMES URBAN, ESQUIRE. hereby certify that I have served a true and correct copy of the within Petition to Transfer and Brief via U.S. First Class Mail and/or Via Hand Delivery to the following person(s) listed below on this 19th day of January, 1999. ;.: -<: Mark W, Allshouse. Esquire Robert C. Saidis. Esquire SAID IS. SHUFF & MASLAND 26 \Vest High Street Carlisle. P A 17013 I I , I I I I , , II !I :1 !i I RespectfiJIIy Submilted, ANTHONY {JRBAN LAW OFFICES, I',c. BY: /v- I .. - AN1-;-1I~\;-~JAMES IJl{II;\N, ESQIJlRE Altome)' jilf the Ddcndants " - . I I I I I II I I I ANTHONY URIlAN LAW OFFICES, P.C. IlY: ANTHONY .IAMES UIUlAN, ESQUIRE PA Supreme COUrI J.D. No. 73249 474 NOrlh Centre Street P.O. Oox 890, Third Floor POlIsville, PA 1790).0890 Ph. (570) 622.)247 Fax (570) 622-4255 Auorney for the Dclcudanls SAHHS, SHUFF AND MAS LAND and MARY I~. W ANYO, IN THE COlJln OF COMMON PLEAS CUMBERLAND COlINTY,PENNSYLV ANIA Plaintiffs v. CIVIL ACTION DECLARATORY.JUDGMENT / ANTHONY.J. URBAN, ESQUIRE and .IOS.:I'II SEMASEK, ESQUIRE, No. 98-7046 ~ o. ;: D<'femlants .JURY TRIAL DEMANDED " ~ , CERTIFICATE OF SERVICI~ ? ~ I. ANTIIONY JAMES URBAN. ESQUIRE. hereby certify tbat on this 19th day of January. '" .~ /. I <)9'). I haw served a true and correct copy of the within Praecipe to Enter Appearance in regard to S ~ the above-captioned term and number via U.S. Regular l\lail. postage prepaid, as follows: Mark W. Allshouse. Esquire 26 Westlli[.!.h Street Carlisle,l'A 17013 IkspectllJl!y Submiued. ANTIIONY URBAN LAW OFFICES, P.c. II !I ., Ii Ily.L.,._l.. ~'._...._______._. ANTHONY .JAMES URBAN, ESQllIRE I'A Supreme ('ourt I.)). No. 73249 :i " " Ii Ii II Ii The lacts of the present case, like those in the Fox and MeRe\'nolds cases, weigh heavily in I:wor of transfer. The site where the legal services wcrc I'crl<mned is Schuylkill County. Most, ifnot all, party and non-party witnesses, including stalfmembers of Delendants, reside in Scbuylkill County. Practically all sources of proof arc located within Schuylkill County. No sources of proof arc located within Cumberland. The convenience of the parties and the witnesses, .!S well as the interest of justice and public policy, will best be served by the transfer of this case to the Court ofComl11on Pleas of Schuylkill County. WHEREFORE, Defendants respectfilliy move this Ilonorable Callrt to transfer the r above-captioned action to the Court OfClllllllllln Pleas of Schuylkill County and order that ~. Plaintiffs bear the costs oftransler. .' --: ., ~ "- :- ~ ~ - ;>; ~ :1 II I 1 I I il II II " I i 'I :1 " II II !I Respectfully Submitted, ANTIIONY URBAN LA \V OFFICES, 1'.<:' BY:_ ~ l \.< ~ AN'fi!ONYJAMES lJ/WAN, ESQUIRE 474 North Center Street Third Floor, P.O. Box 890 POllsville,PA 17901-0890 Attorney for the Defendants () ANTHONY UIUlAN LAW OFFICES, 1'.<:' II\': ANTHONY .JAMES URUAN, ESQUIRE PA Supreme Coun LD. No. 73249 474 North Cenler Slreet Third Floor, P.O. Box 890 ponsville. Pennsylvania 1790 1-0890 Ph. (570) 622-1247 Fax (570) 622-4255 Anorney for the Defendanls SAIDIS, SHUFF AND MASLAND and MARY E. WAN YO, IN THE COlJRT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. CIVIL ACTION DECLARATORY.JUDGMENT ANTHONY .1. URBAN, ESQUIRE and ,JOSEPH SEMASEK, ESQUIRE, No. 98-7046 r .JURY TRIAL DEMANDED Defendants .' - ~ CERTIFICATE OF SERVICE ., " 1 '" ~ ;- ~ ~ c z '" I, ANTHONY .JAMES URBAN, ESQUIRE. hereby cenil)' that I have served a true and correct copy of the within Petition to Transfer and Brief via U.S. First Class Mail and/or Via Hand Delivery to the following pc:rson(s) listed below on this 19 th day of January, 1999. Mark \\'. Allshouse, Esquire Roben C. Saidis, Esquire SAIDIS, SIIlJFF & MASLAND 26 West High Street Carlislc.l'^ 17013 I II I I , Respectfully Submitted. ANTHONY URBAN LAW OFFICES, P.c. Ill': ~ ' ... - ANTHM7",,, .IAMES URBAN. ESQlJJRE - Atton1ey I,)r tbe Defendants Mary Wanyo, in Schuylkill County, the dispute over fees only arose after the attorney-client relationship was terminated with Defendants and Nary Wanyo had acquired legal representation of Plaintiff's Saidis, Shuff & Masland who hold an equitable interest in dispersement of the settlement proceeds in their escrow accounts in Cumberland County. 10. Admitted. By way of further answer Plaintiff Saidis, Shuff & Masland holds the disputed funds in escrow on behalf of Mary Wanyo. 11. Admitted in part and denied in part. Whi Ie Plaintiff Saidis, Shuff & Masland may have no quantum meruit relationship between its firm and the Defendants, it is Plaintiff, Saidis, Shuff & Masland who is possession of and control of the res, (or money in dispute) in this matter. Moreover Plaintiff Saidis, Shuff & I~asland is entitled and has received only part of the fee pursuant to the written agreement attached hereto as Exhibit "A". Therefore, an equitable interest exists for all parties in i resolution !I I of the disputed monies and their dispersement. 12. Admi t ted in part and denied. It is admitted that documents evidence a contract between Defendants and Mary Wanyo. However, as Plaintiffs Saidis, Shuff & Masland have acquired settlement in this matter and are in complete control and SAIDIS, possession of the ~ and is entitled to and has received part of SHUFF & MASLAND the fee pursuant to the written agreement as attached hereto as Arrott.M::VS1o\T.U.W Z!J w. High StJ'tt'1 C",II.I'.PA Exhibit "A". Therefore, an equitable intel'est in relationship to !I 3 !I !I :1 'I II ;1 THIS AGREmENT, entered Into th I s d,y of / - 'f ,19.fl, by and ~ . be t\<."cen RICHArtO P. MISLITSKY, E.jQUIRE.' (here 1 n.1fter "At torncyll) I and' (herefnafter uCllentllJ. WI TUESSETtf: ThH Atlorney, lor the conslderJtlon hereinafter stfpu. lated, has undertaken and does hereby undertake and a9ree with Client to act as legdl counsel tn negollHlng d settlement, and If the ),lmc Is n t e"ffected, l~ bringing, cnnductlng ,nd prosecuting an action ag,inst --1J.lL F:'ifO Pi..E PM716J to recover damJges or Jj -J whlC1i'Q"Ccurred on or about If"" 2. "l- , Lt,- ATTORNEY FEES: In consideration for se"vlces so rendered by Attorney, It Is hereby agreed by and between the parties hereto th,t Attorney shall be compensated as follows: (a) Thirty-Three and One-Thfrd (33-1/3%) percent of gross recovery If the case Is settled before commencement of trf a 1 (I.e. before Jury selection): or (b) Forty (40%) percent of gross recovery If the case proceeds to ver. d tct. "Gross recovery" sha 11 mean the fu 11 amoun t 0 f set t I emen t proceed s of the full amount of verdict, fncludlng any pre-Judgment fnterest, w1thout reduction for expenses or costs advanced or' Incurred. Attorney shall have a lien on any sum or sums recovered, whether by settlement or Judgment, for services rendered, costs advanced and expenses fncurred under this Agreement. EXPENSES OF LITIGATION: Any necessary and reasonable costs advanced by Attorney In the preparation and presentation of Client's clafm, and all expenses attend,nt thereto, Shall 'be reimbursed upon periOdic billings or from the proceeds of any recovery. SETTLEMENT PROVISIONS: All offers to settle, adjust or compromise the above claim shall be reviewed between Clfent and Attorney before any such offer fs efther accepted or rejected. Client further agrees to consider seriously 'ny recommendation for settlement made by Attorney and not to unreasonably withhold consent to such settle- ment recommendation. , D I SCHARGf. OR WITHDRAWAL: In the event that Attorney subsequently determines that the clafm or suit lacks merft, or Clfent unreasonably wfthholds consent to any bona fide settlement reccl'M1endatlon made by Attorney, or CUent refuses or ("ils to cccper~tc \.dth Attorn!!'y, or Ciient conceals or misrepresents facts regJrdlng above claim, or Client corrrn1ts a breach of this Agreement, Attorney shall have the right to terminate his services upon giving reasonoble notice to Client. MI SCELLANEOUS: C11ent understands, acknowledges and agrees that Attorney does not guaran- tee the outcome or eventual result of the above cl~tm. IN WITNESS WHEREOF, tho parties horeto intend to be legally bound and have hereunto set thefr hands and sca.ls to this Agreement, fn execution thereof, the day and year first above written. WITI/ESSES: RICHn'10Vp. ~!.L<;J,rf;:;K\' If./ ,~ + '-fJ :JI' -1.. I:ll. J' . j,,'l..:('~ /1 'J " I" ( SEAL) _(SEAL) (SEAL) t. tIl ~ '-" 0 "" '" t:::: , tIl :::> <Jl " <Jl irl < ..., .... '" " '" .... '" " OJ ., ... ~ ~ .... ,,, r>:: '" 0.. " r>::H '" 0 ~~.~. - 0 " H:::> " -. . ". Z r:;H ... .... :::>0' <lJ ~ ~ " " 0 tJl " O'tIl .... ., ~ z;,'i ;:j H tIl '" <lJ ~ " :::> -< 0.. '" :::> ~ o ~ " t::1 ~ 0 0 ... ,," '" .- , U U U ~~ -,," ;j ., p~; ~';~., '" Z'" 0 ... ...'" '" -<;;: ;;:tIl '" r- 0 OZ '" ;'j '" I , < I ....~ r>:: 0.. 00 j-: - 1-., H ... ... :::> '" '" ~ .~ r>:: r>::Z '" > tIl " :::> '" 0 "'''' tIl .~ ~ 0: " 0 '" H tJl ..., H 31\ c u ?5t >- 0.. Z , -r>:: ~ < , '" u-< tJl:!i '" a '" H ,,_ 0 0.. Z H ... "" '" '" '" H H '0 H tIl ... II Z :> -< " Z 0 '" H H tJl '" < ..., '" II U l'== n ..-ll ll- , . . . - . . ~- -.....'- .. il 11 il II I' II I! I il !' ANTHONY UlmAN LAW OFFICES, ".C. IIY: ANTHONY .IAMES UlmAN, ESQl1IRE r^ Supreme Courtl.D. No. 73249 474 North Center Street Third Floor. P,O, Box 89ll POIIsville. Pennsylvania 1790t-ll89ll Ph. (570) 622-1247 Fax (570) 622-4255 ^lIorney lilr the Defendants SAID IS, SHUFF ANI) MASLANI> and MARY E. WANYO, IN THE COURT OF COMMON PLEAS CUMBERLANI> COUNTY,PENNSYLVANIA , I , ! Ii " II I, 'I I, " Plaintiffs \'. CIVIL ACTION I>ECLARATOI~Y .HJI)GMENT ANTHONY.J. URBAN, ESQUIRE :11111 .JOSEPH SEMASEK, ESQUIRE, No. 98-7046 I>cfcndants .JURY TRIAL I>EMANIlIW NOTICE TO I'LEAn '.= You arc hereby notiiied to respond to the pleadings contained in the enclosed Preliminary /, Objections within twenty (20) days aner service thereof or judgment may be elllered against you. Respectfully Submitted. ANTHONY UIUlAN LAW OFFICES, I'.c. _. IlY: / t ..':_'_______ ANTHONY .JAJ\1ES URBAN, ESQUIRE Attorney Illr the DcI~ndants l" , " Ii I, !I ,I I' II !I I' " 'I I 'I I, Ii " ii 'i I, !, ,I " !: ~, Allachcd to Plaintilfs' Lkdaratory .ludgmcntl'ctition as bhibit "A" and incorporated herein by reference is an additional document relative to the contruct between Mary E. Wanyo and DelCndants. CO{INT I, I'RI~L1MINAI~Y OB.IECTION FOR WANT OF .HJfUSDICTlON 4. The averments of Paragraphs I through ~ above are incorporated herein by relerence as if textually set I(mh at length. 5. The Supreme Court of Pennsylvania has squarely dealt with the issue of disputes over Ices in the Rules of Professional Conduct. 0. Disputes ovcr legal fees should be resolved by mediation or arbitration procedures , of the Pennsylvania Bar Association or the IOl'al bar association or the Fec Dispute Committee of the Disciplinary Board. "/, 7. Defendants respectfully deny that this Ilonorable Court has suhjectmatter jurisdiction. hased on the issues raised in the I'laintills' Petition Sceking Declaralory Judgment, to deelare the rights ofthc respective parties undcr the Declaratory .ludgmcnts Act..n Pa.C.S.A. ~ 75~ I <'1 self. WIIEREFOI~E. DelendanlS rcspcctllJlly rl'quCs! that the Ilonorable Court dismiss the abow.captioncd mallcr !()f lack ofjurisdi(.tinn. , il d il " !i " !' ,I II " Ii I' ,I " :i " Ii i 14. There is nn basis of an action bel ween Said is. Shuff & I'vlasland and Ihe I klendanls. , " il 15. Because no cause of action can be sustained against Dclendanls by Saidis. Shufr 'i 'i I I, & rvlasland. its petition as a party-Plaintiff must be dismissed. " ii II ;1 'i WHF:REFORE. Defendants request Your Honorable Court to dismiss Saidis. Shuff& Masl:md as a parly-Plain(jlr in the abol'C-rebenccd action. COllNT III MOTION TO TRANSFEI~ VENllE 16. The averments of Paragraphs I through 15 above arc incorporated IH:rein by relerence as iftcxtually set !tJrlh at length. 17. Plaintin: Said is. Shuff& Masland. has alleged that it has a prolessional corporation with a place of business in Cumbcrland County. J S. Plaintiffs have not alleged that Plail1lin: Mary E. \Vanyo. is a resident of ('umbcrland Counly. 1 '). PlaintiffWanyo is a resident of North Carolina. 20. Plaintifrs hal'e not alleged that Defendants an.. residents of Cumberland County. 21. IkfCndants arc residents of Schuylkill County. " Dclendants cannot he served in Cumhcrland ('ounly. 2~. 1 k!('ndants Gill only he send in Schuylkill ('ounty. 4 , I I I I, il I, 'I I, I, " I! ! II I I i I I Ii ji ("Urban"). to \ViI: on or about May 4. 191)4. Plaintiff: Mary E, Wanyo, retained both thc law of'fices of Scmasck and Urban. by signing a Contingcnt Fcc Agrccmcnt prcparcd by Scmasck. Plaintiff Wayno signcd thc Contingcnt Fcc Agrccmcnt in Schuylkill County. When Waynlllllct with thc Dcfendants. shc mclthcm in Schuylkill County, I , II II " il " '! !I :i Thc Dcfendants zcalously prosccutcd Wanyo's claims lilr personal injurics and on or about Novcmbcr 10, 1995. a Complaint was lilcd by Dclendant Urban as counscl for Plaintiff WanY(l. against Bcnjamin Earl Wilson in Adams County, thc situs of the accidcnt. Thcrcafter, thc mallcr was litigatcd carncstly on bchalf of Wan yo. On or about August 15, 1996. in an .. " attempt to rcsolve thc disputc with Wilson. a scttlcmcnt oner of $75.000.00 was rcecived by Urban and same was communieatcd to Wanyo, On August 15. 1996. and again on Dcccmbcr .. <: 19. 1996, thc oner was rclaycd to Wan yo to which no rcsponsc was !i)r1hcoming. '- On or about January 17. 1997, a Motion to Compel and Rule to Show Causc was filcd by :-; .--, Wilson's counsel sincc Wanyo had failcd to kccp numcrous schcdulcd appointmcnts for an indcpcndcntmcdical cxamination and vocational cvalualion schcduled by Wilson's counscl. Thcrcaftcr. on or about January of 1997. Wayno withllutnotilYing Dcfendants. rctaincd thc firm of Saidis. (juido. Shuff & 1\1asland. now Saidis. Shull' & Masland (hcrcinaHcr collcctively rclem~d to as "Said is"), Ncarly onc (I) ycar Ialcr. Saidis. on bchalf of Wayno. ncgotiatcd a sClllcmcnt of just $90.000,00. which was only $15.000.00 morc than what Dclendant's had ncgotiated on bchalf of Wanyo a', Ihc timc CllUIlSel was substilUlcd, , I I , " , " I! ,I II II " Ii il 'I !, :1 I, 'I :1 II il !I ii !I II 'I ,. :1 I, " , " :' Evenlhough Cumberland County had no bearing on the above described fllctual scenario. on or about December 14. 1l)l)8. Plaintiffs filed a civil action in thc Court of Common Pleas of Cumberland County (the "Action"), which was liled to the above coun term and number (See Exhihit "A"). The gravamen of the Action enmplains that Dcicndants arc only entitled to a quantum meruit recovery in full satisfllction of any obligation owed by \Vanyo fllr legal services provided 10 her in prosecuting hcr case against Wilson. Defcndants have filed Prcliminary Objections to Plaintills' Petition Seeking Declaratory Judgment based upon lack of jurisdiction, legal insufficiency of Saidis remaining as a party- r Plaintiff: and improper venue. This brief is liled in support of Dc!cndants' Preliminary Objections. lL STATEI\IENT OF TIlE LEGAL ISSIIES A. Whether the I Ionorable Court of Common PIcas of Cumberland County has ~:. subjeetmalter jurisdiction to declare the rights oftbe respective parties under the Declaratory /. .' Judgments ,\et. 42 Pa.C.S.A. ~ 753 I els"I!. and Pa.R.Civ.P. 1028(a)(I). based upon the issues I !i I ;1 raised in the Plaintiff:,' Petition Seeking Declaratory Judgment? (SU(,UESTEDj ANSWER: IN TIlE NEliATIVE. Il. Whcther sullieient f[lcls ha\'e bccn alleged to jLlslil~' rl'laining Saidis. Shuff and :\lasland as a pany Plaimiffpursuant to the Declaratory Judgments Act. 42 Pa.C.S.A. ~ 7531 ('I .1"1f. and Pa.ICCil'.P. I02X(a)(4)'! (Sl '( jliISI}!)) ANSWER: IN TIlE NHiATIVE. , .' A. TilE COURT OF COMMON PLEAS LACKS TilE .JURISDICTION TO DETERMINE TIlE SUB.mCT I\1ATTEI~ OF PLAINTIFFS' PETITION SINCE TilE SUPREME COURT lIAS CREATE!) AN OBLIGATION ON TilE PARTIES TO SUBMIT THE MATTER TO FEE RESOLUTION BOARDS. Preliminary Objeelions may be liled by any party to any pleading ontbe grounds of lack 'I oi'.jurisdietion OWl' the subject matter of the action. Pa.ltCiv.P. I 02X(a)( 1).42 Pa.C.S.A. Delcndants lile the instant preliminary objection and contend with due respect that the I/onorable Court of Common Pleas docs not have subject matter jurisdiction to declare the rights of the respective parties. based upon the issues raised in the Plaintiffs' Petition Seeking Declaratory Judgmcnt under the Declaratory Judgments Act. 42 Pa.eS.A. ~ 7531 1'1.11'''. .'. The gravamen of the Pctition Seeking Declaratory Judgmenl seeks to resolve a fce dispute between Way no and the Defcndants. Rule 1.5 of The Rules of Profcssional Conduct. as promulgated by the Supreme Court of Pennsylvania. deals squarely with the issue of disputes OI'CJ' fces. Rule 1.5 provides in pertinent part: IniLE I.S FEES * '" * COMMENT '" *' '" Disputes Onr Fees If a procedure has been established lilr resolution offce disputes. such as an arbitration or mediation procedure established by the bar. Ihe lawyer sl1ol/ld l'llnseientiously l'llnsider submilting to it. . . . It is Disciplinary Board policy that alIegali(\ns of cxcessiw tl:es arc initially referred to the Fee DispulL' Committees I,"' l'c'solution. (I-'Illphasis added). :' ,I I 'I , " , ,! 'I " " !I '! I, ,! i " !I " ,! " , P~llllsylvallia or Ihe ll1~dialion/arbilralion pands of' cilh~r Ih~ P~nnsylvania Ilar Association or thc local bar association, Plaintiffs' P~lilion should b~ dismiss~d accordingly. B. TIlE LA \V FIRM OF SAIDIS, SIIlJFF,~ MASLANI> SIIOlJLD NOT BE RETAINEI> AS A I'ARTY-PLAINTIFF BECAlISE NO VALID CAUSE OF ACTION IS ALLEGEI> em CAN EXIST AGAINST TIlE I>EFENI>ANTS. :1 :1 11 !I , Prdiminary Objections may be filed hy any party 10 any pleading on the ground orthe !c.gal insufficicncy or a ph:ading: such a preliminary objection is commonly referred to as a demurrer. Pa.R.Civ.P. 1028(a)(4). 42 Pa.C.S.A. A preliminary objection in the I'mll ofa demurrer challenges the pleadings as lailing to set rorth a cause or action upon which relier can be granted under any theory or law. Ilalsbaui;h v. Rowland, 447 Pa. 42:1.290 A.2d 85 (1972); Sutlon v. Miller. 405 Pa.Super. 21 :;. 51)2 A.2d 8:; (199 I). A preliminary objection on the ground or legal insufficiency or the pleading. in the nature or a demurrer. admits all well-pleaded materialtllcts as well as all rcasonable inlerences ~, >'. deducible therefrom, but not conclusions of law or unjustilied inferences. with all douhts " resolved against the moving party. Firini; v. Kepllill1. 466 Pa. 560. :;5:; A.2d 833 (1976); L\rulli Flee1rru,laling Co. v. Jenkins. :;:;5 i'a.Supcr 28:;. 484 A.2d 1 :;.1 (I ')84). A preliminary objeeti'lI1 inlhe nature ofa demurrer. however. docs not admit aVl'nnellls in a complaint which conflict wilh supporling exhibits or documentation !'1lll1d in the pleadings. Framlau Corp. \', ('o\lnt)'.ill' Delaware. 22:; !'a.Super. 272. 291) A2d :;:;5 (I 972). t\lor~ll\'er. such an objection docs not admit 'l\'CI'ments in a complaint which cont1ict lIilh the I'laintin-s conlral'1. goh,"t Constr, Inc, \'. Iloll,in~ 1\lIlhorit\' oj' 1I'II.-Ilon. (,7 I l, .I:: (',2d 1:;0 ( 1'17(1), 7 In this casc. il is acknowlcdgcd thatPlainlif'f \Vayno had a ,'ontraclual relationship with :: l>Cfcndants, Ilo\\'c\'cr. nolilclS wcrc a\'crrcd inPlaintins' Pctitionlhat give rise to some olher analogous relationship between Saidis and Ihe Dcfi.'ndants. In filcl. the only documentation supporting any relationship bet\\'l'en any of' the parlics is the Contingcnl Fcc Agreement. which il !i I 'I ;1 was appended to Plaintins' Pctition Seeking lkelaratory Judgmcnt. Significantly. this documentation is e\'idence of' some relationship. contractu:lI or olherwise. bet\\'een only PlaintilT \Vanyo and the Defendants. but docs il docs not give rise to any relationship betwecn Said is and Dekndants. In order to properly maintain a cause of' action premised upon conlract. express or implied-in-filet. it is necessary 1<11' a I'lainlif'fto allege filcts sunicient to support the existence of' a contract. The requirements liJr a binding contract in Pennsyl\'ania \\'ere adequately summarized in the I\'nnsyl\'ania Trial Guide: , , In order to constilule a contract. there must be an oner on one side and an unconditional acceptance on the other. and so long as any condition is not acceded to hy both parties to the contract. the Jealin!ls :He mele negotiations and may be t,'rminated al any lime by eithcr party. A contmct is enliH'ceable \\hen the parlies ba\'e reached a mUlual agrccmcnt. ha\'e exchangeJ consideration. and ha\'e outlined the terms of'their bargain wilh sunicient clarity. In order thaI a conlractmay be enliH'ceable. the promise or agreelllcnt of'the parties must bc ccrtain and explicit solhatlhe lilll intention of'thL' parties may he asccrtained to a reasonahle degrce of'cerlainty. . ,10 be cnf()rccahk. a contract musl rcpresenl a mutualmanikstation of'the intenl to he bound. In abscnce of' a manikstation of' an intent to bc bound. negotialions concerning Ihe Il'I"ms of a possible fil\ur,' agrccl11ent U" not result in an enl<ln:cabk conlract... a transaction is wnlpktc \\ hC!lthc parlks intcnd il 10 be ((lI11ph:tC and dcspil" the' language in som,'ClS"S ah'Hlt the rCljuircmelll of'llIccting ofthc minds oflhc parti,'s. a lill'ral mceting of the minds is nol nccessary in nrdcr to fimn a ((l11llact.... a conlracl x WHEIU<:FORE. Defendants rcqllest YOlll' Ilonorable COllrllllake a finding that venue in ClImherland ('ounty is illlpropcr and transler wnlle of this case 10 the COIlr! OfCollllllon Pleas or Sehuylkill ('ounty. Respeetliilly Sublllilled. ANTHONY URBAN LAW OFFICES.P.C. Il Y: ___-,.L:.tA I ... -. ANTHONY .IAMES l!lUJAN, ESQUIRE 474 North Center Street Third Floor, 1'.0. Box X<J() POllsville. PA 17<J()I-()X<J() ^Ilnrney lilr the Defendants 17 EXHIBIT A . . :i .'- .', ,~, , 'I :1 " ,\NTIIONY UIUlAN LAW OFFICES, P.c. flY: ANTIIONY .JAMES UIUlAN. ESQlIIIU: pA SlIpreme COllrl I.D. No. 73249 474 Nonh Cenler Slreel Third Floor. P.O. Box H90 Pousville, Pennsylvania 17901-0Hl)O Ph. (570) 622.1247 Fax (570) 622-4255 Allol'l1ey lilf (he Defendantx ,I !I ii i[ !I ,I I' " 1 " 'I II " :i , il !! II 'I :1 , :1 SAIDIS, SHUFF AND MASLAND lInll MARY E. \VANYO, IN THE COURT OF COMMON PLEAS CLJI\1BERLANI> COUNTY, i'ENNSYLV ANIA I'I1Iintiffs \'. CIVIL ACTION DECLARATORY.JlJl)GI\1ENT ANTHONY .J. IJlmAN, ESQUIRE lInll .JOSEI'll SEMASEK, ESQUIRE, No. 98-7001(, Defenllllnts ./UIW TRIAL DEMAN()ED .' crmTIFICATE OF SERV/CI~ I. ANTHONY ,lAMES URBAN, ESQlJIRE. hereby certil)' that I have served 1IlrUe and correct copy of the Preliminary Objections and Briefvia U.S. First Class Mail and/or Via Hand Delivery to the !'lllnwing persnll(S) listed below olllhis 19 th day of Jalluary. 19')C). Mark W. Allshnuse. ESLJuire Rnbert C. Said is. Esquire SAIIlIS, SIIIIFF.I:: MASLAND 26 West) ligh Street Carlisle. I' ^ 170 I ~ Respectfully Submitted. ANTIIONY URBAN L\ W OFFICES, I).C. IlY: /Jv. ~ .. .. --- "----"-r~----'------" -- .--...--_____.._________ ANTIIONV .lAJ\/ES liIUlAN, ESQIIIRE Attorney )"1' Ihe Dell-ndauts '- ,y) ?;~ e.-: i:r~ - '. .. " '.',1 -- ; .:'1 (~; .;: .' ~.. , . ~..l ) .) tOOl 0 f /j\lh'