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HomeMy WebLinkAbout09-3173e_ COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 0 3 3 C1 _iI NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT V - MAG. DIST. NO. NAM D.J. -1 d s PlAc-ty AD SS O APPEL D ox 7 60'77 0f,"" i I s ITY S TE ZIP CODE Rr b o l o 17024' DATE OF JU T IN THE CASE OF (Piaertilf) a o FNSkk r q&_ f E: L4 t '45500, viN l DOCKET No. W7 CV - (JOOD ?? SIGNATUR OF APPELLANT OR ATTORNEY OR AGENT e? ? ? This block will be signed ONLY when this notation is required R.C.P.D.J. No. 1008B. under Pa. If appellant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. Signature o?Prothonotary orDeputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon BENS Lq_ 1;,R 4-t W o C I To- appellee(s), to file a complaint in this appeal '? M` Name of appel!14(s) (Common Pleas No. O 1,317 3 4 I) within twenty (20) days after service of rule or suffer entry of judgment of non pros. RULE: To kw-rf-K 1' "/ y, a4z-'1, a pellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Q? `'S? r ?Q ( Signature of Proth aty or Deputy S YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 R Signature of appellant or attorney -agent WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN - COURT FILE YELLOW - APPELLANT'S COPY PINK -COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE PROOF OF SERVICE _OF NOTICE OFAPPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (16) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT. I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas , upon the District Justice designated therein on (date of service) 20 , ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of afflant Signature of official before whom affidavit was made Title of official My commission expires on 20 cr) , C n , 3-- s ? v a CM ° 0 COMMONWEALTH OF PENNSYLVANIA rni INTY nF• CMMZRLAMD Mag. Dist. No.: 09-3-04 MDJ Name: Hon. TMONAS A. PLACZY Address: 104 8 SPORTING BILL RD MCH MICSBVRG, PA Telephone: (717 ) 761-8230 17050 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rl?BMSTZMACBffit. AM ASSOCIATZS, P . C .7 5115 Z. TRIMDLZ ROAD NRCHAMICSBDRG, PA 17050 L J vs. DEFENDANT: NAME and ADDRESS rCULLZY, ZZVIM 6977 MMTZVILLZ ROAD ZMOLA, PA 17025 L_ J ZZVIM CQLLZY _ 6977 NZRTZVILLZ ROAD Docket No.: CV-0000787-08 ZMOLA, PA 17025 Date Filed: 11/12/08 THIS IS TO NOTIFY YOU THAT: 11 Judgment: (Date ofJudgmenti ---- ® Judgment was entered for: (Name) EM TZiRKACBM AM AS, SOCIATZS © Judgment was entered against: (Name) COLLZY, SSVIM in the amount of $ 1, 997.4 ? Defendants are jointly and severally liable. Damages will be assessed on Date & Time This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $ 1,922.40 $ 75.00 $ . on $ .00 $ 1,997.4 Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. pl r U? Date , Magisterial,101,61 iot Ju. e I certify that this is a true an edings containing the"ji,4i +f ? Date , Magist'ial District Judge, -1 A 2010 My commission expires first Monday of January, SEAL FENSTERMACHER & ASSOCIATES, P.C., Plaintiff V. KEVIN CULLEY, Defendant District Court 09-3-04 CV-0787-08 DISCUSSION The case fired-by-Ptaintiff seeks recovery for-the breach of a written contract Defendant, without filing a cross complaint, seeks to turn the contract case into a fee dispute case. Simply raising the argument does not change the nature of the suit as originally filed. It is a contract case and under the contract payment is due in the amount of. $1,922.40. It is noted that the facts and decision in this case are in compliance with the Rules of Professional Conduct, specifically Rule 1.5. The note to this Rule provide that it is Disciplinary Board policy that allegations of excessive fees charged are initial referred to the Fee Dispute Committee for resolution. This Court is not that initial referring body. Judgment is in favor of Plaintiff in the amount of $1,922.40 together with the cost of this action. All parties have been previously advised of their appeal rights and the original exhibits have been returned to the presenting party. By 23 April 2009 Date Thomas A. M.D.J. T FjLED-:)fflCE OF T?,' pp( * '> 1y1TAPY 2009 MAY 20 AM 9: 19 CUr?? t??4;?:?;?d? Y ?, ..,. i A `SYLVA`N A t`? vl?iv PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of serYice MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALT OF PENNSYLVANIA COUNTY OF 4f C L- At ?er 1" a( ; ss AFFIDAVIT; I ereby (swear) (affirm) that I served ? copy of the Notice of Appeal, Common Pleas 0'9-3173, upon the District Justice designated therein on ( ate of service), 20 Py, by personal service ? by (certified) (registered) mail, rider's receipt attach hereto, and upon the appellee, (name) on fn AY 19 20 Oc? by persona(service ? by (certified) (registered) mail, ender's receipt attached hereto. )RN) (AFFIR ED) AND SUBSCRIBED BEFORE ME a2p? AY OF 2001.... n r Signature of affiant V of official befdre whom afl'id w was Title of official a My commission ex ires on 20 FENSTERMACHER AND ASSOCIATES,: IN THE COURT OF COMMON PLEAS OF P.C. : CUMBERLAND COUNTY, PENNSYLVANIA Defendant V. : DOCKET NO. 09-3173 KEVIN P. CULLEY Defendant : CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 FENSTERMACHER AND ASSOCIATES,: IN THE COURT OF COMMON PLEAS OF P.C. : CUMBERLAND COUNTY, PENNSYLVANIA Defendant V. : DOCKET NO. 09-3173 KEVIN P. CULLEY Defendant : CIVIL ACTION - LAW COMPLAINT AND NOW the Plaintiff, by its attorneys, Fenstermacher and Associates, P.C. hereby files the following Complaint in this matter. 1. Fenstermacher and Associates, P.C. is a professional corporation with its principal office located at 5115 East Trindle Road, Mechanicsburg, Pennsylvania, 17050. 2. Kevin P. Culley is an individual whose last known address is 6977 Wertzville Road, Enola, Pennsylvania 17025. COUNTI Contract 3. On or about August 4, 2008, Kevin P. Culley contacted Fenstermacher and Associates, P.C. to represent him in a divorce action filed by his wife. 4. Fenstermacher and Associates, P.C. was contacted within 48 hours of a hearing and assisted Mr. Culley in resolution of the domestic relations issues. 5. The fee agreement which is attached hereto is Exhibit "A" was presented to Mr. Culley at the first meeting and payment of a retainer was requested in the matter. 6. Defendant never returned the fee agreement or retainer to Plaintiff. 7. The Plaintiff provided legal services to Defendant in the amount of $1,462.50, a copy of the business billing files is attached as Exhibit "B" hereto. 8. The fee agreement required that if any fees were not paid, that the Plaintiff would pay costs plus an additional fee of $250.00 for the litigation to recover the fees together with interest at the rate of 1 1/2% per month. 9. Judgment in the amount of $1,997.40 was entered at the District Justice level. After repeated demands, Defendant has not paid any fees in this matter. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $1,997.40 together with costs, fees in the amount of $250.00, interest and any other relief the Court deems appropriate. The amount is below the arbitration limits of the Court of Common Please of Cumberland County. COUNT II Unjust Enrichment 10. Paragraphs 1-9 are incorporated herein by reference. 11. Plaintiff prescribed legal services to Defendant. 12. Defendant received a benefit from those services. 13. Defendant has been unjustly enriched by the receipt of such services without making payment. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $1,997.40 together with costs, fees in the amount of $250.00, interest and any other relief the Court deems appropriate. The amount is below the arbitration limits of the Court of Common Please of Cumberland County. Respectfully submitted, FENSTERMACHER AND ASSOCIATES. P.C. ohn Fenstermacher Pupreme Court I.D. #29940 5115 East Trindle Road Mechanicsburg, PA 17050 (717) 691-5400 Attorney for Plaintiff Dated: CERTIFICATE OF SERVICE AND NOW, on this day of May, 2009, I, John R. Fenstermacher, Esquire, hereby certify that I have served the foregoing Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Kevin P. Cully 6977 Wertzville Road Enola, PA 17025 FENSTERMACHER AND ASSOCIATES, P.C. B hn R. Fenstermacher EXHIBIT "A" FENSTERMACHER AND ASSOCIATES, P.C. ATTORNEYS AND COUNSELORS AT LAW JOHN R. FENSTERMACHER 'MEMBER PENNSYLVAM AND DIRECT DIAL (717) 691-5420 NEW JERSEY BAR August 4, 2008 Kevin P. Culley 6977 Wertzville Road Enola, PA 17025 RE: Fee Agreement Dear Mr. Culley: You have asked our firm to act as your counsel with regard to the matter r of a divorce and all related matters and we are pleased to do so. We thank you for selecting Fenstermacher and Associates, P.C. It is our firm's practice to confirm in writing the identity of any client whom we represent, the nature of our understanding on behd f of that client and our billing payment arrangements with respect to our legal services. Please review this letter to insure that we have accurately reflected the nature of the world to be performed and that you understand our operating and billing procedures. Once you have done so, please sign and return one of the enclosed originals to me and retain the second original for your records. 1. Our standard billing policies provide for monthly bills for our time and costs on your behalf. Our billing rates range from $325.00 per hour for our senior partners to $90.00 for paralegals. Billing will be based primarily on my hourly rate of $325.00. To the extent possible, we will try to utilize associate and paralegal support. In the event that this file remains active for in excess of six (6) months, we reserve the right to notify you of increases in these billing rates. 2. It is impossible to determine in advance the amount of time that will be needed to complete your case because the facts and issues of each case are unique and constantly evolving, and because the attitude of the opposition and other parties and counsel involved may vary greatly from case to case. Any estimate of total fees is, by necessity, merely an educated guess and was stated to you in terms of a minimum. PLEASE RESPOND TO: MECHANICSBURG OFFICE: OCEAN CITY OFFICE: THE JONAS RUPP HOUSE (717) 691-5400 26 SAY AVENUE 5115 EAST TR]NDLE ROAD FAX (717) 691-5441 OCEAN CITY, NJ 08226 MECHANICSBURG, PENNSYLVANIA 17050 www.fenstermacherandassociates.com (609) 391-9461 john(gfenstermacherandassoeiates.coin WE JONAS' RUMP iIOUSE Kevin P. Culley August 4, 2008 Page Two 3. We will keep records of time used for conferences, telephone calls, drafting documents, research, Court time and necessary travel time. You will not be billed for clerical or secretarial time. Certain respective functions will be billed at present minimum time allocations as *follows: Telephone calls/e-mails .2 hours Review of incoming maiVe-mails .2 hours Preparation of outgoing letters/e-mails .5 hours 4. We reserve the right to suspend services until satisfactory payment arrangements are made, or, if necessary, terminate our attorney/client relationship at any time for non- payment of fees or costs and you agree not to contest our withdrawal from any Court or administrative proceeding in this instance. We expect payment to be made on a monthly basis, without regard to the consummation of any proposed transaction or the outcome of any matter. Among other things, your careful attention to monthly bills is the very best method of monitoring the continuing expenses of the legal contest. We reserve the right to add one and one-half (1 1/2) percent per month interest on any balance which remains unpaid more than thirty (30) days. Any legal action arising from nonpayment of fees due shall be exclusively litigated in the courts of Cumberland County, Pennsylvania, including the minor judiciary courts of Cumberland County. In the event payment is not made hereunder, Client agrees to pay the sum of $250.00 as a reasonable attorney's fee, as well as costs incurred in the prosecution of any claim for fees due hereunder. Further, Client agrees that the amount of $250.00 may be deducted from any retainer fee held in escrow should we need to terminate our services to you. 5. "Costs" are out-of-pocket expenses, such as filing fees, postage, service fees, transcripts, photocopies, long distance phone calls, computer legal research, facsimile transmissions (incoming and outgoing) and expert witnesses or consultants. Costs will be itemized and billed on a monthly basis or, in some instances, costs will be billed in advance. 6. We shall keep you well informed as to the progress of your case. We shall send you copies of all important papers coming in and going out of our offices, including correspondence, pleadings and other Court documents. Likewise, we ask that you keep us informed of any developments in the matter which come to your attention and promptly provide us with copies of any materials received as well as the substance of any relevant communications which you may have. In this way, we can maintain a valuable and continuous flow of communication between us. 7. If we are unavailable when you telephone, your call shall be returned with reasonable promptness. There will be times when we will be in Court or at meetings or Kevin P. Gulley August 4, 2008 Page Three in conferences, which will preclude us from returning your calls as quickly as we both might like, but we shall do our best to return your telephone calls as soon as we can. 8. Papers we file may request that the Court award you attorney's fees, punitive damages, prejudgment interest, or other related damages as part of your claim. These types of damages, despite their arguable merits, are rarely granted. Therefore, you should not, unless we advise you to the contrary, in writing, assume that any such recovery is forthcoming, nor should you assume that those items will realistically be part of any settlement negotiation. This means that in any settlement or favorable Court Judgment you will most likely have to bear your own attorney's fees. 9. Successful completion of your case may require the employment of experts from other fields such as accountants, appraisers, engineers, chemists, traffic control experts, doctors, and other scientific disciplines. Charges for such personnel must be paid by you immediately. We will always discuss with you the necessity and advisability of such help and get your approval before retaining any such expert. 10. You have agreed to forward a retainer in the amount of Three Thousand ($3,000.00) Dollars to this office. Our monthly fee will be billed against the retainer. If the retainer is diminished to below $500.00 and the matter is still ongoing, you agree to provide an additional retainer. We reserve the right to terminate our representation for failure to make payment hereunder. In the event our fees do not exceed the amount of any retainer we hold, we will refund any retainer remaining at the conclusion of the case. Please review and sign this letter where indicated below to indicate your agreement and return it to us so that we will have a mutual memorandum of our understanding. I look forward to working with you and thank you again for choosing our Firm. EXHIBIT "B" Fenstermacher and Associates, P.C. The Jonas Rupp House 5115 E. Trindle Road Mechanicsburg, PA 17050 Invoice submitted to: Kevin Culley 6977 Wertzville Road Enola PA 17025 April 15, 2009 Professional Services 8/1/2008 - JRF Telephone Conference with Diane Radcliffe; Office conference Kevin; Review Complaint and Injunction 8/4/2008 - JRF Office Conference; Telephone conferences with Attorney; Review and Revise Stipulation; Telephone conference Mr Cully; Telephone conference Attorney 8/512008 - JRF Telephone Conference with Mr. Cully; Office conference Re: Stipulation; Telephone conferences with Attorney; Telephone conference Mr. Cully; Revise and transmit stipulation. 8111/2008 - JRF Review of correspondence; Prepare response For professional services rendered Rate 1ld Amount 227.50 325.00/hr 325.00/hr 617.50 325.OOmr 325.00/hr 4.50 455.00 162.50 $1,462.50 Costs. Interest Aug - 4/16/09 209.94 Collection FEE 250.00 $1,922.40 O 7} Cr' r Fenstermacher and Associates In The Court Of Common Pleas of Cumberland P.C. County, Pennsylvania Defendant : Docket No. 09-3173 V. Kevin P. Culley Defendant : Civil Action Law ANSWER TO COMPLAINT AND NOW the Defendant, Kevin P. Culley, hereby answers the complaint filed against him. 1. Fenstermacher and Associates, P.C.a professional corporation with it's principal office located at 5115 East Trindle Rd., Mechanicsburg, Pennsylvania, 17050 2. Kevin P. Culley is an individual whose address is 6977 Wertzville Rd. Enola. Pennsylvania 17025 COUNT 1 Contract 3. Kevin P. Culley contacted Fenstermacher on August 1, 2008 for an appointment, not August 4,2008. The appointment was 1:30 on August 4, 2008.The appointment was for legal help on papers I was served on July 31, 2008 regarding domestic issues. 4. The hearing was set for August 5, 2008 at 11:00 am. Mr Fenstermacher was contacted 96 hours in advance of the hearing. Mr. Fenstermacher did not assist in a resolution, merely a temporary step that I signed that was against my wishes to avoid a court hearing regarding domestic divorce issues. 5. The fee agreement was never executed and It was requested, after the August 4, 2008 meeting, that I take it home and look it over and if I wanted Mr. Fenstermacher to represent me in the divorce proceedings that I needed to execute it and return it along with a retainer. 6. Kevin P. Culley did not wish to retain Mr. Fenstermacher to represent him. Mr. Fenstermacher was discharged by me for lack of response and not serving my best interest in the brief services provided. 7. The amount charged for the limited legal services was promptly disputed with Mr. Fenstermacher in writing several times. No response or attempt to resolve the issue was offered by Mr. Fenstermacher. The invoice contained erroneous charges and charges before and after the initial office visits of August 4,5, 2008. Exibit `B" attached to Mr. Fenstermachers complaint is proof that charges were made prior to August 4, and after August 5, 2008. This complaint contradicts itself as paragraph 3 even states that I was not seen until August 4,2008. Services provided were brief. 8. The collection fees and interest should not apply as an attempt was made to make payment on the true charges only. No contract or agreement was ever executed or implied. 9. The judgement was entered in favor at the District Justice level against Kevin P. Culley stating that by rule the matter should have been reviewed by the Office Of Disciplinary Counsel and that a contract was breached. The judgement of $1997.40 is erroneous and improper under the circumstances. Numerous attempts were made by Kevin P. Culley to settle this dispute. WHEREFORE, Defendant demands relief from the judgement, costs, interest and collection fees and reduce the judgement to the $812.50 that is truly owed Mr. Fenstermacher, and any other relief that the court deems appropriate. The collection and interest were already added into the previous complaint awarded and should be dismissed. COUNT II Unjust Enrichment 10. Paragraphs 1-9 are incorporated herein by reference. 11. Plaintiff provided limited legal services to the defendant 12. Defendant did not receive a benefit from those services and the advice given has proven very damaging. 13. Defendant has been damaged by these services. Payment by the defendant to the Plaintiff for the limited services was attempted several times unsuccessfully. WHEREFORE, Defendant, Kevin P. Culley, demands relief from the Plaintiff and the judgement reduced to the true amount owed of $812.50 and all collection fees and interest vacated, and any other relief the Court deems appropriate. Dated: & / q I a2V';v` Respectfully Submitted, By: Ze P. Culley 6977 Wertzville Rd. Enola, PA. 17025 (717)514-5977 Individual Certificate Of Service AND NOW, on this - -th day of June, 2009, I, Kevin P. Culley, hereby certify that I have served the foregoing Answer to the Complaint by mailing a true and correct copy by United States first class mail, addressed as follows: Fenstermacher and Associates, P.C. John Fenstermacher 5115 East Trindle Rd. Mechanicsburg, PA. 17050 By: k?'? 04 Kevin P. Culley FILED-o- Ft,, ,TARP CAF THE 209 JUd -g P? 12? `? ? cumb PLl li'3?J i L??rAi?el'y: