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HomeMy WebLinkAbout10-6672Faso acr t ~ p~ z: ~~ ~~'~g~SYLVA~I~y (This proof of COMMONWEALT OF PENNSYLVA IA couNTY ol= ~-~ ~ ~~ ; ss AFFIDAVIT• I i~ereby (swear) (affirm) that I served acopy of the Notice of Appeal, Common Pleaa ~Q, ~Z upon the District Justice designated therein on (fete of service) ~ C~. ~~.. , 20. ~ ^ by personal, service b rtified r ester • ~_~ ~ (~ (e9' ~ mail, s nder'B receipt attached hereto, and upon the appellee, (name) , on ~, ~, ~ ~ , 20 , ~ ^ by personal service ~ (oertified registered) mail, sender's •weceipt attached hereto. (SWORN) (AFFIRD) ANQ SUBS~CR-IB•E~D BEFORE, ME • THIS'~_ D Y OF O `-..L_, 20'4l`3 • . Slgnaturo o/ enfant SJyirafum o! oASdaf 6~ wfibin anidavit was made /~ Tlde. 01 onicisr My commission exp~~res on , 20 .~'; COMMO EAt.TH OF PENNSYLVANIA Ko1Mf~8W T. FbweR, Nohiy PubYc Nsw eao, CumbeAend County My ExpNee Mey 10, 201 Member. ntylvenie •Aeeodation of NoGrke G c 4 ~.~ c~yP ~'~ ~~~ 4v I~J~~i`i.l SPdi~ci b'~ ~ I bid OZ 1~0 010 ,E~`~j tilt t`~ft~}i ~ ~3t~u ~~~~ ~~ PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT 'ce MUST BE FILED W1THlN TEN (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of CUMBERLAND NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT .~ COMMON PLEAS No. /6 -[~?'oZ NOTICE OF APPEAL (~c:ic:e 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. 1 CV-196-10' This block will be signed DIVLY when u11s naaaon ~s regwreo ur~~ ra. R.C.P.D.J. No. 10088. This Notice of Appeal, when received by the District Justice, wil( operate as a SUi'ERSEDEAS to Ure judgment for possessbn in this case. sryn.n.. a»w~a~o~a-y or awb ~, /''/!''E K epp4-tarit was craanan[ (see ra. K.t+.r.v./. rvo. ~w~tv~ ~n acnvn be~for/e/a District Justice, A COMPLAINT MUSt BE FILED wltktin twenty (20) days after filing the NOTICE of APPEAL. PRAECIP'E TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appegant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) fn action before Dlstrid Justice. IF NOT USED, detach from copy of noAiee of appeal to be seared upon appellee: PRAECIPE: To Prothonotary Enter nde upon ABOM & KUTULAKIf3 appefiee(s), to fde a ccmpteint in this appeal (Common Pleas No. f ~- ~ f„ 7 ~.1 )within twenty (20) days aRer service of rule orsutfer fbf judgm t of non pn~s. STE HO LL, ,d~pM'a-><oratrariliryW+p~n- RULE: To ABOM & RUTULAKI$ , appellees) . kyn-s of gppeRsr(a) (1) You are no~ied 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 fits 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: /1~ /~ , 20 ~i °Y-i~ YOU MUST INCLUDE A COPY OF TWE NOTICE OF JUDGMENTfTRANSCRIPT FORIN WgTH THIS NQ71GE OF APPEAL.. AOPC 312-02 WHITE-COURT FILE TO BE FILED WITH PROTHONOTARY GREEN -COURT FILE YELLOW -APPELLANTS COPY PINK -COPY TO'BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DISTRICT JUSTICE ,~- ~ .. ~ ~o . f1J Postage Lf'1 CertNied Fee N' ~ Retum Receipt Fee O (Endoreement Required) Restricted Delivery Fee ~ (Endorsement Required) ~J'! ~ Total Postage & Fees O n •-- Q+. or PO Box No. '~ `~ rr. r C] ct1 ..~ i' e0 fU postage i1'1 ~ Cerfffied Fee O ~ Retum Receipt Fee ~ (Endorsement Requked) Restricted Delivery Fee ~ (Endorsement Required) O Tote1 Paetage & Fees W O 7S`treet, Apt ~. or PO Box Na ~2 u, li~i~i, ~~a~ct fl;y~~ ©~~V' ~~ ~l~ ~ OJ/~ !!! /f .~{~I~t}~ ry'C~ c. , ~ v. 1 ` : oM 'L ULAKIS ?? , Michelle L. Sommer ID No. 93034 r 2 West High Street Carlisle, PA 17013 (717) 249-0900 ABOM & KUTULAKIS, L.L.P., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW :BRANDON R. FINK, : DOCKET NO.: 10-6672 Defendant N TG 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 any other claim for 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 32 SOUTH BEDFORD STREET CARLISLE, PENNSYLVANIA 17013 (717) 249-3166 TAB OM & U ULAKIS Michelle L. Sommer ID No. 93034 2 West High Street Carlisle, PA 17013 (717) 249-0900 ABOM & KUTULAKIS, L.L.P., Plaintiff V. BRANDON R. FINK, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW DOCKET NO.: 10-6672 TO THE HONORABLE JUDGES OF SAID COURT: COMPLAINT AND NOW, comes the Plaintiff, ABOM & KUTULAKIS, L.L.P., by and through its partner, Michelle L. Sommer, and files this Complaint in accordance with Pa.R.C.P.DJ. No. 1004(B) and avers as follows:: 1. Plaintiff, ABOM & KUTULAKIS, L.L.P. (ABOM & KUTULAKIS), is a limited liability partnership with a registered address of 2 West High Street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant, Brandon R. Fink, is an adult residing at 172 Virginia Avenue, Carlisle, Cumberland County, Pennsylvania. 3. On June 3, 2009, Braaadon Fink entered into a Contract with ABOM & KUTULAKIS lawyer Michelle L. Sommer, Esquire for legal representation relating to child custody and Domestic Relations. (See attached Exhibit A, Fee Agreement). 4. The child custody case of Brandon Fink was given the file number of 09-153 by ABOM & KUTULAKIS. 1 M 5. On June 15, 2009, Brandon Fink entered into a second Contract with ABOM & KUTULAKIS lawyer Michelle L. Sommer, Esquire, for legal representation relating to a protection from abuse petition filed against the Defendant. (See attached Exhibit B, Fee Agreement). 6. The protection from abuse case against Brandon Fink was given the file number of 09- 170 by ABOM & KUTULAKIS. 7. Michelle L. Sommer, Esquire, provided legal services to Brandon Fink from the date of signing the Contracts, until October 28, 2009. 8. On October 28, 2009, Defendant terminated his contract and hired Stephen Howell, Esquire. 9. In accordance with the Contract, Michelle L. Sommer, Esquire, charged fees to Brandon Fink's appropriate case file. 10. Defendant is in breach of the June 3, 2009 and the June 15, 2009 Contracts due to his failure to pay for legal services rendered and costs paid on behalf of the client. 11. On the file number 09-153, Plaintiff invoiced Defendant a sum of $3,607.00, which remains unpaid to date. 12. On the file number 09-170, Plaintiff invoiced Defendant a sum of $868.25, which remains unpaid to date. 13. On August 2, 2010, ABOM & KUTULAKIS filed a civil complaint in Magisterial District No. 9-2-02 for collection of the unpaid fees totaling $4,623.25, which includes the filing fee for the Magisterial District Court. 14. The action to collect the fees was docketed at CV-196-10. 2 15. On October 5, 2010, the Honorable Jessica Brewbaker held a hearing in which both sides presented their case. 16. On October 6, 2010, the Honorable Jessica Brewbaker issued an opinion and entered judgment in favor of ABOM & KUTULAKIS. (See attached Exhibit C) 17. The Notice of Judgment assessed a total of $4,623.25 to be paid by Defendant Brandon Fink. (See attached Exhibit D). 18. Defendant appealed the decision of the Magisterial District Judge to the Cumberland County Court of Common Pleas. 19. On October 19, 2010, the Cumberland County Court Prothonotary issued a Rule to Plaintiff to enter a Complaint in response to Defendant's appeal. 20. In accordance with the Rule issued by the Prothonotary, Plaintiff now files this Complaint. WHEREFORE, Plaintiff demands judgment in its favor and against the Defendant in the amount of $4;623.25 plus additional costs. Respectfully Submitted, ABOM & KUTULAKIS, LLP Date: November 8, 2010 a ago- Michelle L. So . er, Esquire Attorney ID # 93034 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney for Plaintiff 3 VERIFICATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of Pa.C.S.A. §4904, relating to unsworn falsification to authorities. t . (? bn # November 8, 2010 Michelle L. So er, Esquire 4 FEE AGREEMENT 1. KNOW ALL MEN BY THESE PRESENT, that the undersigned, Brandon Fink, hereinafter referred to as "Client," does hereby irrevocably name, appoint and retain, Michelle L. Sommer, Esquire, of Abom & Kutulakis, L.L.P., 2 West High Street, Carlisle, Pennsylvania as my true and lawful attorney, hereafter referred to as "Counsel," for legal representation for the following purpose: Custody & Domestic Relations in Cumberland County. 2. With full power and authority to appear on behalf of the Client in any court of record or in any other proceeding whatsoever, as per the limits of this Agreement. 3. And in consideration of services performed and to be performed by Counsel, it is agreed that Counsel shall charge $175.00 per hour and receive a refundable retainer of $3,000.00 payable upon execution of this Agreement. The retainer fee includes the legal fees stated above, as well as the anticipated filing and administrative fees. 4. Billing statements detailing all fees and expenses will be forwarded to Client monthly and will be payable upon receipt by transferring funds from Client's retainer fee. The amount of fees incurred will depend primarily upon the time, effort and work product expended on your behalf, as well as consideration of the course you choose to take. It is understood that during the course of our representation, our time will be kept at the hourly rate, as discussed above, with charges in six minute intervals; therefore, a ".1" represents the minimum increment charge. During the course of representation, the time, charges and expenses advanced may exceed the amount of the retainer fee paid by Client. If the retainer fee is reduced to less than $500.00, Client will be required to replenish the retainer fee to the amount quoted by Counsel before any further professional legal services would be rendered on Client's behalf or, alternatively, installment payment arrangements may be made at that time. If Client is unable or unvAing to replenish the retainer or agree to a satisfactory installment payment arrangement, Counsel would be free to discontinue representation at that time. Client would also be responsible for any additional fees accrued in preparing a Motion to Withdraw as Counsel and any Court time involved with same. 5. Client agrees to pay all bills within fourteen (14) days of receipt. Client agrees to pay 1.5% interest per month on all outstanding balances in excess of 30 days from the date of invoice. 6. At the completion of your case, if Client's remaining retainer exceeds the total amount of fees and costs, Counsel will forward any remaining funds to Client. 7. In addition, it is understood that the Client shall be solely responsible, in addition to the fee, for all costs, expenses and disbursements that are necessary to the defense of the case. Out of pocket expenses for travel, toll calls, expert witnesses, and similar items for certain administrative services, such as photocopying, telecopy transmission and receipt, computer assisted research, special delivery and secretarial overtime specifically related to your case, will be billed in addition to the fee set forth above. 8. You may terminate our representation in this matter at any time. We have the same right, subject to our obligation to give you reasonable notice to arrange alternative representation. You also have a right to retrieve your file at any time.. Abom & Kutulakis, L.L.P. will maintain your file for a statutory period of five (5) years. This is notice that your file will be purged after the statutory period runs. Date: s I ?_ Brandon Fink Date: 10Ct _ , ABOM & KUTULAKiS, L. L. P. " Ck EXH Michelle L. Sommer t FEE AGREEMENT 1. KNOW ALL MEN BY THESE PRESENT, that the undersigned, Brandon Fink, hereinafter referred to as "Client," does hereby irrevocably name, appoint and retain, Michelle L. Sommer, Esquire, of Abom & Kutulakis, L.L.P.; 2 West High Street, Carlisle, Pennsylvania as my true and lawful attorney, hereafter referred to as "Counsel," for legal representation for the following purpose: Cumberland County PFA. 2. Witli full power and authority to appear on behalf of the Client in any court of record or in any other proceeding whatsoever, as per the limits of this Agreement. 3. And in consideration of services performed and to be performed by Counsel, it is agreed that Counsel shall charge $175.00 per hour and receive a refundable retainer of $1,500.00 payable upon execution of this Agreement. The retainer fee includes the legal fees stated above, as well as the anticipated filing and administrative fees. 4.. Billing statements detailing all fees and expenses will be forwarded to Client monthly and will- be payable upon receipt by transferring funds from Client's retainer fee. The amount of fees incurred will depend primarily upon the time, effort and work product expended on your behalf, as well as consideration of the course you choose to take. It is understood that during the course of our representation, our-time, will be kept at the hourly rate, as discussed above, with charges in six minute intervals; therefore, a ".1" represents the minimum increment charge. During the course of representation, the time, charges and expenses advanced may exceed the amount of the retainer fee paid by Client. If the retainer fee is reduced to less than $500.00, Client will be required to replenish the retainer fee to the amount quoted by Counsel before any further professional legal services would be rendered on Client's behalf or, alternatively, installment payment arrangements may be made at that time. If Client is unable or unwilling to replenish the retainer or agree to a satisfactory' installment payment arrangement, Counsel would be free to discontinue representation at that time,. Client would also be responsible for any additional fees accrued in preparing a Motion to Withdraw as Counsel and any Court time involved with same. 5. Client agrees to pay all bills within fourteen (14) days of receipt. Client agrees to pay 1.5% interest per month on'all outstanding balances in excess of 30 days from the date of invoice. 6. At the completion of your case, if Client's remaining retainer exceeds the total amount of fees and costs, Counsel will forward any remaining funds to Client:. 7. In addition, it is understood that the Client shall be solely responsible, in addition to the fee, for all costs, expenses and disbursements that are necessary to the defense of the case. Out of pocket expenses for travel, toll calls, expert witnesses, and similar items for certain administrative services, such as photocopying, telecopy transmission and receipt, computer assisted research, special delivery and secretarial overtime specifically related to your case, will be billed in addition to the fee set forth above. 8. You may terminate our representation in dais matter at any time. We have the same right, subject to our obligation to give you reasonable notice to arrange alternative representation. You also have a right to retrieve your file at any time. Abom & Kutulakis, L.L.P. will maintain your file for a statutory period of five (5) years. This is notice that your file will be purged after die statutory period runs. Date: fs Brandon Fink Boni&KUTULAKIS, L. L. P. Date: EXHIBIT Michelle L. Sommer'-,.Esquire a j9- Opinion: Abom & Kutulakis, LLP v. Brandon Fink The testimony and the exhibits provided at the hearing on October 5, 2010 indicated Brandon Fink retained the law firm of Abom & Kutulakis in order for the firm to represent him in two separate proceedings (custody and a PFA). Specifically, Mr. Fink hired Michelle Sommer, Esq. to represent him in both cases. A separate -fee agreement was signed, and a separate retainer was paid in each case. While the Court understands that Mr. Fink is frustrated by the outcome of both of his cases,'and by what he feels was "non-representation;" it was his responsibility, via the fee agreement, to end the representation. Specifically, the fee agreements each provided that "[y]ou may terminate our representation in this matter at any time." Clearly, Mr. Fink was aware of this provision, since he ultimately chose to do so. While the Court is sympathetic to his frustration, the law does not allow for the Court to go outside of the contract and limit the money owed, when Mr. Fink had previously chosen not to exercise that option. Judgment is therefore awarded for the plaintiff in the amount of $4475.25, plus filing fees, for a total amount of $4623.25. ' (Seal) Jessica E. Brewbaker, Esq. Date: Magisterial District Judge EXHIBIT a a 3 -iNWEALTI? OF PENNS' /ANiA NOTICE C JUDGMENT/TRANSCRIPT rn iN-n nF. CUr13ERLAND CIVIL CASE 09-2-02 MDJ Name: Hon. - :TESSICA BREWBAKER Addmss 18 N HANOVER ST STE 106 CARLISLE, PA 171-7; 240-6564 17013 PLAINTIFF: NAME and ADDRESS FABOM & RUTULAKIS LLP, 2 WEST HIGH ST CARLISLE, PA 17013 L -I vs. DEFENDANT: ?FINR, BRANDON 179 VTRr,TNTA AVR. to the amount of I Defendants are jointly and severally liable. ?---I Damages will be assessed on Date & Time This case dismissed without prejudice. mount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 Portion of Judgment for physical damages arising out of residential lease 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 JUDGMENTITRANSCRIPT 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. Date Magisterial District Judge I certify that this is a true and c Jr ct copy of the record of the proceedings containing the judgment. Date Magisterial District Judge 2012 EXHIBIT My commission expires first Monday of January, SEAL AOPG 315-07 DATE PRINTED: 10/06/10 2:41 0T PM CERTIFICATE OF SE VICE AND NOW, this 8'Y day of November, 2010 I, Michelle L. Sommer, Esquire, of ABOM & KUTULAKis, L.L.P., hereby certify that I did serve a true and correct copy of the foregoing Complaint by depositing, or, causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 Michelle L. Sommer, I 5 '7 1 1 F- T 7, ABOM & KUTJ4 , L Ps, , : IN THE COURT OF COMMON PLEAS `"° ` `''4-1" : CUMBERLAND COUNTY PENNSYLVANIA I?1ai n V. CIVIL ACTION -LAW BRANDON R. FINK, Defendant DOCKET NO.: 10-6672 AND NOW, this 17th day of November, 2010 I, Michelle L. Sommer, Esquire, of ABOM & KuTuLmis, L.L.P., hereby certify that I did serve a true and correct copy of the Complaint by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 Date ,ABODE & KUTULAKIS, L.L.P. Michelle L. Som , Esquire 2 West High Street Carlisle, PA 17013 (717) 249-0900 Attorney ID No. 93034 1 11/18/2010 16:37 7172493344 ABOM&KUTULAKIS PAGE 08/08 r D ABOM & KUTULAKIS, L.L.P., IN THE COURT OF COMMON PLEAS n c:) ? - Plaintiff CUMBERLAND COUNTY, PENNSYLV ? w -t3'' ° V. CIVIL ACTION -LAW Z" Q p 3 c-4 C=) rn BRANDON R. FINK, : No. 10-6672 Defendant PRAECIPE TO SETTLE. DISCONTINUE AND END WITH PREJUDICE TO THE PROTHONOTARY: Pursuant to Pa. R. Civ. P. 229, please mark the above-captioned matter settled, discontinued and ended with prejudice. Respectfully submitted, 6ve11 Law Firm 619 Bridge Street New Cumberland, PA-17070 717-770-1277 Attorney for Brandon R. Fink John A. Abo Abom & skis, LLP 2 West gh Street Carlisle, PA 17013 717-249-0900 Attorney for Abom & Kutulakis, L.L.P. t` CERTIFICATE OF SERVICE AND NOW, this 30th day of November, 2010, I, Emily J. Filiberti, hereby certify that I did serve a true and correct copy of the foregoing Praecipe to Settle, Discontinue, and End with Prejudice by depositing, or causing to be deposited, same in the United States Mail, First-class mail, postage prepaid addressed to the following: Steven Howell, Esquire 619 Bridge Street New Cumberland, PA 17070 Emily J. Filiberti