HomeMy WebLinkAbout06-14-12JASON P. KUTULAKIS, IN THE COURT OF COMMON PLEAS Of ~`
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PETITIONER ~
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NO. 2011-4543
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KUTULAKIS
MARY D ~~
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RESPONDENT :~ ~;
IN RE ESTATE OF IN THE COURT OF COMMON PLEAS
PETER N. KUTULAKIS CUMBERLAND COUNTY, PENNSYLVANIA
Register of Wills No.: 1997-00716 /
MOTION TO COMPEL COMPLIANCE WITH COURT ORDER RE:
REVIEW AND EXECUTION OF THE SETTLEMENT AGREEMENT
And now this ~ day of June 2012, comes Respondent May D. Kutulakis, by and through
her counsel Dean E. Reynosa, Esquire, and respectfully sets forth as follows:
1. These matters were scheduled for anon-jury trial for Tuesday, May 15, 2012,
before the Honorable Eugene E. Fike, II.
2. The parties appeared before Judge Fike on May 15, 2012, and were able to
reach a comprehensive agreement resolving all claims concerning the above captioned matters.
3. The Court reduced the parties' agreement to a court order which is attached
hereto as Exhibit A.
4. Specifically, the Court directed that undersigned counsel draft a mutual release
setting forth the parties' agreement.
5. As part of the agreement, Petitioner is to discontinue both actions and withdraw
the lis pendens.
6. The Court Order notes that "Counsel will exercise their best efforts to finalize and
effect execution of the Release within 15 days after the date of this Order." Id.
,~_~
7. Respondent's counsel drafted a mutual release and delivered it to Petitioner by
e-mail on May 23, 2012. See a-mail correspondence attached hereto as Exhibit B and the draft
release which is attached hereto as Exhibit C.
8. Undersigned counsel also provided to Petitioner draft Praecipes to Discontinue
each action copies of which are attached hereto as Exhibit D.
9. Respondent's counsel has sought input several times concerning the draft
release and has received no substantive response.
10. Not mentioning phone calls, Respondent sent follow up a-mails on May 31, 2012,
June 6, 2012 and June 8, 2012, seeking input concerning the draft release. See a-mail
correspondence attached hereto as Exhibit B.
11. Respondent requests that this Honorable Court direct Petitioner to either sign the
draft release or submit substantive comments concerning the draft release.
12. Respondent further requests that this Honorable Court direct that the parties
finalize and sign the release not later than June 22, 2012.
13. Additionally, Respondent requests that this Honorable Court direct that Petitioner
sign and file the attached Praecipes to Discontinue both actions within 48 hours of signing the
release.
14. Respondent requests an award of attorneys' fees related to the drafting and filing
of this Motion to Compel Cooperation as had the Petitioner simply complied with this Court's
initial order and provided substantive responses concerning the draft release, this motion would
not have been necessary.
15. Respondent sought Petitioner's concurrence by a-mail on June 12, 2012, and
Petitioner has not responded as of the filing of this Petition. See a-mail dated June 12, 2012
which is attached hereto as Exhibit E.
Wherefore, Respondent requests that this Motion be granted and that this Honorable
Court direct the parties to finalize and sign the release not later than June 22, 2012, and that
Petitioner sign and file the Praecipes to Discontinue both actions within 48 hours of signing the
release. Respondent further requests that this Honorable Court direct that Petitioner pay
Respondent's legal fees as they relate to the filing and preparation of this Motion to Compel
Compliance.
Respectfully submitted,
SAIDIS, SULLIVAN & ROGERS
De~n`E~osa, Esquire
Attorney Id. 8 440
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Counsel for Respondent Mary D. Kutulakis
•>
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE; ESTATE OF
PETER N: KUTULAKIS
JASON P. KUTULAKIS,
Petitioner
vs.
MARY D. KUTULAKiS,
Respondent
Register of Wills No. 1997-00716
No.22Q11-4543
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ORDER
NOW, this 15~' day of May, 2012, at the time scheduled for trial on the Petition
To Open Estate and Set Aside the Final Account and Distribution filed by Petitioner,
Jason P. Kutulakis, in the estate proceedings of Peter N. Kutulakis, deceased, docketed in
the Office of the Register of Wills to No 1997-00716, and on the Praecipe For Lis
Pendens filed by Jason. P. Kutulakis at Docket No. 22011-4543; Petitioner, Jason P.
Kutulakis, having appeared pro se, and Respondent, Mary D. Kutulalcis, appearing,
represented by Dean Reynosa, Esq.; counsel for Respondent and Petitioner having
b
reported that they have engaged in discussions that have resulted in an agreement in full
settlement.of the instant litigation, and the terms of that agreement having been placed of
record;
IT IS ORDERED that the terms of the settlement agreement placed of record are
approved, incorporated and adopted as an Order of Court in settlement of the Petition To
Open Estate and Set Aside the Final Account and Distribution and Praecipe For Lis
Pendens, and accordingly, the trial is cancelled and pursuant to the terms of the
settlement agreement:
1. Jason P. Kutulakis shall pay the expense for an engineerlsurveyor to
reconfigure the boundary line between the properties'of Petitioner and
Respondent in accordance with the drawing admitted into evidence as
Exhibit "A" and attached to this Order, with the expense estimated to be
approximately $1000.00 to $1500.00.
2. Jason P. Kutulalds shall pay to Respondent's counsel, Dean Reynosa, the
amount of $7500,00 as counsel fees, to be paid as follows:
a. $4500.00 today, May 15, 2012.
b. The balance of $3000.00 in three equal installments of $1000.00
each, with the first installment to be paid on the date that the
engineer/surveyor completes the reconfiguring of the boundary line
• • • • • • ~ • as described in ~pazagraph 1. • of this Order, the second installment to •• • ' •
be paid thirty days after the engineer's completion of the boundary
Line reconfiguration, and the third installment to be paid sixty days
v after the engineer's completion of the boundary line reconfiguration.
3. Jason P. Kutulakis shall discontinue of record the proceedings initiated by
' his Petition To Open Estate and Set Aside the Final Account and .
Distribution and his Praecipe For Lis Pendens and will cause the Lis
Pendens to be withdrawn and stricken of record.
4. Respondnt's counsel shall prepare a Release for execution by Respondent
and Petitioner, that shall include a mutual release of known and unknown
causes of action and claims between the parties, including causes of action
and claims relating to the properties at 411 Barnstable Road and 505
Barnstable Road, Carlisle, PA that are the subject of the instant litigation.
The Release shall exclude from its operation claims and causes of action
that may arise from disputes with persons who in the future may acquire title
to all or part of the properties that are the subject of this litigation and claims.
and causes of action that may arise from disputes with owners of land
adjoining the subject properties. Counsel will exercise their best efforts to
finalize and effect execution of the Release within 15 days afterthe-date of
this Order. '
.. ....
BY COURT
Eugene E. e, II
Senior Judge
'This Order was prepared from notes of the terms of the settlement agreement placed of record on May 15,
2012. Transcript has not yet been received.
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Dean Reynosa
From: Dean Reynosa
Sent: Friday, June 08, 2012 2:13 PM
To: 'Jason P. Kutulakis' (jpk@abomkutulakis.com)
Subject: FW: $4,500
Following upon this again. I left a message for you earlier and I understand you are in a mediation. I will be leaving
shortly and will not be back in until Monday.
Dean
-----Original Message-----
From: Dean Reynosa
Sent: Wednesday, June 06, 2012 10:59 AM
To:'J kutulakis'
Subject: RE: $4,500
Jason,
I want to resolve this matter as I am sure you do as well. If you have any comments to the document that I forwarded to
you let me know. Otherwise, can you sign it and return it to me so that I can get your mother to sign it as well to end
this matter.
Thanks,
Dean
-----Original Message-----
From: Jkutulakis [mailto:ipk@abomkutulakis.coml
Sent: Thursday, May 31, 2012 12:13 PM
To: Dean Reynosa
Subject: Re: $4,500
Let's talk tomorrow.
-----Original Message -----
From: Dean Reynosa [mailto:dreynosa a~ssr-attorneys.coml
Sent: Thursday, May 31, 2012 11:31 AM
To: J kutulakis
Subject: RE: $4,500
Alright let me know when you get back.
Dean
-----Original Message-----
From: Jkutulakis fmailto~ipk abomkutulakis.coml
Sent: Thursday, May 31, 2012 11:20 AM
To: Dean Reynosa
Subject: Re: $4,500
1
I am in pittsburgh sitting on the governors task force on child protection.
----- Original Message -----
From: Dean Reynosa (mailto•dreynosa@ssr-attorneys.com]
Sent: Thursday, May 31, 2012 11:19 AM
To: J kutulakis
Subject: FW: $4,500
Jason,
I left you a message yesterday. I am just following up on these to see if you have any requested changes,
Thanks,
Dean
-----Original Message-----
From: Dean Reynosa
Sent: Wednesday, May 23, 2012 1:30 PM
To: 'J kutulakis'
Subject: RE: $4,500
Attached are the following for your review:
1) Draft mutual release
2) Exhibit 1- lis pendens
3) Exhibit 2 -drawing
Let me know if it acceptable or if you have any changes you would like suggest.
Dean
-----Original Message-----
From: Jkutulakis Lmailto•ipk@abomkutulakis.coml
Sent: Tuesday, May 15, 2012 10:33 AM
To: Dean Reynosa
Subject: Re: $4,500
We do not file them before it is finalized, but I believe you said you wanted to draft them today. Matters not to me.
-----Original Message -----
From: Dean Reynosa jmailto•dreynosa@ssr-attorneys.com]
Sent: Tuesday, May 15, 2012 10:20 AM
To: J kutulakis
Subject: RE: $4,500
Ok -were you going to file the praecipes before the agreement is finalized? I'll have them drafted and delivered today.
Nevertheless, the payment was for today.
dr
2
-----Original Message-----
From: J kutulakis f mailto:ipk@abomkutulakis.com]
Sent: Tuesday, May 15, 2012 9:58 AM
To: Dean Reynosa
Subject: $4,500
I have a check made payable to saidis Sullivan and rogers at my office for pick up when then praecipes are dropped off.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
KNOWN ALL MEN BY THESE PRESENTS:
THIS MUTUAL RELEASE AND SETTLEMENT AGREEMENT ("Release") is
made and entered into by and between Jason P. Kutulakis ("Petitioner") and Mary D.
Kutulakis ("Respondent").
WHEREAS, Petitioner has instituted two related actions in the Cumberland
County Court of Common Pleas concerning Respondent. The first action instituted by
Petitioner was his Petition to Open and Set Aside the Final Distribution of the Estate of
Peter N. Kutulakis which was filed on or about May 23, 2011, and docketed at 1997-716
in the Cumberland County Register of Wills Office. The second action is a lis pendens
filed by Petitioner in the Cumberland County Prothonotary's Office against Respondent
as a defendant and docketed at 2011-4543. The lis pendens identified two parcels of
land described as follows:
"real property situated in West Pennsboro Township, Cumberland County,
Pennsylvania, known and numbered as 505 Barnstable Road, Parcel
Identification number 46-08-0583-067, as set forth in the Deed recorded in the
Cumberland County Office of Recorder of Deeds, Book 268-4376 and is
particularly described in Exhibit. A ,and attached hereto AND Parcel 46-08-
0583-065, as set forth in the Deed recorded in the Cumberland County Office of
the Recorder of Deeds, Book "T" Volume 21, Page 408, and as particularly
described in Exhibit "B", attached hereto."
A copy of Petitioner's lis pendens filed on May 23, 2011, is attached to this Mutual
Release as Exhibit "1 ". In his Petition to Open and Set Aside the First and Final
Accounting of the Estate of Peter N. Kutulakis, Petitioner sought an equal ownership
share in the property described in his lis pendens. By this Mutual Release, the parties
make no admissions concerning the validity of any claims or defenses asserted by
either party.
-1-
WHEREAS, Petitioner and Respondent have agreed to amicably resolve and
settle the claims asserted in the foregoing two actions upon the fallowing terms and
conditions:
1) Petitioner agrees to pay. to the Law Firm of Saidis, Sullivan and Rogers the sum
of 7 500.00 representing payment towards Respondent's legal fees. The
payment shall be made as follows:
a) $4,500.00. not later than May 15, 2012 (it is noted that this payment
has been made);
b) Three equal payments of $1,000.00 paid monthly beginning upon the
confirmation by West Pennsboro Township of the subdivision plan
anticipated by item 3 herein.
c) Petitioner may elect to pay the additional payments totaling $3,000.00
sooner without penalty for pre-payment:
d) Respondent to hold the deed until all payments under this provision
(i. e., $7,500.00) have been made.
2) Respondent agrees to transfer to Petitioner a portion of land adjoining
Petitioner's property at 411 Barnstable Road, Carlisle, as it is roughly set forth in
the attached Exhibit "2". The proposed land to be transferred is to encompass
the points roughly identified by numbers 1, 2 and 3 on Exhibit "2". The parties
understand that the points identified on Exhibit "2" are rough calculations and the
proposed transfer is to create a straight line between Petitioner's and
Respondent's properties.
3) Petitioner will pay to Eric Diffenbaugh expenses related to any additional work
that he may be required to do in order to incorporate the proposed transfer
identified in item 2. The parties understand that Mr. Diffenbaugh has roughly
suggested that the additional fees would be between $1,000.00 and $1,500.00.
for the additional work.
4) Petitioner agrees to file signed praecipes discontinuing each action with
prejudice. Additionally, Petitioner agrees to incorporate in his preacipe to
discontinue the lis pendens action a notation that the lis pendens is withdrawn.
NOW THEREFORE, Petitioner and Respondent, for and in consideration of the
payment of $7,500.00 by Petitioner and the transfer of a portion of land as described in
Exhibit "2" by Respondent as well as the other conditions set forth above, do hereby
remise, release and forever discharge each other and by these presents, do for their
-2-
successors, administrators, assigns, heirs, executors, insurers and reinsurers, remise,
release and forever discharge each other, their respective employees, subsidiaries,
affiliates, partners, predecessors and successors in interest and assigns, insurers and
reinsurers and any and all other persons, firms or corporations with whom any of the
former have been, are now, or may hereafter be affiliated, together with any and all
other persons, firms or corporations, of and from-any and all past, present or future
claims, demands, obligations, actions, causes of action, rights, damages, costs,
expenses and compensation of any nature whatsoever, whether based on a tort,
contract or other theory of recovery, and whether for compensatory or punitive
damages, which the parties now have, or which may hereafter accrue or otherwise be
acquired, on account of, or in any way growing out of, or which are the subject of the
Litigation (and all related pleadings) or in any way related to the legal services provided
by Dean E. Reynosa, Esquire to Respondent, including, without limitation, any and all
known or unknown, foreseen or unforeseen, matured or unmatured claims and the
consequences thereof, which have resulted or may result from the alleged negligent or
intentional acts or omissions of either party.
The Mutual Release on the part of the parties hereto shall be a fully binding and
complete settlement between Petitioner and Respondent and all parties represented by
or claiming through Petitioner and Respondent, save only the executor provisions of this
Release.
Petitioner shall file executed praecipes withdrawing and/or discontinuing each
action with prejudice. Additionally, Petitioner shall specifically note that the lis pendens
is withdrawn.
-3-
This Mutual Release and Settlement Agreement contains the entire agreement
between the parties hereto with regard to the matter set forth in it and shall be binding
upon and inure to the benefit of the executors, administrators, personal representatives,
heirs, successors, spouses, and assigns of each. There are no other understandings or
agreements, verbal or otherwise, in relation thereto, between the parties hereto.
The parties hereto enter into this Mutual Release and Settlement Agreement in
the Commonwealth of Pennsylvania and said document shall be construed and
interpreted in accordance with its laws.
This Mutual Release and Settlement Agreement may be executed by the parties
in any number of counterparts, each of which with an original signature of a party or
parties, and shall serve as a Release of that party's or parties' rights.
This Mutual Release and Settlement Agreement, with exhibits, consists of
fourteen pages.
-4-
AND WITNESS WHEREOF, Petitioner and Respondent, each intending to be
legally bound by the terms of this Mutual Release and Settlement Agreement, hereunto
set their hand and seal this day of , 2012
Witness:
Jason P. Kutulakis, Petitioner
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ss.
On this day of , 2012, before the undersigned officer, personally
appeared Jason P. Kutulakis, and executed the foregoing instrument for the purposes
therein contained by signing his name.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
(SEAL)
Mary D. Kutulakis, Respondent
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ss.
On this day of , 2012, before the undersigned officer, personally
appeared Mary D. Kutulakis, and executed the foregoing instrument for the purposes
therein contained by signing her name.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
(SEAL)
-5-
IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
PETER N. KUTULAKIS CUMBERLAND COUNTY, PENNSYLVANIA
: Register of Wills No. 1997-00716
PRAECIPE TO DISCONTINUE
TO THE REGISTER OF WILLS:
Kindly discontinue Petitioner Jason P. Kutulakis's Petition to Open the
Estate and Set Aside the Final Account Distribution of Peter N. Kutulakis filed
on June 13, 2011, with prejudice.
Date:
Respectfully submitted,
Jason P. Kutulakis, Esquire
Attorney Id. 80411
2 West High Street
Carlisle, PA 17013
(717) 249-0900
JASON P. KUTULAKIS,
Petitioner
v.
MARY D. KUTULAKIS,
Respondent
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No.: 2011-4543
Lis Pendens
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly discontinue the above captioned matter with prejudice and mark
the lis pendens filed at this docket withdrawn.
Respectfully submitted,
Date:
Jason P. Kutulakis, Esquire
Attorney Id. 80411
2 West High Street
Carlisle, PA 17013
(717) 249-0900
Dean Reynosa
From: Dean Reynosa
Sent: Tuesday, June 12, 2012 9:22 AM
To: 'Jason P. Kutulakis' (jpkCa~abomkutulakis.com)
Subject: FW: $4,500
Jason,
Would you concur in a Motion to Compel Compliance with Court Order concerning your review and execution of the
release that I had drafted and sent to you on May 23rd? Also, there would be a request for $225 in attorneys' fee
representing time that could have spent finalizing the release instead.
I plan on filing it today.
Thanks,
Dean
-----Original Message-----
From: Dean Reynosa
Sent: Friday, June 08, 2012 2:13 PM
To: 'Jason P. Kutulakis' (j~k[a~abomkutulakis.com)
Subject: FW: $4,500
Following up on this again. I left a message for you earlier and I understand you are in a mediation. I will be leaving
shortly and will not be back in until Monday.
Dean
-----Original Message-----
From: Dean Reynosa
Sent: Wednesday, June 06, 2012 10:59 AM
To: 'J kutulakis'
Subject: RE: $4,500
Jason,
I want to resolve this matter as I am sure you do as well. If you have any comments to the document that I forwarded to
you let me know. Otherwise, can you sign it and return it to me so that I can get your mother to sign it as well to end
this matter.
Thanks,
Dean
-----Original Message-----
From: Jkutulakis (mailto•ipk@abomkutulakis.coml
Sent: Thursday, May 31, 2012 12:13 PM
To: Dean Reynosa
Subject: Re: $4,500
Let's talk tomorrow.
-----Original Message -----
From: Dean Reynosa (mailto•dreynosa@ssr-attorneys.coml
Sent: Thursday, May 31, 2012 11:31 AM
To: J kutulakis
Subject: RE: $4,500
Alright let me know when you get back.
Dean
-----Original Message-----
From: Jkutulakis (mailto•ipk@abomkutulakis.coml
Sent: Thursday, May 31, 2012 11:20 AM
To: Dean Reynosa
Subject: Re: $4,500
I am in pittsburgh sitting on the governors task force on child protection.
----- Original Message -----
From: Dean Reynosa (mailto•dreynosa@ssr-attorneys.coml
Sent: Thursday, May 31, 2012 11:19 AM
To: J kutulakis
Subject: FW: $4,500
Jason,
I left you a message yesterday. I am just following up on these to see if you have any requested changes.
Thanks,
Dean
-----Original Message-----
From: Dean Reynosa
Sent: Wednesday, May 23, 2012 1:30 PM
To: 'J kutulakis'
Subject: RE: $4,500
Attached are the following for your review:
1) Draft mutual release
2) Exhibit 1- lis pendens
3) Exhibit 2 -drawing
Let me know if it acceptable or if you have any changes you would like suggest.
Dean
-----Original Message-----
From: Jkutulakis (mailto•ipk abomkutulakis.coml
Sent: Tuesday, May 15, 2012 10:33 AM
2
To: Dean Reynosa
Subject: Re: $4,500
We do not file them before it is finalized, but I believe you said you wanted to draft them today. Matters not to me.
-----Original Message -----
From: Dean Reynosa (mailto•dreynosa ssr-attorneys.coml
Sent: Tuesday, May 15, 2012 10:20 AM
To: J kutulakis
Subject: RE: $4,500
Ok -were you going to file the praecipes before the agreement is finalized? I'll have them drafted and delivered today.
Nevertheless, the payment was for today.
dr
-----Original Message-----
From: Jkutulakis (mailto•ipk abomkutulakis.coml
Sent: Tuesday, May 15, 2012 9:58 AM
To: Dean Reynosa
Subject: $4,500
I have a check made payable to saidis Sullivan and rogers at my office for pick up when then praecipes are dropped off.
CERTIFICATE OF SERVICE
I hereby certify that on this l Rl -day of June, 2012, a true and correct copy of the
foregoing document was served upon the party listed below by facsimile and by depositing, or
causing to be deposited, in the U.S. mail, postage prepaid, at Carlisle, Pennsylvania, addressed
as follows:
The Honorable Eugene E. Fike
Somerset County Courthouse
111 E. Union Street
Somerset, PA 15501
Facsimile (814) 445-1455
Jason P. Kutulakis, Esquire
Two West High Street
Carlisle, PA 17013
Facsimile (717) 249-3344
SAIDIS, SUI,I:. AN & ROB
Dean riosa, squire
Atto ey I.D. No. 80 ,.0
26 est HighStreet
Carlisle, PA 17013
(717) 243-6222