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HomeMy WebLinkAbout02-0922COMMO_NWEALTH OF PENNSYLVANIA COURT Of COMMON PLEAS JUDICIAL DISTRICT NOTICE OF APPEAL DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an -~'~¢2'eQI ~ the judgment rendemcl by the District Justice on the date and in the case mentionod belc~ z~ CV - /~,~,~/~ /-//~.4'--,~/ ~ ~'~ will ~ ~-~ ~LY ~ ~}s v~G;;~ is ~ui~ ~c~ pe R.~3~. ~ If ~1/~ ~ ~I~T ~ ~. ~.~.~.~.~. ~. 1 ~ ~ of A~I, ~ ~ ~ ~ ~s~t Justice, will ~ as a l~l(6)in~ti~~s~tJ~t~e,~T FILE A C~AINT wi~in t~y (20) da~ aft~ ~ ~ ~ ~ ~ty filing his ~TICE of A~EAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of fora3 to be used ONLY when ~oella~f ~ DEFENDANT (see P& R.C.P.J.P. 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. (Common Pleas No Name of a~oe#ee(s) , appellee(s), to file a complaint in this apped ) within twenty (20) days aftra' service of rule or suffer entry of juck3ment of non pros. RULEz To (i) You am notified that a rule is hereby entered upon you to file a complaint in Ibis apped within tv, qmty (20) doys after the date of smvice 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 WILL BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of mailing. AOPC312-90 COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL AND RULETO FILE COMPLAINT (This proof of service MUST BE F/LED WITHIN TEN (~ DAYS AFTER filing~.h.e notice of appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF, ~. _ ;SS ....... 12. ',. _ ~ - - AFFIDAVIT: I hereby swear or affirm that I served ,. [] a copy of the Notice of Appeal, Common Pleas No. dpdn-th~ Df~trict ,.lb~tidb 'designated therein on (date o¢ service) ........... L ........... ~, [] by personal service [] by (cedified) (registered) mall, sende s receipt attached hereto, and upon the appellee, (name) __, on .., [] by persona service [] by (certfied) (registered) mail, sender's receipt attached h?reto. [] and further that I served the Rule to File a Complaint accompanying the above Notice of Appea upon the appellee(s) to whom the Rule was addressed on ............... [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) ANB SUBSCRIBED BEFORE ME THIS .. DAY OF ........... Signature of affiant My commissior~ expires ,--'-' t COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CDM~ERI~-D Mag Dist No: 09-2-01 DJ Name: Hon. P~UL~ P. COP,.RE~L Add ..... 1 COURTHOUSE SQUARE CARLISLE, PA ~eleph .... (717) 240-6564 17013-0000 17090 SAMUEL I. WARNER 6196 SPRING ROAD SHERMANS DALE, PA NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS ~AmCSR, SAMUEL T. -~ 6196 SPRING ROAD SHERMANS DALE, PA 17090 L _j VS. DEFENDANT: NAME and ADDRESS ~LIPSON, STEPHEN B. ~ 5 HILLTOP DRIVE MT. HOLLY SPRINGS, PA 17065 Docket No.: G'V" 0000~165 -011 ,~~ Date Filed: 11/30/01 THIS IS TO NOTIFY YOU THAT: Judgr~'~t: Judgment was entered for: (Name) dudgment was entered against: (Name) in the amount of $ .ON Defendants are jointly and severally liable, Damages will be assessed on: · This case dismissed without prejudice. Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for , d'~¥s or ~-~ generally stayed, Objection to levy has bee~ filed and hearing wilt be held: '(Date Of Judgment) __ (Date & Time) ~ 'Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $$ I $ .00 $ .00] $ .00 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ Date: Place: Time: .'. 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/TR~ISCRIPT FORM WITH YOUR,NOTICE OF APPEAL. 2-01-02 ate (~/x .~ ~..~, .~ ..._.V./' ' , DiStrict Justice ..~' T"' - -~--'-~ '} ~ / :1. , ~ , ; ,' , ce,ify that this s a tr~and~ect~,~ ~ proceef~onta,~,ng the lud~ment. 2-0[-02 Date~~N/~/~.~_~~ ~ ~ ~ ~ ~ .', District Justice. My commission expires first Monday of January. 2006 SEAL PROOF OF SERVICE OF NOTICE OF APPEAL AND RULETO FILE COMPLAINT (Th/s proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing the notice of appeal, Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF _C,I.I~,~,I~,.~]~ ; SS AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No.~ 02-922 ~I~rI.~-, upon the District Juctice designated therein ~,(date otservice)~.~..-;,v.~...~ ,0~.' ,~',~,,~'~[_~_, ~rby persona, I se~ice ~ by (certfied) (reai§tered) ma I, senders receipt attached ~er~:o, and ul~ the ~ppelleel (name).~_ ~ ~_..~._~..'~¢..~ ~, (L..i~ $'~',~.~ , on ' [] by personal service [] by (certihed) (registered) mail ~ender's r~"e~ ~ed hereto. ~'and further that I s~rved the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom 'the Rule was addressed on ~~__ , [] by personal service ~.by (certified) (registered) mail, sender's receipt attache~ SWORN THIS My commission expir~. 1ED1 AND SUBSCRI ED BEFORE ME Signature of affiant ~26 2~L~ '~000 0~9'~ 000~. SAMUEL I. WARNER, : Plaintiff : US. : STEPHEN B. LIPSON, : Defendant : IN THE COURT OF CO~ON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW ~10 T I C E T O D ~- F ~. ND 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 · n 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 ,'ase may proceed without you and a judgment may be entered against Tou by the court without further notice for any money claimed in the ,~omplaint 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 DC 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 Court House Court Administrator 1 Courthouse Square Carlisle, PA 17013-3387 (717) 240-6200 WAit it lo ~nemyC ~ oDr i ~ ia .~ t~i ~fEsquire SAMUEL I. WARNER, : Plaintiff : VS. : ~TEPHEN B. LIPSON : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. COMPLAINT AND NOW comes the Plaintiff, Samuel I. Warner, by and through his attorneys, Dissinger and Dissinger, and represent the following: 1. The Plaintiff is Samuel I. Warner, an adult individual residing at 6196 Spring Road, Shermansdale, Perry County, Pennsylvania. 2. The Defendant is Stephen B. Lipson, an adult individual, 3esiding at 5 Hilltop Drive, Mt. Holly Springs, Cumberland County,! ,lvania. 3. In March of 1997 Plaintiff engaged the services of Stephen B. Lipson as attorney at law. 4. It was agreed by and between Plaintiff and Defendant that Defendant would pursue post-trial motions, brief and argument in regard to Civil Action No.93-14 with the Perry County Court of Common Pleas within a reasonable time. 5. Plaintiff paid the sum of $1,400.00 to Defendant and was ~ssured by Defendant that this would be sufficient to pursue the to resolution. 6. Defendant failed to obtain a transcript of the prior hearing until March of 1998, at which time Defendant promised Plaintiff that within the next few weeks he would read the transcript , do the necessary legal research and file the briefs. 7. In April of 1998, Defendant contacted Plaintiff to state that he had been unusually busy since February and had been unable to perform the work for Plaintiff. 8. In December of 1998 Defendant requested additional retainer of Plaintiff. 9. In November of 2000 Defendant notified Plaintiff that he was closing his law office as of November 30, 2000, and Plaintiff ;ould require replacement counsel. 10. Plaintiff failed to perform his promise of obtainin ~ranscripts, researching, filing briefs and arguing the matter ~ithin a reasonable amount of time. WHEREFORE, Plaintiff, Samuel I. Warner, demands against Defendant, Stephen B. Lipson, in the amount of ~lus interest. judgement $1,400.00 Respectfully submitted, DISSIN~ER & DISSINGER William C~'~s-inger, Es~re Attorney for Plaintiff Supreme Court ID # 27737 400 South State Road Marysville, PA 17053 (717) 957-3474 VERIFICATION I, Samuel I. Warner, verify that the statements made in the Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Samuel I. Warner, Plaintiff SAMUEL I. WARNER, : Plaintiff : VS. : STEPHEN B. LIPSON : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. CERTIFICATE OF SERVICE I, william C. Dissinger, do hereby certify that I have filed true and correct copy of attached complaint on Stephen B. Lipson on the date indicated by depositing the same, First Class postage )repaid, with the United States Mail addressed as follows: Stephen B. Lipson 5 Hilltop Drive Mount Holly Springs, PA 17065 SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objections within Twenty (20) days fi.om service hereof or a judgment may be entered against you. DATED: Stephe~ff.. Lipson - 5 Hilltop Drive Mt. Holly Springs, PA 17065 Pro Se SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 DEFENDANT'S pRELIMINARY OBSECTIONS A. Failure to Join a Necessary Party. 1. Plaintiffhas instituted this litigation against Defendant for an alleged breach of contract to provide legal services to Plaintiff 2. The legal services which Defendant agreed to pursue were post-Mai motions in Perry County cases in which Plaintiff and his wife, Cecelia F. Warner, were suing their neighbors. The first case (91-919) was a lawsuit for damage to their jointly-owned realty, and the second lawsuit (93-14) was to seek clarification of the extent of an easement (right-of-way) across their neighbors' realty. 3. Plaintiff and his wife are joint owners, as tenants by the entireties, of the land which is benefited by the fight-of-way. A copy of the Deed by which Plaintiff and his wife acquired ownership of the parcel in question, and which contains the right-of-way language, is attached hereto and incorporated herein as Defendant's Exhibit "A". 4. Consistent therewith, Defendant entered an appearance on behalf of, and agreed to represent, both Plaintiff and his wife in the two proceedings. Copies of said Entries of Appearance are attached hereto and incorporated herein as Defendant's Exhibits "B" and "C". 5. Accordingly, the contract which Plaintiff negotiated with Defendant was for Defendant to represent both Plaintiff and his wife, who had a joint interest (not joint and several) in the two legal proceedings. Clearly, bothPlaintiffand his wife were necessary parties in any litigation to determine title to the realty or questions as to extent of said ownership, i.e., the easement issue involved in 93-14. 6. The litigation in question involves Defendant's alleged failure to complete his work on post-trial motions in 93-14, and Plaintiff and his wife had a joint interest in any comract for legal services to represent them in same. 7. It is hornbook law that persons having only a joint interest arising from a contract must join as parties in any litigation arising out of said contract. 3 Std. Pa. Practice 2d § 14:186. 8. This Honorable Court has no jurisdiction to decide this litigation unless Plaintiff joins his wife, Cecelia F. Warner, as a party - Plaintiff. WHEREFORE, Defendant respectfully requests that this Honorable Court order Plaintiff to join his wife, Cecelia F. Warner, as a party - Plaimiffwithin 20 days and, should Plaintiff fail or refuse to do so, dismiss Plaintiff's Complaint with prejudice. Stephen B. Lipson 5 Hilltop Ddve Mt. Holly Springs, PA 17065 VERIFICATION I verify that the statements made in this Preliminary Objections are true and correct to my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Stephen B. Lipson SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, Defendant : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY : PENNSYLVANIA C1VIL ACTION AT LAW NO. 02-922 CERTllqCATE OF SERVICE Stephen B. Lipson hereby certifies that on the~f'~day of ~/~.~ . 2002, he served a certified copy of his Preliminary Objections upon Plaintiff Samuel I. Warner by serving his counsel of record, William C. Dissinger, Esq. in the following manner: First class mail, postage prepaid to the office at 400 S. State Road, Marysville, PA 17053 Dated:////-~,~4~/-~v~''~, 2002 Steph~n B. Lipson (:L~.: 50 t..]l. ) ~zxt under mil hand and the seal o~ ti~ said mT~e, the date above wr~em ;!-' "~ptem~er in the year nzneteen hundred and day of Fifty-seven mhd S-m,,~! I.Warner and Cecelia F.Warner, his wife of Carroll ToWnShip, PeA~? County, Pennsylvania (hereinafter called the Grantees ). ~l~l~l~M~, That in consideration ot Seven ~v. nc~ed ............ ............................. (-$700.00) in hand paid, the re*eipt ,whereof is l~ereby acknowledged, the said Grantor s do h~rsby grant and convey to the said Grantee s their heirs and assigns, ALL those two certain tracts or parcels of land situate in Carroll Township, Perry County, Pennsylvania, bounded and described as fol!ow~ to wit: ~-~ct No. 1 .B~ginn!n~ at a point in cen~er of Public ~gh~y, Rou~e 3~; ~hence N 46 1/4 de~ees E ~6 fee~ ~o a ~ in center of ~id High~y; ~hence alo~ ~d of ~tees ~ 3~ de~ee~ 282 fee~ to ~ i~n p~; thence along ~ of ~n~ S'~8 1/2 de~e~ ~8 feet to a ~c,,~ t~e a~ ~ iron p~; thence alo~ ~ of Tmo~ ~o~.S 2~ ~e~s E 3h~_feet to t~e ~e ~of begi~mng ~ contai~ ~ ae~s ~6 pere~ . ~! 29 1/2 degree-~, ~. ~00 feet to an' iron pin; ~ence along land of grantors g 60 1/2 de~rees. E 1032 feet to an iron pin; thence along land of E~.Bridge S 2(k%egreea E ~00 feet to an iron pin; thence along land of grmntor~ ~ ~0 1/2 de~rees W 965 feet to the place of beginn~ng and containing 9 acres and 25 perches. The witb/n 16 feet mem.d, grantees, shall ~av~ m ~8~tl~nl right of way.feet in width to gain access', to within des~ribed realty. The property herein conveyed is par~ of a !arger tract of lami given and bequeathed t,o ~he within --~d grantors by the will of Charlea, Duncan and recorded tim ~ Gramtor 8 do l~rebgl covenant ~nd ~gree to and with t~ said G~nte~ t~t t~ Grantors ~e~ ~irs, ~uto~ ~ ~m~ators, SHA~ and WILL ~ WA~N~ and fo~ DEF~D th~ herein above d~b~d p~, with ~ ~~ and appu~e~, ~to t~ said heirs ~d ~sig~, ~ t~ s~ G~tor and aga~t ew~ other pe~on or w~ s~H ~r c~ t~ sam or any pa~ the~. ~ I~ ~, said Grantor s ha ye the day and year Rrst abooe wr~ttem State of ~Zermz71~ia Countv of 1~ : hereunto set their hand Sand seal s The address of the wi'~,,--~,~ed Grantee SAMUEL I. WARNER and CECILIA F. WARNER, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF THE 41sT JUDICIAL DISTRICT OF PENNSYLV,MNIPh PERRY COUNTY BRANCH VS. : NO. 91-919 SAMUEL E. ARMOLT and BOBBI ARMOLT, his wife, Defendants pRAECIPE FOR ENTRY AND ~WITHDRAWAL OF APPEARANCE To the Prothonotary: Please withdraw my appearance as counsel for the Plaintiffs in the above-captioned Chambersburg, PA 17201 Please enter my appearance as counsel for the Plaintiffs in the above-captioned matter. 'Stephen B. Lipson, Esq. 169 W. High Street, STE. 4 Carlisle, PA 17013 (717) 249-3929 SAMUEL I. WARNER and CECILIA F. WARNER, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA, PERRY COUNTY BRANCH VS. SAMUEL E. ARMOLT and BOBBI AR.MOLT, his wife, Defendants : NO. 93-14 : IN EQUITY PRAECIPE FOR ENTRY AND _WITHDRAWAL OF APPEARANCE To the Prothonotary: Please withdraw my appearance as counsel for the Plaintiffs in the above-captioned matter. ,/~,~~ SalzmannX,~ DeP~lis, P.C,- P.O. Box 276 Chambersburg, PA 17201 Please enter my appearance as counsel for the Plaintiffs in the above-captioned matter. stephen B. Lipson, EsqT: 169 W. High Street, STE. 4 Carlisle, PA 17013 (717) 249-3929 A1HUEL I. WARNER, : Plaintiff : VS. : TEPHEN B. LIPSON, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 PLAINTIFF'S RESPONSE TO DEFENDANT'S PRELIMINARY OBJECTIONS .. Admitted. 2. Admitted. 3. Admitted. ~. Admitted in part and denied in part. It is admitted that Defendant entered an appearance on behalf of Plaintiff and his wife. However, the agreement was only between Plaintiff and Defendant. 5. Admitted in part and denied in part. It is admitted that both joint owners may be necessary parties to a case concerning ownership Df real estate. It is denied that this litigation involves uwnership of land. To the contrary this is a contract action ~hereby Plaintiff engaged Defendant to perform legal services, no )ther parties were part of the contract nor are any other parties lecessary. 6. Denied. The contract for legal services was between Plaintiff and Defendant. 7. Denied. The only parties to the contract for legal services were Plaintiff and Defendant. 8. Denied. The Honorable Court has jurisdiction to hear and decidei this case as it is simply a contract action wherein Plaintiff engaged Defendant to perform legal services. WHEREFORE, Plaintiff requests that Defendant's Preliminary Objections be dismissed. Respectfully Submitted, DISSINGER and DISSINOER William C. Dissin~r, Esquire Supreme Court ID~ 27737 28 North 32nd Street Camp Hill, PA 17011 (717)975-2840 VERIFICATION I, Samuel I. Warner, verify that the statements made in the Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Samuel I. Warner, Plaintiff SAMUEL I. WARNER, : Plaintiff : VS. : ~TEPHEN B. LIPSON : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 CERTIFICATE OF SERVICE I, William C. Dissinger, do hereby certify that I have filed a :rue and correct copy of attached "Plaintiff's Response to )efendant's Preliminary Objections" on Defendant, Stephen B. Lipson, on the date indicated by depositing the same, First Class postage prepaid, with the United States Mail addressed as follows: Stephen B. Lipson 5 Hilltop Drive Mount Holly Springs, PA 17065 Date: William C. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY/OF CUMBERLAND COUNTY: Please list the within matter for the next: Pre-Trial Argument Court ] Argument Court CAPTION OF CASE (entire caption must be stated in full) SAMUEL I. WARNER (Plaintiff) ¥$. STEPHEN B. LIPSON (Defendant) No. 02-922 Civil -Law State matter to be argued (i. e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections Identify counsel who will argue case: (a) forptaintiff: William C. Dissinger (b) for defendant: Stephen B. Lipson ,2002 I will notify all parties in writing within two days that this case has been listed for argument. - ('i~t~ ~r :e~2~r ~.xa~tsis ~f fnger) Dated: 4/18/02 SAMUEL I. WARNER, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA STEPHEN B. LIPSON, DEFENDANT 02-0922 CIVIL TERM IN RE: PR~=l IMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S COMPLAINT ORDER OF COURT AND NOW, this defendant to plaintiffs complaint, IS DISMISSED. VVilliam C. Dissinger, Esquire For Plaintiff ~day of July, 2002, the preliminary objection of Stephen B. Lipson, Esquire, Pro se :saa SAMUEL I. WARNER, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. STEPHEN B. LIPSON, DEFENDANT 02-0922 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S COMPLAINT OPINION AND ORDER OF COURT Bayley, J., July 11, 2002:-- Plaintiff, Samuel I. Warner, has instituted this suit against defendant, Stephen B. Lipson. Plaintiff avers in his complaint that he engaged the services of Lipson, an attorney, to pursue post-trial motions in two civil cases in the Court of Common Pleas of Perry County. Those cases involved himself and his wife, Cecilia F. Warner, who were suing their neighbors. One was a suit for damages to their jointly owned realty, and the second sought clarification of the extent of an easement across their neighbors' property. Plaintiff avers that he paid defendant an attorney fee of $1,400. He seeks damages in that amount alleging that defendant "failed to perform his promise of obtaining transcripts, researching, filing briefs and arguing the matter within a reasonable amount of time." Defendant filed a preliminary objection seeking to join Cecilia F. Warner as an indispensable party. Pa. Rule of Civil Procedure 2227 provides: (a) Persons having only a joint interest in the subject matter of an action 02-0922 CIVIL TERM must be joined on the same side as plaintiffs or defendants. (b) If a person who must be joined as a plaintiff refuses to join, he or she shall, in a proper case, be made a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder. In the City of Philadelphia v, Philadelphia Parking Authority, 798 A.2d 161 (Pa. 2002), the Supreme Court of Pennsylvania stated that the following factors should be considered in determining whether a party is indispensable: 1. The absent parties have a right or interest related to the claim? 2. If so, what is the nature of that right or interest? 3. Is that right or interest essential to the merits of the issue? 4. Can justice be afforded without violating the due process rights of absent parties. In Miller v. Benjamin Coal Company, 425 Pa. Super. 316 (1993), a husband instituted a suit for negligence to recover damages caused to a truck owned by himself with his wife that the defendant backed into. The defendant maintained that the husband's wife was an indispensable party. The Superior Court of Pennsylvania rejected that position, concluding that an action for money damages to entireties property may be maintained by one spouse acting as an agent for both tenants by the entireties. The Court stated: It must be conceded, surely, that in actions intended to affect the title to property which is either held or claimed by tenants by the entireties, both spouses are indispensable parties and must be joined. Where a marriage continues to exist, however, we perceive no reason for holding that one spouse cannot act as agent for the entireties estate in bringing an action to recover damages for injuries to the entireties property so long as the action benefits both spouses and there is no evidence rebutting the presumption of authority to act. A final judgment for damages in such an action does not affect the title to or possession of entireties property. Neither does it leave the controversy in such a condition that the final -2- 02-0922 CIVIL TERM determination may be wholly inconsistent with equity and good conscience. In the case eub judice, while the underlying civil actions in Perry County affected title to the property of plaintiff and his wife, and each were a party plaintiff, it is averred that the contract for legal representation in those cases that defendant allegedly breached was between defendant and plaintiff only. The reasoning in Miller v. Benjamin Coal Company, supra, is applicable here. ~ Plaintiff's wife is not an indispensable party to plaintiff's claim for damages resulting from an alleged breach of contract to provide legal services that he alone entered into with defendant, despite the fact that he was acting as an agent for his wife in securing these services to protect entireties property. Plaintiff's wife for whom he would also be acting as agent does not have a separate interest in that money, nor does she have an interest essential to the merits of the issue of whether defendant breached the contract. Justice can surely be afforded without violating any due process rights of plaintiff's wife. ORDER OF COURT AND NOW, this It ~ - day of July, 2002, the preliminary objection of plaintiff's complaint, IS DISMISSED. ~ defendant to ~ Defendant, in his brief, states that Miller was a "plurality decision." I-le is wr~ng. decision is precedent. -3- The 02-0922 CIVIL TERM William C. Dissinger, Esquire For Plaintiff Stephen B. Lipson, Esquire, Pro se :saa SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, De~ndant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Defendant's Answer with New Matter and Counterclaim within Twenty (20) days from service hereof or a judgment may be entered against you. 'Steph~n'~B. Lipson 5 Hilltop Drive Mt. Holly Springs, PA 17065 Pro Se SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM 1.- 3. Admitted. 4. Denied. In March of 1997 Plaintiff Samuel Warner and Defendant agreed that, in exchange for payment of $200.00 from Plaintiff to Defendant, Defendant would travel to Perry County to review docket entries and court files for case numbers 91-919 and 93-14. At that time Defendant made no further commitment to Plaintiff other than that he would in good faith attempt to reach an agreement to enter an appearance for Plaintiff '_ff there was no immediate deadline in either action and '_ffplaintiffpaid a retainer, in an amoum to be agreed upon, to be applied to fees earned. 5. Denied. Plaintiff Samuel Warner paid $200.00 to Defendant in March of 1997, and then $1200.00 was paid in installments over the summer/autumn of 1997. More importantly, the $1200.00 was a retainer to be applied against future work, not a fixed price quotation. See Defendant's retainer letter, which is attached hereto and incorporated herein as Defendant's Exhibit "D". 6. Denied. Defendant ordered the transcript as soon as he received $600.00 from Plaintiff Samuel Warner in August of 1997. The court reporter, despite reminders sent by Defendant to her, did not complete the transcript and forward it to Defendant until March of 1998. It is further denied that Defendant promised to read the lengthy transcript, do the necessary legal research and file the briefs within a few weeks. To the contrary, all that Defendant promised was to read the transcript within the next few weeks. See Defendant's letter to Plaintiff Samuel Warner dated March 3, 1998, a copy of which is attached hereto and incorporated herein as Defendant's Exhibit 7. Denied. The purpose of Defendant's letter to Plaintiffin April of 1998 was two-fold - (i) to explain that Defendant had read the transcript but that the legal research had not been completed due to other deadlines; and (ii) to explain to Plaintiff that Defendant could not undertake any new work for Plaintiff due to Defendant's schedule. See the copy of the April 23, 1998 letter which is attached hereto and incorporated herein as Defendant's Exhibit "F". 8. Admitted in part and denied in part. Defendant initially had requested a supplemental retainer of $600.00 in an invoice to Plaintiff Samuei Warner dated July 9, 1998. By letter dated December 16, 1998 Defendant informed Plaintiff that Defendant would continue his work on the research and brief as soon as Defendant received the supplemental retainer. 9. Admitted. 10. Denied. This is a conclusion of law to which no responsive pleading is required. However, Defendant did order the transcript as soon as Plaimiffhad paid the initial retainer, and Defendant reviewed said transcript as soon as he received it from the court reporter. Defendant earned the balance of the retainer through research that he did at the Cumberland County Law Library, and the sole reason why the remainder of the work was not completed is that Plaintiff willfully and in bad faith refused to pay additional retainer monies to Defendant, thereby breaching the contract with Defendant. NEW MATTER 11. Plaintiff has utilized numerous attorneys on various legal matters over the past 15 years, and thus he is very familiar with the te, m retainer and the manner in which attorneys charge for their services. In other words, Plaintiff knew that the retainer paid to Defendant was a partial, up-front payment and that there would be additional amounts to be paid to Defendant in the fumre. 12. No reasonable person could have construed Defendant's fee letter to be a fixed price quotation, especially in view of the fact that (a) it was a quote for litigation and (b) it clearly stated that Defendant's hourly rate was $90.00 an hour and Plaintiff"...would be billed that rate for all work that I do on the case." Plaintiff's contention in this lawsuit that he entered into a fixed price contract with Defendant is frivolous and alleged in bad faith. 13. Out of the $1400.00 paid by Plaintiff to Defendant, $360.00 was paid by Defendant directly to court reporter Veronica Rheam as her fee for preparing a transcript of the proceeding in number 93-14. This amount was paid to her on August 20, 1997, and by invoice to Plaintiff dated September 3, 1997 Defendant informed Plaintiffthat he had made this payment. A copy of said invoice is attached hereto and incorporated herein as Defendant's Exhibit "G". 14. By suing Defendant for refund of the entire $1400.00 paid to him, Plaintiff necessarily is making the same contention that he made before the District Justice, namely, that Defendant breached the contract with Plaintiff by ordering a transcript in number 93-14. Plaintiff Samuel Warner alleged, under penalty ofunswom falsification to authorities, in his Complaint to the District Justice that he already had a transcript in number 93-14, so this alleged breach of contract occurred on August 20, 1997. 15. Plaintiff's action is ban-ed by the Statute of Limitations. 16. If Plaintiff had paid the amounts demanded on Defendant's invoice, as due, Defendant would have completed the work that Plaintiff hired him to perform. Therefore, Plaintiffis estopped from receiving any of the monies that he paid to Defendant. COUNTERCLAIM 17. The allegations contained in Paragraphs 1 through 16, supra, are incorporated herein and made a part hereof as if more fully set forth. 18. Plaintiff willfully breached his contract with Defendant by refusing to pay the supplemental retainer demanded by Defendant. 19. Plaintiff's breach of comract deprived Defendant of the monies he would have earned in completing his research, draffing a brief and preseming a oral argument to the court. Defendant estimates that it would have taken him at least 15 hours to complete this task. 20. Defendant had agreed to represent Plaintiff at an hourly rate of $90.00. Accordingly, Plaintiff is liable to Defendant for 15 hours times $90.00, or $1350.00. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff on Plaintiff's Complaint. Defendant also demands judgment in his favor and against Plaintiff on his Counterclaim and thus judgment in an amount of $1350.00 should be awarded to Defendant. Stepfi~n B. Lipson 5 Hilltop Drive Mt. Holly Springs, PA 17065 VERllqCATION I vefifi] that the statements made in this Defendant's Answer with New Matter and Counterclaim are tree and correct to my personal knowledge. I understand that any false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unswom falsification to authorities. Stephe~B~. Lipsoh SAMUEL I. WARNER, Plaintiff VS. STEPHEN B. LIPSON, Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 CERTIFICATE OF SERVICE Stephen B. Lipson hereby certifi,e.s that on theory of ~'~/~- ,2002, he served a certified copy of his Defendant s Answer with New Matter and 12~unterclaim upon Plaintiff Samuel I. Warner by serving his counsel of record, William C. Dissinger, Esq. in the following manner: First class mail, postage prepaid to the office at 400 S. State Road, Marysville, PA 17053 Dated: ~;7'-~ ff~__. ,2002 / Stephen B. Lipson STEPHI~N B. LrPSON A~orn~y a~ Law 169 W. IYa~h SUeet, S~ 4 ~I~, PA 17013 ~1~ 249-3929 F~ ~1~ 249~2~ March 20, 1997 M_ri Samuel Warner 6196 Spring Road Shemiansdale, PA 17090 Dear Mr. Warner: You have requested that I put into writing what work I would undertake, and how I would expect to be paid, in connection with the two cases that are pending in the Court of Common Please of Perry County. My review of the record indicates that neither case (Nos. 93- 14 and 91-919) has been listed for oral argument in front of the Judge. The major part of the work to be done would be the preparation of briefs (written legal documents) to be submitted prior to the time of oral argument. What makes it difficult for me to estimate your chances for success in either "appeal" is that I have no knowledge as to what evidence (testimony and exhibits) was submitted in either trial. You have a partial transcript of No. 93-14 (the easement trial) but I would need a full transcript before I could prepare a brief. This can be obtained from the court reporter, but it could take several weeks for her to type it. The cost of the transcript, which will be several hundred dollars or more, is an out-of-pocket expense that you would pay in addition to my fees for work performed. My hourly rate is $90.00 an hour, and you would be billed that rate for all work that I do on the case. For example, on Monday, March 15 1 earned 2.2 hours at $90.00 per hour (or $198.00) when I went to the Perry County Courthouse to review the official files on both actions. Thus, the $200.00 that you paid to me last week was exhausted on that trip and on today's office conference (only your first consultation was free). I also require a $1200.00 retainer against which my time would be credited, as earned. I will enter my appearance in No. 93-14 if $600.00 is paid to me, with a promise to pay the balance of the retainer within two months thereafter. It is my intention to commence work on a brief for No. 93-14 within a reasonable time after I possess both the file and a transcript. Both of these cases are important to you, but of the two cases No. 93-14 appears to be your priority. Moreover, from my limited knowledge of the facts I would estimate that you have a better chance in this case of convincing Judge Quigley to change his original decision. Sincerely, Stephen B. Lipson, Esquire SBL:psw STEPHEN B. L1PSON Attorney at Law 169 W. High Street, Suite 4 Carlisle, PA 17013 (717) 249-3929 Fax (717) 249-6277 March 3, 1998 Mr. Samuel Warner 6196 Spring Road Shes mansdale, PA 17090 Dear Mr. Warner: Finally I received the transcript that I had requested (and paid for) in September of last year. Enclosed is a copy for your records. I now can begin my work on the appeal. Over the next few weeks I will read the transcript so that I know what evidence was presented at the trial. After that work is completed I will be in a position to do the legal research for the required brief in support of the post-trial motion previously filed. Sincerely, SBL:psw Enclosures Stephen B. Lipson, Esquire STEP~E.N B. LIPSON Attorm0, a~ Lnw 169 W. High Street, Suite 4 Carlisle, PA 17013 (717) 249-3929 Fax (717) 249-6277 April 23, 1998 Mr. Samuel Warner 6196 Spring Road Shermansdale, PA 17090 Dear Mr. Warner: One of the difficulties in being in practice by myself is that I have no one to assist me in periods where I have an unusual volume of work under deadline. I have been in such a period since early February, and as a result I have not been able to complete other work that is not subject to any deadline. An example of this work is your post-trial brief- I did read the transcript, but I have not been able to complete my research. With the existing deadlines that I have (and considering that I will have no time available either on April 30 or May 1), there is no way that I could undertake any new work under a short deadline. I regret any inconvenience that this may cause you, but I am surethat you will be able to obtain representation by going to another firm. Sincerely, SBL:psw Stephen B. Lipson, Esquire Mr. Samuel Warner 6196 Spring Road Shermansdale, PA 17090 Stephen B. Lipson Attorney at Law 169 W. High Street, Suite 4 Carlisle, PA 17013 (717) 249-3929 Date: September 3, 1997 For Legal Representation as Follows: 7/7/97 Preparation of Praecipe for 93 - 14 and Proof of Service 7/14/97 Meeting with client in office 7/19/97 Review of prior attorneys' files; pulling of documents needed 7/30/97 Preparation of Praecipe for 91-919 and Proof of Service; conversation with court reporter 8/16/97 Sent Praecipes to Prothonotary 8/20/97 Letter to court reporter Total earned = 1.9 hours ~ $90.00 an hour = Costs Advanced as Follows: 8/20/97 Court reporter for transcript of 93-14 Total fees and costs earned Less retainer paid on 7/2/97 Credit balance remaining 0.3 hrs. 0.6 hrs. 0.4 hrs. 0.4 hrs. 0.1 hrs. 0.1 hrs. 1.9 hrs. $171.00 $360.00 $531.00 ($69.00) Don't forget that you are to be mailing monthly $200.00 payments until the balance of the $1200.00 retainer is paid. The $200.00 payment for August is due. SA/~JEL I. WARNER, Plaintiff VS. iSTEPHEN B. LIPSON, Defendant IN THE COURT OF CO~4/~ON PLEAS OF CUFIBERLILNqD COUNTY PENNSYLVA/~IA CIVIL ACTION AT LAW N©. 02-922 PLAINTIFF'S ANSWER TO NEW MATTERAND COUNTERCLAIM 11. Admitted in part and denied in part. It is admitted that iPlaintiff has engaged the services of attorneys in the past and it lis admitted that Plaintiff knew additional sums would have to be paid to Defendant to complete all the legal matters entrusted to Defendant. It is denied that Plaintiff ~knew" additional sums would have to be paid to Defendant for him to complete the transcript review, brief and oral argument in Perry County Case #93-14. To the contrary-Defendant promised Plaintiff that the above described work could and would be completed within the $1,400.00 retainer. 12. Denied. Defendant orally promised Plaintiff that he could and would complete the work in Perry County case #93-14, consisting of review of transcripts brief and oral argument within the $1,400.00 ilretainer. 13. Admitted. 14. Denied. Plaintiff's "contentions" are those contained in his Complaint in this action. Said Complaint makes no mention of an alleged breach of contract by the ordering of the transcript. Plaintiff acknowledged that the ordering of a complete transcript was necessary by Defendant. 15. Denied. action. No statute of limitation has run on Plaintiff's 16. Denied. Defendant promised to complete the work in Perry County case #93-14 within the $1,400.00 retainer. 17. The Answers contained in paragraphs 11-16 above are incorporated herein by reference thereto. 18. Denied. No agreement for a supplemental retainer existed. To the contrary Defendant promised to complete the work in Perry County case #93-14 within the $1,400.00 retainer. 19. Denied. No further sums were due to Defendant. 20. Denied. No further sums are due to Defendant. WHEREFORE, Plaintiff requests that Defendant's New Matter and Counterclaim be dismissed. Respectfully Submitted, DISBINGER and DIS$INGER William C. Dissinger, Esquire Supreme Court ID# 27737 28 North 32n~ Street Camp Hill, PA 17011 (717)975-2840 VERIFICATION I, Samuel I. Warner, verify that the statements made in the to New Matter and Counterclaim are true and correct. I d that false statements herein are made subject to the )enalties of 18 Pa. C.S. §4904 relating to unsworn falsification. Samuel I. Warner, Plaintiff I. WARNER, : : Plaintiff : : VS. : : B. LIPSON : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 CERTIFICATE OF SERVICE I, William C. Dissinger, do hereby certify that I have served true and correct copy of attached ~Plaintiff's Answer To New and Counterclaim" on Defendant, Stephen B. Lipson, on the indicated by depositing the same, First Class postage prepaid, the United States Mail addressed as follows: Stephen B. Lipson 5 Hilltop Drive Mount Holly Springs, PA 17065 )ate: William C. Dissinger SAMUEL I. WARNER Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-922 CIVIL 19 STEPHEN B. LIPSON, Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: William C. Dissin~er. Esouire, ' c°unsel f°r the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $.1 t 4 0 0.0 0 The countemlaim of the defendant in the action is $1 , 3 5 0,0 0' The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: __ Arthur T. McDermot ' Samu 1 ' es WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. William C. Dissinger ORDER OF COURT Attorney for Plaintiff AND NOW, _ foregoing petition, _ Esq., and actions) as prayed for. ,19 , in consideration of the Esq., , Esq., are appointed arbitrators in the above captioned action (or By the Court, P.J. I. WARNER, : Plaintiff : VS. : B. LIPSON : Defendant : IN THE COURT OF COM~0N PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 CERTIFICATE OF SERVIC~ I, William C. Dissinger, do hereby certify that I have filed a ~rue and correct copy of the attached Petition for Appointment of ators on Defendant, Stephen B. Lipson, on the date indicated depositing the same, First Class postage prepaid, with the United Mail addressed as follows: Stephen B. Lipson 5 Hilltop Drive Mount Holly Springs, PA 17065 William C .~Dissinger -- SAMUEL I. WARNERt Plaintiff Ve IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-922 CIVIL 19 STEPHEN B. LIPSON, Defendant RULE 1312-1. The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: William C. Dissinaer. Esquir~ , counsel for the plaintif[/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action (or actions) is (are) at issue. 2. The claim of the plaintiff in the action is $1 t 4 0 0,0 0 The counterclaim of the defendant in the action is $1 , 3 5 0,0 0 The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: Arthur T. McDermott. EsouSre and Samuel. W. Milkes WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. Res~:~-~mitted, William C. Dissinger Attorney for Plaintiff ORDER OF COURT furegoingpetitio,. Esq., actions) as prayed for. , a'-9~02[, in consideration of the Esq., are appointed arbitrators in the above captioned action (or By the ~ RI. I. WARNER, : Plaintiff : VS. : ~TEPHEN B. LIPSON : Defendant : IN THE COURT OF COM~0N PLEAS OF CI/MBERLAND COUNTY PENNSYLVANIA CIVIL ACTION AT LAW NO. 02-922 CERTIFICATE OF SERVICE I, William C. Dissinger, do hereby certify that I have filed a ~rue and correct copy of the attached Petition for Appointment of tors on Defendant, Stephen B. Lipson, on the date indicated depositing the same, First Class postage prepaid, with the United States Mail addressed as follows: Stephen B. Lipson 5 Hilltop Drive Mount Holly Springs, PA 17065 William C.--Dissinger ''~ SAMUEL I. WARNER, Plaintiff v STEPHEN B. LIPSON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002 - 0922 CIVIL ACTION - LAW PRAECIPE TO THEPROTHONOTARY: Please enter the appearance of the undersigned on behalf of the Defendant Stephen B. Lipson. Date: u~bertX, droy, Esquire BAt :o°~noi~~i,npd .a~' 4 North Hanover Street Carlisle, PA 17013 (717) 243-4574 Supreme Court 1D No. 29943 SAMUEL I. WARNER, : Plaintiff : VS · : NO. : STEPHEN B. LIPSON, : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLA1KD COUNTY, PENNSYLVANIA 02-922 ,~"i, , · , ~ - ,TERM OATH We do solemnly swear (or affn-m) that we will support, obey ~md defend the Constitution of the United States and the Constitution of this Commonwealth and that we will ~sch'arge the d~ties 6f: our office with fidelity. Chainm~n Ka~.h~n T. ~ Sha~l~sff Esquire RODert p. Reed, Esquire AWARD We, the undersigned arbitrators, having been duly appointed and sworn (or affirmed), make the following award: (Note: If damages for delay are awarded, they shall be separately stated.) On Plaintiff's cau~ ~ action we find ~n favor of Defendant and against Plaintiff in the amount of zero ($0.00); and on Defendant's Counterclaim, we find in favor of Pla&nti~ff and against Defendant in the ~a~ount of ~erio ($0.00) These awards are entered by agreement of both Plaintiff and Defendant. · Arbitrator, dissents. (insert name if applicableS, Date of Hearing: ~; t ~' ~' 1o ¥ ,~'"'~,/,-~ Date of Award: Robert p. Reed~ Esquire NOTICE OF ENTRY OF AWARD Now, the.ZZ_ [ y of 20r. , was ~tered upon ~e docket ~d notice th~eof ~ve~y mail to the ~ies 9r ~omeys. Paid upon appel: ~omono~:~ .... ~