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Home My WebLink About07-14-05 James J. Kutz, Esquire Attorney ID # 21589 Paula J. McDermott, Esquire Attorney ID # 46664 Post & Schell, P.C. 17 North Second Street 12th Floor Harrisburg, PAl 71 01 (717) 731-1970 ~ c.::::> c:.;,::. c.n C._ c:: 1>- o ~o .<rJ ;;:~ ~ (") ,~.'~~ ~ Fn c, :z:: ::n e- IN THE ORPHANS' COURT '7.0):;;", CUMBERLAND COUNTY, PENNS:'~V AIDA ,{-- / ~.:..) ,~\ --1 : ORPHANS' COURT DIVISION NO. 2103-1065 IN RE: ESTATE OF DAVID M. GROSS N en ANSWER TO MOTION FOR PROTECTIVE ORDER I. INTRODUCTION Currently pending before this Honorable Court is a request by the attorneys of Brian Gross, Administrator of the Estate of David Gross, (Post & Schell, P.C.) to be paid their reasonable counsel fees incurred in securing for the benefit of the three surviving siblings of David Gross some $150,000.00 in personal injury settlement proceeds which, without the efforts of Post & Schell, would have gone to the girlfriend of David M. Gross (Elizabeth Barth), who had secured Letters of Administration by alleging, improperly, that she was the common law wife of David M. Gross, deceased. Through the efforts of Post & Schell, which represented one of the three siblings, Brian Gross, this Honorable Court, by Order dated April 13, 2005, concluded that David Gross' girlfriend, Elizabeth Barth, was not the common law wife of Mr. Gross and, therefore, she must be removed as Administratrix of the Estate of Mr. Gross. In that same Order, Judge Bayley directed that Brian Gross be substituted in her stead. Elizabeth Barth has taken an appeal from that Order of Judge Bayley to the Superior Court and a briefing :-:'1') r':-l (-) ,>-) ~-'J ,:"") ;":::-;-'1 c,:) ~ pOST&\ SCHELL", \TT(lBNF"j":-, .\"1' L.'\\'v PENNSYLVANIA PHILADELPHIA PITTSBURGH HARRISBURG LANCASTER ALLENTOWN NEW JERSEY PRINCETON James J. Kutz Direct Dial: 717-612-6038 Fax Number: 717-731-1985 ikutz@oostschell.com File No.: 1752/120940 July 13, 2005 Orphans' Court Division c/o Register of Wills Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013-3387 (") ~"~ .".~--o ':'j ;:r: (") '"", .?' r- z9:J __c..r3~ :i(:.JO C)-n (-- :':6 ---j '-' RE: In Re: Estate of David M. Gross Cumberland County No. 2103-1065 Dear Sir or Madam: r-..:;, f'..'"::> C'.::.> c.n <- c:: r- .::- " =s:: N .. Ul Enclosed for filing and docketing with your office, please find the original and one copy of an Answer to Motion for Protective Order the above-referenced matter. I understand your office will provide Judge Bayley with the copy of the Answer. I am also enclosing an additional copy of the Answer, which I would ask that you timestamp and return in the envelope provided, evidencing the receipt and filing of same. Thank you for your assistance. Very truly yours, ~~\!~ Jame~t~ ~ JJK:dlh Enclosures cc: Johnna Kopecky, Esquire w/enc. James Nealon, Esquire w/enc. 17 NORTH SECOND STREET 12TH FLOOR HARRISBURG, PA 17101-1601 717.731.1970 WWW.POSTSCHELL.COM A PENNSYLVANIA PROFESSIONAL CORPORATION =0 F~ :-) :5:5 '-"j ! ~-'~t::-l t::} ,--., f'~1 -)"'1 ._~ ;~~ .0:-; -. " ~4"- LAW OFFICES "'" ' ~ "'- \",\\'\\X~ '\J~\~~ ":;'<-" \I'l.~ \ ~\ "::) ~"'~ --h,~0~\~~'1/ SHAGIN &. ANSTINE LLC 300 NORTH SECOND STREET, 8TH FLOOR P.O. Box 1225 HARRISBURG, PENNSYLVANIA 17108-1225 www.shaginanstine.com JOHNNA J. KOPECKY jkopecky@shaginanstine.com (717) 221-1111 FAX (717) 221-1110 July 13, 2005 Cumberland County Courthouse Register of Wills 1 Courthouse Square Carlisle, PA 17013 o <;;0 "-,. :::0 ;'D-o .;t::r: 0 ::J~r.; ".-~ 4::IJ .. Cf) 7' 0.0 "', (..,.I -n "'1 c: ,- :s 5~ r-.:> = = c.n <-- t:: , ~ (---) --:'i --r'\ ~;,:.:S ~n -u :J;: f5? J;:"' w ", Re: In Re: Estate of David M. Gross No. 2103-1065 Dear sir or madam, Please find the enclosed check in the amount of $1 0 for certification fees and two se1f- addressed stamped envelopes. Thank you for your kind attention to this matter. Sincerely, / /' . ( ....;',0) l Angie Albert Legal Assistant I .-.-F: ..> ( .\' . - ,-I \ . '.. .\. '{ \., .~... Enclosure ("4 \. schedule has already been issued by the Superior Court. However, in conjunction with that appeal, Ms. Barth did not request any supersedeas and, therefore, the Order of Judge Bayley remains unaffected thereby. Prior to the appeal being taken, the undersigned, as successful counsel for Brian Gross, filed the above-referenced motion asking that their counsel fees be paid from the funds which are now available for the benefit of the three siblings of David Gross. The other two siblings of David M. Gross are Mary Ellen Brouse and Anthony Gross, and they are represented separately by Attorney Johnna J. Kopecky, who, on or about June 7, 2005, filed a Response to the Motion of Post & Schell, wherein Brouse, Anthony Gross and their counsel, alleged that the legal fees incurred by Post & Schell were "excessive", thus placing "at issue" the reasonableness of the fees incurred by Post & Schell for which reimbursement is being requested. Over the past several weeks, the undersigned has communicated with Attorney Kopecky in an effort to resolve this issue and to clarify who it is that will be "testifying" in support of the contention that the fees of Post & Schell are excessive as alleged. Without resolution and in order to not have delays associated with this process, the undersigned issued deposition notices, so that discovery may be secured with regard to precisely what time entries, duties, or other legal endeavors are deemed "excessive" so that the pending motion of Post & Schell can be resolved promptly either before or after the appeal is resolved by the Superior Court. Parenthetically, the undersigned believes that the appeal is wholly meritless but, in any event, in view of the fact that no supersedeas has been requested and in view of the fact that, at some point in time in any event, the issue of the reasonableness of the legal fees of Post & Schell needs to be resolved, there is certainly no reason for Ms. Brouse and Mr. Anthony Gross not to present themselves for brief, but highly relevant, depositions. That is all that occurred in this matter and the subject 2 motion, contending that the deposition notices are solely to annoy the parties is outrageous, in view of the fact that it is your three Movants (Ms. Brouse, Anthony Gross and Attorney Kopecky, who lists herself as an additional Movant), who have rendered directly relevant the supposed excessiveness of the fees of the undersigned law firm. These depositions should not last long; they should not be harassing; but having raised the contention that the fees are excessive, it is only appropriate that discovery be permitted on issues made relevant by your Movants. It is simply not fair to allow a litigant to make allegations dealing with the very merits of an issue and then argue that he or she is being harassed because legitimate discovery is going to proceed on issues which they have made relevant. By further response, Post & Schell responds seriatim to the allegations of the Motion for Protective Order as follows: 1. Admitted. 2. Admitted, although the Respondent is the law firm of the Post & Schell itself 3. Admitted. By way of further response, in the Answer filed by Movants and signed by Attorney Kopecky, they and she raised directly the contention that the legal fees of Post & Schell were excessive, thus placing directly at issue a disputed fact dealing with the reasonableness of Respondent's fees. 4. Denied. There is currently in place a final Order of the Court of Common Pleas of Cumberland County, Orphans' Court Division, declaring that Brian Gross is the proper Administrator ofthe Estate of David Gross, and it was through the efforts of Post & Schell that such relief was granted. It was also through the efforts of Post & Schell that more than $150,000 in personal injury settlement monies is now available for distribution to the three siblings of 3 David M. Gross and those three siblings include your two Movants, Mary Ellen Brouse and Anthony Gross. 5. Admitted. However, prior to issuing those deposition notices, the undersigned asked for available dates and also asked as to who it was that was going to present testimony to the Court in support of the contention that the legal fees of Post & Schell were excessive. Because it was not clear whether it was the attorney or the Movants themselves, deposition notices were issued for only one-half hour intervals as the undersigned expected each deposition to be very brief. If the particular date does not work, the undersigned has no problem with a rescheduled date, however, the bottom line is that the Movants have placed directly at issue the alleged unreasonableness of the fees of Post & Schell and they should not be shielded from discovery which addresses an issue they have made relevant. 6. Denied. Paragraph 6 is the type of conc1usory boilerplate allegation which says nothing in reality and, in any event, is denied for the reasons set forth hereinafter. 7. Denied. The undersigned has no intention of seeking confidential information from the attorney representing Movants. The attorney's deposition was noticed solely because she indicated that it was more likely she, rather than her clients, who would attempt to "testify" as to the unreasonableness of the fees of Post & Schell. Certainly, she can present herself and refuse to answer questions of privilege. It was the intent of her deposition that she be asked to point out which particular time entries she felt were unreasonable and/or excessive and nothing more. 8. Admitted. By way of further response, before a hearing is held in that matter, it is perfectly reasonable for the undersigned to resolve disputed issues of fact by taking depositions 4 pursuant to the "petition and rule" process and that is exactly what the undersigned has done in this case. WHEREFORE, it is respectfully requested that the Court denied the Motion for Protective Order as the Movants themselves have made directly relevant the question of the alleged excessive fees of Post & Schell, and Movants should therefore be obligated to make themselves available to answer questions and thus resolve disputed issues of fact. Respectfully submitted, POST & SCHELL, P.C. B~~ JA S J. KU , ESQUIRE Attorney ID # 21589 17 North Second Street, 1 ih Fl. Harrisburg, PA 17101 (717) 731-1970 Date: July 13, 2005 5 , ' CERTIFICATE OF SERVICE I, James 1. Kutz, Esquire, hereby state that I have this day caused to be served a true and correct copy of the foregoing Answer to Motion for Protective Order upon the persons and at the addresses below named, by U.S. Mail, First-Class, postage prepaid: Johnna J. Kopecky, Esquire Shagin & Anstine, LLC 300 North Second Street, 8th Fl. P.O. Box 1225 Harrisburg, P A 17108-1225 James G. Nealon, III, Esquire Nealon & Gover 2411 North Front Street Harrisburg, P A 17110 POST & SCHELL, P.C. Dated: July 13, 2005 By: