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I CIVIL ACTION - LAW
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I NO. 94-3061 Civil Term
I
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:
THE COURT OF COMMON PLEAS OP CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire,
and Arthur T. McDermott and
Associates a Professional
Corporation,
Plaintiffs
vs.
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
AFFIDAVIT OF SBRVICB BY MAIL
PURSUANT TO Pa. R.C.IP. 1920.4(a)(1)(ii)
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
.
.
: SS
:
Arthur T. McDermott, Esquire, being duly sworn according to
law, deposes and says that he is the Plaintiff, Arthur T.
HcDe%mOtt, Bsquire, and that he did serve a true and correct copy
of the Notice and Complaint filed in the above matter, by mail
certified, return receipt requested, to the Defendant, Callison,
Tighe, Robinson, and Anastasion on June 13, 1994. The receipt form
is attached hereto as Exhibit "A".
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Arthur T. McDermott, Esquire
Sworn and subscribed before me thisof3~day of June, 1994.
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SHEll X SEXTON, NOT All PUBLIC
CARL1SLEWRO. CUII&lILANO COUNTY
IIY COIlII1SSION,EXPIRES OCT, 31. 1994
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The Law Offices of SPERO T. LAPPAS
205 State street
Post Office Box 808
Harrisburg, Pennsylvania 17108-0808
Telephone (7l7) 238-4286
FAX (717) 238-4826
By: SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Court Identification No. 25745
ATTORNEYS FOR THE PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire,
and Arthur T. McDermott and
Associates a Professional
Corporation,
Plaintiffs
CIVIL ACTION - LAW
.
.
v.
,
.
NO. <:(l.( ~ ~c:2:. ( C(Ut L.
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS'
PRELIMINARY OBJECTIONS
I, FACTS
This lawsuit was initiated by the filing of a six count
complaint which brought counts of breach of contract, unjust
enrichment, and quantum meruit against each Defendant. Defendant
Detwiler is an attorney licensed to practice in South Carolina;
Defendant Callison, Tighe, Robinson, and Anastasion is the law firm
with which he practices.
The facts giving rise to these causes of actions are as
follows. After the death of one Nicholas W. Lagaza there arose a
dispute as to whether he died a domiciliary of Pennsylvania or of
The Law Offices of SPERO T, LAPPAS
Page 1
North Carolina, This issue was important to determine where Mr.
Lagaza's estate would be established, and to determine who would
represent that estate in connection with a potentially lucrative
wrongful death/survival action. The proponents of the Pennsylvania
estate were represented by Plaintiffs; the proponents of the North
Carolina estate were represented by Defendants.
In order to determine the domicile question, Plaintiffs filed
an action for declaratory judgment in the Court of Common Pleas of
Cumberland County on behalf of their clients. A hearing on this
action was convened in May, 1993. Prior to this hearing, Attorney
McDermott (one of the Plaintiffs) had begun to perform the
investigation and preparation necessary to the prosecution of the
wrongful death/survival actions. Naturally, the court's decision as
to domicile governed the identity of counsel who would handle the
death claims for the Plaintiff. Therefore, on or about May l4, 1993
Plaintiffs (through Attorney McDermott) and Defendants (through
Attorney Detwiler) entered into a contract in Cumberland County.
The terms of that contract are set out in paragraphs 13 and 14 of
the complaint and basically provided that Attorney McDermott would
turn over to Attorney Detwiler the file material which Plaintiffs
had produced, generated, and accumulated in connection with their
investigation and preparation of the Lagaza case. Attorney
McDermott further promised that he would turn that material over to
the defendants voluntarily and without the need for any litigation
or compulsory process and that he would make his file available to
The Law Offices of SPERO T. LAPPAS
Page 2
Attorney Detwiler and the Defendants for their use in the
Defendants' continued representation of the Lagaza Plaintiffs.
In consideration and exchange for Attorney McDermott's
promises, Attorney Detwiler, and through him The Callison Law
Office, agreed to compensate the Plaintiffs at plaintiffs' hourly
rate for all work which they had done in anticipation, preparation,
and investigation of the anticipated Lagaza death litigation. This
contract was negotiated and entered into in Cumberland County,
Pennsylvania; and it related to the exchange of materials which
were at that time located at Attorney McDermott's office in
Cumberland County, Pennsylvania. Furthermore, the "litigation or
compulsory process" which Attorney McDermott agreed to waive in
exchange for Attorney Detwiler's promises would have had to have
been brought in Cumberland County.
Attorney McDermott then complied with all of his obligations
under the contract and turned over his Cumberland County files to
Attorney Detwiler who confirmed that those materials "were valuable
and necessary to the Defendants and their clients in the continued
procecution of the Lagaza claim" (paragraph 16 of the complaint).
However, the Defendants, despite numerous demands have failed
and refused to comply with their obligations under this contract.
Hence this suit.
The Defendants have raised three preliminary objections to the
complaint. First, they have moved to dismiss the complaint for lack
of personal jurisdiction over the Defendants. Second, they have
The Law Offices of SPERO T. LAPPAS
Page 3
moved to dismiss the complaint because of the pendency of a prior
action brought in the General Court of Justice, Superior Court
Division of North Carolina.' Third, the Defendants demurrer to
counts 3, 4, and 5 of the complaint.
This brief is respectfully submitted in opposition to the
Defendants' preliminary objections.
II. ARGUMENT
l. This Court has personal jurisdiction over
the Defendants for this cause of action.
As noted in the complaint and recitation of facts, suora, the
causes of actions pleaded in this complaint are inexorably bound
and connected to Cumberland County, Pennsylvania. The Defendants
traveled to Cumberland County Pennsylvania for the sole purpose of
participating in the litigation of the declaratory judgment action.
They did so to establish an estate in North Carolina after which
they would be able to represent the Defendants and collect a
healthy fee for that representation.
In pursuit of that
representation (and in pursuit of such a fee) they entered into a
contract in Cumberland County, Pennsylvania after negotiating the
terms of that contract in Cumberland County, Pennsylvania. The
corpus of the contract (Attorney McDermott's litigation file) was
Cumberland County property at the time of the negotiation and
· Although the preliminary objections request a dismissal of
the complaint, the brief in support of those preliminary objections
acknowledge that the dismissal of the complaint is not appropriate.
The Law Offices of SPERO T. LAPPAS
Page 4
making of the contract. The terms of the contract provided that
Attorney McDermott would waive the need for litigation and
compulsory process in order to obtain that file, which compulsory
process or litigation which would have had to have been brought in
Pennsylvania.
Pennsylvania.
"When preliminary objections, if sustained, would result in
And the file was delivered to the Defendants in
the dismissal of an action, such objections should be sustained
only in cases which are clear and free from doubt." Barber v,
Pittsburoh cornino Corooration, 317 Pa. Super. 285, 302-03, 464
A.2d 323, 332 (1983), cert. denied, 467 U.S. l205, 104 S.Ct. 2387,
8l L.Ed.2d 346 (l984).
"Moreover, when deciding a motion to dismiss for lack of
personal jurisdiction the court must consider the evidence in the
light most favorable to the non-moving party."
Barber v,
Pittsburoh Cornin9 Corooration, suora, ouoted in Kenneth H, Oaks.
Ltd. v. Joseohson, 390 Pa. Super. 103, 105, 568 A,2d 215, 216
(1989) ,
In ~, suora, the Superior Court reversed a lower court's
finding that Pennsylvania courts did not have personal jurisdiction
over the Defendants. The Superior Court found that the Pennsylvania
courts had jurisdiction over the Defendants in that case based in
part upon the following factors:
"In connection with the contract, Josephson
mailed and faxed bid specifications to Oaks at
his place of business in Northhampton County,
Pennsylvania. Oaks prepared its bid quotation
The Law Offices of SPERO T. LAPPAS
Page 5
in Pennsylvania in response to Josephson's
solicitation, and purchase orders by Josephson
were mailed to Oaks in Pennsylvania. Numerous
telephone calls between the parties' offices
in Pennsylvania and New Jersey were exchanged
and an employee of Josephson visited the Oaks
plant in Pennsylvania on at least one occasion
to review proofs in connection with the
parties' contract. All of the work on the
contract was performed in Pennsylvania."
~, suora, 390 Pa.Super 107, 568 A.2d 217.
In ~, which like the present case involved a claim for
breach of contract, these factors were sufficient to establish
personal jurisdiction in Pennsylvania. In the present case, like in
~, the Defendant or its representative traveled to Pennsylvania;
the contract was made in Pennsylvania; and all of the work on the
contract was done in Pennsylvania. In the present case as in ~,
the party breaching the contract had "purposely availed itself of
the privilege of conducting its business activities within
Pennsylvania." zg. Therefore, here as in ~, the Defendant's
"contacts with the forum [are] sufficient to meet the due process
minimum contacts test." 1!l.
In Kinaslv and Keith v. Mercer International Corooration, 291
Pa. Super. 96, 435 A.2d 585 (1981) the Superior Court reiterated
and re-approved the test announced in Proctor and Swartz. Inc. v.
Cleveland Lumber Comoany, 228 Pa.Super 12, 19, 323 A.2d 11, 15
(1974) which included a three part test:
"First, the defendant must have purposefully
availed itself of the privilege of acting
within the forum state less invoking the
benefits and protection of its laws.. .
Secondly, the cause of action must arise from
The Law Offices of SPERO T. LAPPAS
Page 6
the Defendant's activities within the forum
state. . . . Lastly, the acts of the defendant
must have a substantial enough connection with
the forum state to make the exercise of
jurisdiction over it reasonable. . . . "
Kinaslv and Keith, suora, 29l Pa. Super. 104, 435 A.2d 589. In
discussing the first part of the Proctor and Swartz test, the
Kinaslv and Keith court ruled that "a nonresident defendant
purposely avails itself of the privilege of acting within
[Pennsylvania] when it enters into a contract" in Pennsylvania.
Kin9s1v and Keith, suora, quotina Koenia v. International
Brotherhood of Boilermakers Etc., 426 A.2d 635 (Pa.Super 1980). In
the present case, the first prong of the Proctor and Swartz test is
satisfied by the fact that the contract was entered into in
Pennsylvania.
The Kinaslv and Keith court further stated that "the second
part of the Proctor and Swartz test may be satisfied by pleading a
contract having a significant connection with Pennsylvania .
.
and a breach of that contract." Kinaslv and Keith, suora,
291
Pa.Super 108, 435 A.2d 591. The contract between these Plaintiffs
and these Defendants did have "a significant connection with
Pennsylvania" in that it was formed in Pennsylvania, and a crucial
part of it was that the Plaintiff agreed to waive future litigation
which would have necessarily been brought in Pennsylvania and
before the courts of Pennsylvania. The Defendants acknowledged in
their brief that the Lagaza file (prior to Attorney McDermott's
contract with Attorney Detwiler) was the property of Attorney
The Law Offices of SPERO T. LAPPAS
Page 7
McDermott and his Pennsylvania clients and that he could have
retained it forever if he had chosen to do so.'
. The third prong of the Proctor and Swartz test focuses on the
question of whether "the exercise of jurisdiction in this
particular case [would] be fair and reasonable under the
circumstances." Proctor and Swartz, SUDra, 228 Pa. Super 20, 323
A.2d 16. In the present case, the this prong has been satisfied.
The entire nature of the contract upon which the Plaintiffs sued is
related to Cumberland County litigation. The contract itself was
precipitated by the litigation of the Cumberland County Declaratory
Judgment Action in Laoaza v. The ADDointed Administrator of the
North Carolina Estate of Nicholas w. Laoaza (Cumberland County
Orphan's Division Number 2l-92-703), and the purpose of the
contract was to settle the exercise of certain rights under
, The Defendants at page 10 of their brief concede that the
files in this case "ultimately belong to the client" and that the
attorney (McDermott) "would have right to retain the files until.
. . payment was rendered". The Defendants also state that
plaintiffs "transferred a piece of property they were apparently
holding as security" and that they "knowingly transferred the files
to the Defendant", Although plaintiffs disagree with the
defendants' characterization of this transaction (for the reasons
stated in the complaint) the defendants do acknowledge that
plaintiffs (and the Pennsylvania clients) had a possessory right to
retain that file. The defendants further acknowledge that by
transferring the file to the defendants, the plaintiffs abandoned
"an attorney's lien [which] being possessory can not be enforceable
after possession has been relinquished. " Accordingly, the
defendants recognize that by transferring this file to the
defendants pursuant to the contract which was entered into between
Attorney McDermott and Attorney Detwiler, the plaintiffs bargained
away valuable Pennsylvania rights and avoided the need to litigate,
in Pennsylvania, the question of who would have been ultimately
entitled to possess the Lagaza file.
The Law Offices of SPERO T. LAPPAS
Page 8
Pennsylvania law which would have needed to be litigated in
Cumberland County. In Kingslv and Keith, the Superior Court upheld
Pennsylvania jurisdiction inter liill. because "this state has an
interest in insuring that contracts affecting its domiciliary . .
. were not breached." 29l Pa.Super at 109, 435 A.2d at 592. The
same considerations apply here with equal force. Furthermore,
collateral considerations of the contract should also be
considered. In Kinaslv and Keith, the court indicated that
Pennsylvania "has an interest in. . . safeguarding the transport of
chemicals over its highways." I,g. In the present case, Pennsylvania
has an interest in insuring the sanctity of counsel's agreements to
forego the exercise of valuable Pennsylvania rights as well as
agreements to settle litigation,
The Defendants also argue, generally, that they did not have
sufficient contacts with Pennsylvania to warrant the exercise of
personal jurisdiction. They argue that Attorney Detwiler was only
here once and that while here he only attended the Lagaza hearing
although (it is said) that he did not participate as counsel. The
law is clear, however, that "even a single act can support
jurisdiction [in Pennsylvania], so long as it creates a substantial
connection with [Pennsylvania], provided the nature, quality and
circumstances of the act's commission create more then a mere
attenuated affiliation with [Pennsylvania]." Buraer Kina v.
Rudzewicz, 471 U.S, 462, 475, N.l8, 105 S.ct. 2174, 2184, citina,
McGee v. International Life Insurance Comoanv, 355 U.S. 220, 223,
The Law Offices of SPERO T. LAPPAS
Page 9
78 S.ct. 199, 20l (1957), International Shoe Companv v. state of
washinaton, 326 U.S. 310, 3l8, 66 S.ct. 154, l59 (l945); quoted
in C,J, Betters Corooration v. Mid South Aviation Services. Inc.,
407 Pa. Super. 511, 517, 595 A.2d 1264, 1267 (l99l). In the present
case, as noted above, the contract which the Defendant negotiated
and made in Pennsylvania had future consequences with respect to
the delivery of the Lagaza file (which was Pennsylvania property),
the waiver of important Pennsylvania rights by the Plaintiffs, and
the necessary avoidance of Pennsylvania litigation. Furthermore,
the fact that the Defendants have no permanent or continuing
presence in Pennsylvania does not defeat the jurisdiction of this
court. In Controlled Metals. Inc. v. Non-Ferrous International
Corooration, 410 F.Supp 339 (E.D.P.A. 1976), cited with approval in
Oaks v. Joseohson, Suora, 568 A.2d at 218, the court held that the
fact that a New York corporation had no office or business facility
in Pennsylvania, no bank accounts for mailing address, no telephone
listing or employees within Pennsylvania was "not significant" in
light of the other factors involved. Accordingly, this court has
jurisdiction over the Defendants and this case and the Defendants'
motion to dismiss for lack of jurisdiction should be denied.
2. The Plaintiffs have not failed to state a
claim for relief and accordingly the
Defendants' demurrer to counts 3, 4, and 5 for
unjust enrichment should be denied.
The preliminary objection in the nature of a demurrer states
(at page 3, paragraph l2 of the Defendants' preliminary objections
c
The Law Offices of SPERO T. LAPPAS
Page lO
that "Plaintiffs failed to state a legally sufficient claim against
Defendants in counts 3, 4, and 5 of the complaint for unjust
enrichment, nor do they state a claim for damages in quanta
meruit." Paragraph 3 brings a claim of unjust enrichment against
Defendant Detwiler; count 4 brings a claim of unjust enrichment
against the Callison Law Office; count 5 brings a claim for quantum
meruit against Defendant Detwiler. Count 6 of the complaint brings
a quantum meruit claim against Callison Law offices; and the
Defendants have not objected to the claim brought in count 6.
In support of the objections which they have brought, the
Defendants make two arguments: (1) The Defendants have not received
any benefit from Attorney McDermott's performance of his terms of
the contract; and (2) "[t]he Plaintiffs have failed to adequately
protect their own interest".
It is axiomatic that in deciding preliminary objections the
court must read the pleadings in the light most favorable to the
non-moving Plaintiff, Accordingly, it is admitted for the purposes
of the preliminary objections litigation that "Attorney Detwiler
confirmed to Attorney McDermott that the work which Attorney
McDermott had done and the file materials which Attorney McDermott
promised to, and did, turn over to Attorney Detwiler were valuable
and necessarv to the Defendants and their clients in the continued
orosecution of the Laaaza claims." (Complaint at paragraph 16;
emphasis added). Furthermore, all materials which the Defendants
obtained from the Plaintiffs were all "valuable investigative and
The Law Offices of SPERO T, LAPPAS
Page 11
other materials which were all reasonable, necessary, proper, and
valuable with respect to the litigation of claims resulting from
the death of Nicholas W. Lagaza, deceased." (Complaint at paragraph
9). In their brief, the Defendants seem to argue that because the
ultimate beneficiary (or at least one ultimate beneficiary) of the
Lagaza litigation are the clients of Attorney Detwiler and the
Callison Law Office, that the Defendants themselves received no
benefit by virtue of Attorney McDermott's delivery of the files.
However, the files were important and valuable enough to the
Defendants that they "agreed to compensate the Plaintiffs at an
hourly rate for all work [the Plaintiffs] had done in anticipation,
preparation, and investigation of this anticipated Lagaza death
li tigation." (Complaint at paragraph 14). Furthermore, Detwiler
confirmed to McDermott that the files were "valuable . . . to the
Defendants " (complaint at paragraph 16).
It is clear that an attorney representing a client in any
civil case, including the Lagaza death claim, is required to
perform a considerable amount of investigation and preparation for
that litigation. Detwiler and his firm would have had to do this
themselves, but for the fact that McDermott turned over his files
to them. By obtaining the files from McDermott (upon their breached
promise to pay for them) Detwiler saved himself and his firm a
considerable amount of work, time, and expense. This -- in and of
itself -- is a benefit which was received by and which accrued to
the Defendants.
The Law Offices of SPERO T. LAPPAS
Page l2
Furthermore, the Defendants apparently misapprehend the nature
of the Plaintiffs' case when they speak of themselves as being
"agent[s] for a disclosed principle" (Defendants Brief at page 8).
The Plaintiffs are not suing the Defendants as agent for the Lagaza
estate or as agents for anyone else. The Plaintiffs contract was
with Detwiler and The Callison Law Office directly. The contractors
were the Plaintiffs on the one hand and the Defendants on the other
hand. It is the Defendants who made promises as to what they
themselves would do (pay McDermott's fee) and it is the Defendants
who breached that promise.
with respect to the "failure to adequately protect rights"
argument the Defendants rely on the Superior Court's decision in
stver v. Huao, 442 Pa. Super. 262, 619 A.2d 347 (1993). The facts
of Stver are so far different from the present facts, and its
ruling so inapposite to the present case, that a brief summary of
the Stver case is appropriate. Styer was the first attorney who
represented a client named Piccinino ("the client") in a personal
injury action. After Styer had let the client's case to "languish[]
with no progress towards settlement at all during . . . four years"
(619 A.2d 35l), the client fired Styer and hired an attorney named
Brill to take over. Brill made some sort of ambiguous agreement
with styer in which Brill promised "to equitably divide any
attorney fee realized in this case along the lines we discussed"
(6l9 A.2d 348). Evidently Brill felt that this equitable division
would result in styer receiving "at a minimum one third of the
The Law Offices of SPERO T. LAPPAS
Page 13
attorney fee realized" in the event of a settlement (~.). Brill
did not get along with the client (evidently they disagreed about
the' value of the case), he told the client to find another lawyer,
and he waived any entitlement which he had to receive any fee. The
client then retained Hugo who knew nothing about styer and nothing
about the agreement between styer and Brill. Hugo settled the case
for $l05, 000.00 and styer sued, claiming that because Hugo had
Styer's investigative files available to him he had been unjustly
enriched.
The Superior Court disagreed and found no unjust enrichment.
Specifically, the court found that the record did not "support the
conclusion that without Styer's efforts the highly favorable
resolution of the case would not have been achieved." 619 A.2d 351.
Further, the court held that Brill and the client had both
compromised Styer's rights to any recovery by their later actions:
the client by discharging styer and replacing Brill with Hugo; and
Brill by waiving any fee entitlement he had, thereby waiving any
derivative right which Styer enjoyed through Brill.
With respect to the Defendant's self-protection argument, the
Styer court simply stated that:
". . . The reason Styer has not been paid is
that he first failed to avail himself of the
right to compensation from [the client] that
the law provided him, and then relied on his
agreement with Brill, which through no fault
of Hugo's, ultimately yielded styer nothing.
~, Meehan [v. Cheltenham Township, 410 Pa.
446, 189 A2d. 593 (1963)] (Where a party
inadequately protects its right to
compensation from the direct recipient of its
The Law Offices of SPERO T. LAPPAS
Page 14
services, it can not seek restitution against
one indirectly benefitted by those services
who in no way induced the provision of
services)."
stver v. Huao, suora, 619 A.2d at 352.
In the present case, to the contrary of Stver, the Plaintiff's
nonpayment does not arise "through no fault" of the Defendants. The
only reason the Plaintiff has not been paid is the direct fault of
the Defendants who have breached their contract with him.
Furthermore here, unlike in Stver, the Plaintiff is not trying to
assert rights which arise because of the Plaintiff's agreements
with a third party (Brill); rather, he is asserting contractual
rights which arise by virtue of a direct contract between the
Plaintiffs and the Defendants. Finally, the Plaintiff has not
"failed" to protect himself at all. He entered into a specific and
detailed contract with these Defendants. Unlike the vague and
unenforceable language of the Styer/Brill contract, the
McDermott/Detwiler contract was precise:
"In consideration and exchange for Attorney
McDermott's promises, Attorney Detwiler, and
through him The Callison Law Office agreed to
compensate the Plaintiffs at an hourly rate
for all work which they had done in
anticipation, preparation, and investigation
of this anticipated Lagaza death litigation."
Complaint at paragraph 14. Furthermore, Detwiler acknowledged the
value of the files to himself and his law firm (Complaint at
paragraph 16). At the time Hugo made his agreement with the client
he had no reason to know that styer even existed let alone that he
would assert some claim against the final recovery; Detwiler dealt
The Law Offices of SPERO T. LAPPAS
Page 15
face to face with McDermott and made him specific, concrete, and
precise promises. styer's agreement was with a third party who
could in no way bind Hugo; McDermott's contract was directly with
the Defendant Detwiler. styer's agreement with Brill was vague and
"notably. . . made no provision if Brill did not see the case
through to judgment or settlement" (6l9 A,2d 35l); McDermott's and
Detwiler's contract was precise and concrete and did not require
the occurrence of any future contingencies before the Defendants'
obligations arose.
Accordingly, the stver v. Hugo decision provides no support to
the Defendants and the objections to counts 3, 4, and 5 should be
dismissed.
Furthermore, because the Defendants acknowledge that "unjust
enrichment and quanta meruit are similar equitable doctrines" and
because count 6 of the complaint remains viable no matter how the
court decides this preliminary objection, the preliminary
objections should be ,dismissed as moot: McDermott will still have
an unjust enrichment claim against The Callison Law Offices even if
the Defendants' objections are granted. However, for the reasons
stated above, the objections should be dismissed.
3. Dependence of the North Carolina action
does not require that the litigation on the
present case be stayed pursuant to Pa.R.C.P
l017(b) (5).
In the preliminary objections filed with this court, the
Defendants wanted to have the complaint dismissed because of the
The Law Offices of SPERO T. LAPPAS
Page l6
pendency of the North Carolina lawsuit. In their brief, "[t]he
Defendants admit that the prior pending action would not entitle
the Defendants to dismissal" (Defendant's Brief at page 11).
In support of this position, the defense relies on Penox
Technoloav v. Foster Medical, 376 Pa.Super 450, 546 A.2d 114 (1988)
which establishes a four part test to the defense of a prior action
or lis pendens:
(1) The pendency of a prior action must be shown;
(2) It must be shown that the prior case is the same as the
present case, the one which is sought to be dismissed or stayed;
(3) The parties must be the same in both actions;
(4) The relief requested must be the same in both actions.
In the present case, the second, third, and fourth prongs of
this test can not be satisfied.
Same case: The present case is a contract/unjust enrichment
case between Arthur McDermott and his law office and Richard
Detwiler and his law office. The North Carolina case is a
declaratory judgment action brought by W. Herbert Brown, Jr,
administrator of the estate of Nicholas W. Lagaza deceased, as well
as Detwiler and Callison. No part of the North Carolina case seeks
a declaratory judgment that the Plaintiffs' claim is time barred
under the laws of North Carolina.
Same oarties: As noted above, the parties are not the same in
that the North Carolina case includes an additional plaintiff,
namely W. Herbert Brown, the North Carolina administrator of the
The Law Offices of SPERO T. LAPPAS
Page 17
Lagaza estate.
Same relief: The relief requested in the present case is a
judgment of money damages against the Defendants; the relief
requested by the North Carolina case is a declaratory judgment.
Accordingly, three fourths of the penox Technology factors are
absent in this case. However, the Defendants also argue that "the
granting of a stay is totally within the discretion of the court"
and argue in favor of the exercise of this discretion by stating
that "once the North Carolina decision reaches jUdgment, the
judgment will be binding upon Pennsylvania". There is no authority
at all cited for the proposition that this court would be bound by
a declaratory judgment in North Carolina. specifically, the
Plaintiffs point out that the North Carolina declaratory jUdgment
action misconstrues (perhaps intentionally) the nature of the
contract between McDermott and Detwiler as being "a claim against
the estate of Nicholas W. Lagaza" (North Carolina complaint at
paragraph l7, page 3. This complaint is attached to the Defendants'
brief as Exhibit C.) A declaratory judgment in North Carolina or
elsewhere that the Plaintiffs are not entitled to recover "for
legal services rendered [to] said estate" would be irrelevant to
the question of whether Detwiler and Callison owe money to the
Plaintiffs because of a contract which they entered into with the
Plaintiffs and which they breached.
Accordingly, the Defendants' preliminary objections should be
dismissed.
The Law Offices of SPERO T. LAPPAS
Page 18
III. Conclusion
For all of these reasons, the Plaintiffs request that the
preliminary objections of the Defendants be dismissed and that the
Defendants be ordered to file an answer.
RESPECTFULLY SUBMITTED,
of SPERO T. LAPPAS
SPE LAPPAS, ESQUIRE
Pa. Supreme ct. 10 No. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
By:
DATE:
:t( <,a 11!J
The Law Offices of SPERO T. LAPPAS
Page 19
.
I
. ;:~l
;j
LAW OFFICES
FLpWER, MORGENTHAL. FLOWER &. LINDSAY
~,:
'\.. A PROFESSIONAL CORPORATION
, 11 EAST HICH STREET, CARLISLE. PENNSYLVANIA 17013-3016
~~. '.~."i'~ " ..,.
~EP 26 19940'",- .
ARTHUR T. McDERMOTI, ESQUIRE,
and ARTHUR T. McDERMOTI and
ASSOCIATES, a Professional
Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Plaintiffs
v.
NO. 94.3061 CIVIL TERM
RICHARD C. DETWILER and CALLISON,
TIGHE, ROBINSON, and ANASTASION,
Defendants
JURY TRIAL DEMANDED
I. FACTUAL BACKGROUND
The Plaintiffs, Arthur McDermott and his law firm, practice law in Carlisle, Pennsylvania.
(Complaint, Para. 1). The Defendants are an attorney, Richard Detwiler, and his law firm, Callison,
Tighe, Robinson and Anastasion. (Complaint, Para. 3-4) Detwiler and his firm both practice
exclusively in South Carolina. (Complaint, Para. 3-4)
This case has its factual background in an estate which was opened in Cumberland County,
Pennsylvania on or about August 17, 1992 to the No. 21-92-703, the Lagaza Estate. Nicholas W.
Lagaza, a North Carolina resident, died in an automobile accident in South Carolina on August 14,
1992.1 Plaintiffs were retained by the decedent's father to open an estate in Cumberland County,
Pennsylvania. (Lagaza, Para. 4.) On behalf of the Estate, then, Plaintiffs filed a wrongful death
action in the Federal Court in South Carolina. (Lagaza, Para. 5)
I The facts outlined in this paragraph are contained in a Complainl in an action for declaratory judgment
flied to the No. 21-92.703, the Estate oC Nicholas W. Lagaza. The facts concerning the death of
Nicholas W. Lagaza are contained in Paragraph 3 oC the Complaint, a copy of which is attached to this
BrieC as Exhihit "A" for ease oC reference. Further references in this BrieC will be noted as Lagaza,
Para.
c:lwp.lllcll\dclwilu.brf r... '439)'94-01
.
..
The only heir of the Estate was the decedent's minor son who was In the custody of his
mother, decedent's ex-wife, (Lagaza, Para, 8) On behalf of her son, decedent's ex-wife retained
North Carolina counsel, W, Herbert Brown, Jr" Esquire, to open an estate In the County of
decedent's residence, Mecklenburg County, North Carolina. (Lagaza, Para. 11, exhibit A) Attomey
Brown, the administrator, hired Defendants In the Instant case to represent the North Carolina estate
In the wrongful death action, (Lagaza, exhibit A)
Thus, by January, 1993, there were two estates open, one In Pennsylvania and one In North
Carolina, both claiming to be the primary estate for Nicholas W, Lagaza, and both clalmlng the right
to prosecute the wrongful death action.
To resolve the Issue, Plaintiffs In the Instant case, on behalf of the Pennsylvania estate, filed
an action for declaratory judgment on January 29, 1993 In the Court of Common Pleas of
Cumberl8nd County. The outcome of that action tumed on domicile of the decedent as of the date
of death.
A hearing was held before the Honorable Harold E. Sheely on April 28 and 29, 1993. At the
hearing, Defendants In the instant case "attended", (Plaintiffs' Answer to Preliminary Objections,
Para. 3) Defendants have no place of business In Pennsylvania, (Reply to Preliminary Objections,
Para. 3) Except for Defendant Detwiler's attendance at the April 28th and 29th hearing before Judge
Sheely, where he neither represented the North Carolina estate nor gave testimony as a witness,
the only contact with the state of Pennsylvania alleged by the Plaintiffs Is a contract for the
acquisition of Plaintiffs' personal injury file made In Pennsylvania.
2
c:\wpSIIojl\<ldWikr.bd 1Uo' 439J.M.01
..
Ultimately, Judge Sheely found for the North Carolina Estate, A copy of his decision and
opinion Is attached hereto as exhibit "B", The Defendants, then, represented the Estate In the
wrongful death action filed In South Carolina.
On March 14, 1994, In the General Court of Justice, Superior Court OMslon, the Defendants
herein and the North Carolina Estate brought a declaratory judgment action against the Plaintiffs In
the Instant C8se, The sole Issue raised by the North Carolina action Is the liability of the Oefendants
herein for the same claim asserted In the Instant action, (Reply to Preliminary Objections, Para, 9)
A copy of the Complaint was attached to Preliminary ObJections, and It Is attached to this Brief for
ease of reference as exhibit "Co. Plaintiffs herein answered the Complaint. A copy of the Answer
filed by the Plaintiffs Is attached hereto for ease of reference as exhibit "0'. The matter In North
Carolina Is still pending. (Reply, Para. 11)
11. ISSUES
1, Whether the Plaintiffs' complaint should be dismissed where the Defendants' only
contact with Pennsylvania was the acceptance of a file accumulated In Pennsylvania, and attendance
at a hearing In Cumberland County?
2. Whether the Complaint should be dismissed or the Instant action stayed where a
declaratory Judgment action Is currently pending in North Carolina to determine the potential
liabilities arising from the alleged transaction.
3. Whether Plaintiffs state a claim In quantum meruit or unjust enrichment.
3
e:lwpSllcjl\d<lWUcr,brf rtl< 14393.Ilol.o1
.
III. DISCUSSION:
The Plaintiff's complaint should be dismissed because the Pennsylvania courts lack
Jurisdiction over the Defendants and because the Plaintiffs have failed to state a claim upon which
relief could be granted. If not dismissed, the complaint should be stayed pending the outcome of
the North Carolina declaratory judgment action.
A, PENNSYLVANIA COURTS LACK IN PERSONAM JURISDICTION OVER THE
DEFENDANTS.
A three-part test determines whether the Commonwealth may exercise In personam
Jurisdiction over a non-resident Defendant:
1, The Defendant must have purposefully availed itself of the privilege of acting
within the forum state thus invoking the benefits and protection of its laws,
2. The cause of action must arise from Defendant's activities within the forum
state.
3. The acts of the Defendant must have a substantial enough connection with the
forum state to make the exercise of jurisdiction over it reasonable,
Proctor & Schwartz. Inc. v. Cleveland Lumber Co., 323 A,2d 11, 228 Pa, Super 12 (1974).
In this case, the Plaintiffs assert only two possible contacts between Defendant and Pennsylvania.
The oral agreement to transfer the files to the Defendants was allegedly made In this state and
Defendant Detwiler observed a hearing in Judge Sheely's courtroom.
4
c:lwpSllcjI\lIcrOIllc,.btf llIo '4]9].94-01
.
Even If the existence of the oral contract could be shown. the courts of Pennsylvania have
traditionally held that merely entering Into a contract with a Pennsylvania resIdent is not sufficient
to give rise to personal Jurisdiction. In Enele v, Enele. 603 A.2d 654, 412 Pa, Super, 425 (1992) the
Superior Court refused to allow personal Jurisdiction over a non-resident Individual who was simply
a passive purchaser of assets, In EnQle. a wife attempted to join her husband's brother In a divorce
action based on the brother's purchase of rights to proceeds from a piece of real estate, Jd. The
court stated that "[alpellant's contacts with Pennsylvania, two or three isolated telephone
conversations with Defendant In Pennsylvania, his purchase of Defendant's right to residual
proceeds form the sale of out.of.state real property. and the transfer of payment, do not establish
sufficient contact and connection with Pennsylvania that appellant could reasonably anticipate being
brought Into court here." Jd. at 658.
Similarly, In GrOUD Two Advertllilinq v. Arst Investment CorD.. 27 D, & C.3d 687 (1983). the
court refused personal Jurisdiction over a non-resident Defendant based on an alleged breach of
an agreement with a resident company to print brochures. In GrOUD Two, the court stated that "the
mere existence of a sales contract between the non.resldent Defendant and resident Plaintiff is not,
In itself, sufficient to establish Jurisdiction where the non-resident Defendant has not solicited or
conducted any other business In this state and the performance of the contract had a nominal
economic impact." !d.. at 693.
In this case, the Defendants have not had sufficIent contacts with Pennsylvania to allow the
court to exercise personal jurisdiction. The only contacts alleged by the Plaintiffs are the alleged
oral contract with the Plaintiffs and Defendant Detwiler's visit to Carlisle. As noted above, the sales
contract alone is not sufficient to establish the necessary contacts, While the oral contract was
5
o:\wpSl\cjl\d<cwiJcr.btf r&lc 1439).NollI
.
allegedly negotiated In Carlisle, Pennsylvania, the files themselves were delivered to South Carolina
to be used solely In South Carolina by a South Carolina resident, Therefore, the contract for
transfer of the files was to be almost wholly performed in South Carolina. The alleged oral contract
could not constitute sufficient contacts with Pennsylvania to give rise to personal Jurisdiction,
Similarly, Defendant Detwiler's visit to Carlisle, Pennsylvania, did not constitute minimum
contacts, Detwiler simply was observing the Pennsylvania proceedings. He did not appear before
the court in any official capacity, he did not act as a witness. In fact, Mr. Detwiler simply sat as a
member of the audience and observed the proceedings.
Time Share Vacation Club v. Atlantic Resorts Umlted, 735 F. 2d 61 (3d Clr. 1984) supports
the argument that in personam Jurisdiction in Pennsylvania over Defendants Is Improper, As In
Grouo Two. Time Share Vacation Club involved a Pennsylvania plalntlff's attempt to hall an out.of-
state (Maryland) defendant into a Pennsylvania Court. The plaintiff and the defendant had executed
a contract whereby the plaintlff had agreed to promote the defendant's Maryland resort. .Id. at 62,
The plaintiff claimed that the defendant breached this agreement by failing to reimburse it for
expenses totalling $74,000.00. The court held that in determining whether the defendant had
sufficient contacts with the forum to support jurisdiction, the first element of the test Is whether the
defendant .purposefully availed. itself of the privilege of conducting activities in the form state. .Id.
at 63. Moreover, in determining purposeful availment, the proper inquiry Is "whether the defendant
... has performed acts for or by which It could reasonably expect to be haled into count in
Pennsylvania,. Id. at 65. The court held that despite the defendant's contract with the Pennsylvania
plaintiff, the evidence was .simply Insufficient to prove, by a preponderance of the evidence that, by
entering Into the contract, any of the defendants could foresee economic Impact in Pennsylvania.
6
c:lwplllcjlldcIWUc,.brf r~., 4393.N.(J1
.
.!Q. at 66. The court held that the defendant could not be held to have foreseen economic Impact
in Pennsylvania by virtue of this contract. Id. at 67.
The Time Share court also held that the second requirement of in personam jurisdiction, that
the cause of action arose from the defendant's activities in the form state, had not been satisfied.
.!Q. Having advertised its resort in the Philadelphia Inquirer and have sent an airplane to bring
potential customers to its resort, the defendant had some contacts with Pennsylvania. Nevertheless,
in personam jurisdiction was stllllmproper because the plaintiff's cause of action did not arise out
of those activities, Similarly, in the instant case, Defendant Detwiler's act as an observer of the
Cumberland County hearing, the only other contact with Pennsylvania, Is unrelated to the making
of the alleged oral contract. Plaintiffs' cause of action, therefore, did not arise out of any contact
with Pennsylvania other than the making of the contract itself.
In all, the Defendant's actions do not rise to a level sufficient to give Pennsylvania personal
jurisdiction. The Defendants have never appeared before the courts of Pennsylvania or, In any way,
sought the benefits of the Commonwealth's legal protection. Further, while the Defendant allegedly
negotiated the contract in Pennsylvania, the file was actually delivered to North Carolina to be used
solely in North Carolina. Finally, a one-time contract for the "sale" of a file to be used in North
Carolina would not be sufficient enough to inform the Defendants of their possible liability in
Pennsylvania. Therefore, Pennsylvania does not have personal jurisdiction over the Defendants.
B, PLAINTIFFS FAIL TO STATE A CLAIM FOR RELIEF
The Plaintiffs have alleged that, absent an oral contract, they are entitled to damages based
on the theory of unjust enrichment or quantum meruit. However, under the theory, the Defendants
are not the party liable to the Plaintiffs because they were acting as an agent for the estate, Further,
7
c:lwpSll<jlldccwilcr.brf r.101439J.94-01
the Defendants retention of the files would not be "unjust" given that the Defendants have failed to
adequately protect their rights,
1. No Receipt of Benefit:
Unjust enrichment and quantum meruit are similar equitable doctrines, The elements of
unjust enrichment are 'benefits conferred on Defendant by Plaintiff, appreciation of such benefits by
Defendant, and acceptance and retention of such benefits under such circumstances that it would
be inequitable for Defendant to retain the benefit without payment of value." Styer v. Huao. 619 A.2d
347, 442 Pa, Super, 262 (1993), In case at bar, the Defendants were agents of their clients, the
North Carolina Estate, and were acting for their client's benefit when they obtained the records.
Therefore, the Defendants in their role as counsel did not in fact receive the benefit.
It is the general principle that an "individual acting as an agent for a disclosed principle is not
personally liable on a contract between the principle and a third party unless the agent specifically
agrees to assume liability." Vernon D. Cox. Inc. v. Giles. 406 A.2d 1107, 1110, 267 Pa. Super. 411
(1979), An agent is deemed to have assumed personal liability if he has consummated a contract
without disclosing either the fact of agency or the identity of the prlnclple..lQ. A principle Is disclosed
if the other party to a transaction has notice that the agent is acting on behalf of a principle and has
notice of the principle's Identity,
In this case, the Plaintiffs admit in their complaint that they had actual knowledge that the files
were to be used for the benefit of the Defendant's client. (Complaint, Para. 13), Therefore, the
Plaintiffs have actual knowledge that the transfer of the property was for the exclusive benefit of the
Defendant's client. Furthermore, the clients were the party actually benefitted by the files.
Therefore, the Plaintiffs did not "confer on the Defendant" a benefit and the benefit was not
8
c:1..,.sllcjllddwilct.brf r... . 439J.94-01
appreciated by the Defendant. The benefit of the Plaintiffs actions was directed towards the
Defendant's estate, Absent actual benefit, the Defendants should not be held liable for either unjust
enrichment and quantum meruit.
2. Failure to Adequately Protect Rights:
As a matter of law, "a party who falls to adequately protect its right to compensation from the
direct recipient of Its services cannot thereafter seek restitution against one Indirectly benefitted by
those services who In no way Induced the provision of services." Styer v. Huao. 619 A.2d 347, 442
Pa. Super, 262 (1993), Therefore, by falling to seek compensation from the Plaintiff's original client,
the Plaintiffs have failed to adequately protect their own Interest and, therefore, the Defendant's
retention of the files Is not unjust.
In Styer v. Huoo, the Superior Court granted judgment N,O.V. In favor of an appellant on the
grounds that the trial court committed a clear error of law in applying unjust enrichment. In the
case, an attorney completed some Initial work for a client on a personal Injury claim. Upon being
discharged by his client, the attorney agreed with the client's new attorney to forebear from seeking
a fee from the clients and, Instead, agreed to share In any contingent fee ultimately received by the
second lawyer. Subsequently, a third attorney was retained and obtained a recovery but refused
to share his fee with the first attorney,. The first attorney sought recovery under unjust enrichment
claiming that the final attorney had received the benefit of the first attorney's Initial work. In refusing
the unjust enrichment claim, the court stated:
Assuming arguendo, that [Defendant] realized some benefit from [Plaintiffs]
work in collecting ... medical records, we nevertheless find that his retention of this
benefit Is not unjust. Rather, we find that [Plaintiff] did not adequately protect
whatever right to compensation he might have had vis-a.vis his clients, and that the
9
c:lwpSllojl\dolwilct.brf flIo' 4]9).~1
actions of both [the intervening attorneys] further compromised [Plaintiffs] ability to
receive compensation,
Styer, 619 A.2d at 351, In the current case, the Plaintiffs have similarly given-up their right to
recovery against the original client, the Pennsylvania Estate, and, therefore, may not proceed against
the Defendants.
The Plaintiffs were retained by the estate of Nicholas W, Lagaza, (Complaint, Para, 6), In
the course of representing the estate, the Plaintiffs compiled a litlgatlon file, (Complaint, Para, 9),
It is a matter of law that such files ultimately belong to the client. Carb v. Allen. 120, & CAth 630
(1993), Unquestionably, the Plaintiffs had the right to recover their fee from the original client and
the Plaintiffs would have the right to retain the files until such payment was rendered..l2.. However,
for whatever reason, the Plaintiffs failed to seek payment from their original clients, Further, the
Plaintiffs knowingly transferred the files to the Defendant. An attorney's lien, being possessory
cannot be enforceable after possession has been relinquished. Jones v. MIller, 203 F,2d 131 (C.A.
Pa. 1953). Now, after seemingly giving up ail their rights against their client, the Plaintiffs seek
recovery in equity agaln~t the Defendants,
The Plaintiffs, a sophisticated law firm, transferred a piece of property they were apparently
holding as security without protecting their rights in any way, thereby simply gMng away their
security for payment by the clients. As the Superior Court held in styer, by gMng up their claim
against the original clients, the Plaintiffs failed to adequately protect their interest and should be
forbidden from recovering against the Defendants,
10
o:\wpSllcjl\dclwiler.bd llIo, 4393-94-01
3. The Pending Prior Action:
Under 42 Pa,C.S,A. Rule 1017(b)(5), a party may file a preliminary objection based on the
pendency of a prior action, "In order to plead successfully the defense of lis pendens, I,e., the
pendency of a prior action, it must be shown that the prior case is the same, the parties are the
same, and the relief requested Is the same," PenoxTech. v. Foster Medical, 546A.2d 114,115,376
Pa. Super, 450 (1988), "Once the defense Is raised under Pa,R,C,P, 1017(b)(5), a court may
dismiss or stay the subsequent proceedings." .ld...
In this case, a previous action was filed in North Carolina. The North Carolina action was
filed as a declaratory judgment to determine the relative rights and duties regarding the same files
at issue in the instant case between the Plaintiffs, Defendants and the estate, (Preliminary Objection,
Exhibit "A"). Although the Defendants admit that the prior pending action would not entitle the
Defendants to dismissal, the Defendants believe that the court should stay the proceedings pending
the final outcome of the North Carolina action,
A trial court does have the inherent power to stay the proceedings In a second suit during
the pendency of the first. Klein v. Citv of Philadelphia, 465 A.2d 730, n Pa. Commw. 251 (1983),
"The trial court need not ... sanctlon the duplication of effort and waste of judicial resources that
would result from allowing both cases to proceed simultaneously, in a race to judgment," .ld... at 731,
The court in Sinaer v. Dona Suo Cha, 550 A.2d 793, 379 Pa. 556 (1992) while rejectlng the
complete bar of a subsequent action, suggested that the trial court should consider staying a
proceeding pending the outcome of any prior proceedings. See also Norrlstown Automobll~
CO..lnc. v. Hand. 562 A,2d 902, 386 Pa. Super. 269 (1989).
11
.:lwpllltjll4t<wilct.blf lUo 14393-\14.01
Generally, the grantlng of a stay Is totally within the dlscretlon of the court, However, the
court should be willing to grant a stay if the prior proceeding will be binding upon the subsequent
action, See Slnoer. 550 A.2d at 793. In this case, once the North Carolina decision reaches
judgment, the judgment will be binding upon Pennsylvania and will fix the rights and liabilities of the
parties to this suit. Therefore, the Pennsylvania case should be stayed pending the outcome of the
North Carolina decision.
IV, CONCLUSION:
In all, the Plaintiffs' complalnt should be dismissed because the Pennsylvania courts lack
personal Jurisdiction over the Defendants, The only contacts between the Defendants and the
Commonwealth were an alleged oral contract and a one-tlme personal visit. However, while the
contract was consummated in Pennsylvania, the files were to be delivered to North Carolina for use
totally In North Carolina. Further, the one-time visit by the Defendant was simply for the purpose
of observing a court proceeding, The Defendant did not in any way use the rights and privileges
of Pennsylvania law, Therefore, the alleged contacts are not sufficient to lead to personal
Jurisdiction and the case should be dismissed.
Additionally, the Plaintiffs' clalms that they are entitled to recovery under Quantum Meruit or
Unjust Enrichment should be dismissed. First, the Defendants were not the party benefitted by the
Plaintiffs action, Secondly, the Plaintiffs decision to give-up their rights agalnst the estate should not
lead to liability by the Defendants. If the Defendants gained any benefit from the Plalntiffs' actions,
it was as a result of Plaintiffs' miscalculation. Therefore, the Plaintiffs should only be allowed to
12
,~~;: 02 .?3 1~: 1S vIHIT:: ~ r'AL ':",:H E;;;::\ ..;=r. r Ie
=...:. .2.!'
'.
, .
vs.
IN THE ORPHANS' COORT DIVISION
OF '.I!BE COU'RT or COMKON PLEAS
POR CUMBBRLAND COUN'fi,
PENNSYLVANIA
2. I <;;,-703
NO . ~ 6ftflWiS' ~9UM lP l.l3
NI~I'IT...S LAGAZA, ADHINIS-
TRA'J!OR OP PBHNSYLVANIA
BSTA'l'Z OF NICHOLAS W. LAGAZA,
APPOIHDD ADMINISTRATOR OF
NOR'.1'H CAROLIHA BSTATE OF
NIcaI'lY.~ W. LAGAZA,
Defendant
ACTION FOR DECLAR.ATORY JUDGHENT
l"nVPTiATN'P
CODS NOW, Plaintiff Nicholas LaqIlZII, tlw Admini.txator of
the pennaylvlUlia Estate of Nichollls W. Laqllza, by and throuqh his
attorney. Arthur T. McDermott and AIIsociatee, by Arthur T.
McDez:mott and patricia R. Brown, Eequire, and reque8ts II
declaratory judgment pureuant to Pa. R.Civ.l', Section 1601 ae to
the proper domicile of Richolas W. Lagaza (deceased) for the
purpose of Administration of eaid Estllte, and stlltes as follows:
1. Nichola. W. Lagllza died intestate liS a result of an
automobile accident in Gaffney, South Carolina on August 14,
1992.
2. Nicholas Lagaza, Plaintiff herein, opened an Intestate
Estate and WIIS granted Letters of Administration based on the
fact thllt Nicholas W. Lagaza (hie eon) WIIS domiciled in
Pennsylvania, and owned personal property located within the
ComIIlOnwealth of Pennsylvania.
3, At the time of hie death, Nichola8 W. LagalBa resided in
Charlotte, North Carolina, IInd was 8IIIployed as a salesman by
Althin C.D. Medical, Inc. (Employer).
1
11t-1t:' O~-,.~,,;, '1;"'1~ "HI-- ," ....I'".LT.,~
_ __, h" .. ~ It. ~ "'I.... 1.'11 BPE:VAR[I r.v:
. . On or abOut. Auguat 17, 1992, Hicholaa Lagasa reta1nadt.he
law UXII of Arthur T, KeDemot.t and Aaeociates (the !'irlD) to
:render legal aervicas in administer1ni the Bstate of Nicholaa W.
Lagaza.
S. In conjunction with the 1l_4niatratlon of the Zaute,
and at -ehe request of the Il_iniatrator (NiCholaa Laga21a), the
PiXII filed a wrongful death action in the united Stataa Dietrict.
Court for the District of South Carolina on November 3, 1992.
6, Tha eole heir of the Intestate sstata 1a Hicholas W.
Lagaza, II, the minor son of the daceaaed.
7. on November 20, 1990, the cleceaaed waa divorced from
Marilyn Laqaza, the JlIOther of the child, Nicholas W. Lagaza, II.
B. The fo~ Marilyn Laga21a, now Marilyn Chapman,
remarriad, and rasides at Star Route Box 110, Roeman, North
Carolina 2B722. She ia the guardian of the parson of the child
and heir.
9. Marilyn Chapman has retained the services of the
Brevard, North carolina law f11:m of White and Dalton, by William
R. White, Esquire, who opened an Zatate in North Carolina on the
mistak8n belief that the deceased -wae domiciled in North
carolina.
10. The facta available to the PiXII of Arthur T. KeDeXllott
and Aaaociatas regardinq the domicile of Nicholas W. Laga21a on
tbe date of hia death ue as follOWS'
(a) on July 5, 1959, Nicholas W. Lagaza was born in
QuantiCO, Virginia, of parants whose home of record was
Pennaylvani.a, while his father, Nicholas Lagaza, waa on
2
11HR 0:. ":t:l
P.e..'U
SRE',''''f;'[. n:
, .
r:rhis
the
active duty with the O. S, Harine Corps.
established in the State of pennaylvania aa
domicile of oriQin of !Jiaholaa W. Lagan.
(b) In or about 1980, Nicholas H. Laqaza enlisted in
the O.S, Navy at Hauisburg, PennaylvarUa, ancl
pennsylvania remained his hOlll8 of ~cord during his
se"ice in the Navy.
(C) Opon his honorable discharge from the U. S. Navy
in 1984, Nicholaa W. Laqaza returned with his wife ancl
child and estabUshed his residence/domicile in
LeIIIOy1\8, Penney 1 vanJ.a.
(d) The couple was divorced November 20, 1990, as
citizens of pennsylvania, and the former wife moved to
North Carolina, During the period of the divorce,
Nicholas W. Lagaza attempted to encourage a
reconciliation and aaked his then spouse to return to
the marital home in Pennsylvania.
(e) Subsequent to the divorce, Nicholas W. Lagaza
secured employment with Althin C.D. Medical, Inc. (the
Bmployer) who offered him a sales territory in North
Cm:olina or !Jew Orleans.
(f) The future supervisor adviaed Nicholaa H. Lagaza
that he should retain his home of record in
pennsylvania until followiDg his training and
establishment of hie employment with the Employer, to
which Nicholas W. Lagaza agreed.
3
11':';: ~~ .~- l\':~O :."I7t: ;. D;:'L7OfI BRE:V;:.R[I NO:
P.7,'22
(g) Nicholas W. Lagaza, in his own handwriting on
the Employer'S letter dated November 4, 1991, regaxding
approval ot hJ.a employment, indicatecl his intent to
retain hi8 checking accounts and ham8 address in
pennsylvania until late 1992.
(h). Nicholas W. Lagaza, at the time of his death,
retainecl his Pennsylvania bank accounts, and had stored
much of his personal property and personal papers at
his father'S home in Pennsylvania.
(i) At the time of his death, Nicholas W. Lagaza had
/
valid drivers' licenses in both PennsylVania and North
Carolina. A telephone call to the State of Norch
Cuolina Department of Motor Vehicle deteJ:mined that a
North Carolina Driver's Licenae is required by North
Carolina of any per. on who "resides" in North Carolina
over a period over thirty (30) days,
(:1) A check of the Voter's RegJ.atration Office in
Charlotte, North Carolina, indicated that NicholAS W.
Lagalla never regiatered to vote in North Carolina.
11. correspondence from a South Carolina law f~ (Exhibit
A) indicated that the ,~~f~istrator of the North Carolina Eatate
has threatened to file A Motion to Sub.titute the North Carolina
Bstate as the Plaintiff in the South Carolina federal lawauit in
place of the Administrator of the pennsylvania Estate.
v
J
4
.1Mi' 0.:: ''''3 lSI,11 WHITE 3. DI'lLTON BREVARD tiC
F.3/22
12. A declaratory jud;ment as to the domJ,cile of !Ucholu
W. Lagau at tM tillla of his deAth is necelS8ary to determine the
valicU.ty of the granting of Letters of AdIIIininration by the
Rac;r18ter of Wills, Cumberlancl County, peDJUlylvania, and to
prevent l1tiqation of the matter in the U.S. District Court in
South carolina.
WHBRBFORB, Plaintiff ~quesU this Honorable Court, after
hearinCJ and pursuant to Pa. R.Civ.P. section 1601, to deterJll1ne
that the domicile of Nicholas W. LagazA, on the date ot hi8
deAth, was Pennsylvania, and Iluch other relief as J!lAY be
appropriat:e.
Respectfully submitted,
ARomtJR 'J!'. MCDBlUIO'J!"l AND ASSOCIATES
~2~O <::
~ur oi. HcDexmott, Bs~e
Fifty EAst B1gh Street
P. O. Box 24&
Carlisle, PA 17013
(717) 243-7807
5
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CALUSON TIOHE P.QBINSON '" ANASTASION
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1101 '16\1'". DlIrRIIT
COL\lWIIA, SocnIl Co,... "''' 29101
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December 30, 1992
PMIIONH.('.'I~
01 COU~.
R~~mI?
DEe 3 0 1992
.. . :. MULLINS. RU..E.V
Cll SCARBOROUGH
't\III.UC& E. TlCIioI
JlITINIl
VIA FACSIMILE 256.7500
AND VIA MArL
Jeffery A. 3acobs, Esq.
Nelson, Mullins, Riley
and scarDorouqh, P.A..
Post otfice BoX 11070
Columbia, .SC 292~1
RE: Nicholas Lagaza, as Administrator of the
Es~a~e of Nicholas W. LagazA, cecea.ed, and on
behalf of NiCholas W. Laqaza, II, a m~nor vs.
Brian cru~cnfield and Michael B. sangwin
Case Number 7:92.3150.3
Dear Mr, Jacobs:
The purpose of 'Chis lettE!':' is to confirm our l:elepnone
conversa1:ion of today' 15 da~., J.n which I advised you that we
represen~ W. Herber1: Brown, Jr., who has been appointed
Administra~or of the Estate of Nicholas W. Laqaza ~y letters of
Administra~ion issued by the General Cour1: of Justice, superior
Court Division, for Mecklenburg County, North carolina. We
understand ~ha1: the decedent was a resident of Charlotte, N.C. at
~h8 time of death.
W. in1:en~ to make an appropriate ~ot1on in the 8Dove
reterenced case '1:.0 sul:ls'l:i1:U1:e Mr. Brown as a Plaintift, in the
place and s~ead ot Nicholas Laqaza. Additionally, we will contest
the right of Mr. Laqaza and hi~ counsel to represent Nicholas W.
Lagaza, II, a minor. ," .
Please be guided by this inforl\l&tion as you may see tit.
Wi~h kind regards, I am
very truly,
ROBINSON
SMA/skt:
cc: William R. White, Esq, (via fax)
Exhibit "A"
-----..... -
.- . ..-----.--.--
p, 11.'22
. .
C&M'Xl'ICAD 0. SBRVICB
I hereby certify that a true copy of the foregoing Complaint
wall 118:r:v8d .on the below named person(II), by Reqilltered Pirst-
clalls mail, pOlltage prepaid, addrelllled tOI
Villi_ a. 1Ih1ta, ~
WMta aDd Da1.taD
602 8cmth Cal-' 1 Btz8et:
Bl:'e9axd, JIoz1:h Ca:ollDa 28712
w. v.....-rt BI:olwn, Jr.
c/o VillJ.aa a. White, bquixe
602 8cmt:h Cal-.ll St:z8et
BJ:8vaxd, IIorth CazoliDa 28712
Jeffrtly A: Jac"b8, bqu1re
P.O. IIoz 11070
COlabla, S.C. 29211
vfc.oh.el W. !l!J.qu, BaIq\1J.ztI
1208 WuhJ.Dgt:cm 8ez.et:
COlmabJ.a, S.C. 29201
Date
11'21 /f3
I I
~ ~O ~_ -
Arthur T. Ml:IDermatt, Bsq.
50 Baai: Higb Street
P. O. Box 246 .
Carliele, PA 17013
(717) 243-7807
NICHOLAS LAGAZA,
ADMINISTRATOR OF THE
PENNSYLVANIA ESTATE OF
NICHOLAS W. LAGAZA
plaintiff
V
THE APPOINTED ADMINISTRATOR
OF THE NORTH CAROLINA ESTATE
OF NICHOLAS W. LAGAZA
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 2l-92-703
ACTION IN DECLARATORY JUDGMENT
IN REI PLAINTIFF'S ACTION IN DEt"T.lI.lII1.TORY JUDOMEN':
BEFORE SHEELY, P . J.
ORDER OF COURT
AND NOW, this C'{ rlJ::. day of
,
1993, we hereby find that the proper domicile of Nicholas W.
Lagaza as of the date of his death was Charlotte, North Carolina.
By the Court,
I~ e-/!~. ~
Harold E. Sheely, P.J.
./'
Arthur T. McDermott, Esquire
For the Plaintiff
. C~~ol J. Lindsay, Esquire
VFor the Defendant
:pbf
A TRUE COpv FRO~
In Test/molrl;' wiler;,,;, I:' .'" RECORD
an:! the Sil:!/ of . _1-' I~_: ;r~unto ~3t m:t hllnd
Thl t4.. --- ~ .!. ~t Carl/s/a. PA.
s c:--,,' ,0 ~
..... 19~
Clerk of the 0 anll Co rt
Cumtierland Coun~y
NICHOLAS LAGAZA,
ADMINISTRATOR OF THE
PENNSYLVANIA ESTATE OF
NICHOLAS W. LAGAZA
Plaintiff
V
THE APPOINTED ADMINISTRATOR
OF THE NORTH CAROLINA ESTATE
OF NICHOLAS W. LAGAZA
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
: NO. 21-92-703
: ACTION IN DECLARATORY JUDGMENT
IN RE r PLAINTIFF'S ACTION IN DECLARATORY JUDGMENT
BEFORE SHEELY, P.J,
OPINION AND ORDER OF COURT
Here we are asked to determine the decedent's proper
domicile at the date of his death. Hearings were held April 28
and 29, 1993.
FINDINGS OF FACT
l. Nicholas W. Lagaza (the decedent) died August 14,
1992 in South Carolina. He was thirty-three years of age, having
been born on July 5, 1959.
2. Nicholas Lagaza (the decedent's father) is a
resident of Cumberland County, Pennsylvania. He received letters
of administration for the decedent's Pennsylvania Estate, on
September 2, 1992.
3. Marilyn Chapman (the decedent's ex-wife) is the
mother and guardian of decedent's son, Nicholas W. Lagaza.
4, W. Herbert Brown was asked by Ms. Chapman to serve
as administrator of the North Carolina estate and received
NO. 21-92-703
letters of administration in North Carolina, December 22, 1992.
5. The decedent was born in Quantico, Virginia, where
his father was stationed with the United States Marines.
6. In 1973, the family returned to Pennsylvania where
the decedent was raised.
7. In 1977, the decedent graduated from high school in
Pennsylvania. He went to college for two years in New Hampshire.
8. The decedent returned to Pennsylvania and enlisted
in the Navy in 1979.
9. While in the Navy the decedent married Ms. Chapman
and was stationed in Virginia and then in Mississippi.
10. Ms. Chapman returned to Virginia in January of
1983, and when decedent was discharged the next month, he
returned to Virginia also.
ll. The couple moved to Louisiana in October of 1984.
12. They moved to Georgia in the middle of 1987, and
then returned to Virginia in May of 1988.
13. The couple separated in 1988, the decedent moved
in with his father in Pennsylvania and Ms. Chapman stayed in
Virginia.
14. In March of 1989, the couple reconciled and lived
with the decedent's father until they found an apartment in Camp
Hill, Cumberland County, Pennsylvania.
15. The couple separated again in July of 1990, she
2
NO. 21-92-703
moved to North Carolina with their son and he remained in the
Camp Bill apartment.
16. The decedent got a job with Althin Medical
Incorporated in North Carolina and moved to Charlotte, North
Carolina, March 2, 1992, where he lived until his death.
DISCUSSION
The decedent died in South Carolina, August 14, 1992,
in an automobile accident. Bis father filed for and received
letters of administration in Pennsylvania where the decedent was
raised. The decedent's ex-wife, who is the mother and guardian
of the decedent's son, asked Attorney W. Herbert Brown, Jr., to
serve as administrator to the North Carolina estate where the
decedent was residing. Mr. Brown filed for and received letters
of administration in North Carolina. Mr. Lagaza, the decedent's
father, acting as the administrator of the Pennsylvania estate;
has sued Mr. Brown in his capacity as the administrator of the
North Carolina estate, in a declaratory judgment action to
determine where the decedent was domiciled at his death. Once
the proper domicile is established, the proper estate may proceed
as plaintiff in the wrongful death action.
When seeking declaratory relief, one must proceed in
accordance with the Uniform Declaratory Judgment Act adopted in
Pennsylvania under 42 Pa. C.S.A. 57531 et seq. The purpose of
awarding declaratory relief is to settle and make certain the
rights and legal status of the parties. Geisinoer Clinic v.
3
NO. 2l-92-703
DiCucciq,' 414 Pa. Super. 85, 606 A.2d 509 (l992). The presence
of a real controversy indicating imminent litigation coupled with
a clear manifestation that the relief sought will help in ending
the controversy, are essential to granting declaratory relief.
Gulnac v. South Butler Countv School District, 526 Pa. 483, 487,
587 A.2d 699, 70l (1991). The affairs involving the
administration of an estate fall directly under the purview of
the Uniform Declaratory Judgment Act under 42 Pa. C.S.A. 57535.
Furthermore, declaratory relief is a matter of discretion rather
than a matter of right. Gu1ac, at 488, 587 A.2d at 701 (l991).
We are satisfied that a determination of the decedent's domicile
will make certain the parties' status by settling the controversy
of the proper domicile.
The domicile of a person is a place where he has fixed
voluntarily his habitation with a present intention to make
either his permanent home or his home for the indefinite future.
In re Estate of Getz, 148 Pa. Commw. 393, 397, 61l A.2d 778, 78l
(1992). Domicile of origin is that which one acquires at birth
and it is presumed to continue until another domicile is
affirmatively proven. Greenwood v. Hilderbrand, 357 Pa. Super.
253, 259, 515 A.2d 963, 965 (1986); appeal denied, 515 Pa. 594,
528 A.2d 602 (1987). To effect a change of domicile, there must
be a concurrence of two factors: physical presence where the new
domicile is alleged to have been acquired and the intention to
make it one's home without any fixed or certain purpose to return
4
NO. 2l-92-703
to the former place of abode. ~,at 398, 611 A.2d at 781
(1992). Residence in a new locality with intent to make that
residence a permanent home, along with the manifested intent of
abandoning the former domicile must be shown by clear and
convincing evidence by the person making the allegation of a
change of domicile. ~
Plaintiff, as the moving party, had the initial burden
of proving that the decedent's domicile of origin was
Pennsylvania. The decedent was born at the United States Naval
Hospital in Quantico, Virginia where father was stationed as a
United States Marine in 1959. In 1965, the decedent's father
retired from the military and returned to Pennsylvania to stay in
1973. Decedent graduated from high school in Pennsylvania in
1977, and attended college in New Hampshire. In 1979, decedent
returned to Pennsylvania and enlisted in the Navy. We are
satisfied from these facts that decedent's domicile of origin was
Pennsylvania. We must now examine whether the defendant has
affirmatively proven by clear and convincing evidence that the
decedent changed his domicile.
There is no question that defendant has met the first
element, the change in the decedent's residence. until he moved,
the decedent was living in an apartment without a lease on a
month to month basis in Camp Hill, Pennsylvania. On February 20,
1992, the decedent signed a yearly lease for an apartment in
Charlotte, North Carolina. He sent notice of a change of address
5
NO. 21-92-703
to the United States Post Office indicating his old address as
Camp Hill, Pennsylvania and his new address as Charlotte, North
Carolina. The decedent surrendered his Pennsylvania driver's
license in exchange for a North Carolina driver's license. His
new phone number is listed in the 1992-93 Charlotte Southern Bell
Phone Directory. The decedent's position with Althin Medical,
Inc., was located in North Carolina. The North Carolina
Industrial Commission recognized the decedent as a North Carolina
resident and awarded an amount of $38l.33 per week in Worker's
Compensation Benefits to the decedent's son. We are satisfied
that the defendant has proven that the decedent changed his
residence by clear and convincing evidence. Having determined
that the first factor of proving a change in domicile has been
met, we turn to the second factor; the decedent's intent to make
the new residence his new home for the indefinite future along
with the intent of abandoning the former domicile.
The defendant presented two friends of the decedent
from Camp Hill, Pennsylvania, Peter Kahoonei and Shirley
Kaaiawaawa, to testify in regard to the decedent's intent. They
both testified that the decedent took a job in North Carolina to
be with his son and that the decedent intended to live in North
Carolina indefinitely, Ms. Kaaiawaawa recalled the decedent
specifically stating that in addition to staying in North
Carolina, he did not plan on returning to Pennsylvania because
there was nothing left for him in Pennsylvania. Ms. Chapman
6
NO. 21-92-703
testified that the decedent moved to North Carolina to be with
his son. She testified that the decedent had no intention of
staying in Pennsylvania because he wanted to be with his son.
Even Mr. Lagaza testified that his son was a devoted father and
would have moved to Louisiana, if need be, in order to continue
to stay involved in the raising of his son.
The plaintiff introduced evidence to rebut the evidence
of the decedent's' intent to remain in North Carolina. A letter
was introduced where the decedent indicated his "home of record"
was Camp Hill, Pennsylvania. However, the letter was written
several months prior to his moving to North Carolina. The letter
states that the decedent's Pennsylvania address is to remain
intact until the training for his North Carolina job is over and
the confirmation of the North Carolina location is completed. If
anything, the letter reaffirms the fact that the decedent
intended to obtain employment in North Carolina. Plaintiff
introduced bank statements from a Pennsylvania bank showing a
positive balance at the time of decedent's death. This evidence
is hardly dispositive of the decedent's intent. particularly in
light of the fact that the decedent had a positive balance in his
North Carolina bank account. We are satisfied that the defendant
has proven that the decedent intended to make his North Carolina
residence his new home for the indefinite future and intended to
abandon his Pennsylvania domicile by clear and convincing
evidence. Having determined that both factors improving a change
7
NO, 21-92-703
in domicile have been met, we conclude that the decedent's proper
domicile at the date of his death was Charlotte, North Carolina.
ORDER OP COUR~
1993, we
AND NOW, this q.tJ. day of
hereby find that the proper domicile
~ '
of Nicholas W.
Lagaza as of the date of his death was Charlotte, North Carolina.
By the Court,
Isl Harold E. Sheelv
Harold E. Sheely, P.J.
Arthur T. McDermott, Esquire
Por the Plaintiff
Carol J. Lindsay, Esquire
Por the Defendant
:pbf
8
.-
STATE OF NORTH CAROLINA
COl1N'1'Y OF Hl!:C1a.ENB1lRGI
I:' "\ i ~'.
-.. " .
... '..
IN '1'IIE GENERAL COUR'1' OF JUSTICE
SUPER%OR COURT DIVISION
94-CVS- 3;!S'~
.....,
W. HERBERT BROWN, JR.,
ADH1:NIS'l'RA'1'OR OF ESTATE
OF NICHOLAS W. LAaAZA,
D.c....d, RICHARD c.
DE'l'NXLER .nd CALLISON
TIGRE ROBINSON , ANAS'1'ASION,
. South Carolina Gen.ral
Partn.r.hip,
. : :'. .,' .:;. :
v..
)
- +.._-' - ,----
)
)
)
)
)
Plaintiffs, )
)
)
)
)
)
)
)
D.f.ndant., )
COMPLAINT
(Jury Tri.l Waiv.d)
ARTHUR '1'. HcDERHO'1"l' and
ARTHUR T. HCDERHO'1'T ,
ASSOCIATES, . Prot...ion.l
Corpor.tion,
pur.u.nt to Article 26 entitled "D.clar.tory Judgm.nt." ot Ch.pter 1 of the North
C.rolina Gen.r.l st.tut.a, the Pl.intiff. inatitute thi. .ction .nd .ccordingly .lleg.
.nd ..y:
1. Th. Plaintiff, W. aerbert Brown, Jr. (h.rein.tter c.lled Plaintiff Brown), i.
· citizen .nd r..id.nt of Heckl.nburg county, North Carolina.
2. '1'h. Pl.intiff, Richard c. D.twil.r (hereinafter c.lled Pl.intift Detwiler), ia
· citizen .nd r..ident of Kerah.w County, South Carolina.
3. '1'h. Pl.intiff, c.lliaon Tighe Robin.on , An.at..ion (herein.tter c.ll.d
Pl.intiff C.lli.on), i. . South Carolina gener.l Partner. hip with .n office .nd
princip.l pl.ce of bu.ine.. in columbi., South Carolin..
4. Th. Pl.intiff. are informed .nd believe and therefore .llege th.t the
Detendant, Arthur '1'. HCDermott (hereinafter c.lled Defend.nt HCDermott), i. . citizen
.nd re.ident of cumb.rl.nd County, Penn.ylvani..
5. The Pl.intiff. are inform.d and believe and therefore .ll.ge th.t the
Defendant, Arthur '1'. McDermott' Ae.ociate. (h.reinafter called corporat. Defendant),
i. a penn.ylvania profe..ional corporation with an office and principal place of
bu.inee. in Carli.le, P.nn.ylvania.
6. Plaintiff Detwiler ia, and .t .11 time. herein alleged, an attorney at law
duly licensed by'the state of South Carolina and is a partner in the law firm of
Plaintiff Callison. Plaintiff callison i., and at all times herein alleg.d, . law firm
engaged in the prsctic. of law in the State of South Carolina.
7. Plaintiffs are informed .nd b.lieve and therefor. allege Defendant HcDermott
is, and at all time. herein alleged, an attorney at law duly licensed by the
Commonwealth of Pennsylvania .nd is, and at all tim.. h.rein all.ged, an officer,
director and managing agent of the Corporat. Defendant.
8. Nichola. Wa.il Lagaza (same person as Nicholas W. Lagaza) died August 14,
1992, as a r.sult of injuries sustained in an automobile .ccid.nt in cherokee county,
South carolina. At the time of his death, Nicholas Wasil Lagaza w.s domiciled in the
State ot North Carolina and w.s a citizen and resident of Hecklenburg County, North
Carolina. The civil action entitled Brown vs. crutchfield, as hereinafter set forth
more fully, w.s an action instituted as a re.ult of injuriee to .nd death of Nicholas
Wasil Lagaza which arose out of the aforesaid automobile .ccident.
.-
.-
9. On or about september 2, 1992, Nichola. Lagaza, the decedent.. father, w..
appointed Admini.trator of the E.tate of Nicholas W. Lagaza by L.tter. of
Admini.tration i..u,d by the Regi.ter of Will. for cumb.rland county, p.nnsylvania.
10. On Novemb.r 3, 1992, Nichola. Lagaza, a. Admini.trator of B.tat. of Nichol..
W. Lagaza, d.c....d, and on behalf of Nichol.. W. Lagaza, II, a minor, in.tituted .
civil action in the unit.d stat.. Di.trict Court for the Di.trict of South carolin.,
Spartanburg Divi.ion, ind.x.d a. Ca.. No. 7-92-3156-3, wh.rein the plaintiff in ..id
action .ought to r.cov.r damag.. for the injuri.. and wrongful d..th of Nichol.. W.
Lagaza .nd for the injuri.. to Nichola. w. Lagaza, II. Th. attorn.y. of record for the
plaintiff. in .aid civil action included Arthur T. McDermott , As.ociat.. (th.
Corporate Def.ndant h.r.in) by Arthur T. McD.rmott (Def.ndant McD.rmott h.rein) and
Benjamin A. C.ro.
11. On Dec.mber 22, 1992, Plaintiff Brown was appoint.d Admini.trator of the
B.tat. of Nichola. w. Lagaza by the cl.rk of sup.rior court for M.ckl.nburg county,
North carolina. sinc. hi. .aid appointm.nt, Plaintiff Brown continuou.ly has r.main.d
the duly qualified and acting Administrator of the B.tat. of Nichola. W. Lagaza .nd
curr.ntly i. the .aid duly qualifi.d and acting Admini.trator of the B.tat. of Nichola.
W. Lagaza.
12. Sub.equent to Dec.mb.r 22, 1992, Plaintiff Brown, by and through hi. attorney.
of record, Plaintiff. Detwil.r .nd calli.on, fil.d a motion in .aid United Stat..
District Court civil action to int.rvene as party plaintiff, which said motion was
contested by Defendant MCDermott but, aft.r b.ing h.ard by the court, was allowed. No
appeal was tak.n from said ord.r allowing interv.ntion.
13. On January 29, 1993, Nichola. Lagaza, a. said Penn.ylvania Administrator, by
and through hi. attorney, Arthur T. McD.rmott and A..ociates (the Corporate Defendant
herein) by Arthur T. McD.rmott (Def.ndant McDermott h.rein), institut.d an Action for
D.claratory Judgment in the orphan.' Court Division of the Court of Common pl.as. for
Cumberland county, Pennsylvania, index.d a. Cas. No. 21-92-703, again.t Plaintiff Brown
wh.rein the .aid P.nnsylvania Administrator sought a d.claratory judgment as to the
domicil. of Nichola. w. Lagaza at the time of hi. death, wher.upon the said declaratory
judgment action was heard April 28 and 29, 1993, before The Honorable Harold E. Sheely,
Presiding Judg.. The Plaintiffs her.in, in order to prot.ct their rights and status in
said wrongful d.ath action, were required to r.tain Pennsylvania coun.el and travel to
carlisle, pennsylvania, at substantial expense, for the purpose of att.nding said
hearing and being heard on the is.ue raised therein. on June 9, 1993, Judge Sheely
entered his Order adjudicating the proper domicle of Nichola. W. Lagaza a. of hi. data
of d.ath was Charlott., North carolina. No ~pp.al was tak.n from said Ord.r.
14. Sub..quent to the afor..aid p.nn.ylvania adjudication of domicil., plaintiff
Brown fil.d a motion in .aid Unit.d states District Court to be mad. .01. plaintiff in
the wrongful d.ath cau.. of action, which said motion was allow.d by the Court. No
appeal was tak.n from the Order allowing said motion.
15. Plaintiffs D.twiler and callison, a. co-counsel with William R. White,
Attorney at Law, repres.nted Plaintiff Brown in connection with all proc..ding. in the
aforesaid wrongful death action in the United stat.. District Court which was concluded
November 1, 1993, by ord.r Approving Settlement signed and .nt.r.d by The Honorabl. G.
Ross Anderson, Jr., Unit.d stat.. District Judge.
~
16. At all tim.s and at all .tag.s of the numerous court proc..dings, an
adversarial relationship existed between the Plaintiffs her.in and the D.fendants
herein. At no time did the Defendants, or eith.r of them, .ver repr.sent the
Plaintiffs, or any of th.m, in connection with the aforesaid wrongful d.ath proceeding,
the aforesaid d.claratory jUdgment proc.eding or in connection with any oth.r matter
concerning the Estate of Nicholas W. Lagaza, d.ceased.
17. On or about S.ptember 27, 1993, Plaintiff Brown receiv.d from the Defendants a
letter dat.d S.ptember 21, 1993, a copy of which is attached hereto, marked "Exhibit
-'
2
.-
A-1", and incorporated herein by reference, assertinq a claim aqainst ths Estate of
Nicholas W. Lagaza in the amount of $24,611.80 for legal services rendered said Estate
and expenses incurred primarily in conneotion with representation of said Estate in the
aforesaid litigatio~ of the wrongful death action. Attached to said "Exhibit A" was an
invoice consisting of twenty-five (25) pages billed to Nicholas , candace Lagaza, 141
Juniper Drive, Etters, PA 17319. OIIly paqe 10 of said invoice, which sets forth the
invoice sUlllDlary, is attached hereto, marked "EXhibit A-2", and incorporated herein by
reference. The Defendants presented the aforesaid claim to plaintiff Brawn, and
Plaintiff Brawn received the said claim fram the Defendants, at his residence in
charlotte, Mecklenburg county, North carolina, which said act by Defendants has invoked
personam jurisdiction of the North carolina Courts aver the Defendants.
18. on october 27, 1993, plaintiff Brown unequivocally rejected the aforesaid
claim in its entirety in writinq as evidenced by his letter of rejection dated october
27, 1993, a copy.of which is attached hereto, marked "Exhibit B" and incorporated
herein by reference. Plaintiff Brown delivered said letter of rejection to the
Defendants on october 27, 1993, by transmitting a copy of the same via facsimile to
Defendants' telefax number as printed on Defendants' letterhead stationery. Also,
plaintiff Brown delivered a copy of said letter of rejection to the Defendants by
mailinq a copy thereof in an envelope, postage paid, first class mail, addressed to the
Defendants at their office address printed an said "EXhibit A-1", deposited on october
27, 1993, with the united States postal service at Charlotte, North carolina,
19. NO reference of the said claim has been made pursuant to the provisions of
North carolina ceneral statutes section 28A-19-15, and no action was instituted by the
Defendants, or either of them, for the recovery of said claim, or any portion thereof,
within three months of Defendants' receipt of plaintiff Brawn's aforesaid written
notice of rejection as required by North carolina General statutes section 28A-19-16.
20. The Plaintiffs are informed and believe and therefore alleqe that recovery of
the Defendants' aforesaid claim in the amount of $24,611.80 (or any lesser amount
thereof) is hereby forever barred as against the Plaintiffs for failure to institute an
action for recovery within the three-month statute of limitations prescrined by North
carolina General statutes section 28A-19-16, which said statute of limitations the
Plaintiffs hereby affirmatively plead in bar of the Defendants' right of recovery
against the plaintiffs on account of the aforesaid claim.
21. The aforesaid notice of rejection inures to the benefit of all Plaintiffs in
this declaratory judgment action.
22. On or about March 7, 1994, the Defendants, throuqh their iegal counsel in
Harrisburg, Pennsylvania, notified the Plaintiffs in writing by letters dated March 2,
1994, that they intend to pursue the aforesaid claim aqainst the Plaintiffs throuqh
litiqation in the court of common pleas in cumberland county, pennsylvania, by filinq a
civil action against the plaintiffs for recovery of said claim by April 1, 1994. The
Defendants, throuqh their counsel, after creditinq prior payments on the account by
Nicholas and candace Lagaza, reduced the aforesaid monetary claim to $24,126.23.
Pursuant to receipt of said recent demand for payment by Defendants' counsel, it
appears to these plaintiffs that litigation is unavoidable.
23. The Plaintiffs adamantly deny that they, either singularly or collectively,
owe the Defendants any portion of the claim whatsoever, however, the Plaintiffs are
informed and believe and therefore allege their denial of liability should be moot in
this action for the reason that the Defendants' aforesaid claim has been barrecr, in its
entirety, against the Plaintiffs,
24, The Plaintiffs are informed and believe and therefore allege an actual
controversy exists between the plaintiffs and the Defendants ss to whether or not the
aforesaid claim is barred by statute. Pursuant to the provisions of North carolina
General statutes section 1-255, the Plaintiffs have standinq to institute this action.
25, The only asset which has come into the hands of plaintiff Brown, as
Administrator of the Estate of Nicholae W. Lagaza, has been wronqful death recovery
--
3
.-
proceeda, the uae and diapoaition ot which are governed and reatricted by Horth
carolina General statutea section 2BA-1S-10(C) and section 28A-18-2.
WBERD'ORE, the plaintiffa hereby waive oS trial by jury in thb action and
reapecttully pray the Court tor the tollowing reliet:
1. That the cou..-t adjudicate whether or not the Detendanta' doreaaid claim b
barred aa againat the plaintiff a purauant to the proviaioM ot Horth carolina General
statute.. 28A-19-U, and .
2. It the atoreaaid clailll b not barred, that the court adjudicate the dor..aid
clailll ia not a debt or obligation ot any ot the P1aintifts, and
3, That the costs ot this action be taxed u the court detllllll app;"opriate, and
4. That the plaintiffs have and recover such other and turther reliet u the
Court may deem just and proper.
This the //~ day ot Karch, 1994.
WITZ '~AL~~ ," /
By: _~~
W.1U R1:rJte
Attorneys tor plaintitts
P. O. Box 1589
602 South Caldwell street
Brevard, North carolina 28712
704/884-2334
STATZ OF HOR'rH CAROLINA
COUN'rY OF KECXLEHBlJRG
W. BERBER': BROWN, JR" being tirst duly sworn, deposes and saya that he is one ot
the plaintitts in the toregoing complaint' that he hu read the toregoing complaint and
knowe the contents thereot, and that the Slllllll is true ot his own knowledge except as to
thoee matters therein etated upon intoxmation and beliet and as to thoee matters he
believea it to be true.
JII/~~j
W. B~ert Brown,~r., Pluntiff
subecribed and aworn to betore
me thie ~day ot Karch, 1994. ~
;1t~ J/: .<1tit~
Notary Public I"
My cOllllllisaion expires: 144.:l-tf.r
."
4
.-
ARTHUR T. McDERMOTT & ASSOCIATES
A Plar.nlanal Calpollllan
Atlorneys and Counsellors.al.Law
Fifty East High Street
P .0, Box 246
Carlisle, Pennsylvania 17013-0246
(717) 243-7807
Anhur T. McDermou.
Telefax 243.9766
Of Counsel
Richard A, Burr. Esquire
James J, !Cayer
Palrlcla R, Brown
Salira M, Quarles..
.. AdmIllrd 10 pllClicc In
Callrarala
. AGlnlllrd 10 Pnalcc In P_,I.anIa
and .be DillricI or Columbia
Scptcmber21,1995
W, Herbert Brown, Esquire
4009 River Ridge Road
Charlotte, N,e. 28226
Re: Legal feca - Lagaza Estate
Dear Mr. Brown:
10 accordance with your request for information regarding the lime spent by this
law firm on the Lagaza .........r (less the auit regarding domicile) the aaached invoice II
hereby submitted. It II my unden12ntll'1g that we will be reimbuned for fea and
expenses ona: the wrongful death action seales.
For your information, we have billed all hours at the r.ue of $100.00 per attorney
hour regardless of which attorney logged them. On the invoice DC uands for Benjamin
Cero, DP stands for Desiree Peaus. JK stands for James Kayer, and PB SIallds for Pauicia
Brown. A1Ili1ling not identified refer to my lime. The normal billing rates for those
attorneys are: McDermott $150,00 per hour, Cero $125.00 per hour, Kayer $100,00 per
hour, Petnll $100.00, Brown $100,00, I have purged all references to lime spent on the
domicile contest. and the hours claimed reflect time ......,..I\y spent and required on the
wrongful death action. If there are any questions regarding those hours. please conlaCt
me, I know that Marilyn Chapman questions my trip to the Nonh Carolina Worker's
Compensation maacr, howeW!J', there were two reasons for doing thai. F'mt was the
funeral expenses. Second was the faa that the carrier was placing a lien against the
wrongful death recovery. I believe, and I conlaCted a Nonh Carolina anorney who
confirmed my belief, that the lien can be II........"u11y challenged. If you desire I can give
you the name of that attorney. Lastly, anached to the invoice are the charges related to
the services of Nelson, Mullins, Riley and Scarborough billed to and owed by this office in
that JDaUeI:. I hope that these meet your requirements. .
Very trUly yours.
ARTHUR T. MCDERMOlT AND ASSOCIATES
..
~~d~
ur'T.l'dcDennott
ATM/IS
cc: Nelson, Mullins, Riley & Scarborough
P.O. Box 11070
Columbia, S.e. 29211
-'
EXHIBIT A-1
/"
.-
NICHOLAS' CAHDAHCB LAGAZA
Dat. 09/03/93
Palle 10
AkOUM,
.-...--
-
05/11/93-Bxpense for transcript of KAren
FiDkenbender - $25.00
-----
'total costs
'total time and expense charges
08/28/92 Payment from account
11/14/92 Payment from account
11/30/92 Payment - thank you
02/21/93 Payment - thank you
04/29/93 Payment - thank you
'total Payments
(
(
(
(
(
(
$5855.30
$24611.80
3.00)
247.00)
22.21)
28.00)
185.36)
--------
$485.57)
Balance Due
.----.--.
$24126.23
...--.--..............................................-.-
Previous balance of retainer account
Payments made from retainer account
Payments made into retainer account
(
$0.00
$250.00)
$250.00
***EXPLANAT.ION OF RETAINER ACCOUNT
Nicholas Lagaza paid $500 retainer to the firm to be used for
expenses incurred to 9pen the estate and initiate wrongful death
action in South Carolina. Therefore, the $500 retainer was split
with one hall in estate account and one hale in wrongful death action
IIccount.
-'
EXHIBIT A-2
.-
W, HERBERT BROWN, JR.
AmlIHIY AT L\w
("aue--.. BlowN IIcltlPfNG
301 SoUTH McDDww. Snur, SUm 609
CH.w.am. NC 2lI2IN
171M) 33W67I . F.u ~
OCtober 27, 1993
-
,
TRAHSMr~D ~A PACSIMrLE 717/243-9766
Hr. Arthur '1'. HcDenlOtt
Arthur '1', HcDenlOtt , Auoci.t..
Attorn.y. and coun..llor.-.t-Law
P. o. Box 246
carli.l., PA 17013-0246
Ra: ..t.ta of Hichol.. w. Lag... (dac....d 8/14/921
D.ar Hr, HcD.nIOttl
,
I am in r.c.ipt of your l.ttar of ..ptamhar 21, 1993, tog.th.r with. copy of your
invoic. to Hicbol.. , candac. Lag... in 1:ha total &mount of $24,611.80 for l.gal f...
.nd co.ta in conn.c1:ion with th. ~.-nfar.nc.d ..1:&1:&. Attar h.vinll oar. fully
r.vbwad th... dolllllllllnt., I do aat. ball.". any of th. 1.9al f... or co.t. incurr.d 18
the oblig.tion of 1:ha Harth carol1Da ......lnl.tr.tor of th. ..1:&ta of Hichol.. w. Lagu..
'l'o clarify my po.itian, you and I h.". aa".r had any .~nt far you to repr..en~
th18 E.1:&t. in .ny matter. You ware hired by th. Pel1D.ylvania ......lnl.tr.tor who opened
.nd c_nced adIIIiDi.tr.1:ion of an e.1:&1:& in an iIIIproper juriadiction,
We h.v. nev.r had an UDder.tanding th.t th. Harth carolina ..1:&te would ba
re.pon.ible for th. p.yunt of any of your fe.. or co.t.. My only .gre_nt for
p.yunt of legal fee. 18 with william R. lfhita, Attorn.y .t Law, Brevard, Harth
carolin., and cal1i.on '1'ighe Robin.on , ADa.ta.ion, Attorn.y. .t LaW, columbi., 80uth
Carolin., in cOllllection with the wrongful da.th litig.tion. I wiah to point out th.t
th... legal f..., e".n though .greed to, are .ubject to 1:ha .pproval of th. court for
the nuon th.t the .01. beneficiary 18 . mnor. I al.o wiah to point out th.t 1:ha
only ....t in th. Harth carolin. ..t.ta i. . wrongful'da.th c.u.e of action which i.
non-prob.t. property. '1'har. 18 no .ourc. of funda .vailab1e in the Harth carolina
E.t.t. for tb. p.yunt of your fe.. and co.t. which .pparently war. contr.ct.d for by
Hr. L.g.za, sr., probably on . contingent f.. bad.. If you took thi. mattar on .
contingent f.. b..18 pur.u.nt to your contract with Hr. Laga.., Sr., you would bave
don. .0 .t your own peril in th. event 110 recovery w.. oht:&1n.d by th. Pellll.ylvani.
E.t.ta. .
My purpo.e for writing you thi. lettar certainly 18 not to irritate youl however,
I f.al I need to clarify my polition for th. r.cord. '1'her.fore, I, .. Adm1ni.trator of
th. E.tat. of Nichola. W. Lagua, b.r.by rej.ct all charg.. contained in your afor..aid
.tatement, inCluding tho.e rel.ting both to legal .ervic.. and co.te incurred.
~
W. Berbe~ Brown, Jr.
~
WHBjr:kb
cc: Hr. william R. White (via Fax 704/884-65271
Attorn.y .t Law
Hr. Richard c. Detwil.r (via Fax 803/256.64311
Attorney at Law
-'
EXHIBIT B
('
9. Admitted.
10. Admitted in part and denied in part. It is admitted that
Nicholas Lagaza, the deceased's father instituted the civil action
in the U. S. District Court for the District of South Carolina. The
lawsuit was filed on behalf of the Estate. Nicholas W. Lagaza, II
was listed as a plaintiff in order to assure his riqhts were
protected, not as a plaintiff/client,
11. Admitted in part and denied in part, It is admitted that
Plaintiff Brown was appointed Administrator of the domiciliary
North Carolina estate of Nicholas W, Laqaza~ it is further noted
and averred that Nicholas Lagaza, father of the deceased was duly
appointed and determined by Court Order to be the Administrator of
the ancillary Pennsylvania estate of Nicholas W. Lagaza.
12. Admitted.
13. Admitted in part and denied in part. It is admitted that
an Action for Declaratory Judgment was instituted in the Orphans
Court Division of the Court of Common Pleas of Cumberland County,
Pennsylvania, and that the Court entered judgment that the proper
domicile of Nicholas W. Lagaza was Charlotte, North Carolina on the
date of his death. No appeal was taken from that Order.
Defendants believe and therefore aver that the Plaintiffs were not
reauired to appear in the proceedings, and in fact did not provide
testimony therein. Local counsel capably represented the North
Carolina estate and its Administrator Herbert Brown, Esquire. Mr.
Brown was the only plaintiff whose presence was appropriate in the
Pennsylvania proceedings.
('
14. Admitted.
15. Admitted in part.
It is admitted that Plaintiffs
Detwiler and Callison represented Plaintiff Brown in some of the
legal work in the wrongful death action1 however, the Defendants
subsequent to filing the Complaint in that action, also did
significant quantities of legal work in the procsedings, and
retained local counsel in South Carolina who also provided
significant assistance in prosecuting the action.
Defendants
provided Plaintiffs Detwiler and Callison the complete files in the
matter in order to assist Plaintiffs in settling the case.
Defendants incurred significant expenses in developing those files.
Plaintiff Detwiler assured Defendant McDermott that McDermott would
be paid on a "quantum meruit" basis for the legal work done by
McDermott and McDermott Associates, to include the expenses
incurred in retaining the law f~ of Nelson, Mullins, Riley and
Scarborough as local counsel. Defendant has no knowledge as to the
settlement Order entered by the U.S. District Judge.
16. Denied that an adversarial relationship existed between
Plaintiffs Detwiler and Callison and Defendants subsequent to the
determination of the domiciliary estate. After Plaintiff Detwiler
requested Defendants' files, those files were provided on the
understanding that Defendants would be re.iJllburs'Eld on a ouantum
meruit basis for work performsd and expenses incurred in the
wrongful death action. A bill was prepared by Defendants for said
legal work and is attached as Exhibit "A-l" to the Complaint in
this action. The Defendants also performed significant legal work
on the ancillary Estate of Nicholas W. Laqaza in Pennsylvania.
I!
,
j:
f'"
c
17 . Denied that an adversarial relationship existed between
.Plaintiffs Detwiler and Callison and Defendants subsequent to the
determination of the domiciliary estate. After Plaintiff Detwiler
requested Defendants' files, those files were provided on the
understandinq that Defendants would be reimbursed on a auantum
meruit basis for work perfo:cDed and expenses incurred in the
wronqful dea~h action. A bill was prepared by Defendants for said
leqal work and is attached as Exhibit "A-l" to the Complaint in
this action.
18. Admitted,
19. Admitted in part.
20. This paraqraph is a conclusion of law and requires no
Answer 7 however, to the extent an Answer may be required it is
noted that the statute of limitations referred to relates to claims
aqainst Estates and does not bar a claim against Defendants
Detwiler and Callison,
21. This paraqraph is a conclusion of law and requires no
Answer 7 however, to the extent an Answer may be required it is
noted that the statute of limitations referred to relates to claims
aqainst Estates and does not bar a claim against Defendants
Detwiler and Callison.
22. Admitted in part and denied in part. The notice of
rejection may inure to the benefit of the Estate, but ont to the
benefit of Detwiler and Callison.
23. This paraqraph is a conclusion of law and requires no
Answer 7 however, to the extent an Answer may be required it is
denied that the statute of limitations referred to relates to
~
("
e
.
.
CKR-:rrp:lCAft OP S15KV.LCB
I hereby certify that a true copy of tlie foreqoing Answer WIlS
served on the below named person(s), by first class mail, postage
prepaid, addressed toe
William R. White, Isquire
P.O. Box 1589
602 South Caldwell Street
Brevard, HC 28712
Date 1/..-/1"-'1'1
~~~Sq.
50 East High Street
Carlisle, PA 17013
(717) 243-7807
.
"
."
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c:\wp5lIcjlldttwllct..... file '4393-94-01
...
ARTHUR T. McDERMOTT. ESQUIRE.
and ARTHUR T. McDERMOTT and
ASSOCIATES, a Professional
Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Plaintiffs
v.
NO, 94-3061 CIVIL TERM
RICHARD C, DETWILER and CALLISON,
TIGHE, ROBINSON. and ANASTASION,
Defendants
JURY TRIAL DEMANDED
NQIlCE
YOU ARE HEREBY NOTIFIED to plead to the within Preliminary Objections within twenty (20)
days after service of these Preliminary Objections.
FLOWER, MORGENTHAL, FLOWER & LINDSAY
Attorneys for Defendants
By:
Date: ~11J1 f1t11
c:\wp.llleJllddwllot...... llIo '4393-94-01
...
ARTHUR T. McDERMOTT, ESQUIRE,
and ARTHUR T. McDERMOTT and
ASSOCIATES, a Professional
corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Plaintiffs
v.
.
,
NO, 94-3061 CIVIL TERM
RICHARD C. DETWILER and CALLISON,
TIGHE, ROBINSON, and ANASTASION,
Defendants
JURY TRIAL DEMANDED
NOW COMES Richard C. Detwiler, and Callison, Tighe, Robinson and Anastasion,
Defendants, by and through their counsel, FLOWER, MORGENTHAL, FLOWER & LINDSAY, and
file these preliminary objections in the captioned matter for the following reasons:
I, MOTION TO DISMISS FOR LACK
OF PERSONAL JURISDICTION
1. Defendant Richard C. Detwiler is an adult individual residing in South Carolina with a
business address of 1208 Washington Street, Columbia, South Carolina 29201.
2, Defendant Callison, Tighe, Robinson and Anastasion (hereinafter Callison Law Office)
is a partnership organized and existing under the laws of the State of South Carolina, with its
principal place of business at 1208 Washington Street, Columbia, South Carolina 29201.
3. Neither Defendant Detwiler nor Defendant Callison Law Firm has a place of business
in the Commonwealth of Pennsylvania. '
4. Service has been made on the Defendants at their offices In South Carolina by
registered mail.
c:\wp51Icjl\d<lwlkr,pob role' 439).94.()1
'.
5, Defendants do not conduct business In the Commonwealth, nor have they availed
themselves the privilege of conducting activities within the Commonwealth.
6. Defendants do not have minimum contacts with the Commonwealth which would
permit exercise of personal Jurisdiction.
7. Defendants on no occasion made a contract with Plaintiffs In Pennsylvania.
8. Even if this Court found that the Defendants did make a contract with Plaintiffs in
Pennsylvania, this Court would not have personal jurisdiction over the Defendants.
WHEREFORE, Defendants pray this Honorable Court to dismiss the Complaint for lack of
personal Jurisdiction.
II. MOTION TO DISMISS BECAUSE OF
PENDENCY OF PRIOR ACTION
9. On March 14, 1994, in the General Court of Justice, Superior Court Division, to the
number 94-CVS-3254, the Defendants herein, and others, brought a Declaratory Judgment Action
against Plaintiffs herein. The sole Issue raised by the North Carolina Complaint Is the liability of
Defendants herein for the same claim asserted in the instant action, A copy of the Complaint is
attached hereto as Exhibit "A".
10. Plaintiffs herein, on April 13, 1994, answered said Complaint, thus submitting the issue
in the present case to the jurisdiction of the Court in North Carolina. A copy of the Answer filed by
the Plaintiffs is attached hereto as Exhibit "B",
11. No judgment has been rendered by the North Carolina Court and the matter is still
pending.
2
c:\wp5llejl\dtlwilcr.pob file , 4393-'Jo4.()1
WHEREFORE, Defendants pray this Honorable Court to dismiss the Complaint because the
parties have submitted it to the North Carolina courts for decision.
III, DEMURRER
12. Plaintiffs failed to state a legally sufficient claim against Defendants in Counts III, IV and
V of the Complaint for unjust enrichment, nor do they state a claim for damages in quantum meruit.
WHEREFORE, Defendants pray this Honorable Court to dismiss Counts III, IV and V of the
Complaint for failure to state claim cognizable in the law.
FLOWER, MORGENTHAL, FLOWER & LINDSAY
Attorneys for Defendants
By:
~J
Carol J. U dsay, Esquire
ID # 446
11 East High Street
Carlisle, PA 17013
(717) 243-5513
Date:
?J4 ~//qqr
3
~
I, Richard C. Detwiler, Esquire, the undersigned, hereby verify that the statements made
in the foregoing Preliminary Objections are true and correct. 1 understand that false statements
herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification
to authorities.
<;f!~f J1J/+
Richard C. Detwiler, Esquire
Date:
b, So - r,l
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I ,", II
'. I
. "
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
94-CVS- 3~Sfl'
, '.
, '
. t.' *
VB,
W. HERBERT BROWN, JR., )
ADMINISTRATOR OF ESTATE I,
OF NICHOLAS W. LAaAZA,
DBceaBBd, RICHARD C. I
DETWILER and CALLISON )
TIGHE ROBINSON , ANABTABION, I
a South Carolina Genaral I
partnBrship, ,
)
)
I
)
I
)
)
I
)
COMPLAINT
(Jury Trial waivBd)
plaintiffs,
ARTHUR T. McDERMOTT and
ARTHUR T. McDERMOTT ,
ASSOCIATES, a ProfBssional
Corporation,
Dafandants,
Pursuant to Articla 26 Bntitlsd "DBclaratory JudgmBnts" of chaptBr 1 of thB North
Carolina GBnaral statutas, ths Plaintiffs institutB this action and accordingly a11BgB
and Bay:
1. Tha Plaintiff, w. Harbsrt Brown, Jr. (hBrBinaftBr callBd Plaintiff Brown), is
a citizBn and rasidsnt of Macklanburg county, North carolina,
2. ThB Plaintiff, Richard C, DstwilBr (hBrBinaftBr callBd Plaintiff DBtwilBr), is
a citizBn and rasidant of Karshaw county, South Carolina,
3. Tha Plaintiff, callison Tighe Robinson' AnastaBion (hBrBinaftBr callBd
Plaintiff callison), is a South Carolina ganBra1 partnBrBhip with an officB and
principal place of busina.s in Columbia, South Carolina,
4, ThB P1aintiffB arB informed and bB1iBvB and thBrBforB a11BgB that thB
DBfandant, Arthur T, MCDarmott (herBinaftar ca11Bd DBfBndant McDBrmott), iB a citizBn
and rasidant of Cumbarland county, Pannsylvania.
S. The Plaintiff. ara informad and baliBvs and thBrBfore a11egB that thB
Dsfendant, Arthur T. McDarmott , A.sociatas (herBinaftBr called corporate DBfendant),
iB a pann.ylvania profa.Biona1 corporation with an officB and principal place of
business in car1isla, pann.ylvania,
6. Plaintiff DBtwilar is, and at all timBs hsrBin alleged, an attornBY at law
dUlr licansBd by tha Stata of South Carolina and iB a partnBr in thB law firm of
Pla ntiff Callison. Plaintiff Calli Bon is, and at all times herB in allBgBd, a law firm
Bngagsd in tha practica of law in thB State of south Carolina.
7. Plaintiff. ara informed and bBliBve and thBreforB allBge DBfendant McDBrmott
is, and at all timas hsrain a11Bgsd, an attornBY at law duly 1icBnsBd by thB
Commonwealth of pann.ylvania snd is, and at all timBs herein allBged, an officer,
diractor and managing agant of the corporate DBfsndant.
8, Nichola. Wa.i1 Lagaza (Bams pBrBon aB NicholaB w, Lagaza) diBd AUgUBt 14,
1992, a. a ra.ult of injuriBs .ustainBd in an automobilB accidBnt in chBrokeB county,
South Carolina, At the timB of hiB dBath, Nicho1aB WaBi1 Lagaza waB domicilBd in the
stata of North Carolina and was a citizBn and rBBidBnt of MBck1Bnburg County, North
Carolina. Tha civil action antitlBd Prown vs, crutchfield, aB hBrBinaftBr BBt forth
morB fully, wal an .ction inBtitutBd aB a rBBult of injuriBB to and dBath of NicholaB
WIIIH LBga.. which BrOIB out of thB aforBsaid automobHB accidBllt.
9. On or about september 2, 1992, Nicholas Lagaza, the decedent's father, was
appointed Administrator of the Estate of Nicholas w. Lagaza by Letters of
Administration issu,d by the Register of wills for cumberland county, pennsylvania.
10. On November 3, 1992, Nicholas Lagaza, as Administrator of Estate of Nicholas
W. Lagaza, deceased, and on behalf of Nicholas W. Lagaza, II, a minor, institut.d a
civil action in the united states District court for tha District of south carolina,
spartanburg Division, indexed as Case No. 7-92-3156-3, wherein the plaintiff in said
action sought to recover damages for the injuries and wrongful death of Nicholas W.
Lagaza and for the injuries to Nicholas W. Lagaza, II. The attorneys of record for the
plaintiffs in said civil action included Arthur T. McDermott , Associates (the
corporate Defendant herein) by Arthur T. McDermott (Defendant McDermott herein) and
Benjamin A. Cero.
11. On December 22, 1992, Plaintiff Brown was appointed Administrator of the
Estate of Nicholas W. Lagaza by the Clerk of superior court for Mecklenburg county,
North carolina. since his said appointment, Plaintiff Brown continuously has remained
the duly qualified and acting Administrator of the Estate of Nicholas W. Lagaza and
currently is the said duly qualified and acting Administrator of the Estate of Nicholas
W. Lagaza.
12. subsequent to December 22, 1992, Plaintiff Brown, by and through his attorneys
of record, Plaintiffs Detwiler and callison, filed a motion in said United states
District court civil action to intervene as party plaintiff, which said motion was
contested by Defendant McDermott but, after being heard by the Court, was allowed. No
appeal was taken from said order allowing intervention.
13. On January 29, 1993, Nicholas Lagaza, as said pennsylvania Administrator, by
and through his attorney, Arthur T. McDermott and Associates (the corporate Defendant
herein) by Arthur T. McDermott (Defendant McDermott herein), instituted an Action for
Declaratory Judgment in the orphans' Court Division of the court of common please for
Cumberland county, Pennsylvania, indexed as case No. 21-92-703, against Plaintiff Brown
wherein the said Pennsylvania Administrator sought a declaratory judgment as to the
domicile of Nicholas w. Lagaza at the time of his death, whereupon the said declaratory
judgment action was heard April 28 and 29, 1993, before The Honorable Harold E. Sheely,
presiding Judge. The Plaintiffs herein, in order to protect their rights and etatus in
said wrongful death action, were required to retain Pennsylvania counsel and travel to
carlisle, Pennsylvania, at substantial expense, for the purpose of attending said
hearing and being heard on the issue raised therein. On June 9, 1993, Judge sheely
entered his Order adjUdicating the proper domic1e If Nicholas w. Lagaza as of his date
of death was Charlotte, North Carolina, No appeal was taken from said Order.
14, subsequent to the aforesaid Pennsylvania adjudication of domicile, Plaintiff
Brown filed a motion in said United states District court to be made sole plaintiff in
the wrongful death cause of action, which said motion was allowed by the Court. No
appeal was taken from the Order allOWing said motion.
15. Plaintiffs Detwiler and callison, as co-counsel with william R. White,
Attorney at Law, represented Plaintiff Brown in connection with all proceedings in the
aforesaid wrongful death action in the United states District Court which was concluded
November 1, 1993, by Order Approving Settlement signed and entered by The Honorable G.
Ross Anderson, Jr., United States District Judge.
16. At all times and at all stages of the numerous court proceedings, an
adversarial relationship existed between the Plaintiffs herein and the Defendants
herein. At no time did the Defendants, or either of them, ever represent the
Plaintiffs, or any of them, in connection with the aforesaid wrongful death proceeding,
the aforesaid declaratory judgment proceeding or in connection with any other matter
concerning the Estate of Nicholas W, Lagaza, deceased.
17. On or about september 27, 1993, Plaintiff Brown received from the Defendants a
letter dated september 21, 1993, a copy of which is attached hereto, marked "Exhibit
2
A-1", and incorporated herein by reference, aeeerting a claim againet the Eetate of
Nicholae w. Lagaza in the amount of $24,611.80 for legal eervicee rendered eaid Zetate
and expeneee incurred primarily in connection with repressntation of eaid Eetate in ths
aforesaid litigatio~ of the wrongful death action. Attachsd to said "Exhibit A" was an
invoice coneieting of twenty-five (25) pagee billed to Nicholae , candace Lagaza, 141
Juniper Drive, Etters, PA 17319. only page 10 of eaid invoice, which eete forth the
invoice summary, is attached hereto, marked "Exhibit A-2", and incorporated herein by
reference. The Defendante preeented the aforeeaid claim to plaintiff Brown, and
Plaintiff Brown received the eaid claim from ths Defendante, at hie reeidence in
charlotte, Mecklenburg county, North carolina, which eaid act by Dsfendante hae invoked
pereonam juriediction of the North carolina courte over the Defendante.
18. On oct~ber 27, 1993, Plaintiff Brown unsquivocally rejected the aforesaid
claim in ite entirety in writing as evidenced by his lettsr of rejection dated october
27, 1993, a copy of which is attached hereto, marked "Exhibit B" and incorporated
herein by rsference. Plaintiff Brown delivered eaid lettsr of rejection to the
Defendants on october 27, 1993, by tranemttting a copy of the same via faceimile to
Defendants' telefax number ae printed on Defendants' lettsrhead stationery. Also,
Plaintiff Brown delivered a copy of said lstter of reJection to the Defendants by
mailing a copy thereof in an envelope, postage paid, first class mail, addressed to the
Defendants at their offics address printed on said "Exhibit A-1", depositsd on october
27, 1993, with the United states Postal service at Charlotte, North carolina.
19, No reference of the said claim has been made pursuant to the provisions of
North carolina General statutes section 28A-19-15, and no action was instituted by the
Defendants, or either of them, for the recovery of said claim, or any portion thereof,
within three months of Defendants' receipt of plaintiff Brown's aforesaid written
notice of rejection as required by North carolina Gensral statutes Section 28A-19-16.
20. The Plaintiffs are informed and believe and therefore allege that recovery of
the Defendants' aforesaid claim in the amount of $24,611.80 (or any lesser amount
thereof) ie hereby forever barred as against the Plaintiffs for failure to institute an
action for r~covery within the three-month statute of limitations prescribed by North
carolina Gensral Statutes Section 28A-19-16, which said statute of limitations ths
Plaintiffs hsreby affirmatively plead in bar of the Dsfendants' right of recovery
against ths Plaintiffe on account of the aforesaid claim.
21. The aforesaid notice of rejection inures to the benefit of all Plaintiffs in
this declaratory judgment action.
22. on or about March 7, 1994, the Defendants, through their legal counsel in
Harrisburg, pennsylvania, notified the Plaintiffs in writing by letters dated March 2,
1994, that they intend to pursue the aforesaid claim against the Plaintiffs through
litigation in the Court of Common ploas in Cumberland county, pennsylvania, by filing a
civil action against the Plaintiffs for recovery of said claim by April 1, 1994. The
Defendants, through their counsel, after crediting prior payments on the account by
Nicholas and candece Lagaza, reduced the aforesaid monetary claim to $24,126.23.
Pursuant to receipt of said recent demand for payment by Defendants' counsel, it
appears to these Plaintiffs that litigation is unavoidable.
23. The Plaintiffs adamantly deny that they, either singularly or collectively,
owe the Defendants any portion of the claim whatsoever I however, the Plaintiffs are
informed and believe and therefore allege their denial of liability should be moot in
this action for the reason that the Defendants' aforesaid claim has been barred, in its
entirety, against the Plaintiffs,
24. The Plaintiffs are informed and believe and therefore allege an actual
controversy exists betwesn the Plaintiffs and the Defendants as to whether or not the
aforeeaid claim is barred by statute. Pursuant to the provisions of North carolina
General statutes Section 1-255, the Plaintiffs have standing to institute this action.
25. Ths only asset which has come into the hands of Plaintiff Brown, as
Administrator of the Estate of Nicholas w. Lagaza, has bsen wrongful death recovery
~
3
proceeds, the use and disposition of which are governed and restricted by North
carolina General statutes section 28A-1S-l0(c) and section 28A-18-2.
WHEREFORE, the Plaintiffs hereby waive a trial by jury in this action and
respectfully pray the court for the following relief:
1, That the court adjudicate whether or not the Defendants' aforesaid claim is
barred as against the Plaintiffs pursuant to the provisions of North carolina General
statute~28A-19-16, and
2. If the aforesaid claim is not barred, that the Court adjudicate the aforesaid
claim is not a debt or obligation of any of the Plaintiffs I and
3. That the costs of this action be taxed as the court deems app~opriatel and
4. That the Plaintiffs have and recover such other and further relief as the
Court may deem just and proper.
This the //~ day of March, 1994,
lfHI'l'E '~ALT,~ I _ /
By: _ ,# ~
Will R~hlte
Attorneys for Plaintiffs
P. O. Box lS89
602 south caldwell street
Brevard, North carolina 28712
704/884-2334
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
W. HERBERT BRONN, JR., being first duly sworn, deposes and says that he is one of
the Plaintiffs in the foregoing complaint I that he has read the foregoing complaint and
knows the contents thereof, and that the S8me is true of his own knowledge except as to
those matters therein stated upon information and belief and as to those matters he
believes it to be true.
J111J:~
W. Her rt Brown, r., Plaintiff
SUbscribed and sworn to befors
me this ~day of March, 1994.
/Jt~ y: ,8~
Notary Public ~"
My commission expires: I~ 4.:l-74'
"
4
ARTHUR T. McDERMOTT & ASSOCIATES
A Prol...lo..1 Corporlllon
Allorneys and Counsellors-al.Law
Fifty East High Street
P ,0, Box 246
Carlisle, Pennsylvania 17013-0246
(717) 243-7807
Arthur T. McDermouo
Telefax 243-9766
Of Counsel
Richard A, Burr, Esquire
James J, Kayer
Patricia R. Brown
Sallra M, Quarlcs"
.. Admiucd 10 prlakc In
CIUlornla
. AlIlnillcd 10 PrlClkc In Penn.ylvanll
and the Dbllla 01 Columbll
Sep~ber21,I99S
W. Herben Brown, Esquire
4009 River Ridge Road
C1wlotte, N,C. 28226
Rc: Legal fees - Lagaza Estate
Dear Mr, Brown:
In accordance with your request for information regarding the time spent by this
law firm on the Lagaza matter (less the suit regarding domicile) the attached invoice Is
hereby submitted, It Is my underslanding that we will be reimbursed for fees and
expenses once the wrongful death action settles,
For your information, we have billed all hours at the rate of $100,00 per attorney
hour regardless of which attorney logged them, On the invoice Be slands for Benjamin
Cero, DP stands for Desiree Petrus,JK slands for James Kayer, and PB slands for Patricia
Brown, All listing not identified refer to my time, The nonnal billing rates for those
attorneys are: McDermott $150,00 per hour, Cero $125.00 per hour, Kayer $100,00 per
hour, Petrus $100,00, Brown $100,00, I have purged all references to time spent on the
domicile contest, and the hours claimed reJlect time actually spent and required on the
wrongful death action, If there are any questions regarding those hours, please contact
me. 1 know that Marilyn Chapman questions my trip to the Nonh Carolina Worker's
Compensation matter; however, there were two reasons for doing that. FIrst was the
funeral expenses. Second was the fact that the carrier was placing a lien against the
wrongful death recovel}'. I believe, and 1 contacted a Nonh Carolina attorney who
confirmed my belief, that the lien can be successfully challenged. If you desire 1 can give
you the name of that attorney, Lastly, attached to the invoice are the charges related to
the services of Nelson, Mullins, Riley and Scarborough billed to and owed by this office in
that mauer, 1 hope that these meet your requirements,
Vel}' truly yours,
ARTIlUR T, MCDERMOIT AND ASSOCIA~
~W~
.---:;....--'.
- - J\JU\ur,1':1dcDermott
-
ATM/ss
cc: Nelson, Mullins, Riley &: Scarborough
P,O, Box 11070
Columbia, S.c. 29211
EXHIBIT A-I
NICHOLAS , CAHDANCB LAGAZA
Date 09/03/93
Pafjle 10
AMOUH'r
------
~
05/11/93-Bxpense for transcript of Karen
Pinkenbender - $25.00
---------
Total costs
Total time and expense charges
08/28/92 payment from account
11/14/92 Payment from account
11/30/92 Payment - thank you
02/21/93 Payment - thank you
04/29/93 Payment - thank you
Total Payments
(
(
(
(
(
(
$5855.30
$24611.80
3.00)
247.00)
22.21)
28.00)
185.36)
---------
$485.57)
.........
Balance Due
$24126.23
..................---....................................
Previous balance of retainer account
Payments made from retainer account
Payments made into retainer account
(
$0.00
$250.00)
$250.00
***EXPLANATION OF RETAINER ACCOUNT
Nicholas Lagaza paid $500 retainer to the firm to be used for
expenses incurred to 9pen the estate and initiate wrongful death
action in South Carolina. Therefore, the $500 retainer was split
with one holf in estate account and one ho1f in wrongful death action
fteeoun t ,
"
EXHIIlIT ^-2
(-
.'
W, HERBERT BROWN, JR.
AT10INIY AT LAw
CuuION IlooWN Bu.LDIHC
301 SourH McDowau STUIT. SUln 609
CH.uLOTTl, NC 282lH
171M) 334-8678 . FAI moOOW
october 27, 1993
TRAN8MI~D V%A PACSIMILE 717/243-9766
Hr. Arthur '1'. McDermott
Arthur '1'. McDermott , A..ociatea
Attorneya and Counaellora-at-Law
P. O. BOX 246
carliale, PA 17013-0246
ReI Eatate of Nicholaa W. Lagaxa (deceaaed 8/14/92)
Dear Hr. McDermott:
.
I am in raceipt of your letter of september 21, 1993, together with a copy of your
invoice to Nicholea , Candace Lagaxa in the total amount of $24,611,80 for legal feea
and coata in ccnnection with the above-referenced eatate. After having carefully
reviewed theae documenta, I do not believe any of the legal feea or coata incurred ia
the obligation of the North carolina Adminiatrator of the Eatate of Nicholau W. Lagaxa.
'1'0 clarify my poaiticn, you and I have naver had any agreement for you to repreaent
thia Eatate in any matter. YOU ware hired by the Pennaylvania Adminiatrator who opened
and commenced adminiatration of an eatate in an improper juriadicticn.
We have never had an underatanding that the North Carolina Eatate would be
reaponaible for the payment of any of your fee a or coata. My only agreement for
payment of legal feea ia with william R. white, Attorney at Law, Brevard, ~orth
carolina, and Calliaon Tighe Robinaon , Anaataaion, Attorneya at Law, Columbia, South
carOlina, in connection with the wrongful death litigation. I wiah to point out that
thaae legal feea, even though agreed to, are aubject to the approval of the court for
the reaaon that the aole beneficiary ia a minor. I alao wiah to point out that the
only aaaet in the North Carolina Eatate ia a wrongful 'death cauae of action which ia
ncn-probate property. There ia no aource of funda available in the North carolina
Eatate for the payment of your fee a and ccata which apparently were contracted for by
Hr. Lagaxa, sr., probably on a contingent fee basis. If you took thia matter on a
contingent fee basia purauant to ycur contract with Hr. Lagaxa, sr., you would have
done ao at your own peril in the event no recovery waa obtained by the Penneylvania
Eatate.
My purpoae for writing you this letter certainly is not to irritate you; however,
I feel I need to clarify my poaition for the record. Therefore, I, aa Adminietrator of
the Estate of Nicholaa W. Lagaxa, hereby reject all charges contained in your aforeeaid
atatement, including thoae relating both to legal aervices and costa incurred.
Youre trUlY,,", ~
~
W. Herbert Brown, Jr.
WHBjrlkb
cc: Hr. William R. White (via Fax 704/884-6527)
Attorney at Law
Hr. Richard C. Detwiler (via Fax 803/256-6431)
Attorney at Law
0"
EXHIBIT B
,
",.."
~.3:,~.!~;"llt
h~':~';;iy,;::~;,c- :~>".' .~,.
EXHIBIT "B"
(-
('
STATE OP NORTH CAROLINA
COUNTY OP MECKLENBURG
I IN THE GENERAL COURT OP JUSTICE
I SUPERIOR COURT DIVISION
I 94-CVS-3254
~
W. HERBERT BROWN, JR., ADMINISTRATOR OP ESTATE
OP NICHOLAS W. LAGAZA, Deceased~ RICHARD C. DETWILER
and CALLISON, TIGHE, ROBINSON & ANASTASION, a South
Carolina General Partnership,
vs.
I
I
I
I
CDlilIi \D
~I~ ~R
I Ii ;g '"T1
Ie: _
Ijgw,
Ig =- m
Ie: ::E:
:c... ro-t
c;? "-'
;<
n C
U. 0'\
Defendants Arthur T. HcDeJ:mott and A:fthur T.
.
'.
Plaintiffs
ARTHUR T. MCDERMOTT and ARTHUR T. MCDERMOTT
ASSOCLATES, a Professional corporation,
Defendants
and
COKE NOW,
HcDeJ:mott and Associates, a professional corporation and Answers
Plaintiffs' Complaint and aver as followsl
1. Admitted.
2. Admitted.
3. Admitted.
4 . Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
B.
Additionally it is stated that Nicholas W.
,
Admitted.
Laqaza's domicile' was unclear and that he had assets and.-
liabilities of his estate in the Commonwealth of Pennsylvania.
"
" .
(
;
i
'1
I
I
I
\
9.
Admitted.
10. Admitted in part and denied in part. It is admitted that
Nicholas Laqaza, the deceased's father instituted the civil action
in tne u.s. District Court for the District of South Carolina. The
lawsuit was filed on behalf of the Estate. Nicholas W. Laqaza, II
was listed as a plaintiff in order to assure his riqhts were
protected, not as a plaintiff/client.
11. Admitted in pllrt and denied in part. It is admitted that
Plaintiff Brown was appointed Administrator of the domiciliary
North Carolina estate of Nicholas W. Laqaza~ it is further noted
and averred that Nicholas Laqaza, father of the deceased was duly
appointed and determined by Court Order to be the Administrator of
the ancillary Pennsylvania estate of Nicholas W. Laqaza.
12. Admitted.
13. Admitted in part and denied in part. It is admitted that
an Action for Declaratory Judgment was instituted in the Orphans
Court Division of the Court of Common Pleas of Cumberland County,
Pennsylvania, and that the Court entered judgment that the proper
domicile of Nicholas W. Laqaza was Charlotte, North Carolina on the
I
I;
i
,
I
I:
I
date of his death.
No appeal was taken from that Order.
Defendants believe and therefore aver that the Plaintiffs were not
reauired to appear in the proceedinqs, and in fact did not provide
testimony therein. Local counsel capably represented the North
Carolina estate and its Administrator Herbert Brown, Esquire. Hr.
Brown was the only plaintiff whose presence was appropriate in the
Pennsylvania proceedinqs.
"
('
14. Admitted.
15. Admitted in part.
It is admitted that Plaintiffs
Detwiler and Callison represented Plaintiff Brown in some of the
1eqal work in the wronqful death action~ however, the Defendants
~
subsequent to filinq the Complaint in that action, also did
siqnificant quantities of leqal work in the proceedinqs, and
retained local counsel in South Carolina who also provided
siqnificant assistance in prosecutinq the action.
Defendants
provided Plaintiffs Detwiler and ~allison the complete files in the
matter in order to assist Plaintiffs in settlinq the case.
Defendants incurred siqnificant expenses in developinq those files.
Plaintiff Detwiler assured Defendant McDermott that McDermott would
be paid on a "quantum meruit" basis for the 1eqal work done by
McDermott and McDermott Associates, to include the expenses
incurred in retaininq the law firm of Nelson, Mullins, Riley and
Scarborouqh as local counsel. Defendant has no knowledqe as to the
settlement Order entered by the U.S. District Judqe.
16. Denied that an adversarial relationship existed between
Plaintiffs Detwiler and Callison and Defendants subsequent to the
determination of the domiciliary estate. After Plaintiff Detwiler
requested Defendants' files, those files were provided on the
understandinq that Defendants would be reimburnd on a auantum
meruit basis for work performed and expenses incurred in the
wronqful death action. A bill was prepared by Defendants for said
,
leqal work and is attached as Exhibit "A-1" to the Complaint in
this action. The Defendants also performed siqnificant leqal work
on the ancillary Estate of Nicholas W. Laqaza in Pennsylvania.
"
('
c
17. Denied that an adversarial relationship existed between
.Plaintiffs Detwiler and Callison and Defendants subsequent to the
determination 'of the domiciliary estate. After Plaintiff Detwiler
requested Defendants' files, those files were provided on the
~
understandinq that Defendants would be reimbursed on a auantum
meruit basis for work performed and expenses incurred in the
wronqful death action. A bill was prepared by Defendants for said
leqal work and is attached as Exhibit "A-1" to the Complaint in
this action.
lB. Admitted.
19. Admitted in part.
20. This paraqraph is a conclusion of law and requires no
Answer~ however, to the extent an Answer may be required it is
noted that the statute of limitations referred to relates to claims
aqainst Estates and does not bar a claim aqainst Defendants
Detwiler and Callison.
21. This paraqraph is a conclusion of law and requires no
Answer ~ however, to the extent an Answer may be required it is
noted that the statute of limitations referred to relates to claims
aqainst Estates and does not bar a claim aqainst Defendants
Detwiler and Callison.
22. Admitted in part and denied in part.
The notice of
rejection may inure to the benefit of the Estate, but ont to the
benefit of Detwiler and Callison.
23. This paraqraph is a conclusion of law and require~ no
Answer~ however, to the extent an Answer may be required it is
denied that the statute of limitations referred to relates to
"
f
The Law Offices of SPERO T. LAPPAS
205 State Street
Post Office Box 808
Harrisburg, Pennsylvania 17108-0808
Telephone (717) 238-4286
FAX (717) 238-4826
By: SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Court Identification No. 25745
ATTORNEYS FOR THE PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire,
and Arthur T. McDermott and
Associates a Professional
Corporation,
Plaintiffs
.
.
CIVIL ACTION - LAW
v.
NO. c}~.30~1 ~ ~
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
.
.
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against
the claims set forth in the following pages, you must take action
within twenty (20) days after this Complaint and Notice are served,
by entering a written appearance personally or by attorney and
filing in writing with the Court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment may be
entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or
other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Court Administrator
Cumberland County Courthouse
4th Floor
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
The Law Offices of SPERO T. LAPPAS
Page 1
NOTICIA
Le han demand ado a usted en la corte. Si usted quiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir de la fecha de la
demand a y la notificacion. Usted debe presentar una apariencia
escrita 0 en persona 0 por abogado y archivar en la corte en forma
escrita sus persona. Sea avisado que si usted no se defiende, la
corte tomara medidas y puede entrar una orden contra usted sin
previo aviso 0 notificacion y por cualquier quaja 0 alivio que es
pedido en la peticion de demanda. Usted puede perder dinero 0 sus
propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,
VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
Cumberland County Courthouse
4th Floor
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
RESPECTFULLY SUBMITTED,
By:
Law Offi"a r SPERO T. LAPPAS
~A.AA
SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Ct. ID No. 25745
205 State Street
P.O. Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
ATTORNEYS FOR THE PLAINTIFFS
The
DATE:
The Law Offices of SPERO T. LAPPAS
Page 2
The Law Offices of Spero T. Lappas
205 State street
Post Office Box 808
Harrisburg, PA 17108-0808
(717) 238-4286
By: SPERO T. LAPPAS, ESQUIRE
Pa. Supreme Court identification no. 25745
ATTORNEYS FOR THE PLAINTIFFS
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA
Arthur T. McDermott, Esquire,
and Arthur T. McDermott and
Associates a Professional
Corporation,
.
.
.
.
CIVIL ACTION - LAW
plaintiffs
.
.
v.
.
.
NO. q</. .30(,/ ~ 1"".u--
.
.
Richard C. Detwiler and Callison,
Tighe, Robinson and Anastasion,
Defendants
JURY TRIAL DEMANDED
COMPLAINT
AND a~ thia;t ~ day of k, 199' coma tha P1aiotiffa
Arthur T. McDermott, Esquire, and Arthur T. McDermott and
Associates, a Professional Corporation, by and through their
attorneys The Law Offices of Spero T. Lappas, and make this
Complaint against the above captioned Defendants, respectfully
representing as follows:
1. Plaintiff Arthur T. McDermott is an adult individual
maintaining a practice of law at 50 East High Street, Carlisle,
Pennsylvania.
The Law Offices of SPERO T. LAPPAS
Page 3
2. Plaintiff Arthur T. McDermott and Associates, a
professional corporation, is a professional corporation organized
under the laws of the Commonwealth of Pennsylvania maintaining a
professional office for the practice of law at 50 East High Street,
Carlisle, Pennsylvania.
3. Defendant Richard C. Detwiler is an attorney licensed under
the laws of the state of South Carolina maintaining an office for
the practice of law at 1208 Washington Street, Columbia, South
Carolina 29201.
4. Defendant Callison, Tighe, Robinson, and Anastasion
(hereinafter "Callison Law Office") is a South Carolina general
partnership of attorneys maintaining an office for the practice of
law at 1208 Washington Street, Columbia, South Carolina 29201.
5. At all times material to this cause of action, Defendant
Richard C. Detwiler was the employee, servant, partner, or agent in
and of Defendant Callison, Tighe, Robinson, and Anastasion. All
actions which are described in this Complaint as having been taken
by Defendant Detwiler were taken pursuant to his partnership,
agency, employment, or servant status with Defendant Callison Law
Office and were taken in the course and scope of that relationship.
6. In 1992, Plaintiffs undertook the representation of
Nicholas and Candice J. Lagaza in connection with the establishment
of an estate for Nicholas W. Lagaza, deceased, and with respect to
the litigation of any causes of action which the clients or the
estate would have in connection with the death of Nicholas W.
The Law Offices of SPERO T. LAPPAS
Page 4
Lagaza. It was the Plaintiffs' desire, intention, and effort to
establish this estate in the Register of Wills Office and the
Orphans Court of the Court of Common Pleas of Cumberland County.
7. During the course of this representation, a controversy
arose as to whether the decedent's correct domicile was Cumberland
County, Pennsylvania or rather was in the state of South Carolina.
8. During this controversy, the Defendants represented those
claimants and litigants who were attempting to establish the
decedent's domicile in South Carolina and to pursue on behalf of a
South Carolina estate whatever claims resulted from the death of
Nicholas W. Lagaza, deceased.
9. In connection with the Plaintiffs' investigation and
preparation for the litigation concerning civil claims resulting
from the death of Nicholas W. Lagaza, deceased, the Plaintiffs
expended great and large amounts of time and effort, incurred
costs, and produced valuable investigative and other materials
which were all reasonable, necessary, proper, and valuable with
respect to the litigation of claims resulting from the death of
Nicholas W. Lagaza, deceased. A true and correct copy of the
Plaintiffs' statement of time and expenses is attached hereto and
marked as Exhibit A to this Complaint.
10. On or about May 13 or 14, 1993, there was a hearing or
other proceeding before the Court of Common Pleas of Cumberland
County for the purposes of determining whether or not an estate
would be opened in Cumberland County, Pennsylvania for Nicholas W.
The Law Offices of SPERO T. LAPPAS
Page 5
(- "-'.' -.< . -
Lagaza, deceased.
11. At that hearing, the South Carolina claimants and
litigants were represented by Defendant Detwiler and through him by
defendant Callison Law Office.
12. During the course of this litigation, specifically on or
about May 14, 1993 and within Cumberland County, Pennsylvania,
Plaintiff Arthur T. McDermott and Defendant Richard C. Detwiler had
numerous and diverse conversations concerning the Lagaza case.
13. At that time, date, and place, Plaintiffs and Defendants
agreed and contracted that Attorney McDermott would turn over to
Attorney Detwiler the file materials which Plaintiffs had produced,
generated, and accumulated in connection with their investigation,
preparation, and anticipated litigation of the Lagaza case, that he
would do so voluntarily and without the need for any litigation or
compulsory process, and that he would make his file available to
Attorney Detwiler and the Defendants for their use in the
Defendants' continued representation of the Lagaza plaintiffs.
14. In consideration and exchange for Attorney McDermott's
promises, Attorney Detwiler, and through him the Callison Law
Office, agreed to compensate the Plaintiffs at an hourly rate for
all work which they had done in anticipation, preparation, and
investigation of this anticipated Lagaza death litigation.
15. Attorney McDermott performed his promises under the
contract by turning over to Attorney Detwiler the Lagaza file
according to the terms and conditions which had been bargained for,
The Law Offices of SPERO T. LAPPAS
Page 6
agreed upon, and contracted between and among the parties.
16. Attorney Detwiler confirmed to Attorney McDermott that the
work which Attorney McDermott had done and the file materials which
Attorney McDermott promised to, and did, turn over to Attorney
Detwiler were valuable and necessary to the Defendants and their
clients in the continued prosecution of the Lagaza claim.
17. Attorney McDermott, after completing his responsibilities
under the contract with the Defendants, submitted to the Defendants
a bill for his services and expenses in accordance with the
agreement and contract which the plaintiffs made with the
Defendants. This bill is attached hereto as Exhibit A.
18. All services and expenses described on Exhibit A were
reasonable, necessary and proper.
19. The hourly rate charged by plaintiffs was reasonable.
20. Plaintiffs have made several demands upon the Defendants
for payment of this bill in accordance with the contract, but thus
far the bill remains unpaid.
21. Accordingly, pursuant to the contract, the Defendants are
indebted to the Plaintiffs in the amount of $24,126.23.
22. The Court of Common pleas in Cumberland County decided
that the proper domicile of the decedent Nicholas W. Lagaza was in
South Carolina.
23. Accordingly, Plaintiffs' representation of the Cumberland
County litigants and claimants terminated, and the case proceeded
to settlement or litigation by the Defendants in South Carolina.
The Law Offices of SPERO T. LAPPAS
Page 7
24. The file materials which Attorney McDermott turned over to
Attorney Detwiler were valuable to Attorney Detwiler, his firm, and
his clients in connection with the resolution of the Lagaza case.
25. By delivering the file materials to Attorney Detwiler,
Plaintiffs relieved the Defendants of the need and necessity for
recreating or performing the work which had already been done by
the Plaintiffs.
26. Plaintiffs believe and aver that the Defendants made use
of these file materials in connection with their pursuit of the
Lagaza case.
27. Plaintiffs believe and aver that the Lagaza case was
eventually resolved, either by litigation or settlement and that
the Defendants collected a fee in connection with the litigation
and resolution of that case.
6 28. Accordingly, the use of the Plaintiffs' file materials by
the Defendants without payment has resulted in an unjust enrichment
of the Defendants.
29. Furthermore, the Plaintiffs are entitled to payment
according to the terms of the Exhibit A on a auantum meruit basis.
COUNT 1
PLAINTIFFS V. RICHARD C. DETWILER
BREACH OF CONTRACT
30. All previous paragraphs of this Complaint are hereby
incorporated into this count by reference thereto.
The Law Offices of SPERO T. LAPPAS
Page 8
WHEREFORE, the Plaintiffs demand judgment against this
Defendant in the amount of $24,126.23.
COUNT 2
PLAINTIFFS V. CALLISON, TIGHE, ROBINSON, AND ANASTASION
BREACH OF CONTRACT
31. All previous paragraphs of this Complaint are hereby
incorporated into this count by reference thereto.
WHEREFORE, the Plaintiffs demand judgment against this
Defendant in the amount of $24,126.23.
COUNT 3
PLAINTIFFS V. RICHARD C. DETWILER
UNJUST ENRICHMENT
32. All previous paragraphs of this Complaint are hereby
incorporated into this count by reference thereto.
WHEREFORE, the plaintiffs demand judgment against this
Defendant in the amount of $24,126.23.
COUNT 4
PLAINTIFFS V. CALLISON, TIGHE, ROBINSON, AND ANASTASION
UNJUST ENRICHMENT
33. All previous paragraphs of this Complaint are hereby
incorporated into this count by reference thereto.
WHEREFORE, the Plaintiffs demand judgment against this
Defendant in the amount of $24,126.23.
The Law Offices of SPERO T. LAPPAS
Page 9
NICHOLAS LAGAZA
Date OS/26/94
HOURS
Page 2
AMOUNT
-----
------
-(BC)Call to Ms. Hickman at Chubb Ins 1.40
Company. Confer w/Atty McDermott reI
offer. Filed notes.
09/10/92-(BC)Review letter from Ms. Chapman's 1.50
attorney. Call to client reI status
Confer w/Atty McDermott reI Chapman
letter. Call to Atty Hall reI status
-(BC)Confer w/Atty McDermott and 1.60
client reI settlement offer. Confer
w/Atty McDermott re: Chapman letter.
09/1l/92-(BC)Draft claim letter to So. 0.50
General Insurance Company.
09/l4/92-(BC)Draft of claim letter. 0.25
09/15/92-(BC)Calls to insurance adjustor. 0.25
09/16/92-(BC)Call to insurance adgents reI 0.50
policies and facts of case.
09/1B/92-(BC)Confer w/Atty McDermott and Atty 0.50
Brown reI filing Complaint. Call to
Trooper Pearson re: charges on other
driver.
09/2l/92-Meet w/Atty Cero reI filing of 0.25
Complaint in South Carolina. Call to
Atty Wilkins reI representation in
US District Court.
-(BC)Draft of Complaint.
09/25/92-(BC)Draft of Complaint.
09/29/92-(BC)Call to Federal Courts. Pinished
drafting of Complaint.
09/30/92-Calls to Atty Wilkins and Sowell reI
representation in South Carolina.
-(BC)Call to Texas Department of
Motor Vehicles re: insurance
company. Conference w/Atty Horsman.
10/02/92-(BC)Confer w/Atty McDermott on
Complaint and South Carolina
attorney.
10/05/92-(BC)Calls to insurance companies.
10/06/92-(BC)Teleconference w/client. Call to
insurance agent.
10/0B/92-(PB)Call to Trooper Pearson. Call
from Trooper Pearson.
10/09/92-(BC)Teleconference w/insurance agent
Hickman. Call to NICR reI questions
on parentage of girlfriend's child.
3.50
1.25
0.50
0.25
1.00
0.25
0.75
0.50
0.50
1.00
NICHOLAS LAGAZA
Date OS/26/94
10/13/92-(BC)Receive and review insurance
letter.
10/lS/92-(BC)Receive and review letter from
State Farm.
10/20/92-(BC)Review of letter f~om State Farm
and respond. Review of Federal
Insurance Co letter and pictures of
accident scene.
-(BC)Call to Althin re: wages paid.
Confer w/Atty Brown on letters and
calls.
10/21/92-(DP)Legal research in library for
Pro Hac Vice Porm.
-(DP)Call to US Attorney re: Pro Hac
Vice Porm. Call from US Attorney.
-(BC)Prepare file for Atty McDermott
to take to South Carolina. Confer
w/client re: insurance policy and
status of case.
10/22/92-(BC)Draft Answer to State Farm
letter. Teleconference W/Atty Jacobs
re: parties to the case.
-To South Carolina - meet w/DA of
Cherokee County and Trooper Pearson.
Discuss case and accident - visit
scene of accident.
10/23/92-Meet w/Atty Jacobs re: Complaint and
admission to US District Court for
South Carolina.
10/26/92-(BC)Call to NWL's employer.
-(BC)Client conference re:
interrogatories and status of case.
Letter to Atty Jacobs w/Complaint
and interrogatories.
10/27/92-(BC)FaX pay records to Althin.
Teleconference w/State Farm. Attempt
to call Althin.
-(BC)Review notes of telephone
conversation.
10/2B/92-(BC)Draft answer to fax from Atty
Jacobs.
10/29/92-(BC)Confer w/Atty McDermott re:
status. Call to Atty Brearly at
Chubb Insurance re: W/C claim.
Confer w/Atty Brown.
HOURS
-----
0.50
0.17
2.00
0.50
1.00.
0.50
0.50
0.50
B.OO
B.OO
0.20
1.20
1.25
0.60
1.40
l.l0
Page 3
AMOUNT
------
NICHOLAS LAGAZA
Date OS/26/94
-(BC)Call to Althin Personel manager
re: pay records and future earnings.
Read, noted, filed Althin Fax.
-(BC)Teleconference to Atty Brearly
and Bill in NC. Conference w/law
clerk re: W/C claim.
10/30/92-(BC)Review interrogatories and
amended Complaint. C~ll to client.
-(BC)Legal research on W/C claims.
Teleconference w/Atty Hills and Atty
Bellon W/C. Confer w/Atty
McDermott.
ll/09/92-(BC)Reviewed copies of Complaint and
interrogatories filed in South
Carolina. Draft interrogatories for
defendants.
ll/10/92-(BC)Call to client re: status of
criminal processing. Call to Atty
Hall re: same. Draft interrogatories
for Sanqwin. Legal research.
11/11/92-(BC)Call to Atty Jacobs re: subpoena
for Althin. Continued work on
interrogatories. Claim letter to 50.
General Insurance.
-(BC)Confer W/Atty McDermott re:
course of actions. Draft
interrogatories for Crutchfield.
Teleconference w/Jacob's office.
11/12/92-Call to NC Atty Anderson. Fax
information re: W/C.
11/13/92-(BC)Call to Atty Jacobs. Continue
work on interrogatories for 5anqwin
and Crutchfield.
-Brief Atty Cero re: W/C and Atty
Anderson.
ll/14/92-(BC)Work on draft of interrogatories
to defendants. Claim letter to So
General Ins Co. Work on subpoena to
Althin for pay records.
ll/16/92-(BC)Draft of subpoena and insurance
claim letter. Draft of
interrogatories.
11/l7/92-(BC)Finished Crutchfield
interrogatories. Review of insurance
documents.
HOURS
0.50
1.25
1.00
1.80
4.40
3.40
3.17
1.70
0.25
1.30
0.10
1.25
2.BO
1.50
Page 4
AMOUNT
------
NICHOLAS LAGAZA
Date OS/26/94
ll/lB/92-(BC)Legal research on SC law on
damages in wrongful death action.
11/19/92-(BC)Finished interrogatories for
Sanqwin. Call to Atty Jacobs on SC
law. Review of notes. Teleconference
w/DA in SC on charges. Legal researc
11/23/92-(BC)Call to paralegal, Ms. Alford
re: service of complaint on Sanqwin.
Letter w/documents to SC. Work on
damage information format.
11/24/92-(BC)Work on damage format and
information.
11/2S/92-(BC)Teleconference w/Atty anderson
reI W/C claim.
11/30/92-(BC)Re-organize file. Teleconference
W/Atty Anderson ref W/C.
Teleconference w/Mr. Jakubel of
Althin re: pay records.
12/0l/92-(BC)Teleconference w/Atty McDermott
and Atty Anderson reI W/C claim.
l2/09/92-Call from client.
12/10/92-Meet w/client.
12/1l/92-(JK)Confer W/Atty McDermott and Atty
Cero reI underinsurance.
12/14/92-Meet W/Atty Cero re: background.
Calls to Mr/Mrs Lagaza ref rapidity.
Received authority at SOOK. Call to
Chubb Ins.
-Legal research re: North Carolina
W/C. Call to Anderson's law office.
Call to AAA ref trip info - make
reservations.
-(BC)Teleconference w/Atty McDermott
re: W/C and settlement. Telecon
w/Atty White (Chapman) in probate in
NC. Review of notes.
12/1S/92-Meet w/Atty Cero re: files to NC.
-To Raleigh NC. Review files. Call to
Atty Anderson. Legal research ref NC
worker's compensation.
-(BC)Teleconference w/Ms. Hickman,
insurance adjuster. Draft Fax to
Hickman and So General Insurance.
Telecon w/Atty McDermott re: status.
HOURS
3.50
1.80
4.50
2.10
0.25
1.40
0.25
0.20
1.00
0.40
1.50
1.50
. .~_J~:""
,
. .
" -.:
PageS.
,,-.
AMOUNT
------
,-.. '-
. .
.... ,.,,:'- "
1. 00 NO CHARGE
0.20
7.90
1.40
NICHOLAS LAGAZA
Date OS/26/94
12/16/92-Meet at Industrial Commission. Meet
w/Atty Mike Anderson re:
subrogations of W/C lien. Call to
Atty white. Legal research.
12/17/92-Return to Carlisle.
12/22/92-Call to Chubb inaurance supervisor
re: additional information. Fax copy
of Certificate of Administratic~ and
SC Complaint.
-(BC)Confer W/Atty McDermott re:
settlement and copied complaint and
fee agreement.
12/23/92-Call to Mr. Fisher re: settlement
offer.
12/24/92-(BC)Confer w/Atty McDermott re:
settlement. Draft letters to Chubb
Insurance and So General Insurance
re: settlement.
12/29/92-(BC)Review of file and notes of
conference w/Atty McDermott on
settlement.
01/04/93-Call to Dean Stewart.
01/07/93-Call from Jeff Jacobs. Call to Bob
Wilkins.
01/09/93-(BC)Reorganize file.
01/11/93-Call to client re; citizenship.
01/12/93-Draft Petition to W/C board in North
Carolina re: funeral expenses and
ambulance bills.
01/l7/93-Letter from Atty White - review and
draft response letter reI domicile.
01/1B/93-(BC)Review and file letters.
01/22/93-(BC)Review of South Carolina
attorney bill W/Atty Brown.
-(BC)Conference w/Atty Brown.
01/25/93-(BC)Letter to Atty Jacobs re;
insurance policies. Call from Atty
Hall re: status of criminal
proceedings against Sanqwin.
-Calls from and to Solicitor Hall.
Call to Mrs. Lagaza re: family
wishes. Call to Hall w/request for
maximum.
HOURS
Page 6
AHOUN'r
------
6.00
7.00
1.00
0.30
0.50
1.25
0.20
0.10
0.30
2.50
0.20
0.50
0.60
0.50
0.40
0.70
0.90
0.50
NICHOLAS LAGAZA
Date OS/26/94
Page 8
HOURS AMOUNT
----- ------
1.00
3.50
0.50
0.10
0.25 NO CHARGE
0.25
0.25
3.00
02/l5/9J-(BC)Review of Brief.
Conference w/Atty McDermott re:
survival action.
-Final draft of Brief in OPPOSition
to Motion to Intervene. Federal
express to US District Court.
02/17/93-(BC)Confer w/Atty Brearly reI
settlement. Confer
w/Atty McDermott.
02/19/93-Call to wm. Fisher (Chubb Ins).
02/21/93-(BC)Review of billing from SC Atty
Jacobs.
02/22/93-Meet w/Atty Cero re: settlement
against Cruthfield.
-(BC)Teleconference w/Mr. Fisher.
Letter to Chubb Ins reI authorizing
settlemetn w/So General Insurance.
02/23/93-(BC)Draft fax letter to Chubb Ins.
re: settlement authorization. Revise
file material. Draft Answers to
Interrogatories.
02/24/93-(BC)Conference w/Atty McDermott reI 2.25
settlement w/Southern General. Draft
Answers to Interrogatories. Review
letter from Atty Jacobs and Brief.
02/2B/93-(BC)Review and revised Answers to 2.75
Interrogatories. Draft Answers to
Request for Production. Confer
w/Atty McDermott re: settlement.
03/0l/93-(BC)Call to Mr. Fisher at Chubb Ins 0.30
re: settling.
03/02/93-(BC)Conference w/Atty McDermott re: 0.80
Motion and Notice of hearing. Call
to Chubb Ins re: settlement.
03/03/93-(BC)Call to Ms. Nunley at Chubb Ins. 1.30
Revise Answers to interrogatories.
Confer w/Atty Brown on medical
expenses.
-Call from client re: trip to SC and 0.20
purpose.
03/07/93-Legal research re: SC statutes, 2.00
cases on wrongful death and standing
of estates.
NICHOLAS LAGAZA
Date OS/26/94
-(CD)Legal research at DSL and on
Lexis.
03/1l/93-(BC)Review draft of Answers to
defense interrogatories. Confer
w/Atty McDermott.
-Travel to Greenville SC for Hearing
tomorrow with administrator.
03/12/93-Meet W/Atty Jacobs. To Courthouse
re: Hearing. Primarily Argument by
attorneys - no testimony. To SC
Probate Court re: estate forms.
03/15/93-Call to Greenville - Judge Anderson.
03/l7/93-Pre Trial memo due today. Pinal
draft completed and filed.
03/1B/93-Work on Answer to PO's. Call to
Judge Anderson - Order is imminent.
03/26/93-Receive and review Order from SC reI
granting Petition to Intervene.
04/07/93-(JK)Review opponents Answer and
Counterclaim. Confer W/Atty
McDermott.
04/12/93-Legal research re: wrongful
death/survivor.
OB/25/93-Letter to Atty White.
09/2l/93-Letter to Herb Brown re: statement.
09/27/93-Call to Atty Jacobs re: billing
statement.
ll/22/93-Letter to Atty Detweiler.
02/25/94-Call to Atty Lappas re: fee in the
wrongful death matter. Call to Nick
Lagaza.
03/01/94-Meet w/Spero Lappas.
03/1B/94-(CD)Law clerk research re: NC
statutes for response to Complaint.
03/24/94-Meet w/Atty Lappas re: Answers to
Complaint.
For Professional Services Rendered
"
HOURS
.~ id~i\;~~'~rf:..
. '>~1'.'f.tl?';;'
,~;~.:';':,J~.tii::'J'
. ."'1".;~"""
:}f{f:;~Y
,. .",;
page"g ;.: 'v'"
"':~~;' .
AHO~:t~/'
------
1.50
0.75
.. '
,'- ~ .!
.-( ,
,:~,S~~:'
10.00
B.OO
. ;;;~~';
~':';.<'-_~~':'t
v.' ::~ '.':,i~'
.r-\/"
~.~~~t-:
".
0.10
1.75
0.30
0.50
0.30
1.00
0.00 NO CHARGE
0.20 NO CHARGB
0.20 NO CHARGB
0.25 .NO CHARGE
0.50 NO CHARGE
0.50 NO CHARGE
2.00 NO CHARGE
0.50 NO CHARGE
-------- ---------
193.94 $lB756.50
"
. ,
1,6.,
NICHOLAS LAGAZA
Date OS/26/94
- .--
, . ,,'.--._T.
. -(.,~,.:.jt,.
, -.-!,j-, :r.f'
. ::.~~~~~:.~: ':
,.-' ,.)!.t~i\
'" _....,'='~..
",,~~..,
~. ~_-. ~~:'!f.r-.
page'lO-f,~!:
'-, ",
-. .....
'.. --;,.' -',
AMOUNT
------
Additional Charges:
OB/2B/92-Expense for SC Oept of Trans - $3.00
10/21/92-Filing expense in US District Court
$120.00
10/22/92-Travel expense: Hotel $111.25
Gas & meals - $37.96
01/29/93-Filing expense (Clerk of Courts)
$2B.00
03/05/93-Expense for filing in the Clerk of
Courts - $9.00
03/12/93-Expense for lodging during SC trip
$101.0B
04/l5/93-Expense for South Carolina attorneys
(Nelson,Mullins,Riley & Scarborough)
(Oct 92 thru present) $5,420.01
*see itemized bill*
05/ll/93-Expense for transcript of Karen
Finkenbender - $25.00
.~.
".,.
~.'. .
Balance Due
---------
$5855.30
$24611.80
( 3.00)
( 247.00)
( 22.21)
( 28.00)
( 185.36)
---------
( $4B5.57)
11II========
$24126.23
Total costs
Total time and expense charges
08/28/92 Payment from account
11/14/92 Payment from account
11/30/92 Payment - thank you
02/21/93 Payment - thank you
04/29/93 Payment - thank you .
Total Payments
aDaa====a====================D==============a======aa===D
Previous balance of retainer account
Payments made from retainer account
Payments made into retainer account
(
$0.00
$250.00)
$250.00
r( ~
'1 ""
:> -
Q ......
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<3 ~ J
~
0
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~
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"
/'
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire
and Arthur T. McDermott and
Associates, a Professional
Corporation,
I
I
I
I
I CIVIL ACTION - LAW
I
I
I NO. 94-3061 Civil Term
I
I
I JURY TRIAL DEMANDED
Plaintiffs
vs.
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
REPLY TO PRELIMINARY OBJECTIONS
COMES NOW, Plaintiff by and through his attorney, Spero T.
Lappas, Esquire and replies to Defendants' Preliminary Objections
as followsl
1. Admitted.
2. Admitted.
3. Admitted. However Defendant Detwiler, in his capacity as
an attorney of the Callison Law Firm attended a Court hearing
regarding the determination of the residence of Nicholas Wasil
Lagaza, on behalf of the Estate of Nicholas W. Lagaza in May, 1993.
4. Admitted.
5. Denied. See answer to paragraph 3 above. Additionally,
Defendant Detwiler verbally recognized the valuable professional
services previously rendered by Plaintiffs in the Federal lawsuit
filed in South Carolina.
6. This is a matter of law for determination by the Court
and requires no response.
7. Denied. Defendant Detwiler, as an agent/attorney of the
Callison Law Firm specifically contracted with Plaintiffs on the
basis of services provided in the South Carolina federal action.
B. Denied as a matter of law. Defendant Detwiler verbally
proposed the contract while in Carlisle, Cumberland County,
Pennsylvania, and services of the Complaint was properly made by
registered mail and Defendants signed for such registered mail at
their South Carolina address. See Pa. R.Civ.P. No. 403 and 404(2).
9. Admitted in part and denied in part. It is admitted that
the Defendants herein and others brought a lawsuit against
Plaintiffs herein~ however, the lawsuit in North Carolina deals
with other parties as well as defendants, and the other parties
were not parties to the agreement at issue herein.
10. Admitted in part and denied in part. It is admitted that
Plaintiffs herein filed an Answer to said Complaint~ however,
Plaintiffs herein specifically denied that they were submitting to
personal jurisdiction of the North Carolina Court, nor did
Plaintiffs enter an appearance in said lawsuit.
11. Plaintiffs have no knowledge of the status of the North
Carolina action, and therefore can neither admit nor deny.
12. This is a matter of law for decision by the Court, and
Plaintiffs therefore neither admit or deny.
Respectfully submitted,
ARTHUR T. MCDERMO'l'T & ASSOCIATES
~ ~.3AOc..
Arthur T. MCDermott,
50 East High Street
Carlisle, PA 17013
(717) 243-7B07
/) - 7 /~-/"'"
".,., ,.;.~~ "
Esquire
t::"'
I_IJ,
CBRTIFICATE OF SBRVICB
I hereby certify that a true copy of the foregoing Reply to
prelimin~jections was served on the below named person( s), by
f!~st claDD wa~~paid, addressed tOI
Carol J. Lindsey, Esquire
11 East High Street
Carlisle, PA 17013
Date r/1/'I,/
'~~~~
Arthur T. McDermott, Esq.
50 East High Street
Carlisle, PA l7013
(717) 243-7B07
c .
;,.....
;:y
.;;;>00
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire,
and Arthur T. McDermott and
Associates a Professional
Corporation,
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I CIVIL ACTION - LAW
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I NO. 94-3061 Civil Term
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Plaintiffs
vs.
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
AFFIDAVIT OF SERVICE BY MAIL
PURSUANT TO Pa. R.C.1P. 1920.4(a)(I)(ii)
COMMONWEALTH OF PENNSYLVANIA I
I SS
COUNTY OF CUMBERLAND I
Arthur T. McDermott, Esquire, being duly sworn according to
law, deposes and says that he is the Plaintiff, Arthur T.
HcDeJ:JllOtt, Esquire, and that he did serve a true and correct copy
of the Notice and Complaint filed in the above matter, by mail
restricted, certified, return receipt requested, to the Defendant,
Richard Detwiler, Esquire on June 13, 1994. The receipt form is
attached hereto as Exhibit "A".
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- .-:~.:::>.' -' . ':".
'---.-' ,,//../
Arthur T. McDermott, Esquire
Sworn and subscribed before me this~3~day of June, 1994.
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.urI'r smON OTARYP\lBLIC
""' lIORo.,CUhlBERl:ANO COUHTY
~C:IIISSI0H.uPIRES.OCT, 3t)?~
..... PIIII~l\IIlCIll.1l HI......
ARTHUR T. McDBRMOTT, ESQUIRE, I
and ARTHUR T. McDERMOTT and I
ASSOCIATES, a Professional I
Corporation,
Plaintiffs
IN THB COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PBNNSYLVANIA
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v.
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CIVIL ACTION - LAW
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RICHARD C. DETWILER and
CALLISON, TIGHE, ROBINSON,
and ANASTASION,
Defendants
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NO. 94-3061 CIVIL TERM
IN REI DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HOFFER. BAYLEY and OLER. JJ.
ORDER OF COURT
AND NOW, this l~t day of November, 1994, upon consideration
of the attached letter indicating that a settlement of the above
case is imminent, the preliminary objections to Plaintiff's
complaint are DBBMED MOOT.
BY THE COURT,
J
J
; Spero T. Lappas, Bsq.
205 State Street
~' P.O. Box BOB
, Harrisburg, PA l7l0B-OBOB
. r Attorney for Plaintiff
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, ~v \ .PCarol J. Lindsay, Bsq.
. J ~'" 11 East High Street
.'IY ~ Carlisle, PA 17013
~ ~ Attorney for Defendant
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Nov I 3 01 PH '9~
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[I
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f I~ t Ii-Of FlOE
Of THE ;'ROTHONOTUY
CUMBERLAND COUNTY
PENNSYLVANIA
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
Arthur T. McDermott, Esquire
and Arthur T. McDermott and
Associates, a Professional
Corporation,
Plaintiffs
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I
I
I
I CIVIL ACTION - LAW
I
I
I NO. 94-3061 Civil Term
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I JURY TRIAL DEMANDED
vs.
Richard C. Detwiler and Callison,
Tighe, Robinson, and Anastasion,
Defendants
PRAECIPE
TO THE PROTHONOTARY I
Please mark the above captioned case as settled and
discontinued with prejudice.
Respectfully submitted,
ARTHUR T. MCDERMOTT & ASSOCIATES
~~o~
-Arthur T. McDermott, Esquire
50 East High Street
Carlisle, PA 17013
(717) 243-7B07
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CCI Carol Lindsay, Esquire
Attorney for Defendants
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