HomeMy WebLinkAbout2003-6247 Civil (2)
GATES & ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF
P.C., GATES, : CUMBERLAND COUNTY, PENNSYLVANIA
HALBRUNER & HATCH,:
P.C., :
Plaintiffs :
:
v. :
:
MARIE K. MAGARO aka :
MARIE K. McANDREW, :
Administrator c.t.a. of THE:
ESTATE OF DAVID W. :
MAGARO, DECEASED; : CIVIL ACTION-LAW
MARIE K. MAGARO aka :
McANDREW, individually:
MARIE K. McANDREW :
AND JAMES P. :
McANDREW :
PARTNERSHIP; :
ANTONIO W. MAGARO, :
Individually; VARIETY :
MACHINES, INC.; :
VARIETY :
INVESTMENTS; PNC :
BANK, N.A., EXECUTOR:
FOR THE ESTATE OF :
WILLIAM G. MAGARO; :
MARIE’S PORTRAIT :
STUDIO, INC.; and :
MAGARO’S SPORTING :
GOODS, INC., :
Defendants : No. 03-6247 CIVIL TERM
ADJUDICATION
BEFORE OLER, J.
OPINION and VERDICT OF COURT
OLER, J., September 26, 2007
In this civil case, Defendants have been sued for legal fees by Plaintiffs,
1
and certain Defendants have filed counterclaims against Plaintiffs. A bench trial
in the case was held over the course of four days.
FINDINGS OF FACT
1. Plaintiffs are professional corporations engaged, now or formerly, in the
practice of law, with offices located at Suite 100, 1013 Mumma Road, Lemoyne,
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Cumberland County, Pennsylvania. Lowell R. Gates, Esq., was formerly
president of Gates & Associates, P.C., and is now president of Gates, Halbruner &
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Hatch, P.C.
2. Defendant Marie K. Magaro is an adult individual who resides at 712
Hamilton Avenue, Mechanicsburg, Cumberland County, Pennsylvania, and is
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administratrix c.t.a. of the Estate of David W. Magaro, deceased.
3. Defendant James P. McAndrew is an adult individual who resides at 224
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9th Street, Upland, Delaware County, Pennsylvania.
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Counterclaims have been filed by Marie K. Magaro, individually and as administratrix c.t.a. of
the Estate of David W. Magaro, and by PNC Bank, N.A., as executor of the estate of William G.
Magaro.
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Plaintiffs’ Complaint, paras. 1-2; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., paras. 1-2; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., paras. 1-2; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, paras. 1-2; N.T. 7, Trial, August 24, 2007.
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N.T. 7, Trial, August 24, 2006.
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Plaintiffs’ Complaint, para. 3; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 3; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 3; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 3.
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Plaintiffs’ Complaint, para. 5; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 5; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 5; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 5.
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4. Defendant Marie K. McAndrew and James P. McAndrew Partnership is,
or was, a Pennsylvania general partnership, consisting of Marie K. Magaro and
James P. McAndrew as general partners and having its principal offices located at
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712 Hamilton Avenue, Mechanicsburg, Cumberland County, Pennsylvania.
5. Defendant Marie’s Portrait Studio, Inc., is a Pennsylvania business
corporation, with its principal offices located at 712 Hamilton Avenue,
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Mechanicsburg, Cumberland County, Pennsylvania.
6. Defendant Antonio W. Magaro is an adult individual residing at 826-A
8
West Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania.
7. Defendant Variety Machines, Inc., is a Pennsylvania business
corporation, with its principal offices located, now or formerly, at 116 East Allen
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Street, Mechanicsburg, Cumberland County, Pennsylvania.
6
Plaintiffs’ Complaint, para. 6; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 6; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 6; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 6.
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Plaintiffs’ Complaint, para. 9; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 9; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 9; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 9.
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Plaintiffs’ Complaint, para. 7; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 7; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 7; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 7.
9
Plaintiffs’ Complaint, para. 8; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 8; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 8; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 8.
3
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8. Defendant Magaro’s Sporting Goods, Inc., is a defunct Pennsylvania
business corporation, with its principal offices located, now or formerly, at 116
11
East Allen Street, Mechanicsburg, Cumberland County, Pennsylvania, and
12
owned by Antonio W. Magaro and Michael Calabrese.
9. Defendant Variety Investments is a Pennsylvania general partnership
established by William G. Magaro and David W. Magaro, the interests of whom
13
have now devolved upon their respective estates.
10. Defendant PNC Bank, N.A., is a nationally chartered bank, with offices
located at 4262 Carlisle Pike, Camp Hill, Cumberland County, Pennsylvania, and
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is executor of the Estate of William G. Magaro, deceased.
11. William G. Magaro had at least five children, including David G.
15
Magaro, Joseph Magaro, and Richard Magaro. His son David G. Magaro was
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married three times, the last time to Marie K. Magaro, and had at least four
10
N.T. 165, Trial, December 14, 2006.
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Plaintiffs’ Complaint, para. 10; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 10; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 10; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 10.
12
N.T. 30, 138-39, Trial, August 24, 2006; N.T. 55, Trial, December 13, 2006; N.T. 165, Trial,
December 14, 2006.
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Plaintiffs’ Complaint, para. 11; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 11; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 11; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 11.
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Plaintiffs’ Complaint, para. 12; Answer and Counterclaim of Defendant Marie K. Magaro,
Administratrix c.t.a. of the Estate of David W. Mararo, Marie K. Magaro, individually, James P.
McAndrew, individually, Marie K. McAndrew and James P. McAndrew Partnership, and Marie’s
Portrait Studio, Inc., para. 12; Answer with New Matter of Defendants Antonio W. Magaro,
Variety Machines, Inc., and Magaro’s Sporting Goods, Inc., para. 12; and Answer of PNC Bank
N.A., Executor of Estate of William G. Magaro, para. 12.
15
N.T. 22, Trial, August 24, 2006.
16
N.T. 44, Trial, August 24, 2006.
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children: David W. Magaro, Jr., Antonio W. Magaro, Tina Mestlin, and Angela
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Magaro.
12. In the 1950s, William G. Magaro, and his sons David W. Magaro and
Joseph Magaro, formed a corporation known as Variety Machines, Inc., which
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engaged in the pinball and gaming business. The initial ownership interests in
this corporation were 60% William G. Magaro, 20% David W. Magaro, and 20%
2122
Joseph Magaro. Variety Machines, Inc., is now owned by Antonio W. Magaro.
13. In the 1950s, William G. Magaro and his son David W. Magaro
23
operated a partnership known as Variety Investments. The initial ownership
interests in this partnership were 75% for William G. Magaro and 25% for David
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W. Magaro. As previously noted, these interests are now held by their respective
estates.
14. “Variety Amusements” was registered as a fictitious name by William
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G. Magaro and his son David W. Magaro on May 27, 1957.
15. On October 12, 1967, “Variety Amusements” acquired 9700 shares in a
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company known as Greenray Industries, Inc.
16. Notwithstanding the unavailability of the name due to the prior filing,
“Variety Amusements” was subsequently registered as a fictitious name by
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Variety Machines, Inc., on July 15, 1977.
17
N.T. 18, 23-24, Trial, August 24, 2006.
18
N.T. 26, Trial, August 24, 2006.
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N.T. 149, Trial, December 14, 2006.
20
N.T. 22, Trial, August 24, 2006, N.T. 105-106, Trial, December 13, 2006.
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N.T. 105-06, Trial, December 13, 2006.
22
N.T. 29, Trial, August 24, 2006.
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N.T. 23, Trial, August 24, 2006.
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N.T. 104, Trial, December 13, 2006.
25
N.T. 117, Trial, December 14, 2006.
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N.T. 118, Trial, December 14, 2006; Defendant PNC Bank Ex. 1.
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N,T, 118, Trial, December 14, 2006.
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17. The weight of the evidence favors a conclusion that the Greenray
Industries, Inc., stock was owned by the Variety Investments partnership of
William G. Magaro (75%) and David W. Magaro (25%), and not by the
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corporation known as Variety Machines, Inc.
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18. William G. Magaro died on June 6, 1990.
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19. His son David W. Magaro died on October 10, 1995.
20. Marie Magaro, as personal representative with respect David W.
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Magaro’s estate, engaged the law firm of Lowell R. Gates, P.C., to represent her;
this engagement was formalized by a written fee agreement dated November 29,
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1999.
21. No writing was generated memorializing the attorney/client relationship
33
between Plaintiffs and any other Defendant.
22. By virtue of the sequence of events recounted above, the estate of David
W. Magaro assumed the position of liquidating partner with respect to the Variety
34
Investments partnership.
35
23. In connection with this liquidation, Plaintiffs successfully effected a
conversion of the Greenray Industries, Inc., stock registered to “Variety
Amusements” into a check drawn by Shareholder Communications Canada Corp.
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for $34,560.00 dated August 30, 2000, payable to “Variety Amusements.”
28
N.T. 96, Trial, December 13, 2006; N.T. 112-21, Trial, December 14, 2006; N.T. 11-18, Trial,
May 23, 2007; Defendant PNC Bank Ex. 10.
29
N.T. 11, Trial, May 23, 2007.
30
N.T. 8, Trial, August 24, 2006.
31
N.T. 9, Trial, August 24, 2006.
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Plaintiffs’ Ex. 1.
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N.T. 16, Trial, August 24, 2006.
34
N.T. 23, Trial, August 24, 2006.
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See Defendant PNC Bank Ex. 10.
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Defendant PNC Bank Ex. 12.
6
24. Fair, reasonable and necessary legal fees and expenses for this work by
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Plaintiffs totaled $3,124.63; no payment has been made for the same.
25. The check was physically received by Antonio W. Magaro, who
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claimed its proceeds on behalf of Variety Machines, Inc., and refused to turn it
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over to Lowell R. Gates, Esq.; he did, however, accept the advice of Mr. Gates
40
that he place the proceeds in escrow.
26. Unfortunately, at a later point in time Mr. Gates acquiesced in the
position of Antonio W. Magaro that the escrowed proceeds were the property of
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Variety Machines, Inc., by advising him that they could be pledged as security
for a loan to Variety Machines, Inc., and by advising an employee of the lending
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institution in question that the funds could be so pledged.
27. Ultimately, the lending institution exercised its right as a secured party
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and applied the proceeds to the debt of Variety Machines, Inc. As previously
noted, Variety Machines, Inc., is now defunct.
28. With respect to the Greenray Industries, Inc., matter, as between
Plaintiffs and Defendant PNC Bank, N.A., in its capacity as executor of the estate
44
of William G. Magaro, Plaintiffs owe Defendant an amount equal to 75% of the
proceeds of $34,560.00, or $25,920.00, less 75% of the legal fees of $3,124.63
owed to Plaintiffs, or $2,343.47, for a total of $23,576.53.
29. With further respect to the Greenray Industries, Inc., matter, as between
Plaintiffs and Defendant Marie K. Magaro in her capacity as administratrix c.t.a.
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N.T. 60, Trial, August 24, 2006.
38
N.T. 58, Trial, August 24, 2006.
39
N.T. 59, Trial, August 24, 2006.
40
N.T. 59-60, Trial, August 24, 2006.
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N.T. 177, Trial, December 14, 2006.
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N.T. 166-67, 181, Trial, December 14, 2006.
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N.T. 166, 177, Trial, December 14, 2006.
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By virtue of the aforesaid actions in support of the position of Antonio W. Magaro that the
proceeds of the Greenray Industries, Inc., stock were property of Variety Machines, Inc.
7
of the estate of David W. Magaro, Plaintiffs’ inadequate performance as counsel
has deprived the estate of an amount equal to 25% of the proceeds of $34,560.00,
or $8,640.00, less 25% of the legal fees of $3,124.63 owed to Plaintiffs, or
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$781.16, for a total of $7,858.84.
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30. Representation of the $3,000,000.00 estate of William G. Magaro
47
proved extraordinarily difficult for Plaintiffs in terms of legal complexities and
substantial legal fees were generated by Plaintiffs in connection with the
representation, in addition to those pertaining to the Greenray Industries, Inc.,
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stock matter.
31. Eventually, the administratrix of the estate of William G. Magaro
49
ceased paying on the invoices of Plaintiffs, and in 2002 Plaintiffs ceased
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performing services on behalf of the estate.
32. Fair, reasonable and necessary attorney’s fees and expenses remaining
unpaid to Plaintiffs for services rendered in connection with the dissolution of the
Variety Investments partnership, excluding fees relating to the Greenray
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Industries, Inc., matter, total $7,354.47, plus interest from July 31, 2006.
33. The sum of $17,295.72, plus interest since July 31, 2006, in the Estate
of William G. Magaro resides in escrow for distribution in accordance with the
court’s ultimate resolution of a dispute between Plaintiffs and the estate over legal
52
fees pertaining to the dissolution of the Variety Amusements partnership.
45
However, as noted hereafter, the Estate of David W. Magaro has disclaimed any interest in this
property.
46
N.T. 109, Trial, August 24, 2006.
47
N.T. 13, Trial, August 24, 2006.
48
N.T. 26-64, Trial, August 24, 2006.
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N.T. 32, Trial, August 24, 2006.
50
N.T. 86-87, Trial, December 14, 2006.
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N.T. 51-54, Trial, August 24, 2006; Plaintiffs’ Exs. 2, 5.
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N.T. 28, Trial, August 24, 2006; Plaintiffs’ Ex. 24 (Order of Court, July 23, 2003).
8
34. Present counsel for the administratrix c.t.a. of the Estate of William G.
Magaro has disclaimed any interest of the estate in proceeds of the Greenray
Industries, Inc., stock and, accordingly, denies any responsibility of the estate for
53
fees associated with their production.
35. Plaintiffs and Defendants Marie K. Magaro, individually and as
administratrix c.t.a. of the Estate of David G. Magaro, James P. McAndrew
individually, Marie K. McAndrew and James P. McAndrew Partnership, and
Marie’s Portrait Studio, Inc., have amicably resolved all issues between them in
this case,
except for the proper disposition of the escrow funds held by
the Plaintiffs pursuant to the court order of September 8th,
1999, and the order dated July 23rd, 2003, for the liquidation,
dissolution, and final settlement of the Variety Investments
General Partnership and the work expended by the Plaintiff on
the Greenray Industries matter. The disposition of these funds
shall be determined by the Court upon the record created in this
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matter. . . .
36. In accordance with the terms of the settlement, the disavowal of any
interest of the Estate of David W. Magaro in the proceeds of the Greenray
Industries, Inc., stock, and the facts as found above, (a) Defendant Marie K.
Magaro, in her capacity as administratrix c.t.a. of the Estate of David W. Magaro,
is liable to Plaintiffs for fees and expenses pertaining to the dissolution of the
Variety Investments partnership in the amount of $7,354.47, plus interest from
July 31, 2006, (b) the balance of the aforesaid escrowed funds constitute an asset
of the Estate of David W. Magaro, and (c) no other relief is indicated as between
Plaintiffs and the settling Defendants.
37. Fair, reasonable and necessary legal fees and expenses for work
performed by Plaintiffs on behalf of Defendant Antonio W. Magaro in connection
53
N.T. 60-66, Trial, August 24, 2006.
54
N.T. 6-7, Trial, May 23, 2007.
9
55
with the formation of Magaro’s Sporting Goods, Inc. ($3,650.47), refinancing
56
arrangements related to certain real estate ($5,520.28), and research related to
57
gun-sales licensing ($735.88), and remaining unpaid, total $9,906.63, plus
interest from July 31, 2006.
38. Fair, reasonable and necessary legal fees and expenses for work
performed by Plaintiffs on behalf of Variety Machines, Inc., in connection with
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general business matters ($8,401.30), a loan involving Senior Management
596061
($729.98), corporate resolutions ($1,595.71), a lease ($371.35), a loan from
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Antonio W. Magaro ($106.66), litigation related to Richard Magaro
6364
($4,505.04), an employment agreement ($1,307.60), and a non-compete matter
65
involving David W. Magaro, Jr. ($693.45), and remaining unpaid, total
$17,711.09, plus interest from July 31, 2006.
39. Fair, reasonable and necessary legal fees and expenses for work
performed by Plaintiffs on behalf of Magaro Sporting Goods, Inc., in connection
66
with general business matters, remaining unpaid, total $2,096.48, plus interest
from July 31, 2006.
40. In rendering the aforesaid services, Plaintiffs were engaged in typical
attorney-client relationships with their various clients.
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N.T. 100-02, Trial, August 24, 2006; Plaintiffs’ Ex. 20.
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N.T. 80-82, Trial, August 24, 2006; Plaintiffs’ Ex. 11.
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N.T. 104-07, Trial, August 24, 2006; Plaintiffs’ Ex. 22.
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N.T. 85-88, Trial, August 24, 2006; Plaintiffs’ Ex. 13.
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N.T. 95-96, Trial, August 24, 2006; Plaintiffs’ Ex. 17.
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N.T. 89-90, Trial, August 24, 2006; Plaintiffs’ Ex. 14.
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N.T. 91-92, Trial, August 24, 2006; Plaintiffs’ Ex. 15.
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N.T. 93-94, Trial, August 24, 2006; Plaintiffs’ Ex. 16.
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N.T. 96-98, Trial, August 24, 2006; Plaintiffs’ Ex. 18.
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N.T. 98-100, Trial, August 24, 2006; Plaintiffs’ Ex. 19.
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N.T. 83-85, Trial, August 24, 2006; Plaintiffs’ Ex. 12.
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N.T. 103-04, Trial, August 24, 2006; Plaintiffs’ Ex. 21.
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DISCUSSION
Statement of Law
Breach of contract. In Pennsylvania, three elements are necessary to
properly plead and prove a cause of action for breach of contract: “(1) the
existence of a contract, including its essential terms, (2) a breach of a duty
imposed by the contract and (3) resultant damages.” CoreStates Bank, N.A. v.
Cutillo, 1999 PA Super 14, ¶16, 723 A.2d 1053, 1058 (1999).
67
An “actual” contract can be express or implied-in-fact. Cameron v.
Eynon, 332 Pa. 529, 3 A.2d 423 (1939).
An implied-in-fact contract must be “legitimately inferred from the
intention of the parties as indicated by the circumstances and ‘the ordinary course
of dealing and the common understanding of men.’” Hertzog v. Hertzog, 29 Pa.
465, 467-68 (1857). There is generally “an implication of a promise to pay for
valuable services rendered with the knowledge and approval of the recipient, in
the absence of a showing to the contrary. A promise to pay the reasonable value
of the service is implied where one performs for another, with the other’s
knowledge, a useful service of a character that is usually charged for, and the latter
expresses no dissent or avails himself of the service. . . .” In re Home Protection
Bldg. & Loan Ass’n, 143 Pa. Super. 96, 98, 17 A.2d 755, 756-57 (1941). The
statute of frauds does not apply to service agreements, such as those between
attorneys and clients. Levit v. Kutcher, 30 Philadelphia 525, 28 Pa. D. & C.4th 14
(1996) .
Unjust enrichment/quantum meruit. Unjust enrichment occurs in the
“absence of an agreement, whether express or implied,” whenever one person
receives unjust enrichment. Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d
989, 995 n.5 (3d Cir. 1987) (applying Pennsylvania law); see also Murphy v.
67
Such a contract is to be distinguished from one that is implied-by-law, where “the law imposes
a duty upon a person, not because of any express or implied promise on his part to perform it, but
11
Haws & Burke, 235 Pa. super. 484, 489, 344 A.2d 543, 546 (1975) (where oral,
implicit compensation agreement existed between attorneys and law firm, no
separate quantum meruit recovery could be obtained). A cognizable claim for
unjust enrichment includes the following elements: “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 [the] defendant to retain the benefit without payment of value.”
Schenck v. K.E. David, Ltd., 446 Pa. Super. 94, 97-98, 666 A.2d 327, 328-29
(1995).
Rules of Professional Conduct. Under Rule 1.5(b) of the Rules of
Professional Conduct,
[w]hen [a] lawyer has not regularly represented the client, the basis or rate
of the fee shall be communicated to the client, in writing, before or within
a reasonable time after commencing the representation.
However, the absence of such a written communication is not fatal to a
cause of action for legal fees. Levit v. Kutcher, 30 Philadelphia 525, 28 Pa. D. &
th
C.4 14 (1996), (citing Eckell v. Wilson, 409 Pa. Super. 132, 137 n.3, 597 A.2d
696, 698 n.3 (1991)). “The rules in the Code of Professional Responsibility are
‘not mandatory laws,’ rather the rules regulating fees, like other rules in the code,
represent ‘ethical considerations [which] are aspirational in character and
represent the objectives toward which every member of the profession should
strive.’” Id.
Indeed, “nothing in the Rules [of Professional Conduct] should be deemed
to augment any substantive legal duty of lawyers or the extra disciplinary
consequences of violating such a duty.” Rules of Professional Responsibility,
Scope ¶19.
Based upon the foregoing Findings of Fact and principles of law, the
following verdict will be entered:
even in spite of any intention he might have to the contrary.” Cameron v. Eynon, 332 Pa. 529,
532, 3 A.2d 423, 424 (1989).
12
VERDICT
th
AND NOW, this 26 day of September, 2007, upon consideration of
Plaintiffs’ complaint in the above-captioned matter, and of the counterclaims filed
by Defendants Marie K. Magaro, individually and as administrator c.t.a. of the
Estate of David W. Magaro, and PNC Bank, N.A., as executor of the Estate of
William G. Magaro, following a nonjury trial held on August 24, 2006, December
13, 2006, December 14, 2006, and May 23, 2007, and for the reasons stated in the
accompanying opinion, the Court finds as follows:
1. In favor of Plaintiffs and against Defendant Marie K.
Magaro as administratrix of the Estate of David W. Magaro in
the amount of $7,354.47, plus costs of suit and interest from
July 31, 2006, said sum to be paid from the escrow account
referred to in the accompanying opinion and the balance of the
funds in the said account to be received by the estate;
2. In favor of Plaintiffs and against Defendant Antonio W.
Magaro in the amount of $9,906.63, plus costs of suit and
interest from July 31, 2006;
3. In favor of Plaintiffs and against Defendant Variety
Machines, Inc., in the amount of $17,711.09, plus costs of suit
and interest from July 31, 2006;
4. In favor of Plaintiffs and against Magaro Sporting
Goods, Inc., in the amount of $2,096.48, plus costs of suit and
interest from July 31, 2006; and
5. In favor of Defendant PNC Bank, N.A., executor of the
Estate of William G. Magaro, and against Plaintiffs on
Defendant’s counterclaim, in the amount of $23,576.53, plus
costs of suit, without prejudice to Plaintiffs’ right to seek
contribution from Antonio W. Magaro and/or Variety
Machines, Inc.
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No other relief is afforded to any party.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Lowell R. Gates, Esquire
Mark E. Halbruner, Esquire
Suite 100
1013 Mumma Road
Lemoyne, PA 170143
Attorneys for Plaintiffs
Shaun E. O’Toole, Esquire
Miller Lipsitt, LLC
2813 N. Second Street
Harrisburg, PA 17110
Attorney for Defendants Antonio
W. Magaro, Variety Machines, Inc.,
And Magaro’s Sporting Goods, Inc.
Thomas Webber, Esquire
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendants Marie K.
Magaro, aka Marie K. McAndrew,
Administratrix c.t.a. of the Estate of
David W. Magaro, Deceased, Marie
K. Magaro aka McAndrew, individually,
James P. McAndrew, individually, Marie
K. McAndrew and James P. McAndrew
Partnership, and Marie’s Portrait Studio, Inc.
John M. Eakin, Esquire
Market Square Building
Mechanicsburg, PA 17055
Attorney for Defendant PNC Bank, N.A.,
Executor of the Estate of William G.
Magaro, Deceased
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GATES & ASSOCIATES, : IN THE COURT OF COMMON PLEAS OF
P.C., GATES, : CUMBERLAND COUNTY, PENNSYLVANIA
HALBRUNER & HATCH,:
P.C., :
Plaintiffs :
:
v. :
:
MARIE K. MAGARO aka :
MARIE K. McANDREW, :
Administrator c.t.a. of THE:
ESTATE OF DAVID W. :
MAGARO, DECEASED; : CIVIL ACTION-LAW
MARIE K. MAGARO aka :
McANDREW, individually:
MARIE K. McANDREW :
AND JAMES P. :
McANDREW :
PARTNERSHIP; :
ANTONIO W. MAGARO, :
Individually; VARIETY :
MACHINES, INC.; :
VARIETY :
INVESTMENTS; PNC :
BANK, N.A., EXECUTOR:
FOR THE ESTATE OF :
WILLIAM G. MAGARO; :
MARIE’S PORTRAIT :
STUDIO, INC.; and :
MAGARO’S SPORTING :
GOODS, INC., :
Defendants : No. 03-6247 CIVIL TERM
ADJUDICATION
BEFORE OLER, J.
VERDICT
th
AND NOW, this 26 day of September, 2007, upon consideration of
Plaintiffs’ complaint in the above-captioned matter, and of the counterclaims filed
by Defendants Marie K. Magaro, individually and as administrator c.t.a. of the
Estate of David W. Magaro, and PNC Bank, N.A., as executor of the Estate of
William G. Magaro, following a nonjury trial held on August 24, 2006, December
13, 2006, December 14, 2006, and May 23, 2007, and for the reasons stated in the
accompanying opinion, the Court finds as follows:
1. In favor of Plaintiffs and against Defendant Marie K.
Magaro as administratrix of the Estate of David W. Magaro in
the amount of $7,354.47, plus costs of suit and interest from
July 31, 2006, said sum to be paid from the escrow account
referred to in the accompanying opinion and the balance of the
funds in the said account to be received by the estate;
2. In favor of Plaintiffs and against Defendant Antonio W.
Magaro in the amount of $9,906.63, plus costs of suit and
interest from July 31, 2006;
3. In favor of Plaintiffs and against Defendant Variety
Machines, Inc., in the amount of $17,711.09, plus costs of suit
and interest from July 31, 2006;
4. In favor of Plaintiffs and against Magaro Sporting
Goods, Inc., in the amount of $2,096.48, plus costs of suit and
interest from July 31, 2006; and
5. In favor of Defendant PNC Bank, N.A., executor of the
Estate of William G. Magaro, and against Plaintiffs on
Defendant’s counterclaim, in the amount of $23,576.53, plus
costs of suit, without prejudice to Plaintiffs’ right to seek
contribution from Antonio W. Magaro and/or Variety
Machines, Inc.
No other relief is afforded to any party.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Lowell R. Gates, Esquire
Mark E. Halbruner, Esquire
Suite 100
1013 Mumma Road
Lemoyne, PA 170143
Attorneys for Plaintiffs
Shaun E. O’Toole, Esquire
Miller Lipsitt, LLC
2813 N. Second Street
Harrisburg, PA 17110
Attorney for Defendants Antonio
W. Magaro, Variety Machines, Inc.,
And Magaro’s Sporting Goods, Inc.
Thomas Webber, Esquire
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Attorney for Defendants Marie K.
Magaro, aka Marie K. McAndrew,
Administratrix c.t.a. of the Estate of
David W. Magaro, Deceased, Marie
K. Magaro aka McAndrew, individually,
James P. McAndrew, individually, Marie
K. McAndrew and James P. McAndrew
Partnership, and Marie’s Portrait Studio, Inc.
John M. Eakin, Esquire
Market Square Building
Mechanicsburg, PA 17055
Attorney for Defendant PNC Bank, N.A.,
Executor of the Estate of William G.
Magaro, Deceased