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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARLTON G. KELLY AND MARGARET M. IN THE SUPERIOR COURT OF
KELLY, HIS WIFE, INDIVIDUALLY AND PENNSYLVANIA
ON BEHALF OF PARADISE HILLS,
L.L.C.,AND PARADISE HILLS, L.L.C., A
PENNSYLVANIA LIMITED LIABILITY
COMPANY
v.
ROBERT VENNARE AND PAMELA M.
VENNARE, HIS WIFE, AND HORSE N'
SOUL, INC., A PENNSYLVANIA
CORPORATION
APPEAL OF: ANTHONY F. JESELNIK
No. 2069 WDA 2014
Appeal from the Order December 9, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. No. 08-011997
BEFORE: SHOGAN, J., OTT, J., and STABILE, J.
DISSENTING MEMORANDUM BY OTT, J.: FILED MARCH 16, 2016
After careful consideration of this matter, I must respectfully dissent.
Attorney Anthony F. Jeselnik is entitled to some amount of money for the
legal services he provided the Kellys; the question is whether Jeselnik is
entitiled to an equitable charging lien against the proceeds of the Paradise
Hills litigation. The majority grants him this remedy.
However, “A court may deprive a party of equitable relief where, to the
detriment of the other party, the party applying for such relief is guilty of
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bad conduct relating to the matter at issue.” Terracianno v.
Commonwealth, Dept. of Transp., Bureau of Driver Licensing, 753
A.2d 233, 237 (PA. 2000). The Rules of Professional Conduct require a
contingent fee detail:
[T]he method by which the fee is to be determined, including the
percentage or percentages that shall accrue to the lawyer in the
event of settlement, trial or appeal, litigation and other expenses
to be deducted from the recovery, and whether such expenses
are to be deducted before of after the contingent fee is
calculated.
Rule of Prof. Conduct, Rule 1.5, 42 Pa.C.S.1
Despite the fact the Attorney Jeselnik’s representation of the Kellys
spanned numerous years, and the Kellys repeatedly sought clarification of
the fee to be charged, my review of the certified record shows no such
agreement was reached, written or oral. Moreover, the trial court
specifically determined no such fee agreement existed. Because it was
Jeselnik’s responsibility to provide the agreement, and he did not, even after
repeated requests by the Kellys, I do not believe he is entitled the benefit of
the imposition of a charging lien. However, I do believe he is entitled to
seek compensation pursuant to an appropriate legal remedy.
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1
This rule also states a contingent fee agreement “shall be in writing.” Id.
However, this aspect of the rule is procedural and a sufficiently detailed oral
contingent fee agreement is enforceable. See Miernicki v. Seltzer, 458
A.2d 566 (Pa. Super. 1983).
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Accordingly, I would affirm the well-reasoned decision of the
Honorable R. Stanton Wettick, Jr.
Therefore, I respectfully dissent from the majority decision.
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