J-A32010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.




____________________________________________


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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