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Geness v. Commonwealth

United States District Court, W.D. Pennsylvania

December 5, 2019

CRAIG GENESS
v.
COMMONWEALTH OF PENNSYLVANIA

          MEMORANDUM

          KEARNEY, J.

         After court-ordered mediation, the Pennsylvania Department of Human Services agreed to pay $375, 000 to settle claims brought against it in March 2019 by Craig Geness, a mentally impaired man who spent over nine years in custody awaiting a hearing on whether he was competent to stand trial for a criminal homicide before being released by a state court judge before he could answer the charges at trial. As required given Mr. Geness's incompetency, Mr. Geness and the Department now move for our approval of their settlement terms. As we previewed in a show cause order, we must evaluate the settlement's fairness given Mr. Geness's present needs, the possible effect of a settlement on remaining claims, and forty percent of the settlement allocated to attorney's fees. Our concern is heightened when a limited guardian appointed by a Pennsylvania orphan's court offers no evidence to assess the fairness of the settlement amount based on her client's present need, the effect of the settlement on other claims, or as to the attorney's fees. Mindful of our duty, we deny the motion to approve the settlement without prejudice to be renewed with enough evidence adduced through the limited guardian's fulsome affidavit or possibly at an evidentiary hearing which may allow us to more fully evaluate the credibility of the limited guardian's possible newly articulated grounds warranting approval of this settlement. The parties may alternatively choose to proceed towards trial.

         I. Facts

         Craig Geness is a mentally disabled adult who lived at an assisted living facility for intellectually disabled individuals in 2006.[1]On October 27, 2006, another resident fell from the facility's front porch and eventually died from his injuries.[2] Three contemporaneous records demonstrated the resident accidentally fell, but police investigated, obtained a confession from Mr. Geness on November 16, 2006 and charged him with aggravated assault on November 17, 2006.[3]After the resident died of his injuries, police charged Mr. Geness with criminal homicide.[4]

         Mr. Geness then entered custody and control of the Pennsylvania criminal justice system for over nine years without a trial. As our Court of Appeals observed, "[t]he administration of justice went awry for [Mr.] Geness from the outset."[5] The state court did not schedule a preliminary hearing for over five months.[6] Mr. Geness's public defender moved the Court of Common Pleas of Fayette County for habeas relief, asserting police obtained Mr. Geness's confession in violation of his constitutional rights.[7] Fayette County Common Pleas Judge Leskinen declined to rule, opining Mr. Geness "was 'not at the present time competent to stand trial.'"[8] Ten months passed after his arrest before a state doctor performed a psychological examination of Mr. Geness.[9] The psychiatrist diagnosed Mr. Geness with mild mental retardation with an IQ of 51 and schizoaffective bipolar disorder.[10]

         "[T]he cycle of indifference continued" as Mr. Geness remained trapped in a cycle of delayed psychiatric examinations and inaction by Judge Leskinen, the district attorney, and the public defender.[11]Five years after Mr. Geness's arrest, and with the homicide charge still pending, Judge Leskinen transferred Mr. Geness to involuntary commitment in a long term structured residence.[12] Mr. Geness obtained new counsel, Bernadette Tummons, in March 2012, but his fortunes did not improve.[13] While Attorney Tummons made "numerous and repeated discovery requests" of the district attorney, she failed to seek court intervention because "doing so would have flaunted [sic] the common practice of Fayette County ..., would not have been successful, and would have assuredly soured [her] already tenuous relationship with the Office of the District Attorney."[14]

         Two years later, in June 2014, Attorney Tummons received document production prompting her to think Mr. Geness's November 17, 2006 Miranda waiver and confession might not have been voluntary.[15] Attorney Tummons met with Mr. Geness who told her he confessed on November 16, 2006 because "the police told him" to.[16] Ms. Tummons waited almost a full year, until May 2015, to move to compel further discovery from the district attorney.[17] In September 2015, Attorney Tummons finally moved to dismiss the indictment and moved again for habeas relief.[18] But rather than rule on Mr. Geness's motion to dismiss or habeas petition, Judge Leskinen invited the district attorney to abandon the charges and submit a request for nolle prosequi, and advised he would just "sign it" if submitted.[19]

         When the district attorney complied, Judge Leskinen entered the nol pros Order but declined to mention the district attorney's inability to sustain its evidentiary burden, only referencing Mr. Geness's incompetence.[20] Judge Leskinen finally released Mr. Geness in mid-December 2015, over nine years after his arrest.[21]

         Mr. Geness signs a contingency fee agreement.

         At or around the time the state court released Mr. Geness after nine years in prison, Attorney Tummons met with Attorney Joel Sansone to discuss a possible civil rights suit on behalf of Mr. Geness.[22] Attorney Sansone agreed to meet Mr. Geness. Attorney Sansone knew Mr. Geness lacked competency when he first met him.[23] But Attorney Sansone, "out of an abundance of caution," had Mr. Geness "sign a fee agreement at the first meeting."[24] Mr. Geness and Attorneys Sansone and Terzigni signed a Power of Attorney and Contingent Fee Agreement on February 29, 2016 ("Fee Agreement") providing:[25]

KNOW ALL MEN BY THESE PRESENTS, that I, CRAIG A. GENESS, do hereby appoint LAW OFFICES OF JOEL SANSONE, JOEL S. SANSONE, ESQUIRE and MASSIMO A. TERZIGNI, ESQUIRE, as my attorneys to represent me in a claim for damages that I have against FAYETTE COUNTY, JASON COX and JOHN/JANE DOES(S) based on violations of my civil rights which occurred on or about November 17, 2006.
I hereby agree that the compensation for my attorneys for legal services rendered shall be determined as follows:
A. Out of whatever sum is secured from the above-named Defendant, either by verdict or by settlement, my attorneys shall retain forty (40%) percent of the gross amount received;[26] ...

         Attorney Sansone defined his representation as against Fayette County, Jason Cox, and Jane or John Does based on violations of his civil rights in the police investigation and conduct which occurred on or about November 17, 2006.[27] There is no evidence Attorney Sansone sought a guardian to review the Fee Agreement for Mr. Geness's best interests before he signed it although Mr. Sansone knew Mr. Geness lacked competence. There is no evidence Attorney Sansone addressed additional defendants with Mr. Geness or Attorney Tummons. There is no evidence the Department of Human Services played a role in the November 17, 2006 conduct defined in the Fee Agreement.

         The Fee Agreement further contemplates fee shifting:

I am aware that under the law a Defendant may be required to pay some amount as counsel fees if I am successful in pursuing my claim. In the event that counsel fees are awarded, I hereby agree to the following:
(A) Said award of counsel feels shall be credited toward the gross amount received, as mentioned in Paragraph A above;
(B) In the event that the amount awarded or agreed upon as counsel fees exceeds the sum recoverable under the contingent fee agreement outlined above, said fee shall remain the sole property of my attorneys; however, I shall have no obligation to pay any additional amount for services rendered by them in connection with this case; and
(C) In the event that no counsel fees are awarded, the fees charged by my attorney shall be limited to the fees described above. Under no circumstances will I be required to pay my attorneys any legal fees other than those specified by the terms or conditions of this Agreement, excepting, however, that in the event of an appeal from a verdict or other dispositions, fees for said appeal will be negotiated separately.[28]

         The Fee Agreement also required Mr. Geness pay "for the expenses incurred in this case."[29]The Fee Agreement explains "[s]uch costs include counsel fees assessed by the Court, and other expenses of suit, such as deposition costs, travel costs, witness fees and expert fees, together with long distance telephone charges, facsimile charges, messenger services, legal research, photocopying, etc.. . ."[30]

         Mr. Geness's claims in this case.

         On June 17, 2016, Mr. Geness, now represented by Attorney Sansone, sued the City of Uniontown, Fayette County, arresting officer Detective Jason Cox, and the owners of Mr. Geness's assisted living facility, James and Jean McVey.[31] He alleged they violated: the Americans with Disabilities Act;[32] his constitutional rights under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendment for malicious prosecution, false arrest, false imprisonment, reckless investigation, violation of Mr. Geness's right to equal protection as a disabled person; and for conspiracy under 42 U.S.C. §§ 1983 and 1985; a Monell municipal liability civil rights claim;[33] and, a state law claim for intentional infliction of emotional distress.

         Detective Cox and the City of Uniontown moved to dismiss for failure to state a claim.[34]Mr. Geness withdrew his claims against Uniontown during oral argument and we dismissed Uniontown from the action.[35] We dismissed the equal protection and malicious prosecution claims against Detective Cox. We could not then determine if Detective Cox enjoyed qualified immunity.[36]

         Detective Cox answered Mr. Geness's complaint, denying all claims and asserting affirmative defenses.[37] On February 10, 2017, we referred the case to mediation.[38] The parties did not resolve the case.[39] No. guardian represented Mr. Geness's interests in this mediation.

         On March 1, 2017, Attorney Sansone filed a notice of voluntary dismissal of James and Jean McVey.[40] Attorney Sansone then sought to amend the complaint to add the Commonwealth as a defendant on an Americans with Disabilities Act claim. After our earlier rulings in the case and Mr. Geness's voluntary dismissal of defendants, only Detective Cox remained as a defendant.

         Mr. Geness's proposed amended complaint named only Detective Cox and the Commonwealth of Pennsylvania. We granted Mr. Geness leave to amend his complaint to remove his conspiracy claim, but denied him leave to add an Americans With Disabilities Act claim against the Commonwealth.[41] Mr. Geness filed his amended complaint naming only Detective Cox.[42]

         Detective Cox moved for summary judgment. We granted Detective Cox's summary judgment motion, finding (1) Mr. Geness did not adduce evidence Detective Cox lacked probable cause, (2)

         Detective Cox entitled to qualified immunity, (3) Mr. Geness did not adduce evidence of a reckless investigation, (4) Mr. Geness did not adduce evidence of intentional infliction of emotional distress, and (5) the statute of limitations barred Mr. Geness's claims and closed the case.[43]

         Attorney Sansone filed a notice of appeal.[44]

         After we closed the case, the state court appoints a limited guardian who allegedly ratified the Fee Agreement to assert claims against dismissed parties.

         In May 2017, after we closed the case and Attorney Sansone appealed, Attorney Sansone now apparently realized Mr. Geness (whom he knew to be incompetent since their first meeting) required a guardian to protect his rights. Attorney Sansone asked Attorney Tummons for help to locate a suitable guardian for Mr. Geness. Attorney Tummons located Attorney Karen Kiefer, a lawyer in good standing in Fayette County but who now resides in Stuart, Florida. Attorney Kiefer agreed to represent Mr. Geness pro bono. The Fayette County Orphan's Court entered a decree on July 6, 2017 appointing Attorney Kiefer as a "Limited Guardian of the person and Estate of Craig A. Geness for the specific purpose of assisting in the prosecution of the federal lawsuit and making decisions with regard to all matters related thereto."[45]

         Attorney Sansone now claims Limited Guardian Kiefer "agreed at that time, on behalf of [Mr. Geness], to ratify the existing fee agreement, although such ratification was oral and not put in writing."[46] There is no evidence Limited Guardian Kiefer ratified the Fee Agreement at the time of the appointment other than Attorney Sansone's representation. By the time of Limited Guardian Kiefer's appointment, we had already closed this case against the persons identified in the Fee Agreement and Attorney Sansone already appealed our entry of judgment dismissing Mr. Geness's case.

         Our Court of Appeals remands to consider the Commonwealth's ADA liability.

         In August 2018, our Court of Appeals affirmed our dismissal of Mr. Geness's civil rights claims as either time-barred or insufficiently substantiated through discovery.[47] It affirmed our dismissal of Mr. Geness's malicious prosecution claim.[48] But it reversed our denial of Mr. Geness's request to amend, [49] holding Mr. Geness's proposed amended complaint to add Americans with Disabilities Act and Due Process claims against the Commonwealth were not futile.[50] It remanded to allow Mr. Geness to "reinstate his claims against the Commonwealth."[51]

         Mr. Geness, through Attorney Sansone, filed an amended complaint against the Administrative Office of Pennsylvania Courts, the Commonwealth of Pennsylvania, Judges Solomon, Leskinen, Wagner, Warman, and Cappuzzi of the Court of Common Pleas of Fayette County, Fayette County District Attorneys Vernon and Heneks, and Fayette County Public Defender Jeffrey Whiteko.[52] The Commonwealth then moved to dismiss for failure to state a claim.[53]

         On February 1, 2019, we denied the Commonwealth's motion to dismiss because (1) Mr. Geness stated a timely claim for relief; (2) the Commonwealth's purported inability to direct the conduct of its judges is no bar to relief under Title II of the Americans with Disabilities Act; and, (3) Mr. Geness plausibly plead deliberate indifference of Commonwealth actors so he may sustain his claim for monetary damages under the Act.[54] The Commonwealth answered Mr. Geness's lawsuit on March 1, 2019.[55]

         We allowed Mr. Geness to again amend his complaint and, on March 27, 2019, Mr. Geness filed his second amended complaint adding the Pennsylvania Department of Human Services (the "Department").[56] On May 28, 2019, we denied the Administrative Office's motion to dismiss.[57]On June 14, 2019, we denied the Department's motion to dismiss.[58] The Department answered the second amended complaint on June 28, 2019.[59]

         Mr. Geness and the Department agree to settle.

         We found Mr. Geness's second amended complaint stated claims under the Americans with Disabilities Act against the Commonwealth of Pennsylvania, the Administrative Office of Pennsylvania Courts, and the Department. On July 22, 2019, we ordered Mr. Geness, the Commonwealth, Administrative Office of Pennsylvania Courts, and the Department to mediation on August 30, 2019 before Attorney David B. White.[60] On October 24, 2019, Mr. Geness and the Department jointly moved to approve a settlement agreement ("Proposed Settlement Agreement").[61]

         The Proposed Settlement Agreement releases the Department from all liability in exchange for a payment of $375, 000.00.[62] The parties agreed to divide the settlement, allocating $214, 363.26 to a special needs trust established for Mr. Geness, and $160, 636.74 to Attorney Sansone for attorney's fees and costs under the Fee Agreement.[63]

         Limited Guardian Kiefer swears she participated in the parties' mediation on August 30, 2019 by telephone; she participated in negotiations between Mr. Geness and all parties including the Department; she agreed to the $375, 000 settlement with the Department; she believes the settlement amount with the Department is commensurate with its liability in the action; and, she reviewed the settlement agreement and believes the terms and conditions are acceptable and reflect the agreement between the parties.[64] Limited Guardian Kiefer swears the money obtained from the settlement will be placed in a special needs trust "to finance any health issues [Mr. Geness] may experience, as well as for any of [Mr. Geness's] daily living needs [and] if feasible, the money may be used to place Mr. Geness in a more accommodating living facility."[65] The Limited Guardian does not explain her basis for concluding the settlement amount is reasonable or the fairness of the fees to be paid to Attorney Sansone other than the terms reflect an agreement between the parties.

         Attorney Sansone's responses to our October 25, 2019 Order.

         Concerned with a settlement awarding substantial fees to Attorney Sansone arising from limited work involving the Department since March 27, 2019, we ordered Attorney Sansone produce an in camera copy of the signed Fee Agreement. In the same October 25, 2019 Order, we directed Attorney Sansone and Limited Guardian Kiefer address three questions:

1. What is the standard for approval of this contingent attorney's fee given Mr. Geness's ability to contract or appreciate the use of the funds particularly in a fee shifting claim under the Americans with Disabilities Act;
2. Why does the guardian view the forty percent contingent fee as fair mindful we possibly have not reached a "gross" settlement amount or should we hold the fee in escrow until final order; and,
3. Why should the consideration paid by the Department of Human Services satisfy counsel's out of pocket costs incurred to date when only one of several Defendants settled and for costs incurred before adding the Department to the case on March 24, 2019 (ECF Doc. No. 183).[66]

         Attorney Sansone addressed our first question regarding the standard for approval of the Fee Agreement by explaining his relationship with Mr. Geness, including the circumstances through which Attorney Sansone began his representation of Mr. Geness.[67] Attorney Sansone explained he had no earlier experience with clients with a "significantly low I.Q." and "out of an abundance of caution" instructed Mr. Geness to sign the February 29, 2016 Fee Agreement.[68]

         Over a year later, Attorney Sansone realized Mr. Geness required a guardian and reached out to Attorney Tummons to help him locate one.[69] Attorney Kiefer (residing in Florida) agreed to act as Mr. Geness's guardian on a pro bono basis, and, after the Court of Common Pleas of Fayette County appointed her as a limited guardian, Attorney Kiefer orally ratified the Fee Agreement.[70] There is no evidence Attorney Sansone provided Limited Guardian Kiefer an amended or revised Fee Agreement reflecting an agreement as to payment of fees for a recovery from anyone other than Fayette County, Detective Cox or Jane/John Does relating to the events of November 17, 2006.

         Attorney Sansone directs us to three cases for the standard of approval for contingent attorney's fees: Coleman v. U.S.;[71] Gilmore v. Dondero;[72]and Johnson v. Clearfield Area School District., [73] In Coleman, Judge Robreno applied Pennsylvania substantive law to the allocation of settlement funds and the approval of attorney's fees even in a case based on federal question jurisdiction.[74] In Gilmore, the Pennsylvania Superior Court affirmed the trial court's reduction of counsel fees paid from the proceeds of a minor's compromise claim from one-third under a fee agreement between the minor's parents and counsel to a one-quarter fee. The superior court analyzed the trial court's decision under Pennsylvania Rule of Civil Procedure 2039. Rule 2039 requires "[n]o action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor."[75]Affirming the trial court, the superior court recognized while "this court is reluctant to poke its judicial nose into contracts between client and counsel, and even with the situation involving the rights of a minor, we are reluctant to be too intrusive, too assertive. But under our Rule 2039 mandate, we have an affirmative duty to be more than a passive, pro forma rubber stamp [of attorney's fees.]"[76]

         In Johnson, the district court applied a ten-factor test used in the application of Rule 2039 to requested attorney's fees.[77] Evaluation of the effectiveness of an attorney's performance is analyzed under the following factors: "(1) the amount of work performed; (2) the character of the services rendered; (3) the difficulty of problems involved; (4) the importance of the litigation; (5) the degree of responsibility incurred; (6) whether the fund involved was 'created' by the attorney; (7) the professional skill and standing of the attorney in her profession; (8) the result the attorney was able to obtain; (9) the ability of the client to pay a reasonable fee for the services rendered; and (10) 'very importantly' the amount of money in question."[78]

         Attorney Sansone did not address our question concerning a contingent fee agreement in a fee shifting case under the Americans with Disabilities Act. He instead stated, "under this point, counsel does not understand the Court's reference to the fee shifting provisions of the ADA. Certainly, if the Plaintiff, through the guardian and counsel, elected to go to trial against [the Department], the issue of recovery after a successful verdict of fees and costs would be a salient claim. However, as counsel, in consultation with the guardian, has elected to resolve the claims against Defendant DHS, this issue appears to be moot."[79]

         Our question concerned the standard for approving Attorney Sansone's contingent fee where the ADA allows for the recovery of attorney's fees to the prevailing party.[80] Attorney Sansone seemingly argues because the matter resolved through mediation and did not go to trial, whether the ADA's fee shifting provision applies is moot. Our first question remains unanswered.

         Our second question asked why Limited Guardian Kiefer views the forty percent contingent fee as fair. In response, Attorney Sansone (not the Limited Guardian) contends his contingent fee is fair, arguing "this case presented challenges like no other case in counsel's long and varied career"; he faced "many challenges ... in pursuing the rights of [Mr. Geness]"; Attorney Sansone and his team "overc[a]me significant obstacles in the way of any recovery for [Mr. Geness]"; and he "has been able to obtain this first amount of funds by virtue of a settlement that resulted from a mediator's recommendation that was embraced by both sides."[81] Attorney Sansone argues his four year litigation "fight," the expenditure of "hundreds of hours and thousands of dollars on behalf of [Mr. Geness] without any compensation, and without any guarantee of compensation" makes it fundamentally fair and proper for an award of attorney's fees for Attorney Sansone's efforts to date without holding fees until conclusion of the entire case.

         Attorney Sansone appends affidavits from attorneys familiar with his practice and the appropriateness of the fee award. He tells us Limited Guardian Kiefer "reviewed the affidavits submitted in connection with this request, and has accepted the opinions contained therein as valid as they related to the ultimate award of fees in this case."[82] Attorney Sansone supplied no case law in support of his position.

         Most tellingly, Limited Guardian Kiefer offered no response to our questions. We do not know why she would, in the exercise of her fiduciary obligations, view this forty percent fee as fair especially when the Fee Agreement she reviewed and ratified after we closed the case involved payments from other defendants and not a payment from the Department. We do not know why she would not provide evidence in response to our questions.

         In response to our third question regarding satisfying out-of-pocket costs from the Department's proposed $375, 000 settlement, Attorney Sansone cites the Fee Agreement involving payment by parties other than the Department: "[t]he simple answer here is to cite the contingent fee agreement between the parties, ratified by the guardian."[83] He explained the payment of costs by a client "has been a component of counsel's fee structure throughout his practice," and [n]othing in the agreement limits counsel from recovering any and all costs from any monies paid by any Defendant."[84] Of course, nothing in the Fee Agreement identifies the Department as a defendant.

         Attorney Sansone argues "the vast majority of costs expended relate directly or generally to establishing and sustaining the claims made against Defendant [Department], since that agency is a representative or agent of the real party in interest, the Commonwealth, which has been a Defendant from the inception of the case."[85]

         In sum, Attorney Sansone argues the Commonwealth is the "ultimate [d]efendant" and since the Department's settlement funds will flow from the Commonwealth, "it seems reasonable ... the requested costs will be reimbursed from the settlement money tendered by the Commonwealth."[86]

         II. Analysis

         Mr. Geness and the Department move to approve the Proposed Settlement Agreement including the payment of attorney's fees and costs.[87] The Proposed Settlement Agreement releases the Department from all liability in exchange for a payment of $375, 000.00.[88] The Proposed Settlement Agreement allocates $214, 363.26 to a special needs trust established for Mr. Geness and $160, 636.74 to Attorney Sansone for attorney's fees and costs under Mr. Geness's Fee Agreement.[89]

         We have an inherent duty to protect the interests of minors and incompetents who appear before us.[90] 'As part of that duty, the court must determine the fairness of any settlement agreement and the reasonableness of any attorneys' fees to be paid from the settlement amount in a suit brought on behalf of a minor or incompetent."[91] The United States District Court for the Western District of Pennsylvania Local Rule 17.1 requires court approval for settlement of actions involving minors or incompetent persons: "No action to which a minor is a party shall be compromised, settled, discontinued or dismissed except after approval by the Court pursuant to a petition presented by the guardian of the minor or the natural guardian of the minor, such as the circumstances might require."[92] The minor or incompetent's attorney "shall file with the Clerk of the Court, as part of the record, a petition containing (1) a statement of the nature of the evidence relied on to show liability, (2) the elements of damage, (3) a statement of the services rendered by counsel, (4) the expenses incurred or to be incurred and (5) the amount of fees requested. The petition shall contain written statements of minor's attending physicians, setting forth the nature of the injuries and the extent of recovery. If required by the Judge, such statements of attending physicians shall be in affidavit form. The petition shall be verified by the affidavit of the minor's counsel. ..."[93]

         "The determination of the fairness of a settlement agreement involving a minor and the reasonableness of the amount to be apportioned from the proceeds of that settlement agreement in payment of attorneys' fees implicates the parties' substantive rights."[94] Federal courts exercising diversity jurisdiction apply state law to consider the fairness of a minor's or incompetent person's compromise and the reasonableness of the attorney's fees to be apportioned from the settlement amount.[95] Federal courts exercising federal question jurisdiction apply federal law to substantive rights except where "federal law does not expressly establish a rule of decision."[96] In that case, "where the state law on the issue is well-developed and the application of state law will not impinge upon any federal interest, the court may 'borrow' state law to fill the gap in the federal statutory scheme."[97]

         Mr. Geness asserted claims against the Department under the Americans with Disabilities Act. There is nothing in the Act providing a standard for a court to evaluate a minor's or incompetent person's compromise. Like the courts in Nice and Johnson assessing minors' compromise in federal civil rights litigation, we apply Pennsylvania law to determine the fairness of the Proposed Settlement Agreement.[98]

         Pennsylvania Rule of Civil Procedure 2064 requires court approval for a settlement of an incapacitated person's claim: "[n]o action to which an incapacitated person is a party shall be compromised, settled, or discontinued except after approval by the court pursuant to a petition presented by any party in interest."[99] "When a compromise or settlement has been approved by the court, or when a judgment has been entered upon a verdict or by agreement, the court, upon petition by the guardian or the guardian ad litem or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian or the guardian ad litem for the payment of counsel fees and other expenses out of the fund created by the compromise, settlement or judgment; or the court may make such order as it deems proper fixing counsel fees and other proper expenses. The balance of the fund shall be paid to the guardian of the estate of the incapacitated person qualified to receive the fund, if there is one or one is to be appointed. The balance of the fund payable to the guardian of the estate may include a structured settlement underwritten by a financially responsible entity that assumes responsibility for future payments or a trust as described in subdivision (b)(4) of this rule."[100]

         We may evaluate the reasonableness of Attorney Sansone's fees and costs under both Rule 2064 and Local Rule 17.1.[101] The court in Johnson applied both Pennsylvania law and Local Rule 17.1 because "the Commonwealth's jurisprudence in this area is well-developed, and Pennsylvania where the alleged civil rights violations occurred clearly has an interest in safeguarding the affairs of minor litigants."[102] We see no authority to distinguish the settlement of minor's claims from the settlement of an incompetent person's claims and, in response to our show cause order, Attorney Sansone cited cases addressing the settlement of minors' claims.

         Pennsylvania courts are "given the mandate to supervise all aspects of settlements in which a minor is a party in interest, ... and in considering whether to approve a settlement, the Court is charged with the best interests of the minor."[103] "In considering petitions to approve compromise settlement and distribution, the court must assess the following: (1) the sufficiency of the petition; (2) the fairness of the proposed settlement amount; and (3) the reasonableness of the requested counsel fees."[104]

         Applying these standards, we consider the sufficiency of the Motion to approve the settlement agreement and attorney's fees; the fairness of the proposed Settlement Agreement; and, the reasonableness of the requested forty percent attorney's fees.

         The parties' Motion argues they engaged in mediation and agreed to settle all claims against the Department in exchange for a $375, 000 payment by the Department.[105] Attorney Sansone "believes that a settlement in this amount was a proper decision given the risks inherent in the litigation of this matter and that the settlement amount is proportional to [the Department's] liability" and, "[t]herefore, it was in [Mr. Geness's] best interest to secure this amount in settlement with [the Department] without adversely affecting his claims against [the Administrative Office of the Pennsylvania Courts]."[106] Attorney Sansone additionally states his Fee Agreement with Mr. Geness, "ratified by [Limited Guardian Kiefer], provides for payment to [Attorney Sansone] ¶ 40 percent of the gross settlement amount" as well as out-of-pocket costs to date of $10, 636.74.[107] In support, the parties attach the Affidavit of Limited Guardian Kiefer and a statement of out-of-pocket expenses.[108]

         In response to our show cause order raising concerns about the contingency Fee Agreement, Attorney Sansone submitted a copy of the Fee Agreement; time sheets for Attorneys Sansone, Terzigni, and Tuttle; time sheets for Paralegal Ridjaneck; and five affidavits from attorneys attesting to the appropriateness of a forty percent contingent fee.[109]

         A motion for approval of a settlement must adduce sufficient evidence on which we may base a determination.[110] A motion should include "all relevant facts and the reasons why the minors' guardian believe the settlement is desirable and why it is in the minors' best interest to settle the action."[111] "[R]elevant facts include a description of the minor's physical and/or psychological condition, a statement and/or discussion regarding the minor's current physical and/or mental health needs, evidence of the extent of the minor's condition, and the need for future medical and/or psychological care, as well as future expenses."[112]

         A. We lack evidence to determine the fairness of the Proposed ...


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