HomeMy WebLinkAbout03-2532 IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
LOUIS A. DEJOIE, III and CYNTHIA DEJOIE,
Individually and as Parents and
Natural Guardians of LOUIS A. DEJOIE, IV,
Plaintiffs
VS.
ALBERT J. APICELLA, D.D.S.,
Defendant
CIVIL ACTION - LAW
JOINT PETITION FOR APPROVAL OF SETTLEMENT INVOLVING
THE CLAIM OF A MINOR PURSUANT TO PA.R.C.P. NO. 2039
Louis A. Dejoie, III and Cynthia Dejoie, individually, and as parents and natural
guardians of Louis A. Dejoie, IV, by and through their attorneys, McNees Wallace & Nurick
LLC, and Albert J. Apicella, D.D.S., by and through his attorneys, Miller and Miller, petition the
Court for approval of a Settlement Agreement and Release of all claims of Louis A. Dejoie, IV a
minor, against Albert J. Apicella, D.D.S. In support of this petition, the parties aver as follows.
1. The attorneys responsible for this Petition are Kandice J. Kerwin of McNees
Wallace & Nurick LLC on behalf of Plaintiffs Louis A. Dejoie, III and Cynthia Dejoie,
individually, and as parents and natural guardians of Louis A. Dejoie, IV and G. Thomas Miller
of Miller and Miller on behalf of Defendant Albert J. Apicella, D.D.S.
2. The parties concur in this Petition.
3. This is the first filing in this action, and thus, the Court has not ruled on any other
issue in this matter.
guardians of Louis A. Dejoie, IV ("Louis").
Breeches Road, Carlisle, Pennsylvania 17013.
5.
o
Louis A. Dejoie, III and Cynthia Dejoie (the "Dejoies") are the parents and natural
Louis and the Dejoies reside at 95 East Yellow
Louis's date of birth is May 21, 1990.
Albert J. Apicella, D.D.S. ("Dr. Apicella") is a dentist with a professional office at
21 State Avenue, Carlisle, Pennsylvania 17013
7. Dr. Apicella provided dental care to Louis from January 2000 to February 2001.
8. The dental care provided Dr. Apicella included fitting Louis with braces and,
ultimately, removing the braces.
9. In the course of removing the braces, a dental technician under the supervision of
Dr. Apicella allegedly caused a break in one of Louis's permanent teeth.
10. Following this possible injury to his tooth, the Dejoies took Louis for treatment to
Dr. Thomas Neslund, D.D.S., who has a professional office at 13 Brookwood Ave, Carlisle,
Pennsylvania 17013.
11. The alleged injury to the tooth necessitated the placing of a crown on the tooth
and a root canal on the nerve attached to the tooth.
12. Louis has recovered from the injury to his permanent tooth and the treatment
following it; however, the Dejoies anticipate that Louis may have future medical expenses
related to his injury, namely the cost of replacing the crown on the tooth.
13. After consultation with an independent dentist, the Dejoies determined that the
future cost of Louis's dental care related to this incident will be between $3,000.00 and
$4,000.00.
14. The cost of Louis's medical treatment for the injuries sustained to his permanent
tooth incurred by the Dejoies to the present time is less than $1,000.00.
15. Neither Louis nor the Dejoies have incurred any additional expenses beyond the
costs of Louis's dental care as a result of this incident.
16. No lawsuit or legal proceeding, other than the instant action, has been instituted as
a result of the aforementioned incident.
17. Both the Dejoies and Dr. Apicella believe that it is in the best interests of all the
Petitioners to resolve this matter expeditiously and without resort to litigation.
18. Subject to the Court's approval, the Petitioners have agreed to enter into a General
Release, which is appended hereto as Exhibit A. Under the General Release, Dr. Apicella's
insurance carder will pay the Dejoies, individually, and as the parents and natural guardians of
Louis, the sum of seven thousand dollars ($7,000) in settlement of any claims they may have
against Dr. Apicella arising or to arise out of the alleged injury sustained by said minor. The
General Release provides for the immediate payment of this sum to the Dejoies on behalf of
Louis.
19. Plaintiffs' attorneys have waived any claim for cotmsel fees related to this action,
and the entire settlement proceeds will be delivered to the Dejoies.
20. The General Release is a settlement of a disputed claim without admission of
liability by Dr. Apicella. The Dejoies believe that the settlement sum is adequate to provide for
the minor's present and future medical expenses related to this incident, as well as provide
adequate compensation for his pain and suffering associated with his injury.
21. Considering the extent of Louis's injuries, the Dejoies believe that Dr. Apicella
has offered appropriate compensation by way of settlement and compromise and that litigation of
26.
a hearing.
27.
any claims would not be in the best interests of Louis. Furthermore, the Dejoies desire a speedy
and certain resolution of this matter.
22. The Dejoies believe that the execution of the General Release is in the best
interests of Louis, given that the extent of his injuries, that the proposed payment is sufficient to
cover all expenses incurred, and reasonably anticipated to be incurred, as a result of this incident,
and that the outcome of litigation would be uncertain.
23. Louis A. Dejoie, III is himself an attorney admitted to practice in this
Commonwealth and a member of the law firm of McNees Wallace & Nurick LLC. Mr. Dejoie
has reviewed the Settlement Agreement and Release, and believes it to be a fair agreement in the
best interests of his son, Louis.
24. Moreover, the Dejoies have retained McNees Wallace & Nurick LLC as their
attorneys in this dispute, and members of the firm who practice in the area of personal injury
litigation and settlements have reviewed the Settlement Agreement and believe it to be a fair
agreement in the best interests of Louis.
25. Dr. Apicella has also retained counsel, Miller and Miller, who have reviewed the
Settlement Agreement and believe it to be in the best interest of all parties.
The parties respectfully request that this matter be decided on the petition, without
The parties further request that, in view of the confidentiality agreement of the
parties made part of the General Release, this Honorable Court direct that the record and related
documents of this action be sealed, subject, however, to such further order of the Court as may
be appropriate upon cause shown.
WHEREFORE, Plaintiffs Louis A. Dejoie, III and Cynthia Dejoie, individually, and as
parents and natural guardians of Louis A. Dejoie, IV, and Defendnat Albert J. Apicella, D.D.S.
jointly request that the Court approve the terms of this Settlement Agreement and Release and
the execution of the Settlement Agreement and Release by the Plaintiffs.
Respectfully submitted,
McNEES W, ALLACE & NURICK LLC
/ Kandic~
Atty. I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
717-237-5452
Attomeys Louis A. Dejoie, III and Cynthia Dejoie,
individually, and as parents and natural guardians of
Louis A. Dejoie, IV
MILLER AND MILLE~
G. TJi'~-rnas 'lv~ill~r
Atty. I.D. No. 07219
401 S. 32nd Street
Camp Hill, PA 17011-5105
717-920-5500
Attorneys for Albert J. Apicella, D.D.S.
GENERAL REL ~EASE
KNOW ALL MEN BY THESE PRESENTS, that we, LOUIS A. DFJOIE, III AND
CYNTHIA DEJOIE, individually and as the parents and natural guardians of LOUIS A. DFJOIE,
IV, a minor, 'all of 95 East Yellow Breeches Road, Carlisle, PA 17013, Cumberlmld County,
Pennsylvania (collectively "Releasors"), in consideration of the paymem by THE GE/MEDICAL
PROTECTIVE COMPANY on behalf of AI,BERT J. APICEIJA, D.D.S. of Carlisle, PA,
(Payor), of thc sum of SEVEN THOUSAND DOI JARS ($7,000.00), and other good ~mtt valual~le
consideration, at the time of sealing and delivery hereof, the receipt and sufficiency of Milch is hereby
acknowledged, do tbr ourselves and our heirs, executors, administrators, successors and assigns,
hereby rclc,~se, and forever discharge completely and absolutely the said Payor and AlbertJ. Apicclla,
D.D.S., (Releasee) their heirs, successors and assigns, and each of them, and any and all other
pcrsons, finns and corporations, t'?om any and all actions, causes of action, suits, claims, d,'um~'cs and
demands of every kind, name or nature whatsoever, known or unknown, whether in law or in equity,
which Releasors or anyone claiming by or through them in any way may have or will claim or could
claim against the above~nanmd Payor and Releasee, including, but not limited to, any and ~dl personal
injuries, alleged sub-standard dental care, physical or emotional claims, furore disabilities and m~y and
all other damages, losses or injuries whatsoever based upon, or in any way arising out of, related to or
resulting from the dental care provided said minor Releasor during the period July 24, 2000 to the
present, and any and all claims w}fich Relcasors, their heirs, successors, and assigms, have made or
could have made against the Releasee, whether accrued or not, whether knovm or unknown, whether
anticipated or m~anticipated, and including, but not limited to, any claim which Releasors could have
brought or might herealier bring against Releasee in any Court.
We inmnd that this Release shall be co~nplete m~d shall not be sub. ject to any claim of mistake
of fact, or of law and that it expresses a full and complete settlement of liahility claimed against but
denied by thc above-named Releasee, and, regardless of the adequacy or inadequacy of the an~ount
paid, such payment is made to avoid litigation, and the expense of same, against the above-named
Releasee mad to be final and complete. Payment hereunder constitutes the compromise and
settlement of a doubflhl and disputed claim and such payment is not to be construed as all admission
of liability by the Releasee or anyone on his behalt'i to the contrary, Releasee and Payor expressly
deny any liability.
We fhrther certify, declare and acknowledge that we have had the right to leg~ representation
through these proceedings and have been advised by my counsel in all matters pertaining hereto and
We admit that. no misrepresentation of thct or opinion has been made by said Payor or Releasee or
anyone acting on their behalf to induce this compromise or payment or release. In making this
settlement, we certify, declare and acknowledge that we have not relied on may statements or
representation of either the extent of financial responsibility or the extent of leg~d responsibility of the
Payor mid Releasee and that it is our intention that this Release be complete and shall cover all losses,
dmnages and injuries insofar as they relate to any professional conduct by the Releasee. we further
certify, declare and aclmowledge that we have read Ilfis Release and understand die terms of s~ane;
that we are of sound mind, and under no constraint, undue influence, mental reservation, lack of
mental capacity or impairment of health or mental thculfies or capabilities mid that we l'hlly know,
understand and comprehend the nature of and the ett'ect of this Release and settlement which we, the
adult Releasors, are signing on behalf of the said minor, and that we are signing the same as our own
free act and deed, intending to be legally bound thereby, mad further state that we sincerely believe
that we ,me acting in the best interests of' our said minor son in entering this General Rele~zse.
lt. is thrther understood mid agreed and made a part hereof that neither we nor our heirs,
executors, administrators, successors or assigus nor our attorneys or oilier representatives will, in any
way, publicize in any news or conwnunications media, including, but not limited to, newspapers,
magaz.~ines, journals, radio or television, the facts of or terms ~md conditions of tiffs settlement. All
parties to ilfis agreement expressly agree to decline any comment on any aspect of this settlement to
any member of die news media and all other persons. This paragraph is intended to become part of
the consideration tbr settlement of our claim. In order to further implement this covenant of non-
disclosure, we agree to include in the Petition for Settlement. Approval that will be filed with the
Cumberland County Court our request to die Court that the facts and terms of this Agreement be
treated confidentially by the Court and that the Court seal the record of this proceeding.
And further, we agree to indemni[~ and hold harmless Payor and Releasee against any and all
claims, court costs, expenses and attorney tees which Payor and Releasee may hereatter incur in the
defense of any claim made against them by or on behalf of said minor, whether during his minority
or aticr attaining Iris majority
This Release contains the entire agreement and understanding between the parties hereto and
there are no written or oral understandings or agreements directly or indirecliy connected with this
Release and setliement that ,are not incorporated herein. The terms of this Release ,are contractual
and binding and this Release is given under and pursuant to the laws of Pennsylvania.
IN WITNESS WHEREOF, AND INTENDING TO BE LEGALLY BOUND
HEREBY, Releasors have hereunto set their hands and seals lifts .... day of March, 2003.
CAUTION: READ BEFORE SIGNING - YOU ARE SIGNING A GENERAL REI FASE OF
A1 J, CLAIMS AGAINST PAYOR AND REI,EASEE.
In the Presence Off
(SEAL)
Louis A. DeJoie; III, individually and as
parent and natural guardian of Louis A. DeJoie, IV
SSN# 055-552-1707
(SEAL)
Cynthia DeJoie, individually and as
parent and natural guardian of Louis A. DeJoie, IV
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF CUMBERLAND :
On this, the ____ day of March __, 2003, before a Notary Public, the undersigned officer,
personally appeared Louis A. DeJoie, III and Cynthia DeJoie, known to me (or satisfactorily
proven) to be the persons who executed the foregoing Release, and duly acknowledged to me that
they executed said Release for the purposes therein stated.
IN WI I NESS WHEREOF, I have hereunto set. my hand and official seal.
Notary Public
My Commission Expires:
LOUIS A. DF_IOIE, III
AND CYNTHIA DF_IOIE,
Individually and as Parents:
And Natural Guardians of :
LOUIS A. DF_IOIE, IV :
ALBERT ]. APICELLA, :
D.D.S. :
:
:
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2003-2532 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this 3RD day of JUNE, 2003, a hearing on the .loint Petition for
Approval of Settlement Involving the Claim of a Minor is scheduled for FRIDAY.
.ll)NE 20. 2003, at 12:00 NOON in Courtroom # 5 of the Cumberland County
Courthouse, Carlisle, Pennsylvania.
Edward E. Guido, .1.
Kandice .1. Kerwin, Esquire
For the Plaintiffs
G. Thomas Miller, Esquire
For the Defendant
:sld
LOUIS A. DEJOIE, III
and CYNTHIA DEJOIE,
Individually and as Parents
And Natural Guardians of
LOUIS A. DEJOIE, IV
ALBERT J. APICELLA, D.D.S.
1N THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2003-2532 C1VIL TERM
ORDER OF COURT
AND NOW, this I~day of June, 2003, a heating on the Joint Petition for
Approval of Settlement Involving the Claim of a Minor is rescheduled fi.om FRIDAY,
JUNE 20, 2003, AT 12:00 NOON to AUGUST 5~ 2003~ AT 8:30 A.M. in Courtroom #5
of the Cumberland County Courthouse, Carlisle, Pennsylvania.
~F?dice J. Kerwin, Esquire
r the Plaintiffs
~. Thomas Miller, Esquire
For the Defendant
Edward E. Guido, J.
06-30-0'3
{A449461: }
McNees Wallace & Nurick,,c
attorneys at law
LOUIS A. DEJOIE
DIRECT DIAL: (717) 237-5387
E-MAIL ADDRESS: LDEJOIE~MWN.COM
June 18, 2003
JUN 1 9 2003
The Honorable Edward E. Guido
Court of Common Pleas
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
RE:
Louis A. Deioie, III and Cynthia Dejoiet individually and as
parents of Louis A. Deioie, IV v.
Albert J. Apicella, D.D.S.
Civil Action No. 2003-2532
Dear Judge Guido:
In accordance with the instructions of your office, I am enclosing an Order
rescheduling the hearing in the above-referenced matter to August 5, 2003, at 8:30 A.M.
Thank you.
Sincerely,,
McNEES WALLACE & NURICK LLC
LAD:clf
Enclosure
C:
Kandice J. Kerwin, Esquire
G. Thomas Miller, Esquire
{A449560:} ·
100 PINE STREET PO Box 1166 · HARRISBURG, PA 17108-1166 · TEL; 717.232.8000 · FAX: 717.237.5300 · WWW.MWN.COM
HAZLETON, PA ° STATE COLLEGE, PA · COLUMBUS, OH · WASHINGTON, DC
LOUIS A. DEJOIE, HI
AND CYNTHIA DEJOIE,
Individually and as Parents and Natural
Guardians of LOUIS A. DEJOIE, IV,
Plaintiffs
VS.
ALBERT J. APICELLA, D.D.S.,
Defendant
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2003-2532 CIVIL TERM
: CIVIL ACTION - LAW
PRAECIPE FOR DISCONTINUANCE,
To~
Mr. Curt Long, Prothonotary
Please mark this action settled, discontinued and ended.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
Kandicc~j'. Giurintano
Atty. I.D. No. 86345
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
717-237-5452
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a tree and correct copy of the foregoing
document was served by regular, first-class U.S. mail, postage prepaid, upon the following:
G. Thomas Miller, Esquire
Miller and Miller
401 S. 32nd Street
Camp Hill, PA 17011
/ l~ndice-J. Giurintano
August 8, 2003