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HomeMy WebLinkAboutBRIEF ON BEHALF OF MINORS(NO DATE) " IN RE: ESTATE OF ROBERT W. ROLAND, JR., CHRISTINA ANN ROLAND and DAVID G. ROLAND, All Minors Over the Age of 14 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION 232 ORPHANS' 1978 BRIEF ON BEHALF OF MINORS I . FA CTS ...................................... 1 II. LEGAL ISSUE--ARGUMENT.................. ..... 3 A. Wrongful Death Action.. ................. 3 B. Survival Action................... ..... 5 1. S tat ement of Law.................... 5 2. Application of Law to Facts......... 6 III. CONCLUSION.................................. 7 .-'1 I. FACTS On April 6, 1978, the father of the above-named minors was killed in an industrial accident. He died intestate, the children apparently being his only heirs.1 In addition to a tort claim based upon the manner of his death, his estate contained real t:y with a present equity value of about $27,000 and other assets of a present value of about $2,000. The minors mentioned above live on the realty. During his life, the father had established separate Totten trusts for the children, the present values of which are approximately $19,000 (oldest child), $23,000 (middle child) and $7,000 (youngest child). The Commonwealth National Bank was appointed guardian of the estates of the children by the Cumber- land County Court on May 2, 1978; the bank also received letters of administration in the father's estate in the Cumberland County Court. In its capacity as personal representative with respect to the father's estate, the bank brought, in Dauphin County, a wrongful death action on behalf of the children, and a survival action based upon the aforesaid tort claim on behalf of the estate, having signed a contingent fee agreement with counsel to this end. The agreement provided that the bank as administrator would pay costs of suit. During the course of the trial, witness 1. Although the children presently live with their mother, their parents were divorced at the time of their father's death. -1- I' fees and other costs in the amount of approximately $19,000 were incurred by the plaintiff; additional costs of approximately $1,500 are anticipated. On September 25, 1981, a verdict of about $127,000 was returned in the wrongful death action and one of about $476,000 was r'eturned in the survival action. Post-trial motions in the case are now pending. Subsequent to the verdicts, the bank filed the instant petition in its capacity as guardian of the chil- dren's estates, seeking leave of court to pay the said costs out _._--_._._'-,'_...~.._~.""'..,,~..., of the said estates; the estates were to ~,~3~T"shares,--.QL,~.t:he -...........0....."."'. . costs proportional to their values. 2 Prior to a hearing on the matter, the writer herein was appointed by the Court as special guardian ad li tern for each child. A hearing on the issues was held on April 26, 1982. 2. It appears that the timing of the petition was at least partly occasioned by the impending majority of one of the children. -2- " II. LEGAL ISSUES--ARGUMENT A. Wrongful Death Action3 Under Pennsylvania Rule of Civil Procedure 2206, where a sum is due to the plaintiff in a wrongful death action, the court: is requi red, upon request, to make an order designating the persons entitled to share in the damages and the proportion- ate share to which each is entitled. "If a share [is] payable to a minor the court shall designate as the person to receive such guardian of of Pa. the minor the estate " share a R.C.P. 2206(b)(l). If there is no guardian, other orders by the 4 court are provided for. Under Pennsylvania Rule of Civil Procedure 2206(c), "the cour1: may also approve an agreement for the payment of counsel fees and other proper expenses out of the share of damages to which the minor is entitled." Al though the word "court" does not appear to be defined for purposes of this rule, it seems clear that it means the court of common pleas in which the action is pending.5 In the present case, the wrongful death action is pend- ing in the Dauphin County Court of Common Pleas. There has been 3. Actions for wrongful death are provided for in the Act of July 9, 1976, P.L. 142, ~2, 42 Pa. C.S. ~8301. 4. See Pa. R. C . P. 2206 (b) ( 2), (3), (4). 5. "The court of common pleas has tion in determining the distribution of action for wrongful death." 4 Anderson, Practice ~2206.6 (1980 Supp.). exclusive jurisdic- the recovery in an Pennsylvania Civil -3- II no evidence presented that the Dauphin County Court has yet desi9nated the persons to share in the proceeds or the propor- tionate share of the proceeds to be received by each; nor has there been evidence that the court has yet approved the fee arrangement involved herein or the payment of expenses out of the share of damages of each minor. In addition, an eventual loss of the case by plaintiff would result in a burden of quest:ionable proportionality having been imposed on each child at a time when the bank may be unable to rectify the proportions. Although there are obvious policy considerations sup- porting the request made by petitioner in the present case, including the desirabili ty of not discouraging the bringing of an action by a personal representative out of fear of personal liability for costs, it is believed that the present petition is at least premature with respect to the request for costs, in the proportions stated and in a wrongful death action, from the children I S guardianship accounts. Indeed, serious jurisdictional quest.ions might be raised by a granting of the petition at the present time.6 6. "Since the recovery in a wrongful death action does not become part of the decedent's estate, the orphans' court has no jurisdiction to act in the distribution of such funds or to determine the propriety of an attorney I s fee." 4 Anderson, Pennsylvania Civil Practice ~2206.6 (1980 Supp.); cf. Pozzulo Estate, 433 Pa. 179, 249 A.2d 540 (1969). -4- " - B. Survival Action7 1. Statement of Law In a survival action, the interest of the estate is represented by the decedent's personal representative. 8 In general, a guardian of the estate of a person beneficially interested in the recovery does not have the standing of a 9 party. Survival actions and wrongful death actions are to be consolidated wherever possible.10 As has been noted in the preceding section of this brief, the rules of civil procedure in Pennsylvania contemplate a determination as to the propriety of attorney I S fees and expenses in wrongful death actions at the time of settlement or other disposition in the common pleas court in which the action is pending. In the case of survival actions, a settlement or compro- mise in a pending suit is to be the occasion of an examination of counse 1 11 fees and expenses. It appears in such cases that 7. Survival actions are provided for in the Act of April 28, 1978, P.L. 202, ~8, 20 Pa. C.S. ~3371 (1981-82 Supp.), and the Act of July 9, 1976, P.L. 586, ~2, 42 Pa. C.S. ~8302. 8. See 11 P.L.E. Death; Dead Bodies ~11, ~31 (1970); Act of June 30, 1972, P.L. 508, ~2, 20 Pa. C.S. ~3373. 9. Cf. Beascoechea v. Sverdrup & Parcel & Associates, Inc., 486 F. Supp. 169 (E.D. Pa. 1980). 10. Pa. R.C.P. 213. ~3323. 11. Act of June 30, 1972, P.L. 508, ~2, 20 Pa. C.S. -5- " either the court of common pleas in which the case is pending12 or the orphans I court in which the estate is pending13 enjoys jurisdiction for such purposes. As a general rule, the propri- ety of legal fees and payment of expenses in sui ts involving minors is subject to court review at the time of a final determination in the case.14 2. Application of Law to Facts On the basis of the foregoing principles of law, it is believed that, with respect to the survival action, (1) the instant petition by a guardian may reveal a standing deficiency, in that it appears to seek relief more properly within the legal interest of a personal representative, (2) the relief requested does not appear to separate the survival action from the wrong- ful death action, fees and costs in the latter of which apparent- ly must be considered initially by the Dauphin County Court of Common Pleas, and (3) the relief requested appears to be prema- ture in view of the above-stated rules applicable to termination of survival actions and actions involving minors in general, as well as the practical considerations mentioned in the preceding section. 12. rd. ~3323(b). 13. rd. ~3323(a). 14. See Pa. R.C.P. 2039 -6- . . 'I III. CONCLUSION For the reasons stated above, it is respectfully request- ed that the instant petition be dismissed, without prejudice to the right of petitioner to refile it, or a similar petition, at a lat:er time. Respectfully submitted, d ~ '!de*::!~r.ir, Attorney for the Above-Named Minors -7-