Loading...
HomeMy WebLinkAbout04-21-86 IN RE: ESTATE OF DAVID G. ROLAND IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS COURT DIVISION NO. 232 ORPHANS 1978 GUARDIAN'S REPLY TO OBJECTIONS OF PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY TO SECOND AND FINAL ACCOUNT AND PROPOSED DISTRIBUTION OF COMMONWEALTH NATIONAL BANK, GUARDIAN OF THE ESTATE OF DAVID G. ROLAND 1. Admitted. 2. Denied as alleged. The Guardian admits that Robert W. Roland, Sr. suffered fatal injuries when he activated a conveyor on which he was sitting which then carried him into an elevator where he suffered fatal injuries. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Denied as alleged. The Guardian avers to the contrary that according to its records it only received the sum of $34,593.38 from the objector on behalf of its ward, David G. Roland. 10. Denied as alleged. The Guardian admits that it as CLECKNER a Fa~ministra tor of the Estate of Robert W. Roland, Sr. commenced a ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA survival and wrongful death action in the Court of Common Pleas of Dauphin County docketed to No. 2968-S-1978 against Hershey Foods Corporation. The Administrator of the said Estate settled the said action after Hershey Foods Corporation appealed an adverse decision before the Court of Common Pleas of Dauphin County and said settle- ment specifically provided that no admission of negligence was involved. Consequently, no final Order ever established that Hershey Foods Corporation was in fact a third party tortfeasor. 11. Denied as alleged. The Defendant Hershey Foods Corpora- tion appealed the jury verdict to the Superior Court of Pennsyl- vania alleging numerous trial errors that if sustained would have entitled it to a new trial. Subsequent to the appeal of Hershey Foods Corporation the Administrator compromised and settled the Administrator's claim against Hershey Foods Corporation on or about April 25, 1984 pursuant to a structured settlement with total payments equalling $797,762.00. No final Order establishing any negligence or responsibility on the part of the Defendant Hershey Foods Corporation was ever entered. 12. Denied as alleged. Commonwealth National Bank, Guardian of the Estate of David G. Roland received funds only in its fiduciary capacity and not as an ultimate beneficiary. Only David G. Roland was a beneficiary of the aforesaid settlement agreement. 13. Admitted. CLECKNER 8< FEAREN 14. Denied as alleged. The Guardian admits that a structured ATTORNEYS AT LAW HARRISBURG. PENNSYLVANIA - 2 - settlement on behalf of its ward, David G. Roland, exists in the sum of approximately $155,840.00. The Guardian further avers that the structured settlement provides adequate security for the objector's alleged claim in the event that the objector would prevail in the Dauphin County action. There is no reason to deny the beneficiary funds to which he is entitled and not to release the guardian from its duties under the within guardianship. 15. Denied as alleged. The Guardian admits that Pennsylvania has a Workmen's Compensation Act and that the subrogation provision of that Act is 1956 P.L. 1120, 77 P.S. 671. The Guardian denies that the objector is subrogated in any way to the aforesaid settlement because the negligence of Hershey Foods Corporation has never been established by a final Order and because of the equitable defenses raised in the Answer and New Matter in the said Dauphin County action. A true and correct copy of said Guardian's Answer and New Matter is marked Exhibit "A", attached hereto and incorporated herein by reference thereto. By way of further answer the Guardian avers that paragraph 15 of the objector's objections is a conclusion of law to which no reply is required under the Pennsylvania Rules of Civil Procedure. 16. Denied as alleged. The Guardian admits that the within objector has made claim and demand upon it and that it has refused to pay the objector's claim because the objector has no legal right rn any subrogation or funds of the Estate of David G. Roland. CLECKNER a FE)(Rt:N ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA - 3 - 17. Denied as alleged. The Guardian admits that the objector has filed suit as set forth in the objector's objections. The Guardian avers to the contrary as hereinbefore set forth that the objector is not entitled to any subrogation or funds of the Estate of David G. Roland. 18. Admitted. 19. Denied as alleged. The Guardian avers to the contrary that it only received a total of $34,593.38 from the objector in toto on behalf of its ward, David G. Roland. 20. Denied as alleged. The Guardian admits that its scheduled proposed distribution makes no provision for payment of PMA's claim because PMA has no right to receive any funds from the Estate of David G. Roland. 21. Denied as alleged. The Guardian avers to the contrary that as more fully set forth herein and incorporated herein by reference hereto the objector is not entitled to any subrogation or funds of the Estate of David G. Roland and therefore it is not a creditor of said Estate. 22. Denied as alleged. As aforesaid, the objector is not a creditor of the Estate of David G. Roland and consequently the Guardian has properly not included the objector as a creditor or made any provision for payment of a disputed claim which the Guardian believes to be unfounded. CLECKNER 8l FEAREN 23. Denied as alleged. The Guardian admits paragraph 23 ATTORNEYS AT LAW HARRISBURG. PENNSYLVANIA - 4 - accurately sets forth the objector's desire, but by way of further answer and defense avers that the objector's request to hold the entire sum of $32,498.74 is grossly inflated and an amount which the objector even under its own theory of law is not entitled to receive because it does not take into account the provisions of 77 P.S. 671 that deduct from the entire payments made, the attorney's fee and pro rata costs of litigation. The objector claims only that it paid a total of $35,127.46 to the Estate of David G. Roland which would be reduced by the 50% contingent less the objector's pro rata share of costs of suit. Consequently, even under its own theory of law the objector is entitled to no more than $17,296.69 less its pro rata share of litigation costs. WHEREFORE, the Guardian prays that Your Honorable Court will dismiss the objections of the objector to the Second and Final Account and Proposed Distribution of Commonwealth National Bank, Guardian of the Estate of David G. Roland. NEW MATTER 24. The Pennsylvania Workmen's Compensation Act, 1956 P.L. 1120, 77 P.S. ~671 and the case law thereunder holds that the subrogee is obligated to pay the subrogor's attorney's fees on the same fee agreement as the subrogor has with the subrogor's counsel and the subrogee is further obligated to pay its pro rata share of costs of litigation. CLECKNER a FEAREN ATTORNEYS AT LAW HARRISBURG. PENNSYLVANIA - 5 - 25. The fee agreement between the Guardian and its attorneys provided for a 50% contingent fee in the event of an appeal to the Superior Court. 26. The Defendant Hershey Foods Corporation appealed to the Superior Court and the Guardian's attorneys were entitled to a 50% contingent fee. 27. The Guardian expended significant sums in order to properly present the Guardian's claim against Hershey Foods Corporation. 28. The objector avers only that it paid a total of $35,127.46 to the Guardian on behalf of the Estate of David G. Roland. 29. The objector's request to pay over or escrow the sum of $32,498.74 represents a grossly inflated claim against the Estate of David G. Roland. The objector has absolutely no pretense of right to anything more than $17,296.69 less its pro rata share of litigation costs. 30. The objector's claim for that portion above its claimed entitlement is filed in bad faith. 31. The beneficiaries' structured settlement as set forth in objector's paragraph 7 provides adequate security for the objector in the event the objector prevails on its disputed claim before the Court of Common Pleas of Dauphin County. CLECKNER III FEAR EN 32. Because of the beneficiaries' structured settlement as ATTORNEYS AT LAW HARRISBURG. PENNSYLVANIA - 6 - aforesaid, there is no reason to deny the beneficiary funds to which he is clearly entitled. 33. Because under the Pennsylvania Rules of Civil Procedure the beneficiary will be substituted for the Guardian as a Defendant in the Dauphin County action, there is no reason to refuse to discharge the Guardian and terminate the within account. WHEREFORE, the Guardian prays that Your Honorable Court will dismiss the objections of the objector and assess reasonable attorney's fees against the objector based on its attempt to delay distribution of the uncontested portion of the Estate of David G. Roland. CLECKNER AND FEAREN By_YqJg ty. ht.~SqUire 31 North Second Street Harrisburg, PA 17101 (717)238-1731 CLECKNER a FEAREN ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA - 7 - COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF DAUPHIN AND NOW, this 15M day of ./jPnj , 1986, before me, a Notary Public, personally appeared LOIS B. COPELAND who acknowledges herself to be the Senior Trust Officer of Commonwealth National Bank and as such she is authorized to execute this affidavit on its behalf, and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of her knowledge, information and belief. ~ ',13. LOI B. PELAND ~~L Sworn and subscribed to IA'M before me this U day of /j;?;i/ , 1986. 1:?tAlh T (~mtt/fA'-' ' NO ARY PUBLIC MlCfiHE T. CAilACCI. fH;r;ll(r P:)l!IY: ~~/~fH~JS~URG. O~.UPHf~ ~~:}U!:lrY MY C'}M~I:~!I)~ !:XPiP.!S JUt Y 31\;J~f, MGmtH", P~l:nsyl~af\ia AS$otia!iCll of f~O~.;f'~ CLECKNER a FEAR EN ATTORNEYS AT LAW HARRISBURG, PENNSYLVANIA PENNSYLVANIA MANUFACTURERS ASSOCIATION INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA v. CIVIL ACTION LA\-1 COMMONWEALTH NATIONAL BANK, Administrator of Estate of ROBERT W. ROLAND, SR., ROBERT W. RCLAND, JR., CHRISTINE J. ROLAND, and COMMONWEALTH NATIONAL BANK, Guardian of DAVID G. ROLAND, Defendants NO. 1356 - S - 1985 JURY TRIAL DEMANDED ANS\VER 1. Admitted. 2. Admitted. 3. Denied as alleged. The Defendant, Robert W. Roland, Jr., an adult individual, resides at c/o Andrea Roland, Route #2, Box 456, Purcellville, Virginia, 22132. 4. Denied as alleged. The Defendant, Christine A. Roland, an adult individual, resides at 28 Fort Evans Road, N.E., Building #18, Apartment #101, Leesburg, Virginia, 22075. AnOp.NEY$ AT LA.W 5. Admitted. 6. Admitted. 1. Admitted. 8. Adm1 t ted . 9. Admitted. 10. Admitted. II. Denied as alleged. The Defendants admit that PMA was CLECKNER. HAREN HAIUl:ISaURC;. PEhHSYlYAHIA the workmen's compensation insurance carrier for General Electrical Services Company, Inc. and by way of further answer aver that the said General Electricai Services Company, Inc. executed a written \ contract indemnifying Hershey Foods Corporation against any claims arising out of the performance of i~s contract with said corporation. A true and correct copy of said indemnification agreement is marked Exhibit "A", attached hereto and incorporated herein by reference thereto. 12. Admitted. 13. Denied as alleged. The Plaintiff did not pay any benefits directly to the said dependent children but paid them to the Defendant Commonwealth National Bank in its representative capacity. By way of further answer, the Defendants are without knowledge or information sufficient to form a belief as to the truth of the averment regarding the exact amount compensation paid and demand proof thereof at time of trial. 14. Denied as alleged. The Defendants admit that the Plaintiff has paid to Commonwealth National Bank, Guardian of David G. Roland, workmen's compensation benefits in the amount of $140.99 , per week since November 12, 1984. However, the Defendants aver that if the Plaintiff has a right to stop said payments, any right thereof being expressly denied, then 1n that event it has failed to mitigate its damages by continued payment of said benefits and abandonment of the proceedings it initiated in the Bureau of CLECkNER a FEAllEH AnORHEYS AT LAW HARRISBURG. "ENNSYLVA~IA Workmen's Compensation to stop said payments. 15. Denied as alleged. The Defendants after. reasonable investigation are without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 15 as to the amount of pay~ents through October 10, 1985 and strict proof thereof is demanded at time of trial. By way of further answer, the Defendants aver that if the Plaintiff has any right to subrogation, any rights being expressly denied, then the Plaintiff has failed to mitigate its damages by a~andoning its proceeding before the Workmen's Compensation Bureau. 16. Denied as alleged. The Defendants admit the , --. allegations of paragraph 16 and by way of further answer aver that the civil action was commenced with full knowledge of the within Plaintiff and that throughout the six year time period from the commencement of the action until the settlement thereof that the Plaintiff was constantly appraised of the ongoing status of the action and neglected and failed to place the within Defendants on notice of any subrogation claim. 17. Admitted. lR. Denied as alleged. In addition to the within Defendants the within Plaintiff was a beneficiary of the settlement of the aforesaid action. 19. Denied as alleged. Paragraph 19 is a conclusion of law to which no reply is required pursuant to the Pennsylvania CLECKNER a HAREN AnOltNt.1'S AT LAW HARRISIUJlG. PEkNSYLVANIA Rules of Civil Procedure and is deemed to be denied pursuant to P. R.C.P. No. 1029(d). 20. Denied as alleged. The Defendants admit that the Defendant PMA demanded reimbursement of compensation benefits paid on behalf of the Defendants Roland that the Defendants herein have refused and continue to refuse to reimburse the within Plaintiff because the Plaintiff has no right to reimbursement and by way of further answer the Defendants aver that the within Plaintiff waited approximately six years all to the within Defendant's prejudice before making any subrogation claim. ~mEREFORE, the Defendants demand judgment in their favor and against the Plaintiff in the within action. NEW MATTER 21. As a matter of law, the Plaintiff has failed to state a cause of action upon which it can recover. 22. The Plaintiff's insured, General Electric Services Company, in its contractual relationship with Hershey Foods Corporation for performance of the work on which the decedent Robert W. Roland, Sr. died had pursuant to Section 481 of the Pennsylvania Workmen's Compensation Act contracted with Hershey Foods Corporation to hold it harmless and to be responsible for any causes of action brought against Hershey Foods Corporation as a CLECKNER. HAREN AnOIltNEYS AT LAW MlAItIS8URG. PENNSYlVANU result of the work performed by General Electric Services Company and/or its employees. 23. Based upon the aforesaid contractual relationship, Hershey Foods Corporation and/or its insurer soon after commence- ment of the.action in the Court of Common Pleas of Dauphin County docketed at No. 2968-S-1978 against Hershey Foods Corporation made demand upon the within Plaintiff to assume defense of the afore- said action and responsibility for any settlements or verdict entered therein. 24. Hershey Foods Corporation and/or its insurer inter- mittently through the approximately six year time period from date of commencement of the aforesaid action until its settlement placed demand upon the Plaintiff to take over defense and responsibility for the aforesaid action. 25. The within Plaintiff despite its knowledge of the ongoing suit and settlement negotiations failed to place the within Defendants on notice of its alleged subrogation claim all to the Defendants' prejudice. 26. Because of the aforesaid indemnity agreement with Hershey Foods Corporation, inclusion of Plaintiff's workmen's compensation subrogation claim would have increased the aQount of the settlement or made settlement impossible which would have increased the within Plaintiff's indemnification responsibility and or exposure. CLECKNER eo HAREN ATTORNEYS AT LAW HAltRISaURG. PE"iJtiSYLVArnA 27. The within Plaintiff with knowledge of the suit and ongoing settlement negotiations never made demand' upon.the within Defendants until after the settlement of the aforesaid action fixed its indemnification exposure. 28. The Defendants believe and aver that the Plaintiff did not attempt to enforce its subrogation claim because it did not wish to increase its indemnification exposure. 29. The within Plaintiff was also a beneficiary of the settlement of the action against Hershey Foods Corporation because its indemnification exposure was reduced and fixed. .... 30. Based on the foregoing New Matter the equitable doctrines of laches, estoppel and/or clean hands bar the within Plaintiff's claim. WHEREFORE, the Defendants demand judgment in their favor and against the Plaintiffs. CLECKNER AND FEAREN i) /.~ ;; / . {/ ,,(, . ;~~ av~d W. Knauer, Esquire 31 North Second Street Harrisburg, PA 17101 (717)238-1731 r By CLECKNER a HAREN ATTORNETS AT LAW MAItRISHURe. PENNSYLVANIA. CO~40N~ffiALTH OF PENNSYLVANIA COUNTY OF DAUPHIN SS: And now this .,-u( :-'(~ 1 day of June, 1985, before me a Notary Public personally appeared LOIS B. COPELAND who acknowledges herself to be the Senior Trust Officer of Commonwealth Nat5.onal Bank and as such she is authorized to execute this affidavit on its behalf, and that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of her knowledge, information and belief. .r4i~c~~ Sworn and subscribed to before me this vlg~ day of June, 1985. ~~ ~.cb/''; !1Lf'f( ~/NOTARY PUBLIC c) My Commission Expires: ~:J~ CH~:STlHE 'dltOlf. :10lARY i'uallc HA~iJSauiS. DAU?Hllf cowm _. m CC~1j'St'<>>I EXP'~fS NOV. 13 19~ ':;~~r. r""'ns~+,,;flli~ ~!.SC~;4ijon Df ;or.W~$ CLECKNER. FEAREH AnORHErs AT LAW HAIt.I$.UIt~. ,.t.HHSYLYANIA.