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HomeMy WebLinkAbout09-8658JOHN E. KUSTURISS, JR., P.L.L.C. BY: John E. Kusturiss, Jr., Esquire Attorney I.D. # 28271 323 East Front Street Media, PA 19063 610-565-0240 Attorney for Plaintiffs FRANK KLINE and SANDRA LOY, COURT OF COMMON PLEAS CO-EXECUTORS OF THE ESTATE COUNTY OF CUMBERLAND, PA OF JEAN K. KLINE, DECEASED 1842 Spring Road PETITION Carlisle, PA 17013 PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS TO THE HONORABLE, THE JUDGES OF THE SAID COURT: Petition of Frank Kline and Sandra Loy, as Co- Executors of the Estate of Jean K. Kline, by their attorney, John E. Kusturiss, Jr., Esquire, respectfully requests the Court approve the final settlement of the above-captioned case and sets forth the following in support thereof: 1. Petitioners, Frank Kline and Sandra Loy, were appointed Co-Executors of the Estate of Jean K. Kline, Deceased, on May 28, 2009, by the Register of Wills of Cumberland County, Pennsylvania, Estate Number 2009-00495. See, Exhibit "A," attached. 2. Decedent Jean K. Kline was killed on May 11, 2009, when she was struck by a motor vehicle driven by Royal Donivan at the intersection of Spring Road and W. Hillcrest Drive in North Middleton, Pennsylvania. She was pronounced dead at the scene by the deputy coroner, Richard C. Middlekauff. See, Exhibit "B," Coroner's View. 3. The Decedent lived at 1842 Spring Road, Carlisle, PA, where she lived alone. 4. Prior to Decedent's death, her sole source of income, was social security. 5. On June 10, 2009, Nationwide Mutual Insurance Company, Mr. Donivan's insurance company, was notified of Mrs. Kline's death due to the collision of May 11, 2009 caused by Mr. Donivan. On September 16, 2009 Nationwide offered the policy limit of Fifty Thousand Dollars ($50,000.00) in settlement of the claim against Mr. Donivan. See Exhibit "C" attached hereto. 6. On June 25, 2009, Mrs. Kline's insurance carrier, Liberty Mutual, was advised of her death and was informed of a claim for underinsured motorist benefits being made against them. On November 4, 2009 Liberty Mutual offered the policy limit of Fifteen Thousand Dollars ($15,000.00) in settlement of that claim. See Exhibit "D" attached hereto. 7. Plaintiffs' counsel believes that the total settlement of Sixty Five Thousand Dollars ($65,000.00), representing all the money available under the insurance policies involved, is just and fair. 8. 42 Pa.C.S. §8301 provides the right of a wrongful death action for the benefit of Decedent's beneficiaries as if she had died intestate. Those beneficiaries are as follows: Name A. Sandra K. Loy B. Frank Kline 9. 10. Relationship Address to Decedent 1842 Spring Road Daughter Carlisle, PA 17013 40 Horseshoe Lane Son Newtown Square, PA 19073 Both beneficiaries have been served with a copy of this Petition. Decedent did have a will which divided up her estate with regard to the survival action. See, Will attached hereto as Exhibit "E." 11. There are adequate assets to provide for the specific bequests stated in her will. See Exhibit "F" attached hereto. 12. As a result of the Decedent's death, expenses for the funeral were incurred by the Estate in the amount of $7,934.62, which were paid when the estate was first administered. 13. There are no other claims against Decedent's estate. 2 14. Litigation costs in the amount of $542.00 have been incurred as follows: A. Cumberland County Coroner (report) $100.00 B. America Find - search report 350.00 C. Prothonotary of Cumberland County 92.00 Total Costs Advanced $542.00 15. Plaintiff's counsel was retained for this litigation under a contingent fee of Twenty Five Percent (25%), which took into account the costs involved, nature of the case and expertise in handling cases of this nature. See, Exhibit "G." 16. Petitioner requests allocation of the remaining proceeds of the settlement (after deduction of $16,792.00, for li tigation expenses and attorney's fees) as follows: wrongful death claim - ninety percent (90%) of the net proceeds; survival claim - ten percent (10%) of the net proceeds. 17. The reason for the requested allocation is as follows: Plaintiff, who was 82 years old at the time of her death, had lived alone on social security. There was no pain or suffering as she was pronounced dead at the scene of the accident. Following the collision, none of the witnesses found any evidence of life when they immediately approached her to render aid. 18. The Co-Executors grant their consent to the settlement of this matter, and believe that it is fair and reasonable as outlined above. 19. The Pennsylvania Department of Revenue has granted its consent to the settlement of this matter and to the proposed allocation between the survival and wrongful death actions. See, Exhibit "H". WHEREFORE, Petitioner respectfully requests this Honorable Court to authorize Petitioner to compromise and settle the claims against Royal and Louise Donivan and their insurance carriers 3 for the gross sum of $65,000.00, as set forth in the attached Order. Petitioners further requests that they be authorized to execute any and all documents necessary to accomplish this settlement. Respectfully submitted, JOHN E. KUSTURISS, JR., P.L.L.C. By: ,, ohn E. sturiss, Jr., Esquire Attorny for Plaintiffs/Petitioners Dated: I ;-//S/O I 4 JOHN E. KUSTURISS, JR., P.L.L.C. BY: John E. Kusturiss, Jr., Esquire Attorney I.D. # 28271 323 East Front Street Media, PA 19063 610-565-0240 Attorney for Plaintiffs FRANK KLINE and SANDRA LOY COURT OF COMMON PLEAS CO-EXECUTORS OF THE ESTATE CUMBERLAND COUNTY, PA OF JEAN K. KLINE 1842 Spring Road PETITION Norristown, PA 19401 NO. CONSENT I, Frank Kline, as Co-Executor of the Estate of Jean K. Kline, have read the contents of the Petition to Settle Wrongful Death and Survival Action, and consent to the settlement of the Wrongful Death and Survival Action for the gross amount of $65,000.00. I also agree to the proposed distribution outlined in the proposed Order, understanding that a percentage will be distributed under the intestate statute for the wrongful death action and a percentage will be distributed to the Estate for the survival action. FRANK KLINE, AS CO-EXECUTOR OF TBE ESTATE OF JEAN K. KLINE JOHN E. KUSTURISS, JR., P.L.L.C. BY: John E. Kusturiss, Jr., Esquire Attorney I.D. # 28271 323 East Front Street Media, PA 19063 610-565-0240 Attorney for Plaintiffs FRANK KLINE and SANDRA LOY COURT OF COMMON PLEAS CO-EXECUTORS OF THE ESTATE CUMBERLAND COUNTY, PA OF JEAN K. KLINE 1842 Spring Road PETITION Norristown, PA 19401 NO. I, Sandra Loy, as Co-Executor of the Estate of Jean K. Kline, have read the contents of the Petition to Settle Wrongful Death and Survival Action, and consent to the settlement of the Wrongful Death and Survival Action for the gross amount of $65,000.00. I also agree to the proposed distribution outlined in the proposed Order, understanding that a percentage will be distributed under the intestate statute for the wrongful death action and a percentage will be distributed to the Estate for the survival action. SANDRA LOY, AS CO-EXECUT8k OF THE ESTATE OF JEAN K. KLINE JOHN E. KUSTURISS, JR., P.L.L.C. BY: John E. Kusturiss, Jr., Esquire Attorney I.D. # 28271 323 East Front Street Media, PA 19063 610-565-0240 Attorney for Plaintiffs FRANK KLINE and SANDRA LOY, COURT OF COMMON PLEAS CO-EXECUTORS OF THE ESTATE CUMBERLAND COUNTY, PA OF JEAN K. KLINE, DECEASED 1842 Spring Road PETITION Carlisle, PA 17013 NO. CERTIFICATE OF SERVICE I, John E. Kusturiss, Jr., Esquire, Attorney for Plaintiffs, hereby certify that a true and correct copy of Petition to Settle Wrongful Death and Survival Actions has been forwarded to Bridget Kilker, the adjuster for Nationwide, Ann Palmer, the adjuster for Liberty Mutual and the beneficiaries listed H-" below by regular, first class, postage prepaid mail on this k of December, 2009. Sandra Loy 1842 Spring Road Carlisle, PA 17013 Frank Kline 40 Horseshoe Lane Newtown Square, PA 19073 Ann Palmer, Claims Adjuster Liberty Mutual Insurance Company P.O. Box 1128 512 E. Township Line Road Blue Bell, PA 19422 Bridget Kilker, Claims Adjuster Nationwide Mutual Insurance Company 1100 Locust, Dept. 5867 Des Moines, IA 50391-5867 JOHN E. KUSTURISS, JR., P.L.L.C. By: ohn E. sturiss, Jr., Esquire Otto v for Plaintiff/Petitioner COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Aft. estate of JEAN K KLINE I, SHORT CERTIFICATE GLENDA FARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 28th day of May, Two Thousand and Nine, Letters TESTAMENTARY in common form were granted by the Register of said County, on the late of NORTH MIDDLETON TOWNSHIP (First, Middle, Last) in said county, deceased, to SANDRA K LOY (First, Middle, Last) FRANK KLINE (First, Middle, Last) and that same has not since been revoked. and IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 28th day of May Two Thousand and Nine. File No. PA File No. Date of Death S.S. # 2009- 00495 21- 09- 0495 511112009 202-20-2179 Exhibit "A" NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL 17 View on the Dead Body of Jean Kathryn KLINE (DOB 10/19/26) Age 82yrs Race White address- 1842 Spring Road, Carlisle, Pa 17013 it r r S t COMMONWEALTH OF IJE SYLVANIA. 1 COUNTY OF CUMBERLAND. I SS. A view taken at the scene of the crash in the County aforesaid, the 11th day of MaY A.D., 2009 before Richard C. Middlekauff, Deputy Coroner of the County aforesaid upon the body of Jean Kline , being charged to inquire on the part of the Commonwealth of Pennsylvania, when, where and by what means the aforesaid deceased came to her death; also upon his oath on affirmation to say that it appears, from the view of the body and from the evidence produced before him, that the said Jean Kline came to her- death on the 11th day of May r 20 09 at aprx. 1500 hours by means o Crushing ti t Vehicle Crash. DO 011 %0V pi 0 The deceased, an 82-year-old female, was pronounced dead at the scene of a motor vehicle crash at the intersection of Spring Road and West Hillcrest Drive in North Middleton Township. She had been walking north on Spring Road on the south shoulder of the highway when a pickup truck stopped at the stop sign on West Hillcrest Drive, made a right turn to go south, and struck her as she walked in front of the vehicle. The driver of the pickup truck had allowed numerous vehicles to pass by before he pulled out and did not see her walking towards him. Examination found the cause of death is Crushing Chest Injuries due to Motor Vehicle Crash. There were no significant findings from postmortem toxicology tests and the manner of death is accidental. (Photos on file) Body was released to the Hoffman-Roth Funeral Home, Carlisle, Pa. OF, the said Coroner has to this view set his hand and seal on the day and year first mentioned, (SEAL) Coroner Exhibit "B" Nationwide Insurance 1100 Locust * Dept. 5867 * Des Moines, IA 50391-5867 September 16, 2009 Allied Insurance Nationwide Agribusiness Titan Insurance On Your Side' Victoria Insurance JOHN KUSTURISS JR 323 EAST FRONT ST MEDIA, PA 19063 OUR INSURED : Louise & Royal Donivan OUR CLAIM NUMBER: 58 37 B 442391 05112009 01 DATE OF LOSS : 05-11-2009 YOUR CLIENT : Jean Kline Dear JOHN KUSTURISS JR- This letter is to confirm our offer of $50,000 in settlement of your client's claim against our insure above accident. d for the Please present this offer to your client and call me with a response. Thank you for your cooperation in this matter and your prompt response. Sincerely, Nationwide Mutual Insurance Company Bridget Kilker (PA-60-LARI) Claims Department (570)489-1908 Exhibit 'PC,, application for insurance or statement of claim containing any materially false information Any person who knowingly and with intent to defraud any insurance company or other person files an the purpose of misleading, information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects such a person to criminal and civil penalties. W Liberty Mutual. November 04, 2009 LAW OFFICES OF JOHN E. KUSTURISS 323 E FRONT ST MEDIA PA 19063-3036 ATTN JOHN E KUSTURISS, ESQ INSURED: JEAN K. KLINE CLAIMANT: JEAN K. KLINE DATE OF LOSS: 05/11/2009 CLAIM NUMBER: LA830-011764133-02 Dear Mr. Kusturiss: Liberty Mutual Fire Insurance Company PO Box 1128 512 E Township Line Rd Blue Bell PA 19422 Tel: (800) 362-5698 / (800) 362-5698 Fax: (603) 422-0103 This is to confirm our offer of the $15,000 underinsured motorist policy limit in settlement of this claim. We await the court approval in order to finalize. Sincerely, ANNE PALMER Claims Department Ext. 72138 cc: , Exhibit 'DIP Helping People Live Safer, More Secure Lives FREEFRM 241+4829 P02ERT R BLACK Z002/005 LAST WILL AND TESTAMENT OF JEAN K KLINE 1, JEAN K. MM, of North Middleton Township, Cumberland County, P 1 declare this to be my Last Will, hereby revolting all prior wills and codicilstea' FUNERAL EXPENSES FIRST: I direct the payment of my funeral expenses, including my 9mvemarker, as soon as may be convenient after my death. PAYMENT OF DEATH TAXES SECOND: I direct that an taxes that may be assessed in con a and by whatever jurisdiction imposed, shall be paid from consequence o residuary death' to pait of the pease of administration of my estate. yestate as BEQUESTS THM.- I give the sum of TM,ertty_Five Thousand Dollars ($25,000.00) to my andwn ANDREW P. LOY, provided he shall survive me, , DISTRIBUTION OF RESIDUE FOURTH: I give the rest of my estate in equal shares tom two ChildrM LOY and FRANK KLME, or their issue, Per .stir who shall my 'SARA K. (30) days, pes, survive me for a period of thirty MWORS AND INCAPACITATED BENEFICIARIES FIM: If any income or principal shall be Payable Of who shall be incapacitated for as gable to any person who shall be a minor y mason, my executor as trustee shall hold such income and P?crpal d'uring minority or ?PeCitY and shall be entitled to apply such income and rivei the health, maintenance, support and education of such person during p pal to without the appointment of any guardian or committee or any authority of nor incapacity Y executor as Exhibit "E initials 241.4829 R08ERT R BLACK fj 003/005 trustee shell be entitled to make dimct application hereunder or to make application by payment of income and principal to the parent or other person in charge of such minor or person, or to his or her meapacitated guardian or to a custodian under the Uniform Transfers to Minors Act. Any remaining income and principal to which such person shall be entitled shall be distributed to such PMOn upon the termination of minority or incapacity. My executor as tnntee shall have the same powers as my executor. POWERS OF EXECUTOR SIXTH: I confer upon my executor the right to sell or otherwise convert any real or personal Party at public or private sale, at such time or times, in such manner, and for such price or prices, and on such terms and conditions as my executor shall determine, and to execute ad deliver good and sufficient conveyances, assignments and transfers of the property liability of any Purchaser for the application of any consideration ; to borrow mo, without its payment by mortgage of teal or personal property, ' _ IIey? and secure without liability on the part of the lenders to see to the application thereof; to retain otherwise, investments at discretion; to invest and reinvest at discretion, without restriction to so-called "legal investments"; to make distribution in cash or in kind; to allocate and distribute diffc=t kinds or disproportionate shares of property or undivided interests in beneficiaries, in cash or in kind, or partly in property among appmPriae in the each, and to do all other acts and things necessary or mansgernetit, administration and disWbution of my estate. APPOINTMENT OF GUARDL&N OF ESTATES OF MNORS SEVENTg: I appoint my executor as guardian of the hold all property Payable by law to a estates of minors With power to health, maintenance, support and 7ypr 8u odian appointed by my will and to use it for the minor's n, either directly or by payment to any person selected by my executor to disburse it whoshall be a complete acq uittancedischarge of all the guardiads duty minor's share deemed im Guardian may, in to the parent or other Person in chthe minor or to his or her Practical °f administration the minor guardian or to a ctodi under the Uniform Trnsame Minors Act. MY executor as w an for powers as my executor. guardian shall have the OF EXECU'T'ORS EIGHTH: I appoint my two survivor thereof, executors of my wi SANDRA K. LOY and FRANK KL,INE, or the Izz" 241+4929 RC,^,ERT R BLACK 14 004/005 WAIVER OF BOND NMR: I direct that no Fiduciary hereunder shall be required to furnish bond in any jurisdiction, and if any bond is necessary, no surety shall be required. INTERCHANGEABILITY OF LANGUAGE TENTH,. Words used in the singular may be mad to include the plural or the plural may be reed as the singular. Similarly, the masculine form may be read to include the feminine and neuter; the feminine may be read to include the masculine and neuter; and the neuter maybe read to include the masculine and feminine. HEADINGS ELEVENTH: The headings used on the various paragraphs of this will are included for convenience only and shall have no legal significance. I have signed this will this 10' dAy 066r 0#6P, , 2006. K. Kline Witness W 241+4929 RD^ERT R BLACK 0005/005 ACKNOWLEDGMENT and AFFIDAVIT COMMONWEALTH OF .PENNSYLVANIA COUNTY OF CUMBEnAND , SS, We, JEAN K. KL11VE, the Testatrix in atreched and the undersigned witnesses to the will, the or foregoing k"=alt who have signed the instrume according to law do nt having been qualified depose and say: (a) that Y, the Testatrix,, do hereby acknowledge that I si ed the instrument my will, that I signed it willinglY and as my fine and volun as therein expressed; and tatY act for the purposes (b) that we, the witnesses, were present and saw the Testatrix sign and execute the instrument as her will, that she signed it willingly and executed it as her free and voluntary act for the purposes therein expressed; that =Cbof us in of T x signed the will as a witness and that to the best of oure>mhming and the o ge t sight was at that time eighteen or more years of edge the consftint or undue influence, of sound mind and under no J K.ICIin witness witness No Lary Public CO ONWBLTH OF a'BNNSYWANiA Notarial seal cameli ". k Nosey pupllo MY Commlaeson Ex mend County P roe Sept. 2e, 200A 717 241+4829 R!H RT R BLACK ?J 00 1/00 1 lu)IIINT R, BLACK December 8, 2009 John E, Kusturiss, ,ir., Esq. 323 East Front Street Media, PA 19063 RE: Estate of Jean K. Kline Dear Mr. Kusturiss: LAW OFFICES LANDIS & BLACK 36 SOUTH HANOVLI? STREET CARLISLt, 17ENNSYLVANIA 170.11 TEI.EPhIONli (717) 24.1-.1727 FAX (717) 241-4829 T 130YD LANDrS 114.14-19M1 TOSEPH I. MCINTOSH 11'140-14771 You are advised that there are sufficient assets in captioned estate to pay the Twenty Five Thousand Doll ar($25,000.00) Bequest to Andrew P. Loy as part of the distribution from said estate. Very truly yours, Robert R. Black RRB/gmb Exhibit 11F11 CONTINGENT FEE AGREEMENT 1, Frank Kline , hereby constitute and appoint the law firm of John E. Kusturiss Jr. P.L.L.C., as my attorney to prosecute a claim for the Estate of Jean Kline. ' The claimant is Frank Kline The cause of action arose on 5/11/09 I agree that the compensation of my attorneys shall be twenty-five (25%) percent of the proceeds of any recovery plus reimbursement of any costs advanced which include, but are not limited to, costs associated with travel expense, interest actually paid by the firm (at the prevailing rate) for money secured to pay out of pocket costs, for obtaining medical records, expert reports and testimony, police report, postage, and photocopying. THE FEE REMAINS THE SAME N nii?TTTT :--_-_ • REMAINS THE SAME. Ate' REIMBURSEMENT OF COSTS DUE. I hereby acknowledge receipt of a duplicate copy of this Contingent Fee Agreement. Name: Frank Kline Address:40 Horseshoe Lane, Newtown Square PA 19073 Signature: Date: &7 /0 l %Nk' Uka,y Exhibit "GII pennsylvania DEPARTMENT OF REVENUE December 9, 2009 John E. Kusturiss, Jr. Law Office 323 East Front Street Media, PA 19063 Re: Estate of Jean K. Kline File Number 2109-0495 Court of Common Pleas Cumberland County Dear Mr. Kusturiss: The Department of Revenue has received your correspondence dated November 20, 2009. Attached was the petition to approve a compromise settlement to be filed on behalf of the above-referenced estate in regard to a wrong ful death and survival action. It was sent to this office for the Commonwealth's approval of the allocation to the roceeds paid to settle the actions. p According to the Petition, the 82 year old decedent died as a result of being struck by a motor vehicle. Decedent is survived by her two adult children. Pursuant to the Supreme Court of Pennsylvania, before there can be any recovery in damages by one in family.: relation for negligent death of another in the same relation, there must be a pecuniary loss. Manning v Canelli, 411 A.2d 252, 270 Pa.Super. 207, Super. 1979. Family relation required to maintain action under Wrongful Death Act is defined' efined t require showing of pecuniary loss by relatives seeking damages as result of wrongful death of decedent; there must be pecuniary loss by one in family relation before there is any recovery in damages. Hod a v. Loveland, 690 A.2d 243, 456 Pa.Super. 188, Super. 1997, reargument denied, appeal denied 723 A.2d 672, 555 Pa. 701. However as the proceeds in this matter are a minimal gross of $65,000.00, this Office has no objection to the allocation that you have requested. Please be advised that, based upon these facts and for inheritance tax purposes only, this Department has no objection to the proposed allocation of the net proceeds of this action, $43,387.20 to the wrongful death claim and $4,820.80 to the survival claim. Proceeds of a survival action are an asset included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 42 Pa.C.S.A. §8302; 72 P.S. §9106, 9107. Costs and fees must be deducted in the same percentages as the proceeds are allocated. In re Estate of Merryman, 669 A.2d 1059 (Pa. Cmwlth. 1995). I trust that this letter is a sufficient representation of the Department's position on this matter. As the Department has no objections to the Petition, an attorney from the Department of Revenue will not be attending any hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. r Sinc rely, nnon E. Baker Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes Exhibit "H" Bureau of Individual Taxes I PO Box 280601 1 Harrisburg, PA 17128 1 717.783.5824 1 shabaker@state.pa.us (JA Pte.=?°- --nr ^ 4 1 /? +D, D. t r C, *q, a. on PD AI-N e?? ? 8a A, IL DEC 1$ 2009 JOHN E. KUSTURISS, JR., P.L.L.C. BY: John E. Kusturiss, Jr., Esquire Attorney I.D. # 28271 323 East Front Street Media, PA 19063 610-565-0240 Attorney for Plaintiffs FRANK KLINE and SANDRA LOY, COURT OF COMMON PLEAS CO-EXECUTORS OF THE ESTATE CUMBERLAND COUNTY, PA OF JEAN K. KLINE, DECEASED 1842 Spring Road PETITION Carlisle, PA 17013 NO. Oq - 8!058 ei"il-le'rm .•?" ORDER AND, NOW, this at day of 2009, upon consideration of the Petition to Settle Wrongful Death and Survival Action, it is hereby ORDERED that Petitioner is authorized to enter into a settlement with Defendant for the gross sum of $65,000.00. The apportionment of the Gross Settlement shall be 90% for Wrongful Death and 10% for Survival. It is further ORDERED and DECREED that the settlement proceeds shall be distributed as follows: 1. To: John E. Kusturiss, Jr., P.L.L.C. $16,250.00 Attorney fees 2. To: John E. Kusturiss, Jr., P.L.L.C. 542.00 Reimbursement of Costs 3. Wrongful Death - Statutory Beneficiaries To: Sandra Loy $21,693.60 To: Frank Kline $21,693.60 4. Survival To: The Estate of Jean K. Kline $4,820.80 BY T - DURT: J. Mg Z. ?r i 0 ??l J . l?us?c?u ss