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HomeMy WebLinkAbout09-23-10IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUTNY, PENSYLVANIA ORPHANS' COURT DIVISION G ~ / NO. a ~ ~ D ~ " o ESTATE OF TONYA ELIZABETH MORGAN AU WTEM o LjNDEsg 20 PA. CONS. STAT. ANN. 8 751(61 AND ~ 5165 ~ o m ~ ~ TO THE HONORABLE, THE JUDGES OF THE SAID CO[JRT: a' ~ _° N ~ V3~ C+J The petition of Aevin J. O'Connell respectfully represients that: ©g ~ 'n a 1. Petitioner, I)evin J. O'Connell, residing at 1726 Aliceanna, #201, Bal1~ ere, ~ C'7 Maryland 21231, is an adult individual, the father of Virginia O'Connell, a miter, and he is the surviving spouse of Tonya Elizabeth Morgan, deceased, an intestate and he is also the Administrator of her Estate. Said Petitioner is a United States citizen and is abk to speak, read, and write in the English language. 2. Petitioner, as Administrator of the Estate of Tonya Elizabeth Morgan (Decedem) is filing a First and Final Account with your Hbnorabk Court. As is relabod more fully at large hereinbek-w in the BACKGROUND Section, Petitioner and counsel believe and aver that the current facts and circumstances of the Estate, its settlemeirt, and the ultimate best interests of Virginia O'Connell, a minor, justify di~ensing with a Guardian ad litem to represdrt the interests of the said miner in the review and approval ofthe said Account. In fact, Petitioner and counsel believe that the appointme~ of a Guardian ad litem under the existing circumstances would only serve to unnecessarily deplete the Estate's resources. :~ ~:~ ~::~ 7 ter, ; ~ c..~ <>> ~,-, _:,~ _., cam, f"~l s-il -~~J '~.~ ._, ~.. ~'- ~; 4~ Q r~ 3. The court has jurisdiction to hear this matter under 20 Pa. Cons. Stet. Ann. §711 and §5111. 4. Tonya Elizabeth Morgan ("Decedent's did on June 25, 2005, without a will. 5. Letters of Administration were granted to Devin J. O'Connell, husband of the decedent, on December 29, 2005 by the Register of Wills in and for Cumberland County, Pennsylvania. 6. Devin J. O'Connell, as Administrator of the Estate of Tonya Morgan, Deceased and individually and in his own right, under a Wrongful Death Action and Survival Action recovered damages for the death of the decedent. ?. The Dauphin County Court of Common Pleas approved the Decedent's Compromise Settlement and Distributions of Proceeds. A copy of the Order and Petition for Approval of Decedent's Compromise Settlement and Distribution of Proceeds are attached as Exhibits A and B. 8. The Department of Revenue allocated $118,548.09 to the survival action and said amount was inchided in the decedent's gross estate. A copy of the PA Department of Revenue letter agreeing to the allocation is attached as Exhibft C. 9. Decedent's gross estate totaled $120,638.20 10. Virginia O'Connell, age 14, of 1726 Aliceanna , #201, Bakimore, Maryland 21231, has an interest in the Estate of Tonya Morgan by intestate succession, as the decedent's daughter. 11. The Decedent's Compromise Settlement and Distribut~n of Proceeds directed $265,000.00 of the $281,620.23 net settlement proceeds due to Virginia O'Connell be placed in a structured settlement with American General Life Insurance company. 12. The structured sett~mern wdl provide guararneed payouts to Virginia O'Connell of $25,000.00 at age 18 and $407,800.00 at age 22. 13. The Dauphin County Court of Common Pleas directed the remaining $16,620.23 in settlemern proceeds due Virginia O'Connell, less any amourn due in inheritance tax, to be paid to the Petitioner for the benefit of Virginia O'Connell 14. As directed by the court, Petitioner deposited the cash portion of the settlement proceeds ($16,520.23) in a federally insured acxourn in the minor's name. 15. As directed by the court, the account was marked ")restricted." No withdrawals are permitted without Court Approval prior to age 18. 16. Petitioner has paid all the debts of the estate arbd inheritance tax due by Virginia O'Connell from his own settlemern procceds. 17. Petitioner intends to file a first and final accounting of the Estate of Tonya Elizabeth Morgan. 18. The interests of Virginia O'Connell are adequately represented in this matter, because the Dauphin County Court of Common Pleas has ah+eady approved the structured settkmern and distribution for Vu;ginia O'Connell's settlemern. 19. The Petitioner is also interested in preserving and has preserved as much of Virginia O'Connell's settlement proceeds as possible. 20. Appointmern of a Guardian Ad Litem would only serve to deplete the minor's funds. 21.20 Pa. Cons. slat. Ann. §7s1(6) and §s16s permits the court to dispense with the appointment of a guardian ad litem for a minor when there is a living person with a similar urterest whose interest is not adverse to that of the minor. WFIEREFORE, petitioner requests that the court dispense with the official appointment of a guardian ad litem to represent Virginia O'Connell, a minor, in all matters pertaining to the accounting of the Estate of Tonya Elizabeth Morgan, your Horarable Court's review and confirmation of said account to be sufficient protect~n for the minor's interest as herein involved. Tric~a D. Naylor,l~'sgi LD. #83760 ~~ 104 S. Hanover Street Carlisle, PA 17013 (717)243-7437 Attorney for Petitioner _ . ~! ~ ~ I verify that the statements made in the foregoing Petition are true and correct. I ~ that ihlse statements herein are made subject to the penalties of 18 Pa.GS. Section 4904 relating to unsworn CONSENT The undersigned acknowledges, pursuant to the penalties of 18 Pa.C.S.A Section 4904 relating to unsworn falsification to authorities, that he and his daughter, Virginia O'Connell, a minor, are the sole heirs of the Estate of Tonya Elizabeth Morgan; that he is an adult; that he is the father of Virginia O'Connell; that the statements made in the Petition filed by Tricia D. Naylor, Esquire aze true and correct to the best of his knowledge, information and belief; that he concurs and consents to representing the interests of his daughter, Virginia O'Connell, a minor, and dispensing with the appointment of a guardian ad litem for Virginia O'Connell. WITNESS: -~ %~ 9~ ~~ DATE ~J(1r V ~~3ry~(I m ~. .~. ~ ... ~ _ ^ / ~ "~ L '` N ^i .. . . ""~ 0 1 DEVIN J. O'CONNELL, as IN THE COURT OF COMMON PLEAS Administrator of the ESTATE OF DAUPHIN COUNTY, PENNSYLVANIA TONYA E. MORGAN, Deceased, and • DEVIN J. O'CONNELL, Individually and in his own right, NO. 2006 CV 3394 MM Plaintiff v. PATHOLOGY ASSOCIATES OF CENTRAL PENNSYLVANIA, P.C., MICHAEL S. BENTZ, M.D., PINNACLE HEALTH HOSPITALS t/d/b/a PINNACLE HEALTH AT POLYCLINIC HOSPITAL, PINNACLE HEALTH HOSPITALS t/d/b/a PINNACLE HEALTH AT HARRISBURG HOSPITAL, Defendants • CNIL ACTION -MEDICAL PROFESSIONAL LIABILITY ACTION ,, ~/ JURY TRIAL DEMANDED AND NOW, this _ ~~~~ day of _ ~ ~Z~-n~C~ 20Q~upon consideration of the attached Petition for Approval of Decedent's Compromise Settlement and Distribution of Proceeds, IT IS HEREBY ORDERED THAT: 1) Settlement of the above-captioned action by Devin J. O'Connell, as Administrator of the Estate of Tonya E. Morgan, Deceased, and Devin J. O'Connell, Individually and in his own right, in accordance with the terms of the Petition, is hereby ratified and approved. Reimbursement of Counsel's travel and parking expenses, however, is disapproved. The amounts distributed pursuant to term of the Petition shall be modified accordingly. Devin J. O'Connell is authorized to mark the above-captioned action settled, discontinued and ended as to Defendants. ~. 2) All proceeds will be allocated as set forth in paragraphs 15 through 20 of Plaintiff s Petition for Approval of Decedent Compromise Settlement and Distribution of Proceeds. That cash portion of the settlement proceeds to be paid to Devin O'Connell for the benefit of the minor Plaintiff pursuant to paragraphs 19 and 20 of the Petition shall be deposited in a federally insured account in the minor's name in a bank that does business in Pennsylvania. The account shall be marked "Restricted. No withdrawal prior to age 18 without prior Court Approval." An affidavit of Deposit as to all of the minor's funds shall be provided to the Court within twenty (20) days of the date of this Order. BY TH)v COURT: ~Y-.~t ~, ~. cc: Nijole Olson, Esquire, 2040 Linglestown Road, Suite 303, Harrisburg, PA 17110 (717) 541-9205, nolson@nowllp.com, (717) 541.9206 (fax) Michael M. Sadowski, Esquire, 3510 Trindle Road, Camp Nill, PA 1701 1 (717) 975-81 14, mbadowski@margolisedelstein.com, (717) 975.9124 (fax) Thomas M. Chairs, Esquire, 1200 Camp Hill Bypass, Suite 205, Camp Hill, PA 17011 (717) 731-4800, [chairs@dmclaw.com, (717) 731-4803 (fax) ~0~ ~ ~ L ~a nd c ~oaPY or Corr tea. Q•ethQ tdry r^ y f_,,"y . ~_... Y'' ~_ C'-1 f :) O -o S Nijole Olson, Esquire =_ ~? Duane S. Barrick, Esquire -~ o Navitsky, Olson &Wisneski LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (717154]-9205 nolson@nowllp.com dbarrick@nowllp.com DEVIN J. O'CONNELL, as ~~~ ~~ Administrator of the ESTATE OF TONYA E. MORGAN, Deceased, and DEVIN J. O'CONNELL, Individually and in his own right, Plaintiff v. PATHOLOGY ASSOCIATES OF CENTRAL PENNSYLVANIA, P.C., MICHAEL S. BENTZ, M.D., PINNACLE HEALTH HOSPITALS t/d/b/a PINNACLE HEALTH AT POLYCLINIC HOSPITAL, PINNACLE HEALTH HOSPITALS t/d/b/a PINNACLE HEALTH AT HARRISBURG HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA N0. 2006 CV 3394 MM CIVIL ACTION -MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PETITION FOR APPROVAL OF DECEDENT'S COMPROMISE SETTLEMENT AND DISTRIBUTION OF PROCEEDS PURSUANT TO PA RCP 2206 Petitioner, Devin J. O'Connell, as Administrator of the Estate of Tonya Morgan, Deceased, and Devin J. O'Connell, Individually and in his own right, by and through his ~--~ ..: , ~ ~. ~, .__..." i"'1 '~} :7 .. ..r 7 `~. - ,~ _.: -~i'~ attorneys, Navitsky, Olson &Wisneski LLP, hereby avers as fol]ows: On or about June 25, 2005, Tonya Morgan died from small cell neuroendocrine cancer that had metastasized to her liver. A copy of Tonya Morgan's death certificate is attached hereto as Exhibit "A". 2. Petitioner, Devin J. O'Connell, is the husband of the decedent, Tonya Morgan. 3. Petitioner, Devin J. O'Connell, is the Administrator of the Estate of Tonya Morgan, by virtue of Letters of Administration duly granted by the Register of Wills of Cumberland County, Pennsylvania on or about December 29, 2005. A copy of the Certificate of Grant of Letters of Administration is attached hereto as Exhibit "B". 4• Tonya Morgan died intestate. Left to survive Tonya Morgan as her heirs at law are: Name Devin J. O'Connell 10232 Avalon Gates Trumball, CT 06611 Virginia O'Connell 10232 Avalon Gates Trumball, CT 06611 Relat--ionshin Husband Daughter (age 12) 5• Devin J. O'Connell, as Administrator of the Estate of Tonya Morgan, Deceased, and Individually and in his own right, filed suit against Pathology Associates of Central Pennsylvania, P.C., Michael S. Bentz, M.D., Pinnacle Health Hospitals t/d/b/a Pinnacle Health at Polyclinic Hospital, and Pinnacle Health Hospitals t/d/b/a Pinnacle Health at Harrisburg Hospital for the injuries his wife sustained. The suit was docketed to No. 2006 CV 3394 MM in the Court of Common Pleas of Dauphin County, Pennsylvania. 6• Defendants, although disputing liability for the death of the decedent and the damages incurred, have nonetheless agreed to compromise the disputed claims for the total 2 amount of $1 Million ($1,000,000.00) Dollars. A copy of the executed Release is attached hereto as Exhibit "C". 7. In view of the disputed nature of the claim, Your Petitioner considers the offer to be a fair, just and equitable settlement and to be in the best interest of the Estate and the persons entitled by law to recover damages for the death of the decedent. 8. Your Petitioners retained the firm of Navitsky, Olson &Wisneski LLP to prosecute this action, and entered into a Contingent Fee Agreement with said attorneys for their professional services, plus expenses. A copy of the Power of Attorney and Fee Agreement is attached hereto as Exhibit "D". 9. Pursuant to the Power of Attomey and Fee Agreement, Navitsky, Olson & Wisneski LLP is entitled to a fee of Forty (40 %) percent of the amount recovered, plus expenses. In light of the fact that Virginia O'Connell is a minor, Navitsky, Olson &Wisneski LLP has voluntarily agreed to reduce its fee on the portion of the settlement allocation to Virginia O'Connell to Thirty (30%) percent. Navitsky, Olson &Wisneski LLP will charge a fee of Forty (40%) percent on that portion of the settlement allocation to Devin O'Connell. 10. Navitsky Olson &Wisneski LLP, on behalf of The Estate of Tonya Morgan, spent considerable time and effort in the investigation and preparation of this case. All discovery was complete, expert reports were exchanged, and the case was set for trial during the August 2008 trial term. Navitsky, Olson &Wisneski LLP has incurred expenses for investigation, medical records, multiple expert reports and fees, discovery costs, etc. totaling $55,259.55. An itemization of the expenses is attached hereto as Exhibft "E". 11. No liens have been asserted in this matter. 3 12. By reason of the death of the decedent, Tonya Morgan, two causes of action arose against Pathology Associates of Central Pennsylvania, P.C., Michael S. Bentz, M.D., Pinnacle Health Hospitals t/d/b/a Pinnacle Health at Polyclinic Hospital, and Pinnacle Health Hospitals t/d/b/a Pinnacle Health at Harrisburg Hospital: one under the Wrongful Death Act for the benefit of those relatives of the decedent entitled by law to recover damages for her wrongful death, and one under the Survival Act for the benefit of her Estate to recover damages for her death. 13. Petitioner's counsel has received approval from the Department of Revenue to allocate Eighty (80%) Percent of the net settlement proceeds ($474,592.36) to the Wrongful Death Action and Twenty (20°,%) Percent of the net settlement proceeds ($118,648.09) to the Survival Action. See, letter from the Pennsylvania Department of Revenue attached hereto as Exhibit "F" 14. There are sufficient assets in decedent's Estate to satisfy any outstanding debts. 15. Your Petitioners believe that, in accordance with the terms of the Power of Attorney and Fee Agreement and the Department of Revenue's acknowledgement letter, a fair, just and equitable distribution of all settlement proceeds would be as follows: a) Devin J. O'Connell -first $30,000.00 of the net $ 311,620.23 settlement proceeds of $593,240.45, plus '/2 of remainder of the settlement proceeds pursuant to Pennsylvania's Intestacy Law - Wrongful Death Allocation (80%) $ 249,296.18 -Survival Action Allocation (20%) $ 62,324.05 b) Virginia O'Connell -remaining portion of the net $ 281,620.23 Settlement proceeds of $593,240.45 - Wrongful Death Allocation (80%) $ 225,296.18 -Survival Action Allocation (20%) $ 56,324,05 4 c) Navitsky, Olson &Wisneski LLP legal fees $ 351,500.00 40% of Devin O'Connell's total recovery of $515,000.00 = $206,000.00 30% of Virginia O'Connell's total recovery of $485,000.00 = $145,500.00 d) Navitsky, Olson &Wisneski LLP $ 55,259.55 reimbursement of expenses TOTAL $1,000,000.00 16. The net settlement proceeds shall be allocated between the beneficiaries, Devin J. O'Connell and Virginia O'Connell, in accordance with the provisions of Pennsylvania's Intestacy Law. 17. Petitioner, Devin J. O'Connell, who is the father of Virginia O'Connell, desires that $265,000.00 of the $281,620.23 net settlement proceeds due to Virginia O'Connell be placed in a structured settlement with American General Life Insurance Company that will provide for guaranteed payouts as follows: Virginia O'Connell (DOB: 05/30/96) Pa ment May 30, 2014 (Age 18) $25,000.00 May 30, 2018 (Age 22) $407,800.00 See, the Structured Settlement Proposal, which includes the payout schedule and the cost of the structure, attached hereto as Exhibit "G". 18. American General Life Insurance Company is rated as Excellent and A+ (strong) by Standard and Poor's. See, list of company ratings attached hereto as Exhibit "H". 19. Petitioner, Devin J. O'Connell, requests that the remaining $16,620.23 in 5 settlement proceeds due to Virginia O'Connell, less any amount owed by Virginia O'Connell for Pennsylvania Inheritance Tax due on the settlement proceeds, be paid to him for the benefit of Virginia O'Connell pursuant to Pa. R.C.P. 2206 (b)(1). 20. Accordingly, Petitioner requests that Virginia O'Connell's share of the net settlement proceeds be allocated as follows: Allocation to structured settlement for $265,000.00 Virginia O'Connell Amount of Virginia O'Connell's settlement $ 16,620.23 proceeds paid to Devin J. O'Connell for the benefit of Virginia O'Connell pursuant to Pa. R.C.P. 2206 (b)(1). The $16,620.23 amount maybe reduced by any amount owed by Virginia O'Connell for Pennsylvania Inheritance Taxes. Total $281,620.23 21. Defendant and MCARE prepared the Release (Exhibit C). Pursuant to paragraph 10 of the standard MCARE Release, Petitioner requests that the Court immediately seal this Petition, the Release, and any documents identifying the terms and/or conditions of the settlement so that such documents are not accessible ar disclosed to anyone. Undersigned counsel knows very well and has confirmed time and time again that this Court will not grant this request as a matter of policy and will therefore provide the Court with two Orders -one approving the settlement and sealing the Petition for Court Approval and related documents; one approving the settlement without sealing the Petition and related documents. All parties understand that sealing of the record is discretionary with the Court. 22. An Affidavit signed by the Petitioner requesting court approval in accordance with the terms of this Petition is attached hereto as Exhibit "I". 6 WHEREFORE, Your Petitioner prays that your Honorable Court enter an Order approving said compromise settlement, directing distribution of proceeds in accordance with the terms of this Petition and authorizing the Petitioner to sign a Release and to mark the above- captioned action settled and discontinued. Date: ~,~ /Q'Og Respectfully submitted, VI'TSKY, OLS Nijole .Olson, Es. I.D. 0. 55287 Duane . Banick, E I.D. No. 77400 2040 Lin stown R Harrisburg, 171 717/541-9205 Counsel for Petition & WISNESKI LLP Suite 303 7 reuuoner and Administrator of the Estate of Tonya Morgan COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE BUREAU OF INDIVIDUAL TAXES PO Box 280601 HARRISBURG, PA 17128-0601 10/29/2008 Michael J Navisky Navisky, Olson & Wisneski, LLP 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 Re: Estate of Tonya E. Morgan File Number 2105-0871 Dear Mr. Navisky: The Department of Revenue received the Petition filed on behalf of the above-referenced Estate. According to the Petition, the 37 year old decedent died as a result of small cell neuroendocrine cancer. Decedent is survived by spouse and minor child. Pursuant to the Supreme Court of Pennsylvania, damages recoverable under a survival action include those for future earnings. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). This is supported by the Commonwealth Court. Roberts v Dunaan, 574 A.2d 1193 (Cmwlth. Ct. 1990). A portion of the settlement proceeds of this action therefore must be allocated to the survival action. Please be advised that based upon these facts and for inheritance tax purposes only, this Department would not object to the allocation of the net proceeds of this action, $ 474,592.36 to the wrongful death claim and $ 118,648.09 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. §g106, 9107. I trust that this letter is a sufficient representation of the Department's position on this matter. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. Since e~y ' ~ ~ru/~ Shannon E. Baker Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes Original PtrOrtE:'.11:7-783-5824 FqX: 717-783-3467 ~aa: shabakerC~stiate pa ~s