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HomeMy WebLinkAbout11-15-10 F:\FILES\CIieMS\11145 Frey Tiley\ll 145.2.2nd pet to approve settlement ~ ra ~_ --.--1 Jr., Esquire George B. Faller ~ ~ o ~ ~ -~ , I.D. No. 49813 F~ ~ n -E~ r- "~ , ` - MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER ,~: ~ ~ cn '.~' MARTSON LAW OFFICES ~=' ~'"' o - - -o ~' 10 East High Street 1 , c : ~ ~, ~ . ~ -,':': Carlisle, PA 17013 ~-'' ~ N ~.~ (717) 243-3341 -- Attorneys for Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr. ~ ~; IN THE COURT OF COMMON PLEAS OF ESTATE OF LINWOOD B. PHILLIPS, JR.,: CUMBERLAND COUNTY, PENNSYLVANIA N0.21-06-0122 ORPHANS' COURT DIVISION Before the Honorable Penny L. Blackwell, Judge of the York County Court of Common Pleas EXECUTOR'S PETITION FOR AUTHORITY TO SETTLE AND COMPROMISE THE CLAIMS OF ALICE R. PHILLIPS AGAINST THE ESTATE AND NOW, comes Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr., deceased, by and through his attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and hereby petitions this court pursuant to 20 Pa.C.S.A. § 3323 for authority to compromise a claim against the estate of Linwood B. Phillips, Jr., deceased. Petitioner respectfully represents that: 1. Petitioner is a licensed, practicing attorney with a business address at 5 South Hanover Street, Carlisle, PA 17013. 2. On February 8, 2006, Letters Testamentary were granted to petitioner by the Register of Wills of the County of Cumberland, Commonwealth of Pennsylvania. Petitioner qualified and thereafter acted and is still acting as the Executor of such estate. 3. On June 22, 2006, Alice R. Phillips filed for her Elective Share as per 20 Pa. C.S.A. §2201 against the Estate. 4. Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr., objected to the Elective Share premised on the grounds that Alice R. Phillips waived her right to the Elective Share under a Prenuptial Agreement dated October 2, 2000. 5. On or about August 21, 2006, Alice R. Phillips filed a Petition to Set Aside the Prenuptial Agreement premised upon various claims as described therein. Alice R. Phillips also filed and raised allegations indicating that Robert G. Frey, Robert M. Frey and Frey & Tiley were involved in a conspiracy to defraud her. 6. On July 11, 2008, the court granted Alice R. Phillips' Motion in Limine, precluding Petitioner's invocation of the Pennsylvania Dead Man Statute. Petitioner had then filed an application to certify that ruling for an interlocutory appeal to the Superior Court. 7. A Mediation was held before Samuel Andes, Esquire, on September 8, 2008. 8. By Order of Court of September 24, 2008, a Settlement Conference was scheduled for October 21, 2008. 9. The Petitioner and Alice R. Phillips reached a tentative agreement for settlement on October 15, 2008 in the amount of Four Million Dollars ($4,000,000.00) to be paid to Alice R. Phillips and Petitioner subsequently filed a Petition for Authority to Settle and Compromise the Claims of Alice R. Phillips Against the Estate ("Settlement Petition"). 10. By order of court dated October 24, 2008, the Settlement Petition was granted, authorizing Petitioner to compromise the claims by distributing to Alice R. Phillips the sum of Four Million Dollars ($4,000,000.00). 11. As of the date of this Petition Three Million Nine Hundred and Twenty-Five Thousand Dollars (3,925,000.00) has already been advanced to Alice R. Phillips. 12. The remaining Seventy-Five Thousand Dollars ($75,000.00) had been withheld pending Alice R. Phillips return to the Estate certain personal property which she had retained contrary to the order of court dated October 24, 2008. 13. Petitioner and Alice R. Phillips have reached a tentative agreement, entitled "Settlement Agreement and General Release," a true and correct copy of which is attached hereto and incorporated by reference herein as Exhibit "A," whereby the Estate will pay to Alice R. Phillips Seventy-Five Thousand Dollars ($75,000.00) and an additional Fifteen Thousand Dollars ($15,000.00) for the release of all tangible personal property as referenced in the order of court dated October 24, 2008, and any rights to grave sites referenced therein. 14. Petitioner believes that it is in the best interest of the Estate that such compromise be made because it is necessary to preserve the assets of the Estate as best as possible. 15. This case is before the Honorable Penny L. Blackwell, Judge of the York County Court of Common Pleas 16. The names and addresses of all persons interested in this proceeding who aze required to be cited on this application or concerning whom the court is required to have information aze as follows: Surviving_Spouse Alice R. Phillips c/o Neil W. Yahn, Esquire JAMES, SMITH, DIETTRICK & CONNELLY, LLP P.O. Box 650 Hershey, PA 17033 Daughter Linda L. Stull c/o Hubert X. Gilroy, Esquire MARTSON LAW OFFICES 10 East High Street Cazlisle, PA 17013 Son Linwood B. Phillips, III c/o Hubert X. Gilroy, Esquire MARTSON LAW OFFICES 10 East High Street Cazlisle, PA 17013 Son W. Alan Phillips 65 West Big Spring Avenue, Apt. 3 Newville, PA 17241 Grandchildren Son of Linwood B. Phillips, III Mark Phillips 344 Pond View Drive Hazleysville, PA 19438 Son Merle R. Phillips 938 Rockledge Drive Cazlisle, PA 17013 Great Grandchildren Children of Linwood B. Phillips, IV (deceased) and Catina Lee Phillips Beyanca Phillips (minor) Ryan Phillips (minor) c/o Michael A. Scherer, Esquire Guardian ad litem O'BRIEN, BARIC & SCHERER 19 West South Street Carlisle, PA 17013 Grandchildren Children of Linda L. Stull Kelly Diodato 912 Burr Avenue Cazlisle, PA 17013 John C. Miller, III 689 Valley View Drive Boiling Springs, PA 17007 Grandchildren Children of W. Alan Phillips April R. Phillips Dept. Of Corrections, DC#OLO212 SCI Muncy P.O. Box 180 Muncy, PA 17756 Michael A. Phillips 441 Crossroads School Road Carlisle, PA 17015 WHEREFORE, Petitioner, Robert G. Frey, Executor of the Estate of Linwood B. Phillips, Jr., and requests that this Honorable Court issue a Decree APPROVING the Settlement Agreement and General Release between Alice R. Phillips and the Estate. Respectfully Submitted, MARTS LAW O E By: Georg . F , Jr., Esquire I.D. No. 49813 R. Christopher VanLandingham, Esquire I.D. No. 307424 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: Attorneys for Robert Frey, Executor of the Estate of Linwood B. Phillips, Jr. ~.~ -/~ SETTLEMENT AGREEMENT AND GENERAL RELEASE THIS SETTLEME1~iT AGREEMENT AND GENERAL.. RELEASE Oierein "Ageee-eeent wed Release's is by and between Alice R. Phillips (herein "AGFce'~, an adult individual, and Robert G. Frey, the Executor of the Estate of the decedent, Linwood B. Phillips, Jr. ("J*rey'~ WHEREAS, Linwood B, Phillips, dr. (herein the "DecedexP'} died February 2, 2406; WHEREAS, Frey was appointed executor of the Decedent's Estate (leerein the "Estate ") un ur about February 8, 2006 according W the Decedent's testamenlaty documents; WHEREAS, on or about June 22, 20Q6, Alice filed for her Elective Share as per 20 Pa. C.S.A. §2201 against the Estate; WHEREAS, Frey objected to the Elective Share premised on ths, grounds that Alica waived hez right to the Elective Share undo ccxtairf Prcnupt(al .Agreement(s) datod September 5, 2000 and Qctober 2, 2000; WHEREAS, Frey alleged the Prenuptial Agreement precluded Alice Pram her statutory llective Share of one-third (1/3) of the Estate; WHEREAS, on or about August 21, 2006, Alice filed a Petition to Set Aside the Prenuptial Agreement(s) premised upon various claims as described therein; and WHEREAS, Alice also filed and raised allegations indicating that Robert G. Frey, Robcxt M. Frey and Frey & Tiley were involved in a conspiracy to defraud her. WHEREAS, as of the date of the signing of this agn,.emert~ (3,925,000.00) has already been advanced and paid to Alie:e Phillips. ~1 yyHEREAS, within (7) seven days of the signing of this agreement the balance due of w~ $75,000.00 shall be paid to Alice Phillips..:,,~•~-,fe/~~~, .~'. ,.4a~~ ~•~' y ~! 1~,~~~I~ ~r..~,.~..1 ~,,..~r.¢y ~.+f•e•I{,rr' ~6te.-.~~ it ~.~~le-r,~, C.~ !'~I•~s/Cnc~er .~ ~~• ~'..r~,/'J rr:/T~ ./.-~i+~ ~o~l~/`oJ ~~ ! NOW THEREFORE, with intent to be legally bound and in cc~nside<ation of the above n...a recitals, which are substantively incorporated herein, aad the Estate's payment of the sum of Four ,. ~ Aa ~~ Million and NoJl00 Dollars ($x,000,000.00) to Alice a,4 further set forth herein and in the attached ~ ~,,,,,,, s Exhibit "A," it is hereby agreed: /f ~,~,.. ri ,i a rt /~ t r"'~ , e) Robert G. Frey ._ ( Alice R. Aliillips ~ ~) 1. Alice, in consideration of the receipt of Four Million aryd Nol100 Dollars (54,000,000.00) (the "Seuteanent Proceeds") does hereby, for herself and her heirs, executrixes, a~~~ ,~~~eficiaries, fully release, acquit and forever discharge the Estate of L.H. Phillips, Robert G. Frey, Robert M. Frey, and Frey & Tilcy, all children and heirs of G.AA. Phillips, and any and all. other persons and entities of and from any and all past, pt^esent and future actions, causes of action, chums, accountings, surcharges, demands, damages, third party claims and/or actions, costs, losses of senlee, expenses, compensation, third party actions, suits at law or in equity or otherwise, including eraims or suits for joinders, for sole liability, contn'bution and indemnity of whatever nature, and all cansequentia] damages on account of or in any way arising out of any and all known and unknown injury andr'or damage resulting from or to result ii+ortt the injury or damage alleged to baud bean incumxl by Alice due to any action or omission of the Estates its agents, employees or otherwise, including, but not limited to, all matters which are related directly ar indirectly to the subjoct matter of an action filed in the Court of Common Pleas of Cumberland County (Chphans' Court L?ivision), Pennsylvania, as dodcctod to No.21.U6-0122 Petition to Set Aside the Prenuptial Agreement, and any additional matters, actions o< clam ~cehd are or may be filed {herein collectively "Ctabrts'~, pravldtd -tiawever, that .nothing hereut shall operate (a} to release arty obligaticros of the E.ttatis maising under this Agreement and Release or (b) to release any sad all claims which Alice Phillips may have for Medical Malpractice. 2. Alice releases her rights, interests and claims with respect to the Estate or~to~any assets of the Estate under the Decedent's testamentary documents set ~ ~ Exhibit B , or otherwise, including but not limited to her life estate in various assets as further dtscribed tharrein. 3, It is expressly understood and agreed that this Agreement and Release preserves and excepts from the opa~ation hereof any claim Alice may have against Dr. Harvey Shapiro and/or his firm or group for any injuries, losses, costs and damages incurred by Alice resulting from her treatment by Dr. Harvey Shapiro. 4. Alicq the Estate and Frey understand and agree that this settlement is the compromise of a disputed claim, and that payment of the Settlement Pnxxeds is not to be construed an admission of liability on the Bart of arty persons, firms, associations, partnerships and corporations hereby released, and that those released hereby expressly de~+ any liability. 5. Alice, the Estate aad Fns further' understand and agree that neither they nor their respective attoroeys, agents, servants nor other representatives or individuals will in any way publicize or disclose or cause to be publicl~ed or disclosed in any individual, news or commtmications media, including but not limited ta, legal publications, newspapers, magazines, radio and television, the facts or tcrsns and conditions of this settlement, the Agreement and Relea~. err of the claim from which this Agreement and Release arises. Robot G. Frey ~ e) Alice K. Phillips '~- l~- ~"~~ re) 6. Alice, the Estate and Frey expressly agree to decline comment on any aspect of this Agreement and Release, or the claim from which this settlement arises, to any and all individuals and/or members of the news media and to refrain from engaging any individual or the news media in any such comment. The spirit and intention of this para$raptt is to maintain confidentiality regarding this Agrexment and Release itself and of the claim Pram which this settlement arise, 'T'his paragraph is intended to become part of the consideration flawing to the persons and/or entities herein released and is integral to this Agreement and Release. 7. In the event the Court fails to approve this Agreement and Release, this Agrcccncnt and Release shall be void and without effect and Alice shall rc;turn the Advance as so defined within Exhibit "A." As soon as practical after thirty days of the final court approval as so decreed, the balance of the Se~xlement Proe~exls will be distributed as per Exhibit "A" (the "Flleal Distrtbutton Date"}. 8. Alice and Frey have read and have been provided ample ~iriie to reviCw this Agrcetnent and Release, the temts used herein, and, the cxmsequences thereo£ Each voluntarily enters into this Agreement and Release. 9. Alice and Frey agree that the terms of this Agreement and Release are voluntarily accepted for the purpose of making a full and final cx~mptomise and settlement of any and all claims on account of injuries and damages above mentioned and for the express purposes of precluding forever any further and additional suits, actions, inquiries and/or investigations arising out of the aforementioned claims with the exception of any claims against Dr.1~Iarvey Shapiro and/or his firm. 10. In the event that any provision or term of this Ageement and Release is declared or determined m be ambiguous by a court of competent jurisdiction, such provision or term shall not be construed in favor of either party, nor against either party based upon a presumption of authorship. 11. This Agreement and Release, including the Exhibits attached hereto and made a part hereoi; contains the entire agreement among the parties hereto. 12. There are no written or oral understandings or agreements, directly or indirectly connected with this Agreement and Release that are not contained herein. This Agreement and Release shall be binding upon and inure to the succcssars, ag4igns, heirs, representatives, executors, administrators and legal representatives of the respective parties thereto. JAl'.lAi~A~'t?N ....__ . _.~ .fit ~BtN! 1111~A'f QM .ll!1Y1311 . ~i N.~.' ~tauo0 ttt~d+adirh..~ +1~COxs~ ~~ ~ ,f~:_s ;x.10! ,fit ,t~a~a~O eou~{x.~. ~:at.~> y~:e~a~J Robert G. Frey . _., . ^..., e) Alice R. Phillips Q~c.c1 1C ~~ %t.~.C~- i ature} READ CAREFULLY BEFOIt)E 5TGNTVC Alice R, Phillips Robert G. Frey, Enquire As Executor for the Estate of Linwood B. Phillips, Jr. COMMONWF,ALTH OF PENNSYLVANIA ) , )~ COUNTY OF CER'1~NA O.d~Pi~l~.l ) On this 20~'' day of J~l.~t.t S"I' , 2 , before me personally appeared Alice R. Phillips known to rae to be the pe a described and who executed the foregoing Agreement and Release and she acknowledged that she voluntarily executed the same. cc~oKw~uTH~P vnNU- aa~w s..i Public ~ lope K or+~ Noury W+eYo ~ UppK Men Twp.. Cun~~~ 4, X011 My Comrtrnbr- ;,~.y ~navhe~p !uio0~slfon d No1MfN Co1vItNONwrALTx of rErnvsYLVANIA )ss COUNTY OF CUMBERLAND ) ` - tot o On this ~~~ day of ~ o~ g66g; before me personally appeared Robert G. Fr+cy, Esquire known to me to be the person descnbed herein, and who executed the foregoing Agreement and Release ancJ,l~_acknpwl that he voluntarily cxecutnd the same. Public ~iY61K~1 R.1#Ml~. NIfRA~ PUIILIC carNsN ~aa~, QwiMIrM~ f~rly ConMNalon E~Irw D~e«~Il~e 1~ 3! Robert G. Frey Alice R. Phillips EXHIBIT "A" Date of Execution of A~cement Alice is paid an Advance of the Settlement Proceeds: $200,000 Final Distributicm Date Amount of Settlement Proceeds: ~~ ~ ~ f S ~D O L ~ '{~.y..~l b/ • ~: '!~ i .cif ~ r ~~~_~..~ r~~~ ~~++ $3~~~ 3f 9 sy Gov o Total Settlement Proceeds: `~ ~ ~, ~~ o 000 000 Robert G. Frey ~ J ' store) Alice R. Ahillips QG~-cy ~~`L /~~ ~ ~~tiure) VERIFICATION I, Robert G. Frey, Executor of the Estate of Linwood B. Phillips, certify that the foregoing Petition is based upon information which has been gathered by my counsel. The language of this document is that of counsel and not my own. I have read the document and to the extent the Petition is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the Petition is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. By: Robert G. Frey F'\FILES\Clientt\I 1145 Frry Tilry\I 1145.2.2nd pet to approve settlement CERTIFICATE OF SERVICE I, R. Christopher VanLandingham, an authorized agent for Martson Deardorff Williams Otto Gilroy & Faller, hereby certify that a copy of the foregoing Executor's Petition for Court Approval to Settle and Compromise the Claims of Alice R. Phillips was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Neil Warner Yahn, Esquire JAMES, SMITH, DIETTRICK & CONNELLY, LLP P.O. Box 650 Hershey, PA 17033 Hubert X. Gilroy, Esquire MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 MARTSON LAW OFFICES By: N R. Christopher VanLandingham Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: