HomeMy WebLinkAbout10-7327FILEO-OFFICE
OF THE PROTHONOTARY
McNEES WALLACE & NURICK LLC
By: Guy H. Brooks
Attorney ID No. 49672
100 Pine Street
Harrisburg, PA 17108-1166
(717) 237-5384
(717) 237-5300 facsimile
gbrooks _mwn.com
2010 NOV 23 PM 3: 28
CUMBERLANO COUNTY
PENNSYLVANIA
Attomeys for Plaintiff
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
Docket No. i d-? 3a
JOSHUA A. PARRISH and AMANDA L.
PARRISH,
t?,y S Pi.W aPefendants
'(?/tecnani csbu•-? P? 1 doss
PRAECIPE FOR WRIT OF SUMMONS
To: Prothonotary
Please issue a writ of summons in Civil Action -- Law in the above-captioned
action.
Dated: November 22, 2010
McNEES WALLACE & NURICK LLC
r
By.
/
Guy . Brooks
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attomeys for Plaintiff
11, p„c ??as?sg3
McNEES WALLACE & NURICK LLC
By: Guy H. Brooks
Attorney ID No. 49672
100 Pine Street
Harrisburg, PA 17108-1166
(717) 237-5384
(717) 237-5300 facsimile
gbrooks(camwn.com
Attomeys for Plaintiff
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
Docket No. 3 9L
JOSHUA A. PARRISH and AMANDA L.
PARRISH, :
rnprW .Defendants
I $0y S)
Me?Jlan?csbur5 , PLi I-7bss
WRIT OF SUMMONS
To: Joshua A. Parrish and Amanda L. Parrish, Defendants
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS
COMMENCED AN ACTION AGAINST YOU.
--am
Protho ary
Deputy
Date: November AS , 2010
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
Janet C. Miller
vs.
Joshua Parrish (et al.)
THE ... PtQTI jq0 t,-,
2010 0FC 20 PM 2:'57
C'UMBERL40 rvUtili- /
tiS YLVAr-) ,
Case Number
2010-7327
SHERIFF'S RETURN OF SERVICE
12/09/2010 05:00 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on December 9
2010 at 1700 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Amanda Parrish, by making known unto herself personally, at 1804 S. Market Street,
Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to
her personally the said true and correct copy of the same.
DENNI FRY, D U
12/09/2010 05:00 PM - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on December 9
2010 at 1700 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Joshua Parrish, by making known unto Amanda Parrish, Wife of defendant at 1804 S.
Market Street, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same
time handing to her personally the said true and correct copy of the same.
r-
DENNI FRY, DE
SHERIFF COST: $62.00
December 13, 2010
SO ANSWERS,
f ,
RONNW R ANDERSON, SHERIFF
McNEES WALLACE & NURICK LLC
By: Guy H. Brooks
Attorney ID No. 49672
100 Pine Street
Harrisburg, PA 17108-1166
(717) 237-5384
(717) 237-5300 facsimile
gbrooks _mwn.com
r?r 1 ] `-
i a?,,.rt ' l C06! F
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Attomeys for Plaintiff
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
Docket No. Z t (?
JOSHUA A. PARRISH, AMANDA L.
PARRISH, ERIE INSURANCE
EXCHANGE t/d/b/a ERIE INSURANCE
and THE ERIE
Defendants
AFFIDAVIT PURSUANT TO RULE 229.1 -
SETTLEMENT FUNDS. FAILURE TO DELIVER. SANCTIONS
AND NOW, comes Plaintiff, by and through her attorneys, McNees Wallace &
Nurick LLC, and files the following Affidavit Pursuant to Rule 229..1 - Settlement Funds.
Failure to Deliver. Sanctions., and in support thereof, states as follows:
1. Attached hereto as ExhibitA is a copy of Pa. R.C.P. 229. 1, which
controls the procedure by which a plaintiff may compel delivery of settlement funds if
said funds have not been delivered within 20 calendar days from receipt of an executed
release. (Pa. R.C.P. 229.1(c))
2. Pursuant to Pa. R.C.P. 229.1(d)(2), Plaintiff seeks to impose sanctions on
the Defendants as provided in subdivision (e) of this rule.
3. Pursuant to Pa. R.C.P. 229.1(e), Plaintiff, now attesting to the
nonpayment of the settlement amount of $200,000, attaches the following documents
as called for in Pa. R.C.P. 229.1(e)(1)-(5):
(a) A copy of a release executed by Plaintiff Janet C. Miller on
October 4, 2011 (Exhibit B);
(b) A copy of a letter dated October 7, 2011, forwarding the executed
release to Erie Insurance (Exhibit C);
(c) A copy of a letter dated October 18, 2011, from Dan Peron at Erie
Insurance acknowledging receipt of the release executed by Plaintiff and Erie's
refusal to deliver the settlement funds (Exhibit D).
(d) A certificate by Guy H. Brooks, Esquire, of the applicable interest
rate (Exhibit E);
(e) A certificate that we are serving a copy of this Affidavit on Dan
Peron, Claims Adjuster, at Erie Insurance. Presently, there is no attorney
involved on behalf of Defendants Joshua A. Parrish, Amanda L. Parrish or Erie
Insurance.
4. There is neither statutory nor case authority supporting Erie Insurance's
refusal to deliver the settlement proceeds.
MINE WALLACCE?& NURICK LLC
By l r l?
Guy H. Brooks
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Dated: November 2, 2011 Attomeys for Plaintiff
2
BUSINESS OF COURTS
certificate of merit as to that defendant has not been
filed.
Note: Rule 1042.3 requires the filing of a certificate of merit
as to a defendant against whom a professional liability claim is
asserted.
(c) The court, upon petition and after notice, may
strike off a discontinuance in order to protect the rights
of any party from unreasonable inconvenience, vexa-
tion, harassment, expense, or prejudice.
Note: Court approval of a discontinuance must be obtained
in any action in which a minor is a party, Rule 2039(a), an
action for wrongful death in which a minor is beneficially
interested, Rule 2206(x), an action in which an incapacitated
person is a party, Rule 2064, and a class action, Rule 1714.
A plaintiff who asserts a cause of action ex contractu and
joins as defendants persons liable to the plaintiff in different
capacities may not discontinue as to a defendant primarily
liable without discontinuing as to all defendants secondarily
liable. Rule 2231(e).
Adopted Sept. 30, 1949, effective April 1, 1950. Amended
April 18, 1975, imd. effective; March 11, 1991, effective July 1,
1991; July 18, 1991, effective Jan. 1, 1992; April 12, 1999,
effective July 1, 1999; Jan. 27, 2003, imd. effective.
Explanatory Comment-1991
Prior to the present amendment, Rule 229(b) required leave
of court to discontinue an action as to less than all parties.
However, it had been suggested it was unnecessary to involve
the court in a discontinuance where there is an agreement of
all parties. The amendment adopts the suggestion so that the
rule now permits such a discontinuance either upon agreement
of all parties or with leave of court.
Irrespective of the proposed amendment, there are several
rules which would still require court approval of a discontinu-
ance: Rule 2039(a) governing minors as parties, Rule 2206(x)
governing wrongful death actions involving minors, Rule 2064
governing incompetents, Rule 1714 governing class actions and
Rule 2231 governing joinder of parties.
Rule 229.1. Settlement Funds. Failure to Deliv-
er. Sanctions
(a) As used in this rule,
"defendant" means a party released from a claim of
liability pursuant to an agreement of settlement;
"plaintiff" means a party who, by execution of a
release pursuant to an agreement of settlement, has
agreed to forego a claim of liability against a defendant.
The term includes a defendant who asserts a counter-
claim;
"settlement funds" means any form of monetary
exchange to a plaintiff pursuant to an agreement of
settlement, but not including the annuity or future
installment portion of a structured settlement.
(b) The parties may agree in writing to modify or
waive any of the provisions of this rule.
(c) If a plaintiff and a defendant have entered into an
agreement of settlement, the defendant shall deliver the
settlement funds to the attorney for the plaintiff, or to
the plaintiff if unrepresented, within twenty calendar
days from receipt of an executed release.
55
Rule 229.1
Note: If court approval of the settlement is required, Rule
229.1 is not operative until the settlement is so approved.
Upon receipt of the settlement funds, the plaintiff shall file a
discontinuance or deliver a discontinuance to the defendant.
(d) If settlement funds are not delivered to the
plaintiff within the time required by subdivision (c), the
plaintiff may seek to
(1) invalidate the agreement of settlement as permit-
ted by law, or
(2) impose sanctions on the defendant as provided in
subdivision (e) of this rule.
(e) A plaintiff seeking to impose sanctions on the
defendant shall file an affidavit with the court attesting
to non-payment. The affidavit shall be executed by the
plaintiff's attorney and be accompanied by
(1) a copy of any document evidencing the terms of
the settlement agreement,
(2) a copy of the executed release,
(3) a copy of a receipt reflecting delivery of the
executed release more than twenty days prior to the
date of filing of the affidavit,
(4) a certification by the attorney of the applicable
interest rate,
(5) the form of order prescribed by subdivision (h),
and
(6) a certification by the attorney that the affidavit
and accompanying documents have been served on the
attorneys for all interested parties.
(f) Upon receipt of the affidavit and supporting
documentation required by subdivision (e), the defen-
dant shall have twenty days to file a response.
(g) If the court finds that the defendant violated
subdivision (c) of this rule and that there is no material
dispute as to the terms of the settlement or the terms of
the release, the court shall impose sanctions in the form
of interest calculated at the rate equal to the prime rate
as listed in the first edition of the Wall Street Journal
published for each calendar year for which the interest
is awarded, plus one percent, not compounded, running
from the twenty-first day to the date of delivery of the
settlement funds, together with reasonable attorneys'
fees incurred in the preparation of the affidavit.
(h) The affidavit shall be accompanied by an order in
substantially the following form:
(Caption)
ORDER
AND NOW, upon consideration
of the affidavit of , attorney for
(Plaintiff), and the exhibits thereto,
and upon a finding that payment was not trade within
twenty days of receipt of the executed release in the
above captioned action, it is ORDERED that, in
addition to the settlement funds of $
(Defendant) pay forthwith interest at
the rate of % on the aforementioned settlement
Rule 229.1
RULES OF CIVIL PROCEDURE
funds from the twenty-first day to the date of delivery of
the settlement funds, together with $
in attorneys' fees,
Judge
Note: The interest rate is determined in accordance with
subdivision (g) of this rule.
The defendant is the party who has failed to deliver
settlement funds as required by this rule. The plaintiff is the
party who is seeking to impose sanctions on the defendant for
that failure.
Adopted June 7, 2004, effective July 1, 2004.
Explanatory Comment-2004
New Rule 229.1 governs sanctions for failure to deliver
settlement funds. The new rule provides a straightforward
procedure of an affidavit filed by the plaintiff, a response filed
by the defendant and a decision entered by the court.
Three points should be noted. First, while the rule estab-
lishes a standard with respect to the delivery of settlement
funds, the "parties may agree in writing to modify or waive any
of the provisions of this rule." Thus, where the standard
cannot be met because of the particular type of party involved,
industry practice or custom, or other consideration, the parties
may agree not to be bound by the rule.
Second, subdivision (a) defines the terms "defendant",
"plaintiff" and "settlement funds". The plaintiff is the party
seeking the imposition of sanctions, whether that party is
plaintiff or defendant in the action. Similarly, the defendant is
the party against whom sanctions are sought, whether that
party is plaintiff or defendant in the action.
Finally, the sanction imposed includes an award of interest
on the settlement funds for the period during which the
defendant has failed to deliver the funds to the plaintiff as
required by the rule. The calculation of the rate of interest is
identical to the manner of calculating damages for delay
pursuant to Rule 238.
Rule 229.2. Petition to Transfer Structured Set-
tlement Payment Rights
(a) Words used in this rule, which are defined by the
Structured Settlement Protection Act, shall have the
meaning set forth in the Act.
Note: See Section 2 of the Act, 40 P.S. § 4002, which defines
numerous terms including "best interests", "dependents",
"payee", "structured settlement obligor", and "structured
settlement payment rights."
(b) A petition to transfer structured settlement pay-
ment rights shall be filed in the county in which the
payee is domiciled.
Note See Section 4 of the Act, 40 P.S. § 4004, providing
that the court of common pleas of the judicial district in which
the payee is domiciled shall have jurisdiction over the petition.
(c) The parties to the petition shall be the payee and
the transferee.
(d) The petition shall be verified by the transferee
and shall contain:
(1) a statement setting forth the payment provisions
of the structured settlement agreement and the payment
rights that: the payee seeks to transfer,
(2) separate paragraphs which in bold type set forth
(i) the net amount payable to the payee after
deduction of all commissions, fees, costs, expenses,
and charges, and
(ii) the following statement setting forth the inter-
est rate:
"Based on the net amount that the payee will
receive from this transaction ($ _ ) and the
amounts and timing of the structured settlement
payments that would be assigned, the payee is, in
effect, paying interest at a rate of % per year."
(3) four attachments:
(i) a Payee's Affidavit in Support of Petition, in the
form prescribed by subdivision (f) as Attachment 1,
(ii) an initial order of court scheduling the hearing,
in the form prescribed by subdivision (g),
(iii) a certification by an attorney for the transferee
representing to the best of his or her knowledge,
information and belief, formed after reasonable in-
quiry, that the transfer will comply with the require-
ments of the Act and will not contravene any other
applicable federal or state statute or regulation or the
order of any court or administrative authority, and
(iv) a final order of court granting the petition, in
the form prescribed by subdivision (i).
Note: These four attachments are in addition to any other
documents which are required to support the findings set forth
in Section 3 of the Act, 40 P.S. § 4003.
Subdivision (d) requires that two documents be verified. As
the two documents contain different information, each must be
verified by a different person. The petition to transfer
structured settlement payment rights must be verified by the
transferee. The Payee's Affidavit in Support of Petition must
be verified by the payee. The transferee is not required to
verify the information set forth in the Payee's Affidavit.
(e)(1) If the petition and Payee's Affidavit in Support
of Petition meet the requirements of this rule and
contain factual allegations which, if established, will
support the findings set forth in Section 3 of the Act, the
court shall promptly enter an order scheduling a hearing
date. The transferee shall give notice of the hearing, in
the form prescribed by subdivision (h), to the payee, the
structured settlement obligor, the annuity issuer, the
payee's spouse and any person who receives child
support, alimony or alimony pendente life from the
payee.
(2) If the petition is denied without a hearing for
failure to meet the requirements of this rule or to
contain necessary factual allegations, which will support
the findings set forth in Section 3 of the Act, the court
shall state reasons for the denial and the payee may file
an amended petition as of course.
(f) The Payee's Affidavit in Support of Petition shall
be substantially in the following form:
56
GENERAL RELEASE CLAIM # 010171007344
For the consideration of Two Hundred Thousand Dollars and No Cents ($200,000), receipt of which is hereby
acknowledged, I release and discharge, and for myself and for my heirs, representatives, executors,
administrators, successors and assigns, do hereby remise, release and forever discharge Joshua A. Parrish
and Amanda L. Parrish, hereinafter referred to as the releasees, their heirs, executors, administrators, insurers,
successors and assigns, and any and all other persons, firms, corporations, associations, of and from any and
all causes of action, suits, rights, judgments, claims and demands of whatsoever kind, in law or in equity,
known and unknown, which I now have or may hereafter have, especially the claimed legal liability of releasees
arising from or by . reason of any and all bodily or personal injuries and/or property damage known and
unknown, foreseen and unforeseen, which heretofore have been or which hereafter may be sustained by me
arising out of the accident on or about November 28, 2008, at or near 145 Gettysburg Pike, Upper Allentown
Township, Cumberland County, Pennsylvania, which liability releasees expressly deny.
I agree that the consideration set forth above is specifically applicable to and paid to me with respect to any
and all damage to any property, either real or personal, of mine and with respect to any and all personal or
bodily injury of mine, whether presently known or unknown, foreseen or unforeseen or which may subsequently
develop and the consequences thereof, all as arising out of the aforementioned accident.
I further agree that the consideration set forth above is specifically applicable to and paid to me with respect to
any right of contribution that I may have against the releasees, their heirs, executors, administrators, insurers,
successors and assigns relative to claims of others that may be brought against me by reason of said accident.
I further agree that the consideration set forth above is specifically applicable to my agreement that I will not
join nor attempt to join the releasees, their heirs, executors, administrators, insurers, successors and assigns in
any capacity, in any action that may be brought against me arising out of said accident.
I warrant for myself and my heirs, representatives, executors, administrators, successors and assigns that
have received no money or other valuable consideration from any other person or persons by reason of any
causes of action, suits, covenants, agreements, judgments, claims and demands of whatsoever kind, which I
now have or may hereafter have, for injuries to my person or property or for the other matters for which this
release is given.
I further understand and agree that this Release is inclusive of any and all present and future liens or claims for
subrogation against the payments to be made in accordance with this Release. I understand and agree that I
am responsible for the payment of any liens or charges against the payments to be made hereunder should
any such liens, subrogation, claims or claims for expenses and charges be asserted. This includes, but is not
limited to, medical expense liens, worker's compensation liens, ERISA liens, liens asserted by any federal,
state or local governmental entity or agency or any medical expense claim. Should any person or entity make
claim for payment of any liens or charges against The ERIE or their counsel, I agree to indemnify and hold
harmless The ERIE and their counsel from any and all such liens, charges, fees, claims, attorney fees, costs,
interests and any other sum.
I understand that this settlement is the compromise of a disputed claim, and that the payment is not to be
construed as an admission of liability on the part of the persons, firms and corporations hereby released by
whom liability is expressly denied.
Intending to be legally bound thereby, WITNESS my hand and seal this ,< day of October, 2011.
NOTICE: Any person who knowingly and with intent to defraud any insurance company or other person files an application for
insurance or statement of claim containing any materially false information or conceals for the purpose of misleading,
information concerning any fact material thereto commits a fraudulent insurance act, which is a crime and subjects the person
to criminal and civil penalties.
WITNESS
?vv?ue?.et ,B-?aru?
-(Seal)
Ja'et C. Miller
(Seal)
McNees
Wallace & Nurick LLc
100 Pine Street • PO Box 1166 • Harrisburg, PA 17108-1166
Tel: 717,232,8000 • Fax: 717,237,5300
October 7, 2011
Daniel Peron, AIC
Claims Adjuster
Erie Insurance
P.O. Box 90086
Mechanicsburg, PA 17019-0086
Re: Erie Claim No.: 010171007344
Erie Insured: Joshua A. Parrish & Amanda L. Parrish
Our Client: Janet Miller
Loss Date: 1112812008
Dear Dan:
Guy H. Brooks
Direct Dial: 717.237.5384
Direct Fax: 717.260.1764
gbrooks@mwn.com
Please find enclosed with this correspondence a General Release in the amount of
$200,000, the figure we agreed upon to settle this matter. I am using the standard Erie release
that has been used in previous Erie settlements.
Pursuant to our previous conversations, I recognize that Erie is declining to issue a
check because of the Medicare lien. In previous correspondence, we have offered to satisfy
this lien pursuant to the statute and relevant case law. Let me restate our position that it is up
to the beneficiary to satisfy the Medicare lien and that it is impermissible for Erie to intervene
on Medicare's behalf or otherwise inject itself into the relationship. between Ms. Miller and
Medicare. To the contrary, Erie owes its settlement of this third-party case to Ms. Miller, at
which time Ms. Miller is obliged to repay medical benefits to Medicare within 60 days after
payment is made. Should the lien not be satisfied, Erie's recourse is against Ms. Miller
pursuant to its own indemnification language in the release.
Once again, I thank you for working with me on this case in resolving the third-party
claim. I am sure we will be speaking in the future.
Very truly yours,
McNEES WALLACE & NURICK LLC
r J/?
By
Guy tErooks
GHB:jlp
Enclosure /
www.mwn.com
ALL-STATP LEGAL 800-222-0510 ED11 RECYCLED
Ac?cj? i bi. 4 -b
MR Erie
Insurancee
Branch Office 4901 Louise Drive • Rossmoyne Business Center P.O. Box 2013 • Mechanicsburg, PA 17055-0710
717.795.8200 Toll Free 1.800.382.1304 • Fax 717.795.2315 www.erieinsurance.com
October 18, 2011
Guy H. Brooks, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Re: ERIE Claim
ERIE Insured:
Date of Loss:
Your Client:
Dear Mr. Brooks:
Kerry J. Ritchey, CPCU, AIC
Vice President & Claims Manager
#010171007344
Joshua A. Parrish
11/28/08
Janet E. Miller
We acknowledge receipt of your October 7, 2011 correspondence and the General Release signed by Ms.
Miller.
Erie Insurance Exchange is unable to issue the $200,000.00 settlement draft as you request.
You have been previously been advised of our company procedures which require the need to satisfy the
Medicare/MSPRC lien related to the claim. Our options to accomplish this are limited.
Option one requires your collection of a final demand notice from MSPRC. Once produced, Erie Insurance
Exchange would issue a payment direct to MSPRC and the remaining funds to you and your client, Ms.
Miller.
The second option allows Erie Insurance Exchange to issue a check for $200,000.00 payable to Ms. Miller,
your law firm, as well as MSPRC.
We will simply await your response to these procedures of settlement. If they are considered unacceptable, we
would assume that you will be filing a petition with the court to enforce a settlement.
Sincerely,
f Z)an Per n,
Claims Adjuster
Harrisburg Branch Office
1-866-600-2585
1-800-545-0408 (Fax)
DP:ds
21249131.130C
The ERIE is Above All in SERVICE"
ter:
;?-- L
? ?, b.
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
: Docket No. LOW-() JOSHUA A. PARRISH, AMANDA L.
PARRISH, ERIE INSURANCE
EXCHANGE t/d/b/a ERIE INSURANCE
and THE ERIE
Defendants
CERTIFICATE OF APPLICABLE INTEREST RATE
I, Guy H. Brooks, certify that the Wall Street Journal prime rate in January of
2011 was 3.25 percent.
- i ; ? ?'-- ?/)
Guy H. rooks
Dated: November 2, 2011
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 2nd day of November 2011, a true
and correct copy of the foregoing document was served by first-class mail, postage
prepaid, upon the following:
Dan Peron, AIC
Claims Adjuster
Erie Insurance
P.O. Box 90086
Mechanicsburg, PA 17019-0086
-?>l )-?J
Guy H. Brooks
Of Counsel for Plaintiff
J
J i F-
Johnson, Duffle, Stewart & Weidner
By: John A. Lucy, Esquire ERLA h.D C0Uhj-j-,I.D. No. 203948 jE'iN,S '(_ s''d1F;
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
Attorneys for Defendants John A. Parrish,
Amanda L. Parrish, Erie Insurance Exchange
t/d/b/a Erie Insurance and The Erie
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : CIVIL ACTION - LAW
JOSHUA A. PARRISH, AMANDA L. PARRISH,
ERIE INSURANCE EXCHANGE t/d/b/a NO. 2010-07327
ERIE INSURANCE and THE ERIE,
Defendants
PRAECIPE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please enter the appearance of John A. Lucy, Esquire, of Johnson, Duffie, Stewart &
Weidner, P.C. as counsel for Defendants Joshua A. Parrish, Amanda L. Parrish, Erie Insurance
Exchange t/d/b/a Erie Insurance and The Erie in the p4aWned action.
JOHNS
By:
DATE: ` ., 9b, 3o? 1
, STF- CRT & WEIDNER
Lucy, Esquire
or ey I. D. No. 203948
0 Market Street
P . Box 109
emoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
468979
22740-2888
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Lemoyne, Pennsylvania, with first-class postage prepaid on the day of Qv ,
2011, addressed to the following:
Guy H. Brooks, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON,,ZfUFFIEASTEWART & WEIDNER
By:
John y, Esquire
Attor ey .D. No. 203948
30eloyne, ket Street
P. ox 109
Le PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
I.I1-4cD-CFFII;.
01" THE PROTHON0,TAPY
Johnson, Duffle, Stewart & Weidner
By: John A. Lucy, Esquire
I.D. No. 203948
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
jas@jdsw.com
2011 NOY 21 AM 8: 4 f
CUMBERLAND COUNTY
P E Nth S Y LVA N Ihorneys for Defendants John A. Parrish,
Amanda L. Parrish, Erie insurance Exchange
t/d/b/a Erie Insurance and The Erie
JANET C. MILLER,
V.
JOSHUA A. PARRISH, AMANDA L. PARRISH,
ERIE INSURANCE EXCHANGE t/d/b/a
ERIE INSURANCE and THE ERIE,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2010-07327
DEFENDANTS' REPLY TO PLAINTIFF'S AFFIDAVIT PURSUANT
TO RULE 229.1 - SETTLEMENT FUNDS. FAILURE TO DELIVER. SANCTIONS
AND NOW, come the Defendants by and through their counsel, Johnson, Duffie,
Stewart & Weidner, P.C., and file the following Reply to Plaintiffs Affidavit Pursuant to Rule
229.1 - Settlement Funds. Failure to Deliver. Sanctions, and in support thereof state as follows:
1. It is believed, and therefore averred, that Plaintiffs counsel has filed the
foregoing Affidavit Pursuant to Rule 229.1 in regards to settlement negotiations which took
place with Erie Insurance Exchange (hereinafter "Erie") and namely, Daniel Peron of Erie.
2. It is believed, and therefore averred, that the parties discussed, and agreed to a
settlement amount of $200,000.00 to settle the underlying personal injury claim of Janet C.
Miller.
3. This matter was never commenced by Writ or Complaint prior to the Plaintiffs
filing of the foregoing Affidavit Pursuant to Rule 229.1.
4. It is believed, and therefore averred, that the parties discussed that, although the
Plaintiff
settlement amount was proper under the circumstances, the Plaintiff had an outstanding
Medicare lien which needed to be properly compromised with the terms of the settlement. (See,
Correspondence between the parties dated October 18, 2011 attached hereto as Exhibit "A")
5. On or about October 7, 2011, counsel for the Plaintiff sent Daniel Peron, Claims
Adjuster, a General Release, unilaterally signed by his client which was not provided by Erie.
(See, Correspondence between parties dated October 7, 2011, attached hereto as Exhibit "B").
6. It is clear that prior to unilaterally having his client sign this General Release,
counsel for the Plaintiff was acutely aware that Erie declined to issue a check because of the
outstanding Medicare lien and believed that the parties needed to compromise the lien. This
was discussed well in advance of the Plaintiff signing the General Release. (See Exhibit "B")
7. As with any contract, it is essential to the enforceability of a settlement
agreement that the minds of the parties should meet upon all terms, as well as the subject
matter, of the agreement. Mazzella v. Koken, 739 A.2d 531 (Pa. 1999).
8. Although the parties had agreed on the settlement amount, it is clear that Erie
Insurance never sent a General Release to Plaintiff's counsel for execution by his client and
such release was proffered by the Plaintiff and unilaterally sent to Erie. (See Exhibit "B")
9. In Plaintiff's Affidavit, averment number 4, the Plaintiff references that there is no
statutory or case authority supporting Erie Insurance's refusal to deliver the settlement
proceeds.
10. Under the Medicare Secondary Payer Act (hereinafter referred to as "MSPA"),
the United States may seek to recover its payment from any entity, including a beneficiary,
provider, supplier, physician, attorney, State agency or private insurer that has receive a
primary payment. 42 C.F.R. § 411.24 (g).
11. As such, any entity which does not compromise an existing Medicare lien is
subject to those provisions and penalties under the statute, to include not only the Plaintiff, but
Plaintiff's counsel, Defendants' counsel and Defendants' Insurance carrier.
12. Defendants do not seek to assert the right of the United States government
regarding their potential claim, but seeks to assure that this lien is properly compromised
thereby assuring that the United States can not seek redress against Defendants.
9. It is believed, and therefore averred, that Plaintiffs counsel would refer to the
recent case of Zaleppa v. Seiweill, 9 A.2d 632 (Pa. Super. 2010), to support the argument that
Erie cannot request that the existing lien be compromised as the indemnification language in
the release is sufficient and the Defendants' can not assert the rights of a governmental entity.
The Zaleppa matter, however, is easily distinguishable from the matter at hand and is equably
not applicable.
10. As noted above, any agreement must be a meeting of the minds between the
parties, and any party can request certain restrictions to, or increased breadth of, any proposed
agreement. In the case at hand, it is clear that Erie made an explicit request that the Medicare
lien be compromised prior to the issuance of the check and clearly before the Plaintiff entered
into the General Release.
11. Through the course of settlement negotiations the parties, among themselves,
may decide whether an agency responsible for administering Medicare or enforcing the MSPA
should be paid directly, or indirectly, from the proceeds of the settlement.
12. As noted above, the case of Zaleppa is in reference to a judgment in which the
defendants requested that the proceeds be paid to Medicare.
13. As more fully outlined above, the parties, in this case, discussed settlement and
agreed upon a settlement amount, but clearly the Defendants requested certain conditions in
regard to the settlement which were not agreed to by the Plaintiff.
14. Plaintiff's Affidavit of Settlement, and request for delivering of funds, as well as
sanctions to include attorney's fees and interest is unfounded and not warranted in this matter.
15. As such, Defendant would request that Plaintiff, as a part of settlement
negotiations, agree to the options outlined by Erie in its letter of October 18, 2011. (See Exhibit
WHEREFORE, Defendant respectfully requests this Honorable Court to deny Plaintiff's
Affidavit Pursuant to Rule 229.1 - Settlement Funds. Failure to Deliver. Sanctions.
Respectfully submitted,
JOHNSON,ZUFFIE, $TEWART &,WEIDNER
By:
John y, Esquire
tto or y .D. No. 203948
301 et Street
P. ox 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
DATE: N1 ,J, X% %,6-ati
469138
22740-2888
EXHIBIT A
rz M,
Erie
insurance'
ftnCh Office ' 4901 Louise Drive • Rossmoyne Business Center • P.O. Box 2013 • McGhanicsburg• PA 17055-0710
717.795, 6200 TOO Free 1.600.3132.1304 • Fax 717, 795.2315 • www.erieinswance.com
October 18, 2011
Guy H. Brooks, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Kerry J. Ritchey. CPCU, AIC
ViCo President 8 Cbms MweW
l? _Cq rr
Re: ERIE Claim //010171007344
ERIE Insured: Joshua A. Parrish
Date of Loss: 11/28/08
Your Client: Janet E. Miller
Dear' Mr. Brooks: .
We acknowledge receipt of your October 7, 2011 correspondence and the General Release signed by Ms.
Miller.
Erie Insurance Exchange is unable to issue the $200,000.00 settlement draft as you request.
You have.been previously been advised of our company procedures which require the need to satisfy the
Medicare/MSPRC lien related to the claim. Our options to accomplish this are limited.
Option one requires your collection of a final demand notice from MSPRC. Once produced, Erie Insurance
Exchange.would issue a payment direct to MSPRC and the remaining fundsv you and your client, Ms-,
Miller.
The second option allows Erie Insurance Exchange to issue a check for $200,000.00 payable to Ms. Miller,
your law firm, as well as MSPRC.
We will, simply await your response to these procedures of settlement. If they are considered unacceptable, we
would assuiric that you will be filing a petition with the court to enforce a settlement.
Sincerely,
Za)n"r4V_'--
Claims Adjuster
Harrisburg Branch Office
1-866-600-2585
1-800-545-0408 (Fax)
DP:ds
2124913 I.DOC
The ERIE is Above Ai in $ERVICEs
EXHIBIT B
lot
McNees
Wallace & Nurick LLc
100 Pine Street • PO Box 1166 • Harrisburg, PA 17108-1166
Tel:. 717,232.8000 • Fax: 717.237,5300
October 7, 2011
Daniel Peron, AIC
C{aims Adjuster
Erie Insurance
P.O. Boz 90086
Mechanicsburg,' PA 17019-0086
Re: Erie Claim No.: '010171007344 .
Erie insured: Joshua A.. Parrish & Amanda L. Parrish
Our Client: Janet Miller
Loss Date:.1112812008
Dear Dan:
Guy H. Brooks
Direct Dial: 717.237.5384
Direct Fax: 717280.1764
gbrooks@mwn.com
Pletise find enclosed with this correspondence a General Release in the am6unt-of
$200,000, the. figure we agreed upon to settle this matter. I amusing the standard Erie release
that has been used in previous Erie settlements.
Pursuant to our previous conversations, I recognize that Erie is declining to issue a
check because of the Medicare lien. In previous correspondence,. we have offered to satisfy
this lien pursuant to the statute and relevant case law. Let me restate our position that it is up
to the beneficiary to satisfy the Medicare lien and that it is impermissible, for Erie to intervene
on. Medicare's behalf or otherwise inject itself into the. relationship between Ms. Miller and
Medicare. To the contrary, Erie owes its settlement of this third-party case to Ms. Miller, at..
which time. Ms. Miller is obliged to repay medical benefits to Medicare within 60 days after
payment is'made. Should the lien. not be satisfied, Erie's recourse is against Ms. Miller
pursuant to its own indemnification language in the release.
Once again, i-thank you for working with me on this case in resolving the third-party
claim. I am sure we will be speaking in the future.
Very truly yours,
McNEES WALLACE & NURICK LLC
By
GHB:jIp Guy t.EBrooks
..
Enclosure r
VAMM tt.com
HARRISBURG, PA .s LANCASTER.. PA • STATE COLLEGE. PA 0 HAZLETON. PA 0 COLUMBUS. Olt 0 WASNMfrMN: D.C
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Lemoyne, Pennsylvania, with first-class postage prepaid on the ;? I day of t4oi PwN'k ? ,
2011, addressed to the following:
Guy H. Brooks, Esquire
McNees Wallace & Nurick, LLC
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON,,,WFFIE, ST?WART & WEIDNER
=yttornI.D. Esquire
No. 203948 treet
17043-0109
Telephone (717) 761-4540
Attorneys for Defendants
P N I: Li
McNEES WALLACE & NURICK LLC
By: Guy H. Brooks
Attorney ID No. 49672
100 Pine Street
Harrisburg, PA 17108-1166
(717) 237-5384
(717) 237-5300 facsimile
gbrooks -mwn.com
FiL_ 'KD C0Urif
'Ej'flP3Y1_VAt IA
Attomeys for Plaintiff
JANET C. MILLER, IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
Docket No. 10-7327
JOSHUA A. PARRISH, AMANDA L.
PARRISH, ERIE INSURANCE
EXCHANGE t/d/b/a ERIE INSURANCE
and THE ERIE
Defendants
PRAECIPE TO DISCONTINUE
Please mark the above-captioned proceeding discontinued, settled and ended.
McNEES WALLACE & NURICK LLC
`---r J
By
Guy . Brooks
100 ine Street
P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Plaintiff
Date: May 16, 2012
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 16th day of May 2012, a true and
correct copy of the foregoing document was served by hand delivery upon the
following:
John A. Lucy, Esq.
Johnson, Duffle, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109