HomeMy WebLinkAbout02-0144MARY K. WITKOWSKI,
Executrix of the Estate of
EDWARD F. WlTKOWSKI,
PLAINTIFFS
V.
STEVEN DUMAS and
FAF, INC. a/k/a FORWARD AIR, INC.,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002 -- ] ~t ~ CIVIL TERM
CIVIL ACTION - LAW
PRAECIPE FOR A WRIT OF SUMMONS
TO CURTIS R. LONG, PROTHONOTARY:
Please enter my appearance on behalf of the Plaintiffs and issue a Writ of Summons against the
Defendants, Steven Dumas, FAF, Inc., a.k.a Forward Air, Inc.
Mr. Steven Dumas
3107 Regal Lane
Cincinnati, Ohio 45251
FAF, Inc.
6800 Port Road
Grove Port, Ohio 43125
Forward Air, Inc.
430 Airport Road
Greeneville, Tennessee
Date: January 10, 2002
Respectfully submitted
~/~IRWIN, Mff~GHT
By:
By:
'~GHES
~ b: Sch~t~ ~squire
60 West Pom~et S~eet, C~lisle, PA 17013
(717) 249-2353 - Supreme Cou~ I.D. No: 70216
To: STEVEN DUMAS, FAF, INC. a/k/a FORWARD AIR, INC.
You are hereby notified that Mary K. Witkowski, Executrix of the Estate of Edward F. Witkowski, the plaintiff,
has commenced an action against you which you are required to defend or a default judgment may be entered
against you.
Date:~ 2002
- aoxaoNpg
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MAKK K. WITKOWSKI, Executriz of the
Estate of Edward F. Witkowski
Plaintiffs,
STEVE DUMAS and FAF, INC., a/k/a
FORWARD AIR, INC.,
Defendants.
CIVIL DIVISION
No. 2002-144
Issue No.
Praecipe for Appearance
Code:
Filed on behaif of DEFENDANTS
FAF, INC., a/k/a FORWARD AIR, INC.
Counsel of record for this party:
John T. Pion, Esquire
Pa. I.D. #43675
DICKIE, McCAMEY & CHILCOTE, P.C.
Finn #067
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402
(412) 281-7272
JURY TRIAL DEMANDED
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
MARY K. WITKOWSKI,
Plaintiff,
VS.
STEVEN DUMAS and FAF, INC., aP~/a
FORWARD AIR, INC.,
Defendants.
)
) Civil Action
)
) No. 2002-144
)
)
)
)
)
)
PRAIECIPE FOR APPEARANCE
TO: PROTHONOTARY
KINDLY enter our appearance on behalf of Defendants FAF, INC., and FORWARD
AIR, INC. in the above-entitled action.
A IURY TRIAL IS DEMANDED.
DICKIE, McCAMEY & CHILCOTE
Alt o~me~i; nD'eEir~uiran~s
FAF, Inc., and Forward Air, Inc.
CERTI~CATE OF SERVICE
I, John T. Pion, Esquire, hereby certify that a true and correct copy of the foregoing
Praecipe for Appearance was served upon counsel of record by U.S. Mail, postage prepaid this
day of January, 2002.
Marcus A. McKnight, Esq.
Irwin, McKnight & Hughes
West Pomfret Professional Building
60 West Pomfret Street
Carlisle, PA 17013-3222
COUNSEL FOR PLAINTIFF
DICKIE, McCAMEY & CHILCOTE
By..~kc'~ .__~
FAF, Inc., ~d Fo~d ~r, Inc.
MARY IL WITKOWSKI,
Executrix of the Estate of
EDWARD F. WITKOWSKI, SR.
Plaintiff/Petitioner
STEVEN DUMAS and
FAF, INC. a/k/a FORWARD AIR, INC.,
Defendants/Respondents
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-144 CIVIL TERM
.,
CIVIL ACTION - LAW
.-
..
..
..
PETITION FOR APPROVAl,
OF SETTLEMENT
AND NOW this 31st day of May, 2002, come the Petitioner, Mary K. Witkowski,
Executrix of the Estate of Edward F. Witkowski, Sr., by her attorneys, Irwin, MeKnight &
Hughes, and makes the following Petition for Approval of the Settlement of the civil claims of
Steven Dumas and FAF, Inc. a/k/a Forward Air, Inc.:
The petitioner is Mary K. Witkowski, Executrix of the Estate of Edward F. Witkowski,
Sr., an adult individual residing 2304 Monarch Drive, Austin, Texas 78748-6121.
The Respondents are Mr. Steven Dumas, 3107 Regal Lane, Cincinnati, Ohio, 45251;
Forward Air, Inc., 430 Airport Road, Greenville, Tennessee; and FAF, Inc., 6800 Port Road,
Grove Port, Ohio 43125
On May 25, 2001, Mr. Edward F. Witkowski, Sr., was operating a pickup truck towing a
camper on Interstate 81 in Dickinson Township, Cumberland County, Pennsylvania.
At approximately 2:19 p.m. on May 25, 2001, a tractor trailer operated by Respondent,
Steven Dumas, and owned by FAF, Inc. doing business as Forward Air, Inc., crossed the medial
area of Interstate 81 and struck the pickup and camper killing Edward F. Witkowski, Sr.
instantly. A copy of his Death Certificate is attached to this Petition and marked as Exhibit A.
5.
At the time of his death, Edward F. Witkowski, Sr., was 74 years of age, and was
survived by Mary K. Witkowski, his widow, and his four adult children, Elaine Witkowksi, 2304
Monarch Drive, Austin, Texas 78748; Ellen Mary Witkowski, 5903 Danny Kaye, Apt 1002, San
Antonio, Texas 28240; and Thomas Witkowski, 30 Sunrise Circle, Clinton, New Jersey 08809.
6.
Mary K. Witkowski, who is also known as Mary L. Witkowski, the widow of Edward
Witkowski, Sr., was appointed to serve as an independent Executor without bond on March 27,
2002, in Travis County, Texas. A copy of the Letters Testamentary are attached to this Petition
and marked as Exhibit B.
The parties have reached a settlement of all claims by the Estate of Edward K.
Witkowski, Sr., for the total sum of One Million Fifty Thousand and no/100 ($1,050,000.00)
Dollars. A copy of the Release signed by Mary Witkowski is attached to this Petition and
marked as Exhibit C. The parties believe that this settlement is fair to all concerned.
8.
Since Edward K. Witkowski, Sr., was a resident of Texas at the time of his death, no
inheritance taxes are due to the Commonwealth of Pennsylvania. This settlement does not need
to be processed through the Probate Court and the Office of Register of Wills of Cumberland
County. A Memo regarding these issues is attached to this Petition and marked as Exhibit D.
The Petitioner seeks approval of this settlement and allocates it in the following mounts:
A. Survival Action ......................................................... $50,000.00
B. Wrongful Death
................................................... $1,000,000.00
This allocation between the Survival Action and the Wrongful Death is based upon the
instantaneous death of Edward F. Witkowski, Sr. without pain and suffering. This allocation has
been approved by counsel for the Petitioner in Texas. A letter from Owen T. Kinney, Esq., is
attached to this Petition and marked as Exhibit E.
10.
The Petitioner also seeks approval of the legal fees and expenses to the fu'm of Irwin,
McKnight & Hughes as follows:
A. Expenses (Travel, Copies, Overnight Mail) ................... $827.16
B. Legal Fees (17.24% of Settlement) ......................... $181,034.52
I1.
The Petitioner also seeks approval of the following distribution:
A. SurviVal Action ......................................................
(100% of proceeds distributed to surviving spou~0~000 00
Less prorated expenses to IMI-I ................................... -39.39
Less prorated legal fees to IMH ............................. -8~620.68
Distribution to Mary Witkowski .......................... $41,339.93
B. Wrongful Death .............................................. $1,000,000.00
Mary Witkowski, Surviving Spouse
(First $30,000.00 plus 50% of the remainder)
Ellen Witkowski (Daughter) .................. 12.5% of remainder
Elaine Witkowski (Daughter) ................ 12.5% of remainder
Tom Witkowski (Son) ............................ 12.5% of remainder
Edward Witkowski, Jr. (Son) ................. 12.5% of remainder
Total Wrongful Death proceeds ...................... $1,000,000.00
Less Expenses to IMH .............................................. -787.77
Less legal fees to IMH ....................................... .7172,413.81
Balance for Distribution ..................................... $826,798.42
The final wrongful death distribution is as follows:
Mary Witkowski ............................................................. $30,000.00
50% of Remainder ........................................................... 398,399.21
Total ............................................................................... $428,399.21
50% of Remainder:
Ellen Witkowski ............................................................... $99,599.81
Elaine Witkowski ............................................................. $99.599.80
Tom Witkowski ............................................................... $99,599.80
Edward Witkowski ........................................................... $99,599.80
Total ............................................................................... $398,399.21
WHEREFORE, the Petitioner respectfully request the approval of the said Petition with
the distribution as set forth above.
Date: May 31, 2002
Respectfully submitted,
Marcus A/McKniglf~!J Esquire
60 West Pomfret Street
Carlisle, Pennsylvania 17013-3222
717-249-2353
Supreme Ct ID# 25476
EXHIBIT A
TSis is to certi,,Cy that the information here given is correctly copied from an original certificate of death duly filed with me as
Local Registrar. Tile original' dertificfite will be forwarded to the State Vital Records Office for. peyman.ent filing.
WARNING: It is illegal to duplicate this copy by photostat or photograph.
Fee f~)r this certificate, $2.00
P 7402078
No.
{.~ ,~ Local Registrar
Date
Edward
73
Cumberland
COMMONWEALTH OF PENNSYLVANIA · DEPARTMENT OF HEALTH * VITAL RECORDS
CERTIFICATE OF DEATH
(Corone~
Witkowski Sr.
049 - 16 - 7674
Dickinson
2304 Monarch Drive
Austin, TX 78748
Boleslaw Witkowski
Witkowski, Jr.
1-81 NB @ M/P 41
Restaurant
Rosa ~kl
2001
.FD-012909-L
May 25, 2001;
White
K. Lazarl
saw GA 30152
Crematory York, Pa ~
Funeral Bm m, 255 York Rd. Carlisle, Pa 17013
P
'.~t Injuries
25, 2OOl
Oper struck By TT
t crosed median
PA
Coroner
Coroner
Suite #1
7050
EXHIBIT B
LETTERS TESTAMENTARY
ESTATE OF
EDWARD F WITKOWSKI SR
DECEASED
THE STATE OF TEXAS *
COUNTY OF TRAVIS *
CAUSE NUMBER 76944
IN PROBATE COURT
NUMBER ONE
TRAVIS COUNTY, TEXAS
I, the undersigned Clerk of the Probate Court No. 1 of Travis County
Texas, do hereby certify that on the 27TH day of MARCH, 2002
MARY K WITKOWSKI WAS duly granted by said Court, Letters
Testamentary of the Estate of EDWARD F WITKOWSKI SR
Deceased, and that SHE qualified as INDEPENDENT EXECUTOR WITHOUT BOND ~
of said estate on the 27TH day of MARCH, 2002 , as the law requires,
said appointment is still in full force and effect.
Given under my hand and seal of office at Austin, Texas, om this
27th day of March, 2002.
ORIGINAL COPY
· ®j County Clerk.~ W~/~unty, Texas
~~.~.~j P.O. Box 17~8~~exas 78767
",.,..~;~ By Deputy: ~ ~ ~./U,w
J~l '/~ Mont oya 76944-003
FULL AND FINAL RELEASE
FOR AND IN CONSIDERATION of the sum of One Million Fifty Thousand
($1,050,000.00) Dollars to me in hand paid by Forward Air Corporation, Great West
Casualty Company and Steven Dumas ('hereinafter Defendants), the receipt of which is
hereby acknowledged, I, being of lawful age and the duly appointed and authorized
Executrix and representative of the Estate of Edward F. Witkowski, hereby fully and
forever release, acquit and discharge the said Defendants, and any and all other
persons, firms, partnerships and corporations which are or might be claimed to be Jiable
to me, Edward F. Witkowski, the Estate of Edward F. Witkowski or any of his
beneficiaries, heirs' administrators, executors, successors and assigns from any and all
actions, causes of actions, claims and demands of whatsoever kind or nature,
including, but not limited to, wrongful death, survival or personal injury claims arising
from or in any way related to a motor vehicle accident which occurred on Interstate 81,
Meter Mile Post 42, Cumberland County, Pennsylvania on or about May 25, 2001
including any and all known and unknown injuries, losses and damages sustained or
received by Edward F. Witkowski, the Estate of Edward F. Witkowski and/or the
beneficiaries of Edward F. Witkowski, for which injuries, losses and damages I claim
the said Defendants to be legally liable, and on account, of which a claim for wrongful
death and survival was made by me as the Executrix of the Estate of Edward F.
Witkowski, it being understood and agreed that the acceptance of said sum is in full
accord and satisfaction of a disputed claim and that the payment of said sum is not an
admission of liability, except that this release does n~ot_ include the property
damage subrogation interests of State Farm Insurance of $34,592.82 which~will be
separately resolved by State Farm Insurance and the defendants.
I HEREBY declare that I fully understand the terms of this settlement; that the
amount stated herein is the sole consideration of this Release and that I voluntarily
accept said sum for the purpose of making a full and final compromise, adjustment and
settlement of all claims resulting from or to result from Said accident. I further declare
that all beneficiaries to the Estate of Edward F. Witkowski have been duly advised of
the terms and provisions of this settlement and that each has agreed to this settlement.
IT IS EXPRESSLY UNDERSTOOD and agreed that this Release and settlement
is intended to cover and does cover not only all now known injuries, losses and
damages, but any future injuries, losses and damages not now known or anticipated,
but which may later develop or be discovered, including all the effects and
COnsequences thereof.
IT IS FURTHER UNDERSTOOD by me and my attorneys that all medical liens,
claims or demands of whatsoever kind arising out of this accident or relating in any way
to the treatment received by Edward F. Witkowski or benefits paid shall be satisfied,
settled and/or resolved out of the settlement proceeds and that the satisfaction of any
said claim is in material conditions/term of this release agreement.
IT IS FURTHER AGREED that my attorneys and I will indemnify the Defendants
from and against any such demand, to the fullest extent permitted by law, including
attorney's fees, should any demand be made against said Defendants subsequent to
the execution of this Full and Final Release.
iT IS FURTHER UNDERSTOOD and agreed that this is the complete Release
Agreement and that there are no written or oral understandings or agreements, directly
or indirectly connected with this Release and settlement that are not incorporated
herein.
THIS AGREEMENT shall be construed that wherever applicable the use of the
singular number shall include the plural number and shall be binding upon and inure to
the successors, assigns, heirs, executors, administrators, beneficiaries and legal
representatives of the respective part/es hereto.
I HEREBY declare that I fully Understand the terms of this settlement, that I have
had the opportunity to review this Full and Final Release with counsel of my choosing
and that the amount stated herein is the sole consideration of this Release and that I
voluntarily accept said sum for the purpose of making a full and final compromise,
adjustment and settlement of all claims for the death, injuries, losses and damages
resulting or to result from said accident.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~ _ day
of.~j/~.~, 2002.
Witness:
~._._~ .st. ate of Edward ......
v v I[KOWSKi
3
State of TE~S
County of r~vzs
)SS;
)
On this --J~day of ~¥
appeared ~'~¢R¥ ~zt~co~csi(z _, 2002 before me personally
to me known to be the person(s)
named in and who executed the above release and acknowledged that s~.._~__~
executed same as .~
my hand and notarial seal the date aforesaid. ~ free act and deed. Witness
My Commission expires ~~/~~~, ~.
EXHIBIT D
Memo
To: Marcus
Fm~ Jackie~
CC: Jim ~J/
~ May 21, 2002
Re~ Witkowksi Estate
I contacted the Cumb. Co. Register of Wills office regarding this e~tate. They
referred me to their SOlicitor, Ralph Wright. Attorney Wright is out of the office until
May 23, so I spoke with Ed Myem in his office.
His direction is that the Cumberland County Register's office has no interest in the
estate since letters were granted in Texas and there are no minor children for whom
interests would need to be protected. He sees no reason why any action or
settlement would need to be filed/confirmed through the Register's office. Therefore,
you may file to confirm and settle your case th,rough the action already pending in the
Prothonotary's office. . . .
· Page 1
EXHIBIT E
Sent b~: 31-Ma~-02 11:25a~ ~ro~ 5124595533~+7172496354 ~age 2~ 2
BUSINK~$ ~:
OWEN T. KINNEY P.C.
ATTORNEY ~ COUNSELOR
OF COUNSEL
IRWIN R. 5ALMAN$ON
May 31, 2002
Via: 717-249-6354-fax
M~rcus A. McK~J. ghl, 1II
Irwin, McK_night & Hughes
60 West Pomfxet Street
Carlisle, PA 17013
Re: Estate of Edward F.Witkowski, Sr.
Dear Mr. McKnight:
As the attorney of record for the E~tato of Edward F. Witkowgki, Sr. and on behalf of
Mary K. Witkowski, Executrix for the Estate of Edward F. Witkowski, Sr., I hereby
endorse the allocations incorporated in the Judgment between the wrongful death action
and the suxvival action. These actions are compatible with Texas Law.
Further, any inheritance, estate tax or any other tax obligations arising fi~m the
Pennsylvania actimx will be the responsibihty of Mary Witkowski.
On behalf of the Estate, approval of the Settlement is hereby given.
If you should need any further assistance, please call me.
-Sincerely,
Owen T. Kinney ~ //
OTK:bb
I00 CONGRE$8, SUITE 18OO · AUSTIN, TF..X. AS 78701-40~;3
VERIFICATION
The foregoing Petition for Approval of Settlement is based upon information which has
been gathered by counsel and myself in the preparation of this action. I have read the statements
made in this document and they are true and correct to the best of my knowledge, information
and belief. I understand that false statements herein made are subject to the penalties of 18 Pa.
C.S.A. Section 4904, relating to unsworn falsification to authorities.
Date:
MAY 31, 2002
W rowsr
MARY K. WITKOWSKI,
: IN 'I'HE COURT OF COMMON PLEAS OF
Executrix of the Estate of
EDWARD F. WITKOWSKI, SR.,
Plaintiff/Petitioner
V.
STEVEN DUMAS and
FAF, INC. alk/a FORWARD AIR, INC.,
Defendant/Respondent
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 2002-144 CIVIL TERM
:
: CIVIL ACTION - LAW
:
_.
:
:
CERTIFICATE OF SERVICE
I, Marcus A. McKnight, III, Esquire, hereby certify that a copy of attached Petition for
Approval of Settlement was served upon the following by depositing a true and correct copy of
the same in the United States mail, First Class, postage prepaid in Carlisle, Pennsylvania, on the
date referenced below and addressed as follows:
John T. Pion, Esquire
DICKIE, MCCAMEY & CHILCOTE
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402
Date: May 31, 2002
By:
IRWIN, Mci{NIGHT & HUGHES
Carlisle, PA 17013
(717) 249-2353
Supreme Court I.D. No. 25476
G :/MMcKNIGHT/PERSONAL INJURY/WrFKOWSY, J, MARy//WITKOWSKI PETITION SEITLEMENT APPROVAL
MARY K. WITKOWSKI,
: IN THE COURT OF COMMON PLEAS OF
Executrix of the Estate of
EDWARD F. WITKOWSKI, SR.,
Plaintiff/Petitioner
STEVEN DUMAS and
FAF, INC. a/k/a FORWARD AIR, INC.,
Defendants/Respondents
: CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2002-144 CIVIL TERM
CIVIL ACTION - LAW
ORDER OF COURT
AND NOW, this ~Xday of ~ ,2002, upon consideration of the attached
Amended Petition of the Plaintiff/Petitioner, it is hereby ORDERED that the approval of the
settlement of Plaintiffs' claims are granted as follows:
The Executrix, Mary K. Witkowski, shall settle for the mount of $1,050,000.00 on
behalf of the Estate of Edward F. Witkowski, Sr. from the Defendants, Forward Air Corporation,
Great West Casualty Company and Steven Dumas.
The settlement proceeds shall be allocated as follows:
A. Wrongful Death ................................................... $1,000,000.00
B. Survival Action ......................................................... $50,000.00
The legal fees and expenses to Irwin, McKnight & Hughes are approved as follows:
Less Legal Fees to Irwin, McKnight & Hughes:
(17.24% of Settlement) ........................................... $181,034.52
Less Expenses:
(Travel, Copies, Overnight Mail) ..................................... 827.16
The distribution of the Survival Action proceeds is as follows:
Survival Action .................................................... $50,000.00
(100% of proceeds distributed to surviving spouse)
Less prorated expenses to IMH ................................... -39.39
Less prorated legal fees to IMH ............................. -8,620.68
Distribution to Mary Witkowski, Trustee of the
Edward F. Witkowski, Sr. Trust .......................... $41,339.93
The distribution of the wrongful death proceeds is as follows:
Total Wrongful Death proceeds ...................... $1,000,000.00
Less Expenses to IMH .............................................. -787.77
Less legal fees to IMH ....................................... -172,413.81
Balance for Distribution to
Mary Witkowski, Surviving Spouse .................. $826,798.42
By the
EDWARD E. GUIDO, JUDGE