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HomeMy WebLinkAbout12-3426R. J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. NO. 66856 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: RMARZELLA@A RJMARZELLA.COM G" { r .- l . rr d 4_F r rt ` 1_, ATTORNEYS FOR PLAINTIFF, AMY BRADY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MELISSA VIERING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMY BRADY, DOCKET NUMBER: INDIVIDUALLY AND AS THE ADMINISTRATRIXOFTHE ESTATE OF MELISSA VI ERING PETITION FOR APPROVAL OF WRONGFUL DEATH SETTLEMENT The Petition of Amy Brady, who was appointed Administratrix of the Estate of Melissa Viering, deceased, respectfully represents: 1. Petitioner, Amy Brady, was the mother of Melissa Viering and was appointed Administratrix of the Estate of Melissa Viering on November 4, 2011, by the Register of Wills of Cumberland County. (A copy of the Decree of the Register of Wills is attached as Exhibit "A".) 2. The decedent died on June 18, 2011 as a result of a motorcycle accident in which Robert Viering swerved to avoid a collision with a deer. (A copy of the Police Accident Report is attached hereto as Exhibit "B".) 3. The decedent did not have a Will. Under the Pennsylvania Laws of intestacy, her heirs are as follows: a. Robert Viering - husband b. Rainsong Ryan - daughter c. Madison Bates - minor daughter d. Hannah Bates -- minor daughter a aVj s ro3 75?i 4. Robert Viering, an adult individual, resides at 424 Allendale Way, Camp Hill, PA 17011. 5. Rainsong Ryan, an adult individual, resides at 136 1St Street, Nederland, TX 77627. 6. Madison Bates and Hannah Bates, both minor children, reside with their natural father, Michael Bates, at 102 S. 1St Street, Lemoyne, PA 17043• 7. Progressive Insurance Company has offered $1oo,ooo.oo in a Wrongful Death Settlement for the benefit of the decedent's children Rainsong Ryan, Madison Bates, and Hannah Bates. (See Release Attached Hereto as Exhibit "C".) 8. The aforementioned settlement is for a disputed claim and the payment of said sum should not be construed as an admission of liability. 9. Counsel is of the professional opinion that the proposed settlement is reasonable under the circumstances. 10. Robert Viering, husband of the decedent, has renounced any claim to the proceeds of the settlement and requests that the funds be distributed equally among the Decedent's three daughters. (See Renunciation Attached Hereto as Exhibit "D".) 11. Petitioner, Amy Brady, executed a Fee Agreement on March 23, 2012 agreeing to 33% attorney's fees. (A copy of the Fee Agreement is attached hereto as Exhibit "E".) 12. Counsel requests fees as follows: a. Counsel agrees to reduce the attorney's fees from the Wrongful Death Settlement to 25%, said amount being $25,000.00. b. Counsel's expenses to date have amounted to $1,168.25. c. Counsel requests an additional $50o.oo be held in Escrow for additional Estate Administration Expenses. (See Expense Sheet Attached Hereto as Exhibit "F".) 13. There are no other liens or claims against the proceeds of these actions or against the decedent's estate. 14. Petitioner requests allocation of the net proceeds of the Wrongful Death settlement, after deduction of costs and attorney's fees as follows: Wrongful Death Action 100% 15. The Pennsylvania Department of Revenue agreed with the proposed allocation in its correspondence dated April 27, 2012. (A copy of the correspondence from the Pennsylvania Department of Revenue is attached hereto as Exhibit "G".) 16. Pursuant to 42 Pa.C.S. § 8301 and the relevant Pennsylvania case law previously mentioned, the beneficiaries of the wrongful death action, and their respective interests, are as follows: Name Relationship Interest Rainsong Eva Ryan Daughter 331/3% Madison Taylor Bates Daughter 331/3% Hannah Pearl Bates Daughter 331/3% 17. In accordance with the above allocation, after attorney's fees, expenses, and Escrow withholding, $73,440.50 will be allocated to the wrongful death action. 18. Therefore, the following distribution shall be made Name Rainsong Eva Ryan Madison Taylor Bates Hannah Pearl Coates Distribution Amount $24,443.92 $24,443.92 $24,443.92 19. The settlement funds for Madison Bates and Hannah Bates, both minors, shall be deposited in an interest bearing account, marked no withdrawal until the children reach the age of 21 years old. 20. Proof of such interest bearing bank account shall be filed with this court within 10 days. WHEREFORE, Petitioners request that they be permitted to enter into the settlement recited above and that the Court approve the proposed allocation and distribution of the settlement proceeds. Respectfully submitted, Date: -?Z arz s iates, P.C. By: J. ella, Esquire Attorney for Petitioner Attorney I.D. #66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SHORT CERTIFICATE I, GLENDA FARNER STRASBAUGH Register for the Probate of Wills and Granting Letters of Administration in and for CUMBERLAND County, do hereby certify that on the 4th day of November, Two Thousand and Eleven, Letters of ADMINISTRATION in common form were granted by the Register of said County, on the estate of MaISSA VIERING late of CAMP HILL BOROUGH (First,',Middle, Last) in said county, deceased, to AMYBRADY (First, Middle, Last) and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at CARLISLE, PENNSYLVANIA, this 4th day, of November Two Thousand and Eleven. File No. PA File No. Date of Death S.S. # 2011- 01189 21- 11- 1189 611812011 159-66-0867 3 / x4. Register Of Wills NOT VALID WITHOUT ORIGINAL SIGNATURE AND IMPRESSED SEAL AA-500 TX Incident Plumber: H01-2037444 Commonwealth of Pennsylvania PAGE 1 Ciwsh Involves: Police Crash Report REPORTABLE CRASH 0 DUI 0 Fatality 0 Hit and Run 0 Commercial Vehicle 0 State Police Vehicle 0 Local Police Vehicle 0 N/A 0 Work Zone 0 ATV 0 Snowmobile Commonwealth Vehicle 0 Local Gov Vehicle ;? Agency Name eClosed a nvestigation Date a ::I PA STATE POLICE - HARRISBURG : ES 73 06/1812011 c Dispatch Time A rrival Time Investigator Badge Number a 20:56 hrs. 21:01 hrs. HARPER, JOSEPH M 08635 Approval Date Reviewer Reviewer Badge Number a° 07/18/2011 MOWREY, WILLIAM M 05389 Date of Crash Tinhe of Crash Day of the Week Crash Description 06/18/2011 21):55 S. SATURDAY OTHER / UNKNOWN County Municipality DAUPHIN LOWER PAXTON TWP Weather Conditions Relation to Roadway o L NO ADVERSE CONDITIONS ON TRAVEL LANES 2 Illumination Road Surface Conditions DARK-NO STREET LIGHTS DRY # of Units # of People # of Injured # Killed EMS Agency Medical Facility 001 002 001 001 SOUTH CENTRAL EMS HERSHEY MEDICAL CENTER School Bus Related School Zone Related PennDOT Notified Type of Intersection Special Location NO NO NO MIDBLOCK NOT APPLICABLE Work Zone Work Zone Type Where in Work Zone c NO 0 Y Speed Limit Workers Present Officer Present Work Zone Characteristics 0 Road Closed Work on Shoulder Intermittent or Flagger ? Lane Closure ? ? or Median ? M ith D l ? Other t i ? C t w on ro e our ov ng Work Route Signing Route Number Segment Number Travel Lanes Speed Limit Orientation ?° INTERSTATE(NOT TURNPIKE) 0081 03 55 MPH SOUTH House Number Street Name St. Ending ` 1 81 HIGHWAY a Route Signing Route Number Segment Number Travel Lanes Speed Limit Orientation Used in .r Intersection d H d c Crashes Street Name St. Ending Y Route Number Or Mile Post Tenths Or Segment Marker Ramp Use Only Feet E m A c Street Name Street Ending Or Miles Tenths _J L) J COLONIAL ROAD 00 1 E - 2 r Route Number Or Mile Post Tenths Or Segment Marker Ramp Use Only 070 7 The above entry is the distance fro th C h A a Street Name Street Ending m e ras o N Scene to Landmark 1 J N Degrees Minutes Seconds Decimal Degrees Minutes Seconds Decimal Latitude: 40 19 11 572 Longitude: 76 49 19 336 o Traffic Control Device Traffic Control Functioning F NOT APPLICABLE NO CONTROLS = Lane Closed Lane Closure Direction Traffic Detoured Estimated Time Closed J PARTIALLY SOUTH NO 3-6 HRS Environmental / Roadway Potential Factors (E/R) Factor 1 Factor 2 Factor 3 DEER IN ROADWAY o First Harmful Event in the Crash Most Harmful Event in the Crash E Unit Number Harmful Event Unit Number Harmful Event 0 001 HIT DEER 001 HIT DEER I ndicated Prime Factor Unit Number Prime Factor Driver Action c ENVIRONMENTAURQADWAY w Prime Factor Enviromental/ oadway Prime Factor Vehicle Failure Prime Factor Pedestrian Action DEER IN ROADWAY Road Surface Type Special Jurisdiction CONCRETE NO SPECIAL JURISDICTION Printed At: PA State Police - Harrisburg 11/09/2011 12:13 PM Page 1 Form #: HWJW ' AA-500 TX Incident Humber: H01-2037444 Crash Involyes: 0 DUI Fatality 0 NIA 0 Work Zone Commonwealth of Pennsylvania PAGE 2 Police Crash Report REPORTABLE CRASH 0 Hit and Run 0 Commercial Vehicle 0 State Police Vehicle 0 Local Police Vehicle 0 ATV 0 Snowmobile 0 Commonwealth Vehicle 0 Local Gov Vehicle Unit Number Type Unit Commercial Vehicle 001 Motor Vehicle in Transport No 0 E Driver Presence Physical Condition Primary Vehicle Code Violation Person Charged DRIVER OPERATED VEHICLE APPARENTLY NORMAL NONE NO 0 c Alcohol/Drugs Suspected Icohol Test Type Alcohol Test Results NO TEST NOT GIVEN Driver Action NO CONTRIBUTING ACTION d v 01 a Pedestrian Action Pedestrian Signals Pedestrian Clothing Pedestrian Location First Name MI Last Name Suffix DOB Telephone Number ROBERT W VIERING Jr 06130/1958 (717) 695-6101 Street Address City r tate Zip Code 424 ALLENDALE WAY CAMP HILL PA 17011 Gender License Number License State Class Expiration Date Owner/Driver MALE 190108011 PA M 07/0112012 PRIVATE VEHICLE OWNED/LEASED BY DRIVER 1st Harmful Event Left or Right Side Most Harmful Utility Pole Number HIT DEER YES 2nd Harmful Event Left or Right Side Most Harmful Utility Pole Number Harmful Event 4th Harmful Event or Right Side Most Harmful Utility Pole Number or Right Side I Most Harmful I Utility Pole Number Owner First Name Owner MI Owner Last Name or Business Name Suffix ROBERT W VIERING Jr Street Address City State Zip Code 424 ALLENDALE WAY CAMP HILL PA 17011 Vehicle Type Special Usage Government Equipment Number MOTORCYCLE NOT APPLICABLE Model Year Vehicle Make Vehicle Model Vehicle Color VIN 2002 HARLEY-DAVIDSON ROAD KING BLACK 1HD1FRW152Y658410 License Plate Reg. State Est. Speed Vehicle Towed Towed By KSC66 PA 055 YES MID ATLANTIC RECOVERY Insurance Insurance Company Policy Number Expiration Date YES PROGRESSIVE 26056558-4 05/0112012 ° Direction of Travel VehiclelPosition Vehicle Movement I nitial Impact Point o SOUTH RIGHt LANE "CURB" GOING STRAIGHT 12 O'CLOCK E Damage Indicator Gradient Road Alignment Possible Vehicle Failures DISABLING LEVEL STRAIGHT NONE m U # of Units Type Unlit 1 Tag Number Tag Year Tag State t 0 d 2 Unit Make Unit Owner a Type Unit 2 Tag Number Tag Year Tag State Unit Make Unit Owner Engine Size Passenger? Saddle Bag/Trunk? Trailer? Driver Education? 01450 cc YE1S YES NO YES Driver Helmet Type Helmet Stayed On? DOT/Snell Designation? Eye Protection? Long Sleeves? Long Pants? Over Ankle Boots? `o NO HELMET NO NO YES YES YES YES 0 Passenger Helmet Type Helmet Stayed On? DOT/Snell Designation? Eye Protection? Long Sleeves? Long Pants? Over Ankle Boots? NO HELMET NO NO YES NO YES YES a, a U Passenger? Helmet? Head Lights? Rear Reflectors? m a Printed At: PA State Police - Harrisburg 11/0912011 12:13 PM Page 2 Form #: H01-2037444 AA-500 TX Incident Number: H01-2037444 Commonwealth of Pennsylvania PAGE 3 Crash Involves: Police Crash Repoli REPORTABLE CRASH 0 DUI Fatality 0 Hit and Run 0 Commercial Vehicle O State Police Vehicle O Local Police Vehicle O N/A O Work Zone O ATV O Snowmobile Commonwealth Vehicle oLoral f,nv Vehirlo Unit # Driver Restrictions Compliance Driver Endorsement Compliance Driver License Compliance 01 NO RESTRICTIONS/NOT APPLICABLE NONE REQUIRED VALID LICENSE FOR CLASS Principal Impact Point Avoidance maneuver Under Ride Indicator ' LL 12 O CLOCK BRAKING - SKID MARKS EVIDENT NO UNDERRIDE OR OVERRIDE Emergency Use Drug Test Type Drug Test Results NOT IN EMERGENCY USE NONE Unit # Person No. First Name MI Last Name Suffix DOB 001 001 ROBERT W VIERING JR 06/30/1958 Street Address City 424 ALLENDALE WAY CAMP HILL State Zip Code PA 17011 E Phone Number EMS Transport Person Type Gender Injury Severity (717) 695-6101 o YES DRIVER MALE MAJORfNJURY c Seat Position Safety Equipment 1 d DRIVER -ALL VEHICLES a NONE USED / NOT APPLICABLE a Safety Equipment 2 Extrication MOTORCYCLE EYE PROTECTION NOT APPLICABLE Ejection Ejection Path NOT APPLICABLE NOT EJECTED/NOT APPLICABLE Unit # P N erson o. First; Name MI Last Name Suffix DOB 001 002 MELISSA M VIERING 03113/1970 Street Address City State Zip Code 424 ALLENDALE WAY CAMP HILL W PA 17011 Phone Number EMS T W E ransport Person Type Gender Injury Severity (717) 695-6101 0 NO PASSENGER FEMALE KILLED c Seat Position Safety Equipment 1 d SECOND ROW - LEFT SIDE OR MOTORCYCLE PASSENGER CL NONE USED /NOT APPLICABLE a Safety Equipment 2 Extrication MOTORCYCLE EYE PROTECTION NOT APPLICABLE Ejection Ejection Path NOT APPLICABLE NOT EJECTED/NOT APPLICABLE First N ame SEAN MI Last Name Suffix Phone Number WAGNER (910) 581-1525 treet Address City 100 A REID ACRES HUBERT State Zip Code ----- NC First N H ame MI LYNNIA Name Suffix Phone Number (253)592-2740 Stre et Address E 826 B. TAMARAK DR. GE State Zip Code NY 13619 Printed At: PA State Police - Harrisburg 11109/2011 12:13 PM Page 3 Form #: H01-2037444 AA-500 TX incident Number: H01-2037444 Commonwealth of Pennsylvania PAGE 4 Crash Involves: Police Crash Report REPORTABLE CRASH 0 DUI 0 Fatality 0 Hit and Run 0 Commercial Vehicle 0 State Police Vehicle 0 Local Police Vehicle 0 NIA 0 Work Zone 0 ATV 0 Snowmobile 0 Commonwealth Vehicle 0 Local Gov Vehicle ? I I } I I I N .. j U rtit 1 I I Interstate 81 Southbound -J final r St ' E-)ct 72, 2 miles 'ad II toc ?tra? rest op ?a l r i al dest for de passenger final rest 1z passenger impacting concrete I I Median 3 ? 1, I ', .1 I I I ! ?' 1? ? ?? E E ? I ; ' I' deer mile marker 70.7 'I s 'd marks, 12'10" ( I I Unit 1 I I@- Witness # 1 I I ?36' I 1z NOT TO SCALE Witness # 2 NARRATIVE A press release was previously released. At the scene of this, collision, Interstate 81 (1-81) is a concrete divided highway consisting of three northbound and three southbound travel lanes seperated by a wide grassy median. There are usable shoulders on both sides of the highway. Each travel lane of 1-81 is approximately 12 feet wide. on the southbound side the concrete right shoulder is approximately 1$ feet wide. Adjacent to the concrete shoulder is a grassy area bordered by a wooded area. There are no streetIlghts or other light sources in the area of this collision. At the time of this collision there were no adverse weathei conditions. The sky was clear and the highway surface was dry. Prior to collision unit # 1 was traveling south in the right lane of 1-81. Unit # 1 struck a deer that had walked onto the right lane of the highway. Upon striking the deer the passenger was thrown from the motorcycle which then overturned onto its/ left side and slid/tumbled across the center lane coming to final rest in the left lane of travel near the left shoulder. The operator remained on the motorcycle briefly after initial impact but was thrown from the motorcycle and came to final rest in the center lane. The passenger came to final rest on the right shoulder. Printed At: PA State Police - Harrisburg 11/0912011 12:13 PM Page 4 Form #: H01-2037444 AA-500 TX Incident Number: H01-2037444 Commonwealth of Pennsylvania PAGE 5 Crash InvOlvis: Police Crash Report REPORTABLE CRASH 0 DUI © Fatality 0 Hit and Run 0 Commercial Vehicle 0 State Police Vehicle 0 Local Police Vehicle 0 N/A 0 Work Zone 0 ATV 0 Snowmobile 0 Commonwealth Vehicle 0 Local Gov Vehicle After coming to final rest the operator crawled across the right lane and onto the shoulder to assist the passenger. The motorcycle was subsequently moved onto the grassy median by a witness/assiting motorist. Upon arriving at the scene I was assisted by Cpl. William MOWREY and Troopers Michael LANG and Matthew RUDELLA. Physical evidence observed consisted of the following: - A 12'10" skid mark was left by the motorcycle leading to initial impact which occured on the left side of the right lane. - A large blood smear indicated the deer's path as it slid across the highway after impact. - Extensive damage to the surfaces of the motorcycle consistent with it sliding/tumbling across the interstate. - Damage to the frdnt of the motorcycle caused by impact. - Gouges left in the, road suface at the point of impact leading to the motorcycle's point of final rest. - Hair and bloods spatter indicating where the passenger's head struck the concrete. - Deer hair and blood splatter on the motorcycle consistent with impact. - Blood on the right shoulder indicating the operator's final rest. Measurements were taken at the scene revealing the following sequence of events subsequent to initial impact: - After being thrown from the motorcycle the passenger traveled 162' before striking her head on the concrete shoulder. After striking her head she traveled an additional 12 feet before coming to final rest lying on the right shoulder. - After impact with the deer the operator slid/tumbled southeast across the highway 170 feet before coming to final rest lying in the ce"! ter lane. - After impact with he deer the motorcycle slid southeast across the center and left lane of the interstate approximately 320' before coming to final rest along the left side of the left lane.. - After impact with the motorcycle the deer slid southeast across the center and left lane of the interstate approximately 180' Ibiefore coming to final rest on the grassy median. - The motorcycle's Windshield was found on the grassy median 39' from the deer indicating that it had traveled 219' from initial impact to final rest. 06/18/11 at 2115 hrs. witness Sean WAGNER was interviewed at the scene. He provided the following account. He was traveling south on interstate 81 and was following the motorcycle involved in the crash while going approximately 55 Opih. He watched as a deer walked onto the roadway from the right shoulder and directly into the right lane. The motorcycle was unable to avoid striking the deer and he watched as the motorcycle impacted the deer and then lost control and began to flip and slide across the middle lane and left lane before coming to rest along the left side of the left lane. He immediately pulled over and attempted to help the injured passengers of the motorcycle. He picked up the motorcycle and moved it to a safe location in the grass median. He then walked back to the injured motorcycle passenger and attempted to offer assistance. He waited on scene until emergency personnel arrived on scene. 06/18111 at 2120 hrs- witness Lynnia WATKINS was interviewed at the scene. She provided the following account. She was traveling 181 south and following the motorcycle at a fairly long distance. She did not see the events that led up to the Printed At: PA State Police - Harrisburg 11/09/2011 12:13 PM Page 5 Form #: H01-2037444 AA-500 TX Incident Number: H01-2037444 Commonwealth of Pennsylvania PAGE 6 dash Involves: Police Crash Report REPORTABLE CRASH 0 01.11 0 Fatality 0 Hit and Run 0 Commercial Vehicle 0 State Police Vehicle 0 Local Police Vehicle O NIA 0 Work Zone 0 ATV 0 Snowmobile 0 Commonwealth Vehicle 0 Local Gov Vehicle crash or what caused the motorcycle to lose control. She did see the motorcycle lose control and stated she observed sparks coming from the motorcycle sliding across the lanes of 181. She stopped immediately and attempted to assist: with possible injuries. She walked to the right shoulder where she encountered a female lying off of the roadway but along the shoulder. She stated the woman appeared to be severely injured. She remained with the injured motorcycle occupants until emergency personnel arrived on scene. 06/19/11 at 1830 hr 1s, the motorcycle operator, Robert W. VIERING Jr., was interviewed inside his room at Hershey Medical Center. He provided the following account. He and his wife were traveling south in the right lane of southbound 1-810 the way home after spending the day at Chocolate World in Hershey. They had traveled across SR 39 and then so?th on 1-81. In the moments before the crash they were traveling 55 - 60 miles per hour in the right lane a few cat lengths behind a small red car. VIERING briefly looked in his rearview mirror at a vehicle that was approaching quickly from behind. When he looked forward he observed the red car quickly swerve into the center lane revealing a deer walking onto the highway. VIERING had no time to react and struck the deer. The last thing he remembe is the pressure of his wife pushing him down as she was thrown from the motorcycle and then seeing cars coming at him as he lay on the road surface. Administrative Notes: The scene was photographed by Tpr. Matthew RUDELLA. The digital photographs were transferred to a disc and stored in the Troop H Forensic Services Unit office in accordance with departmental regulations. Measurements were done by Cpl. William MOWREY and Tpr. Michael LANG. The passenger was pronounced dead at the scene at 2056 hrs. by Dauphin County Deputy Coroner Zachary P. SMELTS (Blunt force trauma). M. VIERING did not have a Drivers License on her body. Notification of death was confirmed by SMELTS who determined that R. VIERING was aware of his wife's death before he was taken from the scene. Troop H Officer of the Day, Sergeant Charles RINGER, was notified of this crash 06/18/11 at 2132 hrs. A Notice of Crash Investigation form was left at Hershey Medical Center with R. VIERING on the 19th. This crash was entered into the Fatal Crash System in accordance with FR 64. Printed At: PA State Police - Harrisburg 11/0912011 12:13 PM Page 6 Form #: H01-2037444 FULL RELEASE OF ALL CLAIMS WITH INDEMNITY Page 1 of 2 KNOW ALL BY THESE PRESENTS, that 1, Amy Brady as Administrator of the Estate of Melissa Viering, for and in consideration of the sum of One Hundred Thousand Dollars ($100000.00), the receipt whereof is hereby acknowledged, does hereby for myself, any heirs, executors, administrators, successors and assigns and any and all persons, firms, employers, corporations, associations, or partnerships release, acquit and forever discharge Robert Viering, his agents, employees, subsidiaries, and affiliates (hereinafter "Releasees") from any and all claims, actions, causes of actions, demands, costs, property damage, loss of wages, expenses, hospital medical and nursing expenses, accrued or unaccrued claims for loss of consortium, loss of support or affection, loss of society and companionship on account of or in any way growing out of, any and all known and unknown personal injuries and damages resulting from an automobile accidentwhich occurred on or about June 18, 2011, at or near Harrisburg, PA. It is understood and agreed that this settlement is in full compromise of a doubtful and disputed' claim as to both questions of liability and as to the nature and extent of the injuries and damages, and that neither this release, nor the payment pursuant thereto shall be construed as an admission of liability, such being denied. It is further understood and agreed that the undersigned relies wholly upon the undersigned's judgment, belief, and knowledge of the nature, extent, effect, and duration of said injuries and liability therefore and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives. In consideration of the payment of the sum, the undersigned further agrees to indemnify Robert Viering, his agents, employees, subsidiaries, and affiliates and save them harmless from any and all further liability, loss, damage, claims of subrogation and expense,,arising because of any injuries and damages, sustained by the undersigned, and, if necessary in order to save them so harmless, to satisfy on their behalf any judgment against them arising in any way out of the undersigned injuries or damages. I have read this release and understand it. Signed: Witness date Amy Brady date Witness date INSERT NAME date FULL RELEASE OF ALL CLAIMS WITH INDEMNITY Page 2 of 2 State of : County of: On this day of , 2 _, before me personally appeared , to me known to be the person(s) who executed the foregoing instrument, and acknowledged this as a free act and deed. IN TESTIMONY WHEREOF, I have hereto subscribed my name and affixed my seal this day of _, 2 My commission expires Notary Public Claim No.: 11-4826778 AFFIDAVIT OF CONSENT 1, Robert Viering, an adult individual, being of sound mind and body, do acknowledge receipt of the correspondence from R.J. Marzella & Associates, P.C. dated April 2 2012 and a copy of the proposed Settlement Petition for the Wrongful Death Settlement of Melissa Viering. I was the husband of Melissa Viering at the time of her death on June 18, 2011. I understand that the proposed settlement with Progressive, my motorcycle insurance carrier; is in the amount of $100,000.00. I renounce any monetary interest I may or may not have in the proposed settlement. It is my desire that the settlement proceeds be divided equally amount Melissa Viering's three daughters as proposed in the petition. DATE: -x-) Robert Viering ?/ POWER OF ATTORNEY AND CONTINGENCY FEE AGREEMENT I, Amy Brady, Administrator of the Estate of Melissa Viering, the undersigned, hereinafter called "CLIENT(S)" hereby retain, appoint, and nominate R .J. MARZELLA AND ASSOCIATES, P.C., its members and associates, hereinafter called "ATTORNEY" to represent Client(s) as legal counsel for all purposes in connection with the accident that occurred on June 18, 2011. CLIENT(S) AND ATTORNEY HEREBY AGREE AS FOLLOWS: 1. INITIAL EVALUATION - Attorney will undertake an initial investigation and evaluate the merits of this case. No attorney fee will be charged for attorney work in connection with the evaluation. Client(s) shall provide in advance a retainer of $ 0 to be used for the purposes of paying the filing fees associated with initiating suit and approximately $0 to be used for the purpose of paying for the initial expert review. Attorney will review the pertinent records and will advise the Client(s) concerning the probable merits of the case. If the initial evaluation of the merits of the claim is favorable, Attorney will advance the costs of prosecuting the case. These costs shall be repaid by Client(s) as specified in paragraph 5 below. Attorney reserves the right to terminate the agreement after the initial evaluation if the case is determined not to have merit, at which time any balance remaining in the trust account after payment of expenses shall be returned to Client(s). 2. ATTORNEYS FEES - In payment for the services performed by the Attorney, Client(s) hereby agrees that (33 1/3%) attorneys' fees shall be paid to R .J. Marzella & Associates, P.C. from the total amount paid in either settlement of the case or in a jury verdict, including any amounts due and owing as delay damages. In the event of a settlement in the form of a structured settlement, it is agreed that attorney fees shall be paid according to the above terms based on the cost of the structured settlement to the settling party(s). It is further understood and agreed that the amount to be paid as the attorneys' fees on the structured settlement shall be paid on a lump sum basis at the time the structured settlement is entered into by the Client(s). 3. SETTLEMENT - No settlement of this case shall be made without the Client(s) prior approval. 4. DISTRIBUTION OF PROCEEDS - Client(s) further agrees that from the proceeds of any recovery, whether by settlement, judgment or otherwise, the attorney may deduct the attorneys' fees to which it is entitled, together with all costs and expenses which have been advanced or remain unpaid; and Client(s) further agree that the Attorney may deduct the amount of all unpaid bills for professional services and make disbursements of such funds directly to the creditors involved. 5. COST ADvANCE -Attorney shall have the authority to make advances and to incur such costs as the Attorney determines necessary in the processing of the client case. Such advances and costs include but are not limited to: (a) Fees for physicians, psychologists, accountants and other experts which attorney deems necessary to assist in handling of Clients' case; and (b) Copying charges, travel expenses, court costs, deposition expenses, long distance telephone calls, postage. In the event of a monetary recovery, Client(s) agrees to reimburse Attorney for the above-referenced expenses incurred. After the attorneys' fees are deducted from the settlement and/or verdict, the expenses shall be repaid to R J. Marzella & Associates, P.C. out of the remaining balance of the settlement and/or verdict. If Client(s) reject(s) a settlement offer that Attorney believes is reasonable and equitable under the circumstances, Client(s) agree(s) to be responsible for any and all out-of-pocket expenses incurred during the pursuit of their claim, irrespective of a monetary recovery. 6. WITHDRAWAL - If, during the pursuit of this case, the Attorney determines that, under the existing circumstances, it is not feasible or practicable to prosecute this case, upon notification to the Client(s) of such facts, the Attorney may withdraw from representation under this agreement. Client(s) agree(s) to execute all documents and take all steps requested by Attorney that are necessary to facilitate the withdraw of representation. 7. APPEAL - If the Client(s) authorize(s) an appeal of this case, the attorneys' fees shall be increased by 5% more than the fee set forth above to cover the additional work involved in handling of the appeal. 2 8. FEE DIVISION - In the event that Client(s) was/were referred to RJ. Marzella and Associates, P.C. by a referring attorney, Client(s) do(es) not object to the division of the attorneys' fees charged to the Client(s) between the Attorney and the referring attorney. Client(s) understand(s) that they will not pay any additional fee as a result of the division of the fee between Attorney and referring attorney. 9. TERMINATION OF AGREEMENT BY CLIENT - In the event that the Client(s) seek(s) legal representation elsewhere regarding the incident described herein and after the instant Fee Agreement is executed, Client(s) agrees to immediately reimburse Attorney for all expenses incurred to date. Moreover, for the work performed by the Attorney up to the date of separation of Attorney and Client(s), Client(s) agree(s) that, in the event of an ultimate monetary recovery, Attorney is entitled to reasonable compensation (quantum merit) from any verdict or settlement. 10. ARBITRATION - Any dispute between the Attorney and the Client(s) shall be resolved by arbitration. The arbitrators shall be members of the Pennsylvania Bar Association. The Attorney shall select one arbitrator. The Client(s) shall select one arbitrator. The two arbitrators shall select a third arbitrator. The arbitrators shall, by majority vote, establish all rules pertaining to the arbitration, including determining how the cost of arbitration shall be paid. If the dispute is not resolved, the rules of the American Arbitration Association in effect at the time shall apply and control. 11. TERMINATION - This Agreement applies only to the Attorney's pursuit of the claim specified above. This Agreement terminates upon the final distribution of proceeds recovered on behalf of the Client through verdict, settlement or otherwise, if not terminated before such time. In the event Client(s) desire(s) additional services performed by Attorney, whether related to the above-described incident or not, the fees and costs to be charged by the Attorney in the event representation is undertaken, is subject to other Agreement. 12. MAINTENANCE OF FILE - After this matter is concluded and the Attorney- Client relationship is terminated for any reason, the Client(s) file will be maintained for a period of four (4) years. During the time that the file is being maintained, the Client(s) may obtain a copy of the file upon written request, and agrees to pay a reasonable copying charge. After maintaining the file for four (4) years, the file may be destroyed within the Attorney's discretion. 3 I, AMY BRADY, ADMINISTRATOR OF THE ESTATE OF MELISSA VIERING, HAVE READ THE ABOVE AGREEMENT AND UNDERSTAND AND AGREE TO ITS TERMS. THERE ARE NO OTHER AGREEMENTS BETWEEN THE PANTIES HERETO. THIS AGREEMENT IS ENTERED INTO THIS DAY OF //c lGt UGC 2012. ( xn ilL _-,AMY B Y ADMINI BATOR OFT STATE OF MELISSA VIERING R.J. MAARZELLA & ASSOCIATES, P.C. DATE 4 P.C. ESQUIRE AND ASSOCIATES MARZELLA R J 3:08 PM . , . , Account QuickReport 05/24/12 Accrual Basis All Transactions Type Date Num Name Memo Split Amount Balance Client Prepaids RJM'S Viering, Est. Mel issa Check 10/26/2011 19509 Commonwealth of ... Bank (M&T) ... 8.00 8.00 Check 11/4/2011 19533 Cumberland Count.. Bank (M&T) ... 70.50 78.50 Check 4/4/2012 19975 Steven W. Rickard Bank (M&T) ... 500.00 578.50 Check 4/23/2012 19719 Jacqulyn Harris Bank (M&T) ... 16.40 594.90 Check 5/1/2012 19799 Patriot News Bank (M&T) ... 222 15 817.05 Check 511/2012 19804 The Sentinel Bank (M&T) ... 227.45 1,044.50 Check 5/15/2012 19863 Cumberland Count.. VOID: Bank (M&T) ... 0.00 1,044.50 Check 5/15/2012 Rachel A. Tingler Notary fee Bank (M&T) ... 20.00 1,064.50 Check 5/24/2012 19882 Cumberland Count... Bank (M&T) ... 103.75 1,168.25 Total Viering, Est 'Melissa 1,16825 1,168.25 Total RJM'S 1,168.25 1,168.25 Total Client Prepaids 1,168.25 1,168.25 TOTAL 1,168.25 1,168.25 x Page 1 pennsyLvania DEPARTMENT OF REVENUE April 27, 2012 Robin J. Marzella, Esquire RJ Marzella i& Associates 3513 North }Front Street Harrisburg, PA 17110 Re: Estate of Melissa Viering File Number 2111-1189 Court of Common Pleas Dauphin County Dear Mr. Marzella: The', Department of Revenue has received your correspondence on March 30, 2012. Attached was the petition to approve a compromise settlement to be filed on behalf of the above-referenced estate in regard to a wrongful death and survival action. It was sent to this office for the Commonwealth's approval of the allocation to the proceeds paid to settle the actions. According to the Petition, the 42 year old decedent died as a result of a motor vehicle accident. Decedent is survived by her three daughters, two being minors. Pursuant to the Supreme Court of Pennsylvania, damages recoverable under a survival action include those for future earjnings, even where those earnings may be difficult to quantify. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). This is supported by the Commonwealth Court. Roberts v. Dungan, 574 A.2d 1193 (Cmwlth. Ct. 1990). Therefore, absent any facts to the contrary, a portion of the recovered proceeds must be allocated to the survival action as compensation for decedent's lost earnings. However as the proceeds in this matter are a minimal net of $73,421.50, this Office has no objection to the allocation thin you have requested. Please be advised that, based upon these facts and for inheritance tax purposes only, this Department has no objection to the proposed allocation of the net proceeds of this action, $75,421.50 to the wrongful death claim and $0 to the survival claim. Proceeds of a survival action are an asset included in the decedent's estate and are subject to the imposition of Pennsylvania inheritance tax. 42 Pa.C.S.A. §8302; 72 P.S. §9106, 9107. Costs and fees must be deducted in the same percentages as the proceeds are allocated. In re Estate of Merryman, 669 A.2d 1059 (Pa. Cmwlth. 1995). I trust that this letter is a sufficient representation of the Department's position on this matter. As the Department has no objections to the Petition, an attorney from the Department of Revenue will not be attending any hearing regarding it. Please contact me if you or the Court has any questions or requires anything additional from this Bureau. Si, ' erely, r: Shannon E. Baker Trust Valuation Specialist Inheritance Tax Division Bureau of Individual Taxes I PO Box 280601 1 Harrisburg, PA 17128 717.783.5824 1 shabaker@pa.gov CERTIFICATE OF SERVICE 1, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing Petition for Approval of Wrongful Death Settlement was served upon counsel of record this 24`h day of May, 2012, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Amy Brady 2948 Green Street Harrisburg, PA 17110 Robert Viering 5327 Four Point Road Bethel, PA 19550 R. J. MARZELLA & ASSOCIATES, P.C. BY: J QULY R. IS, LAW CLERK 0 R. J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, ESQUIRE PA SUPREME COURT I.D. NO. 66856 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL:. RMARZELLA@Q RJMARZELLA.COM ATTORNEYS FOR PLAINTIFF, AMY BRADY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MELISSA VIERING IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NUMBER: AMY BRADY, INDIVIDUALLY AND AS THE ADMINISTRATRIXOFTHE ESTATE OFMELISSAVIERING ORDER AND NOW, this W46-Z'76 day of, 2012, upon consideration of Plaintiff's Petition for Approval of Wrongful Death Settlement, it is hereby ORDERED that the Petition is GRANTED. Distribution of the $100,000.00 settlement is as follows: Total settlement: $ 100,000.00 Attorney's fees at 25%: $ 25,000.00 Attorney's costs: $ 1,168.25 Escrow Estate Administration Expenses $ 500.00 Total for Distribution $ 73,331.75 From the balance for distribution, all three children of the Decedent will receive $24,443.92• Rainsong Eva Ryan, an adult individual, will receive $24,443.92 outright after 4 receipt of the settlement funds. However the funds for Madison Taylor Bates, a minor, and _- "r%A-TE5'P.C• an interest bearing account marked no Hannah Pearl Bates, a minor, shall be deposited in withdrawal until the children reach the age of 21 years old. Proof thereof will be filed with this court, not more than 1o (ten) days after receipt of the settlement funds. BY THE COURT: Distribution Legend: ? Robin J. Marzella, Esq. RJ Marzella & Associates 3513 North Front Street Harrisburg, PA 17110 V Amy Brady, Administrator 2948 Green Street Harrisburg, PA 171'10 r/ Robert Viering 5327 Four Point Road Bethel, PA 19550 p c0 inn Q C3 t cNr ?? c Il..l~O-OFFICE O THE PROTHONOTAR' 71B 12 JUL 12 PM 3: 12 R.J. MARZELLA & ASSOCIATES, P.,MBENLAND COUNTY BY: ROBINJ. MARZELLA, ESQUIRE PENNSYLVANIA PA SUPREME COURT I.D. NO. 66856 3513 NORTH FRONT STREET ATTORNEYS FOR PLAINTIFF, HARRISBURG, PA 17110-1438 AMY BRADY, INDIVIDUALLY TELEPHONE: (717) 234-7828 AND AS ADMINISTRATRIX OF THE FACSIMILE: (717) 234-6883 ESTATE OF MELISSA VIERING EMAIL: RMARZELLAC?RIMAR LLA OM IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMY BRADY, INDIVIDUALLY AND AS THE ADMINISTRATRIX OF THE ESTATE OF MELISSA VIERING DOCKET NUMBER: 12-3426 CIVIL PRAECIPE OF PROOF OF DEPOSIT Attached please find the Time Certificate of Deposit and Time Deposit Special Instructions and Holds for the Certificate of Deposits created for Madison Taylor Bates and Hannah Pearl Bates. Respectfully submitted, Date: Z ° By: ates, P.C. Robin J.ralila-,ksquire Attorne, r titioner Attorney I.D. #66856 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 TIME CERTIFICATE OF DEPOSIT NONTRANSFERABLE AND NONNEGOTIABLE Account Title MICHAEL S BATES CUSTODIAN UNDER UTMA FOR HANNAH P BATES Account Type 60 MONTH CD Taxpayer ID Nu 071-86-002 mber Account Number Amount Date of Issue Maturity Date Term 0000000001052963 $ 24 443.92 Jul 9, 2012 Jul 9, 2017 60 Months / Automati Renewal Interest Rate Per Annum Interest Payment Fre quency 1.638 % with an annual percentage yield of 1.65%. Monthly Interest Payment Dis position Interest will be capitalize to this certificate. TIME CERTIFICATE OF DEPOSIT Agreement. This Time Certificate of Deposit is a part of, and governed by, our Time Deposit Agreement. Among other things, t is means that all terms defined in that agreement have the same meanings here. You have received a copy of that agreement, the Truth i Savings disclosures (if applicable), and the fee schedule. You have read them and agree to them. Early Withdrawal Penalty. We do not have to permit early withdrawals from the account. On each one we do permit, we can charge a penalty calculated as follows: If the term is under 30 days interest will be waived if the account is closed before maturity. If t term is between 30 days and under one year a penalty of one month interest will be assessed. If the term is one year and over, a penalt of three months interest will be assessed. If there is enough accrued interest to cover the penalty, we deduct the penalty from it. If not, wed duct the remainder of the penalty from principal. If the account is a variable rate account, we will calculate the penalty using the interest rate being applied at the time of withdrawal. If the account is an Individual Retirement Account, the early withdrawal penalty will be in addition to any penalty imposed under the Individual Retirement Account (IRA) Disclosure Statement. The minimum early withdrawal penalty is se en days' simple interest on any amount withdrawn (a) within the first six days after the account is opened, or (b) within six days after a previ us early withdrawal. Nontransferable. This Time Certificate of Deposit is nonnegotiable and nontransferable. All purported holders or assignees of it agree that our right of setoff will have priority ove any of their claims. INTEGRITY BAN I S. ,? by // 1 14 J c:? TIME CERTIFICATE OF DEPOSIT D0001100 / 20081930 Printed 719/201 3:57:00 PM NONTRANSFERABLE AND NONNEGOTIABLE © 2008 Metavant Corporation MICHAEL S BATES / 0000000001052963 CAMP INTEGRITY BANK 3345 Market Street. Camp Hill. PA 17011 TIME CERTIFICATE OF DEPOSIT NONTRANSFERABLE AND NONNEGOTIABLE Account Title MICHAEL S BATES CUSTODIAN UNDER UTMA FOR MADISON T BATES Account Type 60 MONTH CD Taxpayer ID Nu 100-88-2250 fiber Account Number Amount Date of Issue Maturity Date Term 0000000001052971 $ 24,443.92 Jul 9, 2012 Jul 9, 2017 60 Months / Automatic Renewal Interest Rate Per Annum Interest Payment Fr quency 1.638 % with an annual percentage yield of 1.65%. Monthly Interest Payment Dis osition Interest will be capitalized to this certificate. TIME CERTIFICATE OF DEPOSIT Agreement. This Time Certificate of Deposit is a part of, and governed by, our Time Deposit Agreement. Among other things, this means that all terms defined in that agreement have the same meanings here. You have received a copy of that agreement, the Truth i Savings disclosures (if applicable), and the fee schedule. You have read them and agree to them. Early Withdrawal Penalty. We do not have to permit early withdrawals from the account. On each one we do permit, we can charge a penalty calculated as follows: If the term is under 30 days interest will be waived if the account is closed before maturity. If the term is between 30 days and under one year a penalty of one month interest will be assessed. If the term is one year and over, a penalt of three months interest will be assessed. If there is enough accrued interest to cover the penalty, we deduct the penalty from it. If not, wed duct the remainder of the penalty from principal. If the account is a variable rate account, we will calculate the penalty using the interest rate being applied at the time of withdrawal. If the account is an Individual Retirement Account, the early withdrawal penalty will be in addition to any penalty imposed under the Individual Retirement Account (IRA) Disclosure Statement. The minimum early withdrawal penalty is se en days' simple interest on any amount withdrawn (a) within the first six days after the account is opened, or (b) within six days after a previous early withdrawal. Nontransferable. This Time Certificate of Deposit is nonnegotiable and nontransferable. All purported holders or assignees of it agree that our right of setoff will ave priority over any of their claims. INTEGRITY BANK n TIME CERTIFICATE OF DEPOSIT D0001100/20081930 Printed 7/9/201 3:5900 PM NONTRANSFERABLE AND NONNEGOTIABLE © 2008 Metavant Corporation MICHAEL S BATES / 0000000001052971 f? p 4 1 k? Y n Y? / i ? r _ A a? q?p L L ? 1 , r + G 5, •• . CI }. O o?. N 4CJ O r o. u r(???} - = Q LV S _ Q Z . a0 m a C ? ku x Q ?" d CO ?k 'S C Q im W W I a a O v m r' M; 5 t _. W W 03 vg's I?..t. Y, lu N ?«p . yr'y w . ?• , c . ?? CJ W n i p. tro: . tit ? ::-m R 1 ;?!k W L?, C Q); B UD LL w ? m N ..J a W O co U N o C5 I a? Q a e+? c o 4 40? 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