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HomeMy WebLinkAbout02-01-13 (2) SHOLLENBERGER & JANUZZI, LLP o m rn 2225 Millennium Way oo , c, ~p Enola, Pennsylvania 17025 Telephone Number: (717) 728-3200 s,. m Fax Number: (717) 729-3400 v Pq a C7 •~7 Attorne s for Plaintiff -)7 5D r IN RE: IN THE COURT OF CQM40N PaAS= , , ESTATE OF SKYLER WENGER CUMBERLAND COUNTY, ~ v o Deceased PENNSYLVANIA ORPHANS COURT DIVISION NO. PETITION TO APPROVE SETTLEMENT AND DISTRIBUTION OF UNDERINSURED MOTORIST PROCEEDS AND NOW, comes the Plaintiff, Melissa L. Havens, Individually, and as Personal Representative of the Estate of Skyler Wenger, Deceased, by her attorneys, Shollenberger and Januzzi, LLP and does respectfully represent the following: 1. The Petitioner, Melissa Havens, is the Personal Representative of the Estate of her son, Skyler Wenger, a minor by virtue of grant of letters of administration granted by the Court of Common Pleas of Cumberland County on November, 15, 2011. A copy of the letters is attached hereto and incorporated by reference herein as Exhibit A. 2. On October 27, 2011, Skyler Wenger received injuries resulting in his death when he was struck by a car being driven by Richard Hughes while Skyler was crossing the street. 3. On November 11, 2011, the Petitioner's engaged the law firm of Shollenberger & Januzzi, LLP and specifically attorney Timothy A. Shollenberger, Esq. to represent the Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 estate and its beneficiaries because of the injuries sustained by Skyler Wenger in the pedestrian accident which is the subject of the above referenced Complaint. A copy of the Contingent Fee Agreement executed by Melissa Havens is attached hereto and incorporated by reference herein as Exhibit B. 4. At the time of the crash, Skyler Wenger was survived by his parents, Melissa Havens and Christopher Wenger. He had no other wrongful death or survival beneficiaries. 5. Skyler Wenger died intestate. 6. At the time of the incident which is the subject of this action, Skyler Wenger enjoyed resident relative status for motor vehicle insurance purposes with his mother and his father. 7. At the time of the incident which is the subject of this action, Christopher Wenger was a named insured on a policy of insurance issued to he and his wife, Dana Wenger by State Farm Insurance Company. This policy provides underinsured motorist coverage in the amount of $100,000. A copy of the declaration page of this policy is attached hereto and incorporated by reference herein as Exhibit C. 8. At the time of the incident which is the subject of this action, Melissa Havens was a named insured on a policy of insurance issued to her by Progressive Insurance. This policy also provides underinsured motorist coverage. A copy of the declaration page of this policy is attached hereto and incorporated by reference herein as Exhibit D. 9. On January 23, 2012, the Petitioner's initiated a wrongful death and survival action against Mr. Hughes which is docketed at Cumberland County docket number 12- 284. Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 10. On June 11, 2012, The Honorable Thomas A. Placey approved a Compromise Settlement with Defendant, Richard Hughes. A copy of the Order is attached hereto and incorporated by reference as Exhibit E. 11. Progressive Insurance has offered $15,000 as partial settlement of the underinsured motorist claim. The remaining issues will be the subject of a Declaratory Judgment action. A draft copy of the Declaratory Judgment complaint is attached hereto as Exhibit F. 12. State Farm Insurance has offered the policy limit of $100,000 in full and final settlement of the underinsured motorist claim. 13. Petitioner wishes to accept the partial settlement of $15,000 with Progressive Insurance without prejudice to pursue additional amounts allegedly due under the policy. 14. Petitioner wishes to accept the full and final settlement of $100,000 with State Farm Insurance. 15. Petitioner has contacted the Pennsylvania Department of Revenue regarding its position on how much of the settlement is to be allocated to the wrongful death portion of the claim and how much to the survival action. The Department's representative has advised Petitioner's counsel that because 72 P.S. §9116 (a)(1.2) provides that there is no inheritance tax due on the survival portion of the claim, they take no position on the allocation. A copy of the applicable statutory provision is attached hereto and incorporated by reference herein as Exhibit G. 16. The Petitioner has further agreed to pay out of the Estate's and wrongful death beneficiaries share of the recovery, any and all costs incurred or advanced on her Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 behalf. The amount of the costs incurred and advanced on Petitioner's behalf to date in this matter total $338.95 The unused portion of the Expert Witness Retainer in the amount of $3,350, if any, will be refunded to the Petitioner if applicable. All other costs have been expended in full. The identity of the Expert witnesses has not been included in this Petition because further litigation is anticipated. However, Petitioner's counsel is prepared to disclose the identity of said experts and the reasons they were retained to the Court in camera. An itemization of the costs for which Petitioner's counsel seeks reimbursement is attached hereto and incorporated by reference as Exhibit H. 17. Petitioner requests that the Court approve the partial settlement set forth above and that the proceeds be distributed as follows: Gross Settlement Proceeds: $115,000.00 Attorney's Fees: $28,750.00 Costs Reimbursement to Shollenberger & Januzzi, LLP: $338.95 Balance to be Distributed: $85,911.05 Wrongful Death Proceeds ( 0%) $0 Survival Proceeds (100%) $85,911.05 WHEREFORE, the Petitioner, Melissa L. Havens, Individually, and as Personal Representative of the Estate of Skyler Wenger, Deceased, requests this Honorable Court approve the Partial Settlement with Progressive Insurance, the Settlement with State Farm Insurance and Distribution of the Proceeds or in the alternative to schedule a hearing on this Petition. Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP By: Timothy A. Shollenberger, Esquire Dated: cla t013 Attorney for Plaintiffs ID #34343 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, PA 17025 Phone: 717-728-3200 Fax: 717-728-3400 COMMONWEALTH OF PENNSYLVANIA SHORT CERTIFICATE COUNTY OF CUMBERLAND 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 15th 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 SKYLER JAMES WENGER , late of LOWER ALLEN TOWNSHIP (First, Middle, Last) in said county, deceased, to MELISSA L HAVENS (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 15th day of November Two Thousand and Eleven. File No. 2011-01228 j PA File No. 21-11-1228 Date of Death 1012812011 S . S . # 208-76-2066 9 ~ ^F JAL Register 7 ills l tv I EXHIBIT A NOT VALID WITHOUT ORIGINAL SIGNATURE D IMPRESSED SEAL Power of Attorney and Contingent Fee Agreement Skylev` ~ I, Melissa Havens, guardian and natural parent of deceased, do hereby retain Shollenberger & Januzzi, LLP of Enola, Pennsylvania, as my attorneys to negotiate for me a settlement or to institute for me in my name any legal actions that in their judgment are necessary in connection with my bodily injury claim, including my claim for uninsured or underinsured motorist benefits against Rct-11,161 vghp 5 and any other person, firm, corporation, insurer or entity who may be liabl arising from a collision that occurred on dobW 2.7 2,0 11 , I hereby give to my attorneys a Power of Attorney to execute all documents connected with the claim, including pleadings, contracts, commercial papers, settlement agreements, compromises and releases, verifications, discontinuances, orders and settlement checks. i I agree not to settle or adjust this claim or any legal action arising from it. I agree to fully cooperate with my attorneys in the handling of the claim. This includes, but is not limited to, attending depositions, legal proceedings and conferences; keeping my attorneys informed as to my current mailing address, phone number and medical condition. 1 warrant that the information which I have supplied and will supply during the course of the representation has and will be true and accurate, and has not been and will not be obtained through fraud or illegal activities. I agree to pay attorneys' fees from the total amount recovered from any source, except first party benefits which are paid or payable pursuant to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, on account of my bodily injury claim, including my claim for uninsured or underinsured motorist benefits, on the following basis: i I 1 EXHIBI •'r Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 Tel. (717) 726-3200 Fax(717)728-3400 www.shollianlaw.com I Settlement of third party tort claim prior 33 an 3t~;/>;of total sum recovered to filing of legal action goftotal Settlement of third party tort claim on or sum recovered after filing of legal action Settlement of uninsured or underinsured 3 rd% of to al sum recovered motorist claims prior to selection of my arbitrator or prior to filing of legal action versus UM/UIM carrier - Settlement of uninsured or underinsured 4 boo of total sum recovered motorist claims after selection of my arbitrator or after filing of legal action versus UM/UIM carrier In the event that no recovery is obtained on my claim, I will not be responsible to pay anything to my attorneys for their time or services. Pre and post litigation costs and expenses will be advanced by my attorneys but are to be repaid to them from my share of the recovery. Pre and post litigation costs and expenses include, but are not limited to: photocopies; fax charges; postage; notary fees; long distance telephone charges; mileage for attorneys and staff; investigation charges; photographs; court costs; WEST LAW research charges; medical records costs; fee for police report; deposition costs; expert witness fees; stenographer costs; and video deposition fees. I will repay any pre or post litigation costs or expenses advanced by my attorneys from my share of the recovery. In the event that no recovery is obtained on my claim, I am only responsible for repayment of pre and post litigation costs and expenses if I fail or refuse to follow my attorneys advice regarding settlement of the claim. In the event that the amount of the recovery is less than the amount of the pre and post litigation costs and expenses advanced by my attorneys, my attorneys will make no charge for their time or services and the amount of the recovery will be accepted by my attorneys as a full and final repayment of all such costs and expenses, but only if I follow their advice regarding settlement of the claim. If I do not follow their advice regarding settlement, I remain responsible for payment of the fees set forth above as well as all pre and post litigation costs and expenses advanced on my behalf. 2 Shollenberger & Januai, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 Tel. (717) 728-3200 fax (717) 728-3400 www shollianlaw com My attorneys shall have a security interest in any amounts recovered on my behalf that are subject to a fee under the terms and conditions of this agreement. As one possible settlement option, I authorize my attorneys to explore the possibility of a structured settlement through the use of deferred periodic payments. I agree that if my claim is settled through such structure, the attorneys' fees on the part that is structured shall be calculated in the percentages as set forth above based upon the cost of the structured settlement. I authorize my attorneys to repay my medical caregivers for all outstanding medical bills and expenses incurred as a result of my collision related injuries from my share of the recovery, unless paid or payable by another source. This Power of Attorney and Contingent Fee Agreement applies to all proceedings up to and including verdict or decision at trial or arbitration. If, in the discretion of my attorneys, post-trial proceedings, including appeals, are warranted, they will not be covered by this Contingent Fee Agreement and a new fee agreement will be required. This Power of Attorney and Contingent Fee Agreement shall not apply to any right, claim or cause of action that I may have for collection of first party benefits paid or payable pursuant to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law or property damage. I further authorize my attorneys to destroy my file three (3) years after the file is closed. In Witness Whereof, I have hereunto set my hand and seal this day of 2011. U J'J',J' (Seal) (Seal) '71IY14~ X, qLA Melissa ' ens (Seal) (Seal) And Now, this day of over 2011, the above Contingent Fee Agreement and Power of Attorney has been read, approved, and understood by me and the receipt of a copy thereof acknowledged. The terms set forth are agreeable. (Seal) y I` ~ eal) /11 /X IV Melissa ns (Seal) (Seal) 3 Shollenberger & Januzzi, LLP 2225 Millennium Way, Enola, Pennsylvania 17025 Tel. (717) 728-3200 Fax (717) 728-3400 www.shollianlaw.com SF13CL 3/31/2012 11:06:44 AM PAGE 2/005 Fax Server State Farm Mutual Automobile insurance company 22324-5-G MUTL VOL One State Farm Dr DECLARATIONS PAGE ^'I Concordville PA 19339 ' NAIC# 25178 PAGE IcOF2 NAMED INSURED AT2 38.2623-5560 A POLICY NUMBER 0570-D10-38G r; Goose WENGERi DANA M 8 CHRISTOPHER POLICY PERIOD FEB 20 2010 to OCT 10 2010! 422 77 422 7TH ST 12'01 AM so.ncuar+n. 'M. NEW CUMHERLND PA 17070-1925 AGENT ROCKY RADABAUGH 1223 BRIDGE STREET NEW CUMBERLAND, PA 1 707 0-1 670 PHONE: (717)774-2517 DO NOT PAY PREMIUMS SHOWN ON THIS PAGE. IF AN AMOUNT IS DUE, THEN A SEPARATE STATEMENT IS ENCLOSED. YOUR CAR , aVEHICLEjjpY iA E 7:MODE0 BODY STYLE= -_,VEHICLE'..ID' NUMB.ER., 1 2002 FORD TAURUS 40R 1FAFP53U52A246904 1D30401000 2 1998 DODGE CARAVAN VAN 184GP45R6WB503325 1133F401000 xeSY[NBOLSCOIi•_EAi MfT$,~~~~y~-,-~'~~~~'r`"`"fi PREMIUMSga~ 2002 1998 FORD DODGE 10111111111111 taWh#jricGaverages~.~~.~i MM$162;!1`3=M3L'42X30~ Badly Injury Limits A,u_ Ei0WiP.e450n,. Each Aacide > ..y- - - - J100,000 $300000 PrapiartyaDamage Lunsk - Each Accident 110 Qae C2 Medical Payments Coverage $18.39 $16.08 rEach PersanM $10 000 - i1 xCoinliriatiensive Coverage m:$48 0.4 $4.1 `Ol G Nr:._.n Collision Coverage • 500 Deductible $113.41 $74._72 'k ,H sEm geooyiHoad ~>Coverage 30 - - - 2:'30 2 U Uninsured Motor Vehicle Covera a $4.87 $4.87 Each Person Each A_ ccident W Underinsured Motor Vehicle Coverage $27.32 $27.32 . a v , M ---•--6o y npuy -;~~r-r-- ..rc tim aa,3.~, Mtn Each Person Each Accident x.. E~ ' -~$a~;000 $ti00A(J0"a~c'~r~~ • .~,1.~~ ~u`~Tst 4FY~ Funeral Benefits Coverage $.68 $.62 e1-- n.Lim-As-1 ~ 2 500 i lh, Dism~ eiribe arec&; and:Lcss.ot_ 3. verage_ °$...74 a?MR K,74 > Z2 Loss of Income Coverage . $5.60 $5.10 Total Premium Per Vehicle $383.66 $315.06 TotalipFB[rilu`m tw:FEB 20=2010 tO.OCT i0.2010. _ Tf is~as gol~aMill ..1.-.. _~.:d ~$i:` z... _ r ."r wr•X,*?~s-•zax+ar„a+, . 3 ~~zawx Replaced policy number 0000570.38F. Your total renewal premium for APR 10 2010 to OCT 10 2010 is $546.21. ' The total premium listed above reflects a recent change to your policy and the 6 month renewal premium. Vehicle 1 $299.94, Vehicle 2 $246.27. EXHIBIT CONTINUED 950/00784'0' See Reverse Side IS.S SPA2 01•?O 1.1W 2'dit ri SF13CL 3/31/2012 11:06:44 AM PAGE 3/005 Fax Server State Farm Mutual Automobile Insurance Company 22324.5-G MUTL VOL. One State Farm Dr DECLARATIONS PAGE Concordville PA 19339 NAIC# 25178 PAGE 2A;F2 NAMED INSURED 38-2623-55sG a POLICY NUMBER o57aD1 a3eG owl q'; N POLICY PERIOD FEB202O1O to CCT 1O 2OtQ WENGER, DANA n a CHRISTOPHER 12;41 A M. SWOWC T.. 422 7TH ST NEW CUNBERLND PA 17070-1925 C1;1 XCGRTiONSsP#:ICBQQ#(sENQQE~4~iYlEtWTS{SeeTpWtcj[rbogYNiua) endorse 1entiorcaage~etags FYOUMR POLICY CONSISTS ENOFpTHIS EDECLARATIONS PAGI~CLUOINOLTHOSEOOKLET TO YOUY w WCCITH11ANY SOBSEQU T MERE NOTICE. 6938A'.1 AMENDATORY ENDORSEMENT. THIS POLICY PROVIDES LIMITED TORT OPTION. CAR 2 ORIGINAL COST OF CUSTOMIZATION NONE OR UP TO $1000. Agent: ROCKY RADABAUGH Telephone: (717)7742517 iss9P i'3,Q2oa34C.1.a2aw1 lelsez5p) Prepared FEB 24 2010 2623-381 i • i 1 HOSTETLER AGENTS BR 300 S PROGRESS AVE PR©~REWYT HARRISBURG, PA 17109 DRIPT'11MM-mce Polity Number: 22021097-1 Underwritten by: Progressive Preferred insurance Co MELISSA L HAVENS June 22, 2011 1609 WYNDHAM DR Policy Period: Jul 30, 2011 - Jan 30, 2012 CAMP HILL, PA 17011 Pagel of 3 1-717-657-3141 HOSTETLER AGENTS BR Contact your agent for personalized service. Auto Insurance progressiveagent.com e Online Service Coverage Sll11tn1ary Make payments, check billing activity, update y policy information or check status of a claim. This is your Renewal 1-800-274-4499 Declarations Page To report a claim. The coverages, limits and policy period shown apply only if you pay for this policy to renew. Your coverage begins on July 30, 2011 at 12:01 a.m. This policy expires on January 30, 2012 at 12:01 a.m. Your insurance policy and any policy endorsements contain a full explanation of your coverage. The policy contract is form 9610A PA (05/06). The contract is modified by forms Z445 PA (03/07), Z538 (10/08), Z763 PA (05/09) and 4884 (10/08) COLLISION COVERAGE FOR RENTAL VEHICLES IF THIS POLICY PROVIDES COLLISION COVERAGE, IT WILL APPLY TO VEHICLES YOU RENT, BUT NOT TO VEHICLES RENTED FOR 6 MONTHS OR MORE. FRAUD 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 such person to criminal and civil penalties. Underwriting Company Progressive Preferred Insurance Co P.O. Box 6807 Cleveland , OH 44101 1-800-876-5581 Drivers and household residents Additional information MELISSA L HAVENS First Named insured EXHIBIT Fc,m 5-199 FA 7r'10: i Policy Number: 22021097-1 MELISSA L HAVENS j Paget of 3 Outline of coverage 2006 Nissan Xterra VIN 5NtAN08W56C514282 Primary use of the vehicle: Commute -in its Deductible Premium Liability To Others $366 Bodily Injury Liability $100,000 each person/$300,000 each accident Property Damage Liability $100,000 each accident I First Party Benefits 130 Medical Expenses $25,000 each person Income Loss $2,500 each mont4!$50,000 maximum 26 Funeral Benefit $2,500 each Person 1 Accidental Death $5,000 2 Uninsured Motorist - Nonstacked $15,000 each personl$30,000 each accident 6 Underinsured Motorist Nonstacked $15,000 each person/$30,000 each accident 12 Comprehensive Actual Cash Value $100 32 .............................A.c...tu. a..l..Cas .Value.. ....................................................$500.... ..............266.. Collision Rental Reimbursement up to $30 each day/maximum 30 days 20 Total 6 month policy premium $861.00 Discount if paid in full -134.00 Total 6 month policy premium if paid in full $727,00 Premium discounts Policy 22021097 1 Continuous Insurance: Platinum, Advance Quote, Paperless and Home Owner Vehicle 2006 Nissan Anti-Theft Device and Airbag Xterra Lienholder information We send certain notices such as coverage summaries and cancellation notices to the following: Vehicle Lienholder . 2006 Nissan Xterra MEMBERS 1ST FCU 5N1AN08W56C514282 MECHANICSBURG, PA 17055 Tort Option This policy provides limited tort insurance. Information Regarding Your Premium A surcharge of $269.00 due to violations or accidents is included in the total policy premium. Dorm 6489 PA (12110) Continued i _ _ i Policy Number: 22021097-1 MELISSA L HAVENS Page3 of 3 Notice of Available Premium Discounts You may be eligible for discounts mandated by Act 6 of 1990: • on first party benefits coverage if your car is equipped with a passive restraint system • on comprehensive coverage if your car is equipped with a passive anti-theft device • if all named insureds are 55 or older and have successfully completed a motor vehicle driver improvement course approved by PennDOT. If you have any questions about your eligibility, please contact your agent. Company officers ~r QW__ President Secretary i j Form 6489 PA (12i!0) Pj 2: SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff MELISSA L. HAVENS, Individually, and IN THE COURT OF COMMON PLEAS as Personal Representative of the Estate CUMBERLAND COUNTY, of SKYLER WENGER, Deceased, PENNSYLVANIA Plaintiff NO. 12-284 V. CIVIL ACTION - LAW RICHARD D. HUGHES, Defendant JURY TRIAL DEMANDED ORDER And now, this t day of June 2012, after hearing on the Petition to Approve Compromise Settlement, the Court issues the following Order: 1. The Petitioner is authorized to execute the original of the Joint Tortfeasor Release attached to the Petition as Exhibit H; 2. The request for attorneys fees and costs set forth in the Petition are approved and shall be paid to the Law Firm of Shollenberger and Januzzi, LLP from the settlement proceeds; 3. The request of the Law Firm of Shollenberger and Januzzi, LLP to hold $2500 of its attorneys fee in escrow to be paid to any foundation that the Petitioner shall establish in the memory of her son, Skyler Wenger should one be established is approved; 4. The balance of the funds are to be placed in an escrow account with Attorney David Stone and the law firm of Stone, LaFaver, and Shekletski, to be distributed to the beneficiaries of Skyler Wenger as required by Pennsylvania law; and 5. The Petitioner is permitted to discontinue the above captioned action against Richard Hughes. Judge Th a A. Placey EXHIBIT SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff MELISSA L. HAVENS, Individually, IN THE COURT OF COMMON PLEAS and as Personal Representative of the CUMBERLAND COUNTY, Estate of SKYLER WENGER, PENNSYLVANIA Deceased, Plaintiff NO. V. CIVIL ACTION - LAW Progressive, JURY TRIAL DEMANDED Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that, if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION EXHIBIT 2 LIBERTY AVENUE CARLISLE, PA. 17013 (717) 249-3166 r i 1 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff MELISSA L. HAVENS, Individually, IN THE COURT OF COMMON PLEAS and as Personal Representative of the CUMBERLAND COUNTY, Estate of SKYLER WENGER, PENNSYLVANIA Deceased, Plaintiff NO. V. CIVIL ACTION - LAW Progressive, JURY TRIAL DEMANDED Defendant NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomaro medidas y puede entrar una orden contra usted sin previo aviso o notoficacaion y por cualquier queja o alivio que es pedido en la peticion do demanda. usted puede perder dinero o sus propiededas o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE LAS AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CORGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Lawyer Referral and Information Service CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA. 17013 (717) 249-3166 SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff MELISSA L. HAVENS, Individually, IN THE COURT OF COMMON PLEAS and as Personal Representative of the CUMBERLAND COUNTY, Estate of SKYLER WENGER, PENNSYLVANIA Deceased, Plaintiff NO. V. CIVIL ACTION - LAW PROGRESSIVE PREFERRED JURY TRIAL DEMANDED INSURANCE COMPANY, Defendant DECLARATORY JUDGMENT ACTION AND NOW comes the Plaintiff, MELISSA L. HAVENS, Individually, and as Personal Representative of the Estate of SKYLER WENGER, Deceased, by and through her attorneys SHOLLENBERGER & JANUZZI, LLP, and does respectfully set forth the following: FACTS APPLICABLE TO ALL COUNTS 1. Plaintiff, MELISSA L. HAVENS, the natural mother of a deceased minor child, SKYLER WENGER, is an adult individual who resides at 1609 Wyndham Road, Camp Hill, Cumberland County, Pennsylvania. 2. Plaintiff, MELISSA L. HAVENS, is the Personal Representative of the Estate of SKYLER WENGER, by virtue of Letters of Administration granted by the Register of Wills, Cumberland County, Pennsylvania on November 15, 2011. A copy of these letters is attached hereto and incorporated by reference herein as Exhibit A. 3. Defendant, Progressive Preferred Insurance Company [hereinafter referred to as "Progressive", is an insurance company licensed and authorized to issue and underwrite policies to Pennsylvania motorists in accordance with the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. §1701, et. seq. Progressive does business in Cumberland County, Pennsylvania and has a listed corporate address at 6300 Wilson Mills Road, Mayfield Village, Ohio 44143. 4. On or about January 30, 2011, Defendant Progressive issued to the Plaintiff a motor vehicle insurance policy bearing policy number 22021097-1. A copy of the applicable policy is attached hereto and incorporated by reference herein as Exhibit B. 5. On October 27, 2011, Plaintiff's minor child, Skyler Wenger was struck by a private passenger motor vehicle being operated by Richard Hughes. 6. The Plaintiff asserted an underinsured motorist claim under the policy of insurance issued to the by Defendant Progressive. 7. The Progressive policy issued to the Plaintiff covers only one vehicle. 8. The Progressive policy issued to the Plaintiff has bodily injury liability limits of $100,000 per person. 9. The Progressive policy issued to the Plaintiff has a Declaration of Coverage page which purports to limit the Plaintiff's underinsured motorist coverage to $15,000. 11. Plaintiffs contend that Progressive should have to pay $100,000 in underinsured benefits to the Plaintiff because: a. Defendant Progressive has not produced proof that the Plaintiff requested in writing the issuance of underinsured motorist coverage in amounts equal to or less than the limits of the applicable limits of liability for bodily injury as required by 75 Pa. C.S. §1734. WHEREFORE, the Plaintiff, MELISSA L. HAVENS, Individually, and as Personal Representative of the Estate of SKYLER WENGER, Deceased, respectfully requests this Honorable Court to issue an Order in the nature of Declaratory Relief that requires Progressive to extend $100,000 in underinsured benefits to the Plaintiff. Respectfully submitted, SHOLLENBERGER & JANUZZI, LLP Attorneys for Plaintiff By: Timothy A. Shollenberger, Esq. Attorney I.D. #34343 2225 Millennium Way Enola, PA 17025 (717) 728-3200 (717) 728-3400 (fax) Dated: § 9116. Inheritance tax, PA ST 72 P.S. § 9116 Pardon's Pennsylvania Statutes and Consolidated Statutes Title 72 P. S. Taxation and Fiscal Affairs Chapter 5. Tax Reform Code of lg7i (Refs & Annos) Article XXI. Inheritance Tax Part IV. Rate of Tax 72 P.S.§ 9116 § 9116. Inheritance tax Effective: July 1, 2000 Currentness (a) (1) Inheritance tax upon the transfer of property passing to or for the use of any of the following shall be at the rate of four and one-half per cent: (i) grandfather, grandmother, father, mother, except transfers under subclause (1.2), and lineal descendants; or (ii) wife or widow and husband or widower of a child. (1.1) Inheritance tax upon the transfer of property passing to or for the use of a husband or wife shall be: (i) At the rate of three per cent for estates of decedents dying on or after July 1, 1994, and before January 1, 1995. (ii) At a rate of zero per cent for estates of decedents dying on or after January 1, 1995. (1.2) Inheritance tax upon the transfer of property from a child twenty-one years of age or younger to or for the use of a natural parent, an adoptive parent or a stepparent of the child shall be at the rate of zero per cent. (1.3) Inheritance tax upon the transfer of property passing to or for the use of a sibling shall be at the rate of twelve per cent. (2) Inheritance tax upon the transfer of property passing to or for the use of all persons other than those designated in subclause (1), (l.l), (1.2) or (1.3) or exempt under section 2111(m) t shall be at the rate of fifteen percent. (3) When property passes to or for the use of a husband and wife with right of survivorship, one of wham is taxable at a rate lower than the other, the lower rate of tax shall be applied to the entire interest. (b) (1) When the decedent was a resident, the tax shall be computed upon the value of the property, in excess of the deductions specified in Part VI, at the rates in effect at the transferor's death. i (2) When the decedent was a nonresident, the tax shall be computed upon the value of real property and tangible personal property having its sites in this Commonwealth, in excess of unpaid property taxes assessed on the property and any indebtedness for which it is Iiened, mortgaged or pledged, at the rates in effect at the transferor's death. The person liable to make the return under section 21362 may elect to have the tax computed as if the decedent was a resident and his entire estate was property having its situs in this Commonwealth, and the tax due shall be the amount which bears the same ratio to the tax thus computed as the real property and tangible personal property located in this Commonwealth bears to the entire estate of the decedent. (b.1) The inheritance tax due upon the transfer of property passing to or for the use of a husband or wife shall be the lesser of the tax imposed tinder subsection (a)(1.1) or the tax due after the allowance of the credit provided for under section 2112.3 I EXHIBIT ~r~amll:.al~le~t 2012 Thorison F.euters. No claim to orictiital U.S. Government Works. I § 9116. Inheritance tax, PA ST 72 P.S. § 9116 (c) When any person entitled to a distributive share of an estate, whether tinder an inter vivos trust, a will or the intestate law, renounces his right to receive the distributive share receiving therefor no consideration, or exercises his elective rights under 20 Pa.C.S. Ch. 22 (relating to elective share of surviving spouse) receiving therefor no consideration other than the interest in assets passing to him as the electing spouse, the tax shall be computed as though the persons who benefit by such renunciation or election were originally designated to be the distributees, conditioned upon an adjudication or decree of distribution expressly confirming distribution to such distributees. The renunciation shall be made within nine months after the death of the decedent. In the case ofa surviving spouse taking his elective share of an estate, the renunciation shall be made within the time for election and any extension thereof under 20 Pa.C.S. § 2210(b) (relating to procedure for election; time limit). Notice of the filing of the account and of its call for audit or confirmation shall include notice of the renunciation or election to the department. When an unconditional vesting of a future interest does not occur at the decedent's death, the renunciation specified in this subsection of the future interest may be made within three months after the occurrence of the event or contingency which resolves the vesting of the interest in possession and enjoyment. (d) In case of a compromise of a dispute regarding rights and interests of transferees, made in good faith, the tax shall be computed as though the persons so receiving distribution were originally entitled to it as transferees of the property received in the compromise, conditioned upon an adjudication or decree of distribution expressly confirming distribution to such distributees. Notice of the filing of the account and of its call for audit or confirmation shall include notice to the department. i (e) If the rate of tax which will be applicable when an interest vests in possession and enjoyment cannot be established with certainty, the department, after consideration of relevant actuarial factors, valuations and other pertinent circumstances, may enter into an agreement with the person responsible for payment to establish a specified amount of tax which, when paid within sixty days after the agreement, shall constitute full payment of all tax otherwise due upon such transfer. Rights of withdrawal of a surviving spouse not exercised within nine months of the transferor's death shall be ignored in making such calculations. (f) Property subject to a power of appointment, whether or not the power is exercised and notwithstanding any blending of the property with the property of the donee, shall be taxed only as part of the estate of the donor. Credits 1971, March 4, P.L. 6, No. 2, § 2116, added 1991, Aug. 4, P.L. 97, No. 22, § 36, effective in 60 days. Amended 1994, June 16, P.L. 279, No. 48, § 36, effective July 1, 1994; 1995, June 30, P.L. 139, No. 21, § 19, effective July 1, 1995; 2000, May 24, P.L. 106, No. 23, § 16, effective July 1, 2000. Editors' Notes SOURCE AND OFFICIAL COMMEN'T' Paragraphs (a)(1), (2) and (3) from Sections 403 through 405, respectively, of the Inheritance and Estate Tax Act of 1961 (72 P.S. 2485-403 to 2485-405). Paragraphs (b)(1) and (b)(2) from Sections 401 and 402 (72 P.S. 2485-401, 2485-402), respectively. Subsections (c), (d) and (f) from Sections 406 through 408 (72 P.S. 2485-406 to 2485-408), respectively. Paragraph (a)(2) and subsection (e) are added. Paragraph (a)(1) beneficiaries were referred to as "Class A" beneficiaries in the Inheritance and Estate Tax Act of 1961 and paragraph (a)(2) beneficiaries were referred to as "Class B" beneficiaries. See also act of April 6, 1980 (P.L. 102, No. 39) [68 P.S. § 41 et seq.] which refers to beneficiaries by class for inheritance tax purposes. In light of Section 2204 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S.A. § 2204), subsection (c) conforms inheritance tax law to the elective share provisions and simplifies the time limit provision by removing the "three months after probate" rule. Subsection (e) gives the Department of Revenue the authority to compromise valuations where the tax on future interests depends on fiuture contingencies. Notes of Decisions (25) v, '~tk._:rN~ tt C> 2012 T horn soot Reuters. No claim to original U.S. Government Wog Ls. 2 i .r Date Description Amount 6/30/12 Cumberland County $103.75 Prothonotary Filing Fee 6/30/12 Cumberland County $100.00 Sheriff- Sheriff Fee 8/30/12 REFUND FROM -$56.55 SHERIFF 8/31/12 Cumberland County $11.75 Prothonotary Filing Fee 9/18/12 Expert Witness Fee $180.00 TOTAL $338.95 EXHIBIT SHOLLENBERGER & JANUZZI, LLP 2225 Millennium Way Enola, PA 17025 Telephone Number: (717) 728-3200 Fax Number: (717) 728-3400 Attorneys for Plaintiff IN RE: IN THE COURT OF COMMON PLEAS ESTATE OF SKYLER WENGER CUMBERLAND COUNTY, Deceased PENNSYLVANIA ORPHANS COURT DIVISION NO. CERTIFICATE OF SERVICE AND NOW, this 29TH day of January, 2013, 1 hereby certify that a copy of the foregoing Petition to Approve Settlement and Distribution of Underinsured Motorist Proceeds has been served upon the following via U.S. Mail, postage prepaid: Jennifer L. Levan Forry/Ullman One Bethlehem Plaza Broad & New Sts. Suite 400 Bethlehem, PA 18018 Jerry Elitz State Farm PO Box 106114 Atlanta, GA 30348 Respectfully submitted, o Shollenberger & Januzzi, LLP Cl Uj By: f) o C imothy . Shollenberger, Esq. c Attorney I. D. #34343 r-1 w J LJ -j Q a U = W G U) ~ n- an 6 r.; e.,_ V 11J _ U.j F, ~ '1