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Home My WebLink About06-1576 '-: .~ . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL V ANlA LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs CIVIL ACTION - LAW NO. Q(P. / s '/1... G;r:../ I L- vs. AMES TRUE TEMPER, 4~,) KrkL"-<J-v-v\. ~efendant ~ C~ 1Jd< .d"'~ /70" PRAECIPE FOR WRIT OF SUMMONS To: The Prothonotary of Cumberland County Please issue a writ of summons in Civil Action in the above case and forward it to the undersigned attorneys for service. McNEES WALLACE & NURICK LLC / ~_ .1 / By / II!-, i . Kandlce. . Giurintano J.D. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 (717)232-8000 Date: March 17, 2006 Attorneys for Plaintiff . , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs CIVIL ACTION - LAW NO. 0(,. / <:71..,. Lu-<-l -7,~ vs. AMES TRUE TEMPER, Defendant WRIT OF SUMMONS To: ABOVE-NAMED DEFENDANT: YOU ARE HEREBY NOTIFIED THAT PLAINTIFFS LOUIS A. DEJOIE, III AND CYNTHIA DEJOIE INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF LOUIS A. DEJOIE, IV HAVE COMMENCED AN ACTION AGAINST YOu. Date: I~ ;20.;'; f'O <". Is! I ' (5," t,~' !p r=; Prothonotary i By \.~ () )vuhLJ ~ i? ~0 ~ ~ - .!- -1 -..>. U', 0<.':> <fl "- v, ""- "" \;? 1" s. Vc .~, ~- -::, ,...., ~';5 ,.;..---'" ?': .;>7" :;U ,,,, c:> 7~. :.r; (~ (....J o -n .-l :L""f"\ rr1':p:- _f,rn ~(JCJ (~...S ,~ :/-; ~,;C) :;Srn ..-1 :1; .-<: ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs CIVIL ACTION. LAW NO. 06 -1576 - Civil Term vs. AMES TRUE TEMPER, Defendant ACCEPTANCE OF SERVICE I hereby accept service of the Writ of Summons filed in the above-captioned case on behalf of defendant, Ames True Temper, and I represent that I am authorized to do so. By-1- i\Y- C Q...---::::: Dana C. Panagopoulos, Esquire Attorney J.D. No. Post & Schell, P.c. 1857 William Penn Way Lancaster, P A 17605 (717) 391-1167 ., Date: '1/:/.0/0& Attorneys for Defendant, Ames Truc Tcmper l'"~ .; ---1 , < . ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs CNIL ACTION - LAW NO. 06-1576 vs. AMES TRUE TEMPER, INC. Defendant JOINT PETITION FOR APPROVAL OF SETTLEMENT INVOLVING THE CLAIM OF A MINOR PURSUANT TO P A.R.C.P. NO. 2039 Louis A. Dejoie, III and Cynthia Dejoie, individually, and as parents and natural guardians of Louis A. Dejoie, N, by and through their attorneys, McNees Wallace & Nurick LLC, and Ames True Temper, Inc., by and through its attorneys, Post & Schell P.C., petition the Court for approval of a Settlement Agreement and Release of all claims of Louis A. Dejoie, IV a minor, against Ames True Temper, Inc. In support ofthis petition, the parties aver as follows. 1. The attorneys responsible for this Petition are Kandice J. Giurintano of McNees Wallace & Nurick LLC on behalf of Plaintiffs Louis A. Dejoie, III and Cynthia Dejoie, individually, and as parents and natural guardians of Louis A. Dejoie, N and Dana Panagopoulos of Post & Schell p.e. on behalf of Defendant Ames True Temper. , , 2. The parties concur in this Petition. 3. This action was commenced by writ of summons, and the parties reached a compromise eliminating the need for further filings in this matter. Thus, the Court has not ruled on any other issue in this case. 4. Louis A. Dejoie, III and Cynthia Dejoie (the "Dejoies") are the parents and natural guardians of Louis A. Dejoie, N ("Louis"). Louis and the Dejoies reside at 95 East Yellow Breeches Road, Carlisle, Pennsylvania 17013. 5. Louis's date of birth is May 21, 1990. 6. Ames True Temper, Inc. ("Ames True Temper") is a profit-making organization whose main business is the sales and service of tools, hardware and lawn and garden equipment, including wheelbarrows. 7. Ames True Temper has offices located at 465 Railroad Avenue, Camp Hill, Cumberland County, Pennsylvania 17011 8. In March of 2004, the Dejoies purchased an Ames True Temper wheelbarrow Model No. R6, from Lowe's Hardware Store ("Lowe's") located in Carlisle, Cumberland County, Pennsylvania. 9. The wheelbarrow was designed, manufactured and supplied to Lowe's by Ames True Temper. 3 , , 10. The Ames True Temper wheelbarrow sold to and purchased by the Dejoies was delivered as a brand new product upon its purchase. 11. On April 25, 2004, Louis was assisting his father with yard work at their Carlisle residence. 12. During such yard work, Louis stumbled over the front of the wheelbarrow scraping his right leg over the front metal wheel guard that protruded beyond the wheel. The action of Louis stumbling over the wheel guard caused Louis' leg to be cut. 13. Louis was taken to Carlisle Hospital, and was treated by an emergency room physician, who administered several shots of medication directly into and around the wound and then stapled and stitched the wound closed. both stapling and stitching the wound following several shots administered directly into and around the wound. 14. Pursuant to physician's orders, Louis was confined to a wheelchair for approximately one week, and to crutches for approximately two weeks thereafter. 15. Louis has recovered from the injury, but has a permanent scar on his leg. 16. Louis is particularly aware of the scar because it is sensitive if hit directly, as it sometimes is during Louis' participation in sporting activities. 17. The cost of Louis' medical treatment was covered by the Dejoies' medical insurance. The Dejoies have not incurred out-of-pocket costs for Louis' treatment. 4 18. Neither Louis nor the Dejoies have incurred any additional expenses beyond the costs of Louis' medical care as a result of his injury. 19. No lawsuit or legal proceeding, other than the instant action, has been instituted as a result of the aforementioned incident. 20. Both the Dejoies and Ames True Temper believe that it is in the best interests of all the parties to resolve this matter expeditiously and without resort to litigation. 21. Subject to the Court's approval, the Petitioners have agreed to enter into a General Release, which is appended hereto as Exhibit A. Under the General Release, Ames True Temper's insurance carrier will pay the Dejoies, individually, and as the parents and natural guardians of Louis, the sum of Thirteen Thousand Five Hundred Dollars ($13,500.00) in settlement of any claims they may have against Ames True Temper arising or to arise out of the alleged injury sustained by Louis. The General Release provides for the immediate payment of this sum to the Dejoies on behalf of Louis. 22. The General Release is a settlement of a disputed claim without admission of liability by Ames True Temper. The Dejoies believe that the settlement sum is adequate to provide for the minor's medical expenses related to this incident, as well as provide adequate compensation for his pain and suffering associated with his injury. 23. Considering the extent of Louis's injuries, the Dejoies believe that Ames True Temper has offered appropriate compensation by way of settlement and compromise and that litigation of any claims would not be in the best interests of Louis. Furthermore, the Dejoies desire a speedy and certain resolution ofthis matter. 5 . . , . 24. The Dejoies believe that the execution of the General Release is in the best interests of Louis, given that the extent of his injuries, that the proposed payment is sufficient to cover all expenses incurred, and reasonably anticipated to be incurred, as a result of this incident, and that the outcome of litigation would be uncertain. 25. Louis A. Dejoie, III is himself an attorney admitted to practice In this Commonwealth and a member of the law firm of McNees Wallace & Nurick LLC. Mr. Dejoie has reviewed the General Release, and believes it to be a fair agreement in the best interests of his son, Louis. 26. Moreover, the Dejoies have retained McNees Wallace & Nurick LLC as their attorneys in this dispute, and members of the firm who practice in the area of personal injury litigation and settlements have reviewed the Settlement Agreement and believe it to be a fair agreement in the best interests of Louis. 27. Ames True Temper has also retained counsel, Post & Schell P.C., who have reviewed the Settlement Agreement and believe it to be in the best interest of all parties. 28. The parties respectfully request that this matter be decided on the petition, without a hearing. WHEREFORE, Plaintiffs Louis A. Dejoie, III and Cynthia Dejoie, individually, and as parents and natural guardians of Louis A. Dejoie, IV, and Defendnat Ames True Temper jointly 6 request that the Court approve the terms of this General Release and the execution of the General Release by the Plaintiffs. Respectfully submitted, Dated: S/%v . By andice J. Gi 'ntano Atty. LD. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PAl 71 08-1166 717-237-5452 Attorneys Louis A. Dejoie, III and Cynthia Dejoie, individually, and as parents and natural guardians of Louis A. Dejoie, N Dated: b J II J l) ~ POST & SCHELL P.C. By ~ 0W\tA-- C P ~ Dana Panagopoulos Atty. LD. No. 3 q"-fq I 1857 William Penn Way P.O. Box 10248 Lancaster, P A 17605-0248 Attorneys for Ames True Temper 7 , Exh,b\t A . . GENERAL RELEASE KNOW ALL MEN BY THESE PRESENTS, that we, LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, individually and as the parents and natural guardians of LOUIS A. DEJOIE, IV, a minor, all of95 East Yellow Breeches Road, Carlisle, Cumberland County, Pennsylvania 17013 (collectively "Releasors"), in consideration of the sum of Thirteen Thousand Five Hundred Dollars ($13,500.00), and other good and valuable consideration, at the time of delivery hereof, the receipt and sufficiency of which is hereby acknowledged, do for ourselves and our heirs, executors, administrators, successors and assigns, hereby release, and forever discharge Ames True Temper their administrators, heirs, agents, owners, insurers, successors and assigns, and any and all other persons, firms, corporations and entities, their administrators, heirs, agents, successors and assigns (hereafter collectively referred to as "Releasees") from any and all actions, causes of action, suits, claims, damages and demands of every kind, name or nature whatsoever, known or unknown, whether in law or in equity, which Releasors or anyone claiming by or through them in any way may have or will claim or could claim against Releasees, in connection with any and all claims, injuries, damages, loss, liability, cost, fee, judgment, cause of action, and any and all other damages, losses or Injuries, known or unknown, based upon, or in any way arising out of, related to or resulting from an incident involving Louis A. DeJoie, IV, a minor, on April 25, 2004 as a result of coming into contact with a certain wheelbarrow manufactured by Ames True Temper, which Releasees have or may have on account of said incident. Payment hereunder constitutes the compromise and settlement of a doubtful and disputed claim and such payment is not to be construed as an admission of liability by the Releasee or anyone on his behalf. We further certify, declare and acknowledge that we have had the right to legal representation through these proceedings and have been advised by counsel in all matters pertaining hereto and we admit that we have relied upon no representation of fact or opinion of Releasees or anyone acting on their behalf to induce this compromise or payment or release. In making this settlement, it is Releasors' intention that this Release be a complete release of any and all claims Releasors have an account of the injuries and damages suffered by Releasors because of the above incident. Releasors represent that we have the sole right and exclusive authority to execute this General Release and receive the sums specified in it; and that we have not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims, demands, obligations or causes of action referred to in this General Release. To the extent there heretofore existed, any liens, medical, workers compensation or otherwise, as a result of the above described incident, Releasors do covenant and agree that they have satisfied same as a condition to this settlement. It is further understood and agreed that we, as further consideration of said payment, will indemnify and hold Releasees harmless from any and all liability, damages, costs, fees and expenses arising from any action or claim, directly or indirectly, against Releasees made by any person or entity as a result of any . . . . damages suffered by, or benefits paid to Releasors, as a result of the subject accident, including, but not limited to all workers' compensation benefits or medical payments made by any person or entity on behalf of Releasor and claimed to be due under the law, state or federal, regulation or contract. As further consideration for this settlement, Releasors do further warrant that they will obtain court approval of the minor's settlement from a court of competent jurisdiction. Releasors further certify, declare and acknowledge that we have read this Release and understand the terms of same; that we are of sound mind, and under no constraint, undue influence, mental reservation, lack of mental capacity or impairment of health or mental faculties or capabilities and that we fully know, understand and comprehend the nature of and the effect of this Release and settlement which we, the adult Releasors, are signing on behalf of the said minor, and that we are signing the same as our own free act and deed, intending to be legally bound thereby, and further sate that we sincerely believe that we are acting in the best interests of our said minor son in entering this General Release. Louis A. Dejoie, III, individually and as parent and natural guardian of Louis A. Dejoie, IV SS# 055-52-1707 This Release contains the entire agreement and understanding between the parties hereto and there are no written or oral understandings or agreements directly or indirectly connected with this Release and settlement that are not incorporated herein. The terms of this Release are contractual and binding and this Release is given under and pursuant to the laws of Pennsylvania. IN WITNESS WHEREOF, and intending to be legally bound hereby, Releasors have hereunto set their hands and seals this _ day of , 2006. CAUTION: READ BEFORE SIGNING - YOU ARE SIGNING A GENERAL RELEASE OF ALL CLAIMS AGAINST PAYOR AND RELEASEE. In the Presence Of: Cynthia Dejoie, individually and as parent and natural guardian of Louis A. Dejoie. IV , . . I ,'.. COMMONWEALTH OF PENNSYLVANIA: : SS COUNTY OF CUMBERLAND: On this, the day of , 2006, before a Notary Public, the undersigned officer, personally appeared LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, known to me (or satisfactorily proven) to be the persons who executed the foregoing Release, and duly acknowledged to me that they executed said Release for the purposes therein stated. Notary Public My Commission Expires: IN WITNESS WHEREOF, I have hereunto set my hand and official seal. . " . o c " ~. f ( C~ --1 ~-< ,....., => c;:) u", :::x: o " ~::n n'r- :-ggJ OL ~-lU r:n ~~,2 C) am c.;! 5:J -< ::I;;" -< U1 :po. 3: c> '-0 '. . .. . L'~~~; ..(~: '~:-, ..,v~-::.:~.~) ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA \ 'Ye ,,------- -.-,...~-_._._- MAY 1 7 2006 LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs CIVIL ACTION - LAW NO. 06-1576 vs. AMES TRUE TEMPER, INC. Defendant ORDER AND NOW, this ~ day of ,r"7 , 2006, upon presentation and consideration of the Joint Petition For Approval of Settlement Involving the Claim of a Minor Pursuant to Pa.R.C.P. No. 2039, the terms of the General Release are approved. It is further ORDERED that: I) the compromise sum provided in the General Release, being less than $25,000, shall be delivered to Louis A. Dejoie, III, and Cynthia Dejoie to hold for the benefit of the minor, Louis A. Dejoie, IV, pursuant to Rule 2039 of the Pennsylvania Rules of Civil Procedure; and, 2) upon their receipt of the agreed compromise sum, the General Release shall be executed by to Louis Dejoie, III, and Cynfhia Dejoie and delivered to Ames True Temper, Inc. BY THE OURT: / , ;:;14 ~ ~CJ ~\ o I,1IN\f:ll\S':I!NOjd ,I', ~ 1('1"".', ,~. "......_'~.. ""n.... ~\.L " ".' ; """':::'?'{/f, v 6t :IH/V 81 ,(11#900, J..i:N10NOH10i:id 3H.J. :fa 301:!;:iCt-(j37/:J ,. -. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LOUIS A. DEJOIE, III and CYNTHIA DEJOIE, Individually and as Parents and Natural Guardians of LOUIS A. DEJOIE, IV, Plaintiffs vs. AMES TRUE TEMPER, Defendant CIVIL ACTION - LAW NO. 06-1576- Civil Term PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action settled, discontinued and ended. Date: July 6, 2006 McNEES WALLACE & NURleK LLe By Kandic J. Giurintano LD. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, P A 17108 (717) 232-8000 Attorneys for Plaintiff ..... __I (" of' * CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a true and correct copy of the foregoing document was served by first class mail, postage prepaid, upon the following: Dana C. Panagopoulos, Esquire Post & Schell, p.e. 1857 William Penn Way Lancaster, P A 17605 Dated: July 6, 2006 (' .,. ,......,,) l:..,.;.' j "".1 ---I -...... (. ')