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PA Bulletin, Doc. No. 05-932

THE COURTS

SCHUYLKILL COUNTY

Amended Civil Rules of Procedure; S-788-05

[35 Pa.B. 2871]

Order of Court

   And Now, this 22nd day of April, 2005, at 4:30 p.m., Schuylkill County Civil Rules of Procedure 2206, 2039 and 1301 are amended/adopted for use in the Court of Common Pleas of Schuylkill County, Pennsylvania, Twenty-First Judicial District, Commonwealth of Pennsylvania, effective thirty days after publication in the Pennsylvania Bulletin.

   The Prothonotary of Schuylkill County is Ordered and Directed to do the following:

   1)  File ten (10) certified copies of this Order and Rule with the Administrative Office of Pennsylvania Courts.

   2)  File two (2) certified copies of this Order and Rule with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin together with a diskette reflecting the text in the hard copy version.

   3)  File one (1) certified copy of this Order and Rule with the Pennsylvania Civil Procedural Rules Committee.

   4)  Forward one (1) copy to the Schuylkill County Law Library for publication in the Schuylkill Legal Record.

   5)  Keep continuously available for public inspection copies of this Order and Rule.

   It is further Ordered that said rules as they existed prior to the amendment is hereby repealed and annulled on the effective date of said rule as amended, but no right acquired thereunder shall be disturbed.

By the Court

WILLIAM E. BALDWIN,   
President Judge

Rule 2206 Petitions for Approval of Wrongful Death and Survival Settlements.

   (a)(1)  Petitions for Approval of Wrongful Death and Survival Settlements shall be filed in the Orphans' Court Division where the estate is being administered if no suit has been previously filed or in the Prothonotary's Office under the docket number of the previously filed suit.

   (2)  The petition shall set forth:

   (i)  A heading briefly identifying the purpose of the petition;

   (ii)  The factual background of the claim;

   (iii)  Whether the decedent died intestate; if the decedent died testate, a copy of the will shall be attached to the petition;

   (iv)  Identification of the wrongful death beneficiaries;

   (v)  Whether any wrongful death beneficiaries are minors or incapacitated persons and whether a guardian has been appointed for the person or estate;

   (vi)  Counsel's analysis of the liability and damages issues relevant to the determination of the reasonableness of the proposed settlement;

   (vii)  The types and amounts of insurance coverage applicable to the claim and representation as to the efforts made to identify other collateral sources;

   (viii)  The proposed apportionment between wrongful death and survival recoveries including the factual basis for said apportionment;

   (ix)  Whether there are any unpaid liens, claims or debts;

   (x)  A statement of the proposed distribution of the settlement funds, which includes the percentage of requested counsel fees and an itemization of costs. The petitioner shall attach appropriate documentation in support of the itemized costs; and

   (xi)  Certification of joinder of the beneficiaries in the terms of the proposed settlement and petition.

   (3)  The petition shall contain the following exhibits:

   (i)  Copies of accident, medical or expert reports related to the alleged cause of death of decedent;

   (ii)  The counsel fee agreement between any counsel seeking recovery of counsel fees and the administrator, executor or beneficiaries on whose behalf approval of settlement is sought; and

   (iii)  A copy of correspondence from the Pennsylvania Department of Revenue approving the proposed allocation of settlement funds between the wrongful death and the survival actions.

   (4)  Any amendments or supplements to the petition required by the Court shall be filed of record.

   (5)  All petitions filed under this rule shall be assigned to the Orphans' Court for disposition. The Court may approve a petition without a hearing. If the Court schedules a hearing, the Court may require the personal attendance and testimony of the administrator or executor of the estate on whose behalf the settlement is sought, the representative of the financial institution responsible for the investment of settlement funds received by a minor or incapacitated person, or any other evidence which the Court deems necessary to determine whether the proposed settlement adequately protects the interests of the decedent's estate or the distribution to minors or incapacitated persons.

   (6)  The Court may require a hearing on the issue of counsel fees. If a hearing on counsel fees is required, the Court shall require the testimony of counsel primarily responsible for the preparation of the case.

   (7)  The Petitioner shall attach a proposed order in substantially the following form and setting forth:

   (i)  The Court's authorization for the petitioner to enter into a settlement and release;

   (ii)  Reference to the total amount of the settlement; and

   (iii)  A complete statement of the distribution of the settlement amount as set forth in the petition.

(CAPTION)

ORDER OF COURT

   AND NOW, this ____ day of ______ , 20 ____ , at ____ .m., upon consideration of the Petition for Approval of Wrongful Death and Survival Settlement, noting the consent of the Pennsylvania Department of Revenue, and the certification filed by counsel, the Court finds that there are no outstanding unpaid creditors of the Estate and that the proposed settlement of the civil survival action is adequate to protect the interests of the estate and beneficiaries, IT IS THEREFORE ORDERED AND DECREED that payment of _____ Dollars ($ _____ ) in settlement of the Survival Action is APPROVED.

   The settlement proceeds shall be distributed as follows:

   TO: ______ , attorney at law, $ _____ for counsel fees;

   TO: ______ , attorney at law, $ _____ for reimbursement of costs;

   The balance of the settlement is apportioned as follows:

   Wrongful Death Action      $ ______

   TO: (spouse)

   TO: (child)

   TO: (other)

   Survival Action      $ ______

   TO: ______ , personal representative of the Estate of ______ .

BY THE COURT,

_________________

Rule 2039 Petitions for Approval of Minors' Compromises.

   (a)(1)  Petitions for Approval of Settlement or Compromise in matters in which a minor has an interest shall be filed in the Orphans' Court Division where the minor resides if no suit has been previously filed or in the Prothonotary's Office under the docket number of the previously filed suit.

   (2)  The petition shall set forth:

   (i)  The factual background of the claim;

   (ii)  The identification of the parties, including the age of the minor and the addresses of the biological parents of the minor; (if the minor is not living with both natural parents, a copy of any order of court awarding custody or guardianship and a description of where and with whom the minor has resided over the preceding five years);

   (iii)  Counsel's analysis of the liability and damages issues relevant to the determination of the reasonableness of the proposed settlement;

   (iv)  Counsel's certification that the settlement is reasonable and in the best interest of the minor;

   (v)  The types and amounts of insurance coverage applicable to the claim and representation as to the efforts made to identify other collateral sources;

   (vi)  Whether there are any unpaid liens, claims or debts. Where claims or debts have been waived, petitioner shall attach as an exhibit written proof of waiver of such lien, claim or debt;

   (vii)  A request for authorization of parent or natural guardian to sign the proposed release;

   (viii)  A description of the type of account into which the settlement proceeds will be deposited;

   (ix)  A statement of the proposed distribution of the settlement funds which includes the proposed percentage of counsel fees and an itemization of costs. The petitioner shall attach appropriate documentation in support of the itemized costs; and

   (x)  Certification of joinder of the custodial parent(s) or appointed guardians in the proposed settlement.

   (3)  The petition shall contain the following exhibits:

   (i)  Copies of medical reports or records evidencing the diagnosis and prognosis of the minor's injuries;

   (ii)  Investigative or police accident reports which provide background information regarding the incident which caused the minor's injuries; and

   (iii)  The counsel fee agreement with the parents or natural guardians of the minor executed by any attorney seeking recovery of counsel fees.

   (4)  Any amendments or supplements to the petition required by the Court shall be filed of record.

   (5)  All petitions filed under this rule shall be assigned to the Orphans' Court for disposition. The Court may approve a petition without a hearing. If the Court schedules a hearing, the Court may require the personal attendance and testimony of the guardian, the treating physician, the representative of the financial institution responsible for the investment of settlement funds or any other evidence which the Court deems necessary to determine whether the proposed settlement adequately protects the minor's interests.

   (6)  The Court may require a hearing on the issue of counsel fees if counsel seeks the recovery of fees in excess of 25% of the gross settlement amount. If a hearing on counsel fees is required, the Court shall require the testimony of counsel primarily responsible for the preparation of the case.

   (7)  Except as otherwise required by the Court, the appearance of the minor shall not be required.

   (8)  The Petitioner shall attach a proposed order found at subsection (c) which sets forth:

   (i)  The Court's authorization for the petitioner to enter into a settlement and release on behalf of the minor;

   (ii)  Reference to the total amount of the settlement;

   (iii)  A complete statement of the distribution of the settlement amount as set forth in the petition;

   (iv)  Identification of the type of account to be utilized, which account shall comply with Pa.R.C.P. 2039, including a provision that no withdrawal shall be made from any such account until the minor attains majority or by a prior order of court;

   (v)  A provision that counsel shall provide the court with an Affidavit of Deposit of Minor's Funds within thirty (30) days from the date of the order. Said affidavit shall be in substantially the form as follows:

(CAPTION)

AFFIDAVIT OF DEPOSIT OF MINOR'S FUNDS

   The undersigned, counsel for ______ , parents and natural guardians of ______ , a minor, hereby certifies that the net settlement amount of $ _____ as set forth in this Court's order dated ______ was deposited by ______ into a restricted, federally insured account, marked ''NOT TO BE WITHDRAWN UNTIL THE MINOR REACHES THE AGE OF EIGHTEEN (18), EXCEPT FOR THE PAYMENT OF LOCAL, STATE AND FEDERAL INCOME TAXES ON INTEREST EARNED BY THE SAVINGS ACCOUNT OR CERTIFICATE, IF ANY, OR UNTIL FURTHER ORDER OF THIS COURT'' on ______ . Account No. ______ is entitled: ______ , a minor. Proof of deposit is attached hereto as Exhibit A.
 

_________________
Counsel for Parents and Natural Guardians
of ______ , a minor                 

   (b)  The Court shall, in appropriate cases, authorize the parent or natural guardian to deposit cash to be paid for the benefit of the minor into an interest bearing, restricted account, insured by the Federal government, which conforms to the provisions of Pa.R.C.P. 2039.

   (c)  Form of Proposed Order. The form of proposed order shall be substantially as follows:

(CAPTION)

ORDER OF COURT

   AND NOW, this ____day of ______ , 20 ____ , at ____ .m., upon consideration of the Petition for Approval of Minor's Settlement, it is hereby ORDERED and DIRECTED that the Compromise Settlement in the sum of _____ Dollars ($ _____ ) is APPROVED, and that the Settlement be distributed as follows:

   1.  The sum of _____ Dollars ($ _____ ) shall be paid to ______  for his legal representation of the plaintiff(s).

   2.  The sum of _____ Dollars ($ _____ ) shall be paid to ______ for costs expended.

   3.  The sum of _____ Dollars ($ _____ ) shall be distributed to the benefit of ______ , a minor, to be placed in one or more federally insured savings accounts or federally insured savings certificates in the name of the minor so that the amount deposited in any one such savings institution shall not exceed the amount to which accounts are insured, and to be marked ''NOT TO BE WITHDRAWN UNTIL THE MINOR REACHES THE AGE OF EIGHTEEN (18), EXCEPT FOR THE PAYMENT OF LOCAL, STATE AND FEDERAL INCOME TAXES ON INTEREST EARNED BY THE SAVINGS ACCOUNT OR CERTIFICATE, IF ANY, OR UNTIL FURTHER ORDER OF THIS COURT''.

   Counsel for petitioners is ORDERED to cause the restricted account to be created and to file an affidavit of deposit of minor's funds within thirty (30) days hereof.

   Jurisdiction of any further proceeding concerning the minor's estate is transferred to the Orphans' Court Division for disposition.

   Pursuant to Sch.Co.O.C. Rule 12.5B(c), if no withdrawals are made from the account prior to the minor reaching his/her majority, the institution may pay over the funds when the minor attains age eighteen (18) years,upon the joint requests of the natural parent(s) and the former minor without further Order of this Court.

BY THE COURT,

_________________

Rule 1301 Scope of Procedure.

   (a)  All civil cases, where the amount in controversy (exclusive of interest and costs) is less than the compulsory arbitration amount for fourth class counties as set forth in the Judicial Code [42 Pa.C.S.A. 7361(b)], including claims or mechanics liens and all appeals from a civil judgment of a Magisterial District Judge, excepting those involving title to real property and those involving equitable or other than monetary relief, shall be submitted to compulsory arbitration.

   (b)  In addition, cases, whether or not at issue and without regard to the amount in controversy, may be referred to a Board of Arbitrators by an agreement of reference signed by all of the parties and their counsel. The agreement of reference may contain stipulations as to facts agreed upon or defenses waived. In such cases, the agreement of reference shall take the place of the pleadings and shall be filed of record.

   (c)  The Court, on its own motion or on the motion of either party at pre-trial settlement conference, after depositions, after hearing or otherwise, may determine that the amount actually in controversy does not exceed the compulsory arbitration amount as set forth at 42 Pa.C.S.A. § 7361(b) and may enter an order of reference to a Board of Arbitration.

[Pa.B. Doc. No. 05-932. Filed for public inspection May 13, 2005, 9:00 a.m.]


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