Penn. 37 C.P.L. 2039, 2064, and 2206

As amended through January 1, 2018

Rule 2039, 2064, and 2206 - Approval of Compromises Involving Minors, Incapacitated Persons, Wrongful Death And Survival Actions

1. Minor or incapacitated person's compromises:

Situs of the filing of the petition.

(a) Petitions for approval of settlements in cases where minors or incapacitated persons have an interest shall be filed with the Prothonotary if the underlying suit has been filed with the Prothonotary. If no suit has been filed , such petitions shall be filed with the Clerk of the Orphans' Court.

(b) Contents of petition. The petition shall be substantially in the form set forth hereunder, and shall:

(1) set forth the date of birth and social security number of the minor plaintiff or incapacitated person, the names and addresses of the minor's parents, the name of the plaintiff's guardian and the appointing court, the address of the plaintiff, and a factual recitation of the salient facts which form the bases of the cause of action;

(2) state the terms of the settlement, including the specific provisions of any annuity, if applicable, including the credit rating of the entity which assumes responsibility for future payments, the present cost of the annuity, periodic and lump sum payments, and otherwise comply with Pa. R.C.P. 2039 and 2064;

(3) state whether a lien or claim has been raised on behalf of any medical supplier, including the Department of Public Welfare;

(4) contain or be accompanied by the following:

(a) a written report of a physician setting forth the present condition of the minor or incapacitated person;

(b) a statement under oath by the guardian and, if appropriate, the parent(s), certifying (i) the present physical or mental condition of the minor or incapacitated person, and (ii) approval of the proposed settlement and distribution thereof;

(c) a statement of the professional opinion of counsel as to the reasonableness of the proposed settlement and the basis for such opinion; and

(d) if there is to be an allocation between parents and children or incapacitated persons, or among children or other parties, the amounts allocated to each party and the specific reasons for such allocation must be set forth. In the event more than one plaintiff is involved, whether minor, adult or incapacitated, Petitioner must set forth the amount each plaintiff is to receive and shall provide justification for the requested allocation;

(e) in the event that a minor is sixteen (16) years of age or older, his or her written approval of the proposed settlement and distribution thereof.

(f) a proposed Order.

(g) Opinion of Guardian. When the minor or incapacitated person is represented by a guardian ad litem, the guardian ad litem shall submit a statement concerning his/her opinion as to the reasonableness of the proposed settlement and requested allocation of the gross settlement proceeds.

(h) Proof of Deposit and Compliance with Court Order. Within sixty (60) days of the entry of a final order, counsel shall file an affidavit with the Prothonotary certifying compliance with the court order, and shall submit proof of deposit in the form of a photocopy of the restricted certificate of deposit or bankbook. The affidavit shall be substantially in the form set forth hereunder.

2. Petitions for Approval of Settlements in Wrongful Death/Survival Actions.

(a) When Required.

(1) Survival Action. Court approval of settlements in survival actions is always required.

(2) Wrongful Death. If the complaint only raised a wrongful death claim, court approval of settlements shall be required only where a minor or incapacitated person has an interest.

(3) Combined Wrongful Death and Survival Actions. If the complaint raised wrongful death and survival claims, court approval is required as to allocation between the categories notwithstanding the absence of minors or incapacitated persons, even if plaintiff requests that the entire proceeds be allocated entirely to the wrongful death claim.

(b) Situs of the Filing of the Petition. Petitions for Approval of Settlements in Wrongful Death or Survival Actions shall be filed with the Prothonotary if the underlying suit has been filed with the Prothonotary. If no suit has been filed, such petitions shall be filed with the Clerk of the Orphans' Court.

(c) Contents of Petition. The Petition shall be substantially in the form set forth hereunder, and shall:

(1) set forth the date of death of plaintiff-decedent, the name of the personal representative of the estate and the county of appointment. A copy of the Decree of the Register must be attached;

(2) state the terms of the settlement, including the specific allocation as between wrongful death and survival, name the wrongful death beneficiaries and the amount each is to receive, name the intestate heirs of Plaintiff-decedent as of the date the cause of action arose, state reasons why the settlement and allocation are reasonable, and otherwise comply with Pa. R.C.P. 2206. In the event a portion of the settlement is payable through the purchase of an annuity, set forth the credit rating of the entity which assumes responsibility for future payments, the present cost of the annuity, as well as the periodic and lump sum payments.

(3) show compliance with Pa. R.C.P. 2205 and set forth the name, relationship and address of plaintiff-decedent's intestate heirs who must be served with a copy of the petition (as required by 20 Pa. C.S.A. § 2101, et. seq.)

(4) identify any other parties who may have a possible interest in plaintiff-decedent's estate, and list unpaid claims raised, or which are outstanding, in the decedent's estate;

(5) state whether a lien or claim has been raised on behalf of any medical supplier, including the Department of Public Welfare; and

(6) attach a proposed order.

(d) Proof of Deposit and Compliance with Court Order. Within sixty (60) days of the entry of a final order, counsel shall file an affidavit with the Prothonotary substantially in the form set forth hereunder, certifying compliance with the court order and shall submit proof of deposit in the form of a photocopy of the restricted certificate of deposit or bankbook. The affidavit shall be substantially in the form set forth hereunder.

3. Petitions for Allowance

(a) Petitions for Allowance in those cases where a guardian has been appointed by the Orphans' Court Division of Warren/Forest County shall be filed directly with such division. A copy of the order approving the settlement shall be attached to the petition.

(b) Petitions for Allowance in those cases where a guardian has been appointed by the Orphans' Court Division of a county other than Warren/Forest County, or by a different state, shall be filed directly with such appointing court. A copy of the order approving the settlement shall be attached to the petition.

(c) Petitions for Allowance in those cases where a guardian has not been appointed shall be filed with the Orphans' Court Division of the appropriate county or other state. A copy of the order approving the settlement shall be attached to the petition.

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

WARREN/FOREST COUNTY

CIVIL

___________________________

Plaintiff

vs. No.

___________________________

Defendant

PETITION FOR LEAVE TO SETTLE OR COMPROMISE MINOR'S ACTION

To the Honorable, _________________ the Judge of the said court:

The petition of ______________________ , a minor, by his guardian (see Pa. R.C.P. 2028 ), by his attorney, ____________ , Esq. respectfully requests:

1. Petitioner is (see Pa. R.C.P. 2026 ): _________

2. The minor was born on ______________ and his/her social security number is _________________

3. The minor resides with _____________ at the following address: ____________________________

4. A guardian (was)(was not) appointed for the minor as follows: _____________________________

___________________________________________

A copy of the order is attached.

5. The minor's mother is _______________ who resides at the following address: ________________

6. The minor's father is ________________ who resides at the following address: _________________

7. The defendant is ________________ who resides or whose principal place of business at all relevant times was ___________________________ .

8. On ______________________ , the minor sustained the following injuries at the following location (set forth in detail): _______________________________________________________________

(If additional space is needed, please continue on separate page.)

A complaint was filed against defendant(s) as follows: ____________________________________

Attached hereto is a report by Dr. _________ dated _______ which sets forth the present condition of the minor.

11. Attached hereto is a statement, under oath, of the minor's parents and/or guardian and/or guardian ad litem certifying the physical and/or mental condition of the minor, as well as the parents' and/or guardian's and/or guardian ad litem's approval of the proposed settlement and distribution.

12. Attached hereto is the written approval of the proposed settlement and distribution by the minor, who is sixteen (16) years of age or older.

13. The following settlement has been proposed:

__________________________________________

(If additional space is needed, please continue on separate page.)

14. Counsel is of the professional opinion that the proposed settlement is reasonable due to the following:

___________________________________________

(If additional space is needed, please continue on separate page.)

15. Counsel has incurred the following expenses for which reimbursement is sought. (Please set forth in detail):

___________________________________________

(If additional space is needed, please continue on separate page.)

16. The following costs have been incurred by or on behalf of the minor and must be paid from the proceeds of the settlement:

___________________________________________

(If additional space is needed, please continue on separate page.)

17. The Department of Public Welfare, or any other entity, does (not) have a claim or lien against the plaintiff(s) as follows:

___________________________________________

(If additional space is need, please continue on separate page.)

18. Counsel requests a fee in the sum of $ ______________ which is ______ % of the net settlement payable to the minor. A copy of the retainer fee is attached.

19. Counsel (has)(has not) and (will)(will not) receive collateral payments as counsel fees for representation involving the same matter from third parties (i.e. subrogation).

20. The net settlement payable to the minor (after deduction of costs and attorney's fees) is $ _____________ .

WHEREFORE, Petitioner requests that he/she be permitted to enter into the settlement recited above and that the Court enter an Order of Distribution as follows:

a. To __________________________

$ _______________

Reimbursement for Costs

b. To __________________________

$ _______________

c. To __________________________

$ _______________

Counsel fee

d. To: Adult Plaintiff(s) (if applicable)

____________________________

$ _______________

e. To _________________________ , a minor, in restricted accounts not to be withdrawn before majority or

upon leave of Court $ _______________

f. To _____________________ , the guardian of the estate of ________________ , a minor, appointed or to be

appointed by the Orphans' Court of ___________ County, after posting appropriate security.

$ _______________

______________________________

Name of attorney Attorney for petitioner

VERIFICATION

I, ________________________ , am the petitioner in this action and hereby verify that the statements made in the

foregoing petition to settle or compromise minor's action are true and correct to the best of my knowledge, information and belief.

I understand that the statements in said petition are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

____________________________________

Date Petitioner

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

No. of

ORDER APPROVING SETTLEMENT AND ORDER FOR DISTRIBUTION

AND NOW, this _____ day of ______________ , ____, upon consideration of the Petition for Leave to Compromise a Minor's Action, filed _____________ it is hereby ORDERED and DECREED that Petitioner is authorized to enter into a settlement with Defendant(s) ______________ in the gross sum of ____________ ($ __________ ) dollars. Defendant(s) shall forward all settlement drafts or checks to Petitioner's counsel for proper distribution.

IT IS FURTHER ORDERED and DECREED that the settlement proceeds be allocated as follows:

1. To: Minor Plaintiff(s)

NameDate of birthSocial Security

___________________________________________

$ ________________

___________________________________________

$ ________________

2. Adult Plaintiff(s)

___________________________________________

$ ________________

___________________________________________

$ ________________

IT IS FURTHER ORDERED and DECREED that the settlement proceeds be distributed as follows:

NameDate of birthSocial Security#

___________________________________________

$ ________________

a. To: __________________________________ , Esq.

$ ________________

Reimbursement costs

b. To: ______________________________________

$ ________________

c. Costs to: _____________________________ , Esq.

$ ________________

Counsel fees

d. The balance, the sum of $ _____________ payable to _________________ , a minor, shall be distributed as follows:

OPTION 1

To: ________________ , Guardian $ _________ of the Estate of ______________ , a minor; provided, however, that no payment shall be made to the guardian until the guardian has posted additional security as required by the Orphans' Court Division of _______________ County pursuant to 20 Pa. C.S. § 5121, et seq. An appropriate petition shall be filed with the Orphans' Court within thirty (30) days.

OPTION 2

Counsel is hereby authorized to execute all documentation necessary to purchase saving certificate(s), from federally insured banks or savings institutions having an office in Forest/Warren County, in the sum of $ ______________ , each not to exceed the insured amount, with the funds payable to the minor upon majority. The certificate shall be titled and restricted as follows:

____________________________ , a minor, not to be redeemed except for renewal in its entirety, not to be withdrawn, assigned, negotiated, or, otherwise alienated before the minor attains majority, except upon prior order of Court.

Counsel shall open a savings account in the sum of $ _______________ in the name of the minor. The savings account shall be titled and restricted as follows: ____________________________ , a minor, not to be withdrawn before the minor attains majority, except for the payment of city, state, and federal income taxes on the interest earned by the savings certificate and savings account, or upon prior order of Court.

2. Adult Plaintiff

The portion of the settlement payable to ________________ , an adult plaintiff named in the complaint, shall be distributed as follows:

To: __________________________ , Esquire

$ ______________

Reimbursement of Costs

To: ________________________________

$ ______________

Costs

To: __________________________ , Esquire

$ ______________

Counsel Fees

To: ________________________________

$ ______________

Plaintiff

Counsel shall file with the Prothonotary within sixty (60) days from the date of this final order, proof of the establishment of the accounts as required herein, by affidavit from counsel certifying compliance with this order. Counsel shall attach to the affidavit a copy of the Certificate of Deposit and/or bank account containing the required restrictions.

BY THE COURT

_______________

Judge

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

_________________

vs. No. of _________________

AFFIDAVIT

I, ______________________ Esquire, hereby state and affirm that I have complied with the order issued on ________ by the Honorable __________________ as follows:

Copies of bank accounts are attached hereto.

I verify that the statements in the affidavit are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

__________________ ,Esq. ______________

Attorney for Petitioner Date

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

__________________

vs. No. of __________________

PETITION TO SETTLE WRONGFUL DEATH AND SURVIVAL ACTIONS

To the Honorable _____________ , the Judge of the said court:

The petition of _______________________ , Administrator/Executor of the Estate of __________ , deceased, by his/her attorney, __________________ ,Esq., respectfully requests:

1. Petitioner is ____________________ who was appointed Administrator/Executor of the Estate of ________ , deceased, on ____________ ,___, by the Register of Wills of _________ County. A copy of the Decree of the Register is attached.

2. The plaintiff decedent died on ________ as a result of: [set forth relevant information describing the underlying negligence or cause of action as required by Forest/Warren Rule L _______ ]

___________________________________________

(If additional space is needed, please continue on separate sheet).

3. Notice of the institution of the action as required by Pa. R.C.P. 2205 and Forest/Warren Rule L _______ was

given on _________________ to the following individuals:

Name Address

___________________________________________

4. Pursuant to Forest/Warren Rule L _______ Petitioner has served a copy of this petition on the intestate heirs of plaintiff decedent (as provided in 20 Pa. C.S. § 2101 et seq.) who are as follows:

Name Relationship Address

___________________________________________

5. Pursuant to Forest/Warren Rule L ________ Petitioner has served a copy of this petition on the following parties who may have a possible interest:

Name Relationship Address

___________________________________________

6. Decedent (did)(did not) have a will. A copy is attached.

7. The following unpaid claims have been raised and/or are outstanding in the decedent's estate: Creditor Amount due

___________________________________________

8. A complaint was filed against defendant(s) as follows: ____________________________________

___________________________________________

9. The following settlement has been proposed: ___________________________________________

(If additional space is needed, please continue on a separate page).

10. Counsel is of the professional opinion that the proposed settlement is reasonable due to the following (state the reasons why in the professional opinion of counsel the settlement is proper): _______

___________________________________________

11. Petitioner is of the opinion that the proposed settlement is reasonable.

12. Counsel has incurred the following expenses for which reimbursement is sought (Please set forth in detail):

__________________________________

___________________________________________

(If additional space is needed, please continue on separate page).

13. Counsel requests counsel fees in the amount of $ __________ which represents _______ % of the net proceeds of the settlement.

14. Petitioner requests allocation of the net proceeds of the settlement (after deduction of costs and attorneys fees) as follows:

a. Wrongful Death Claim $ ____________________

b. Survival $ ____________________

15. The reasons for the requested allocation are as follows: __________________________________

___________________________________________

16. Pursuant to the Wrongful Death Statute (42 Pa. C.S. § 8301), the beneficiaries of the Wrongful Death claim, and the proportion of their interest, are as follows:

Name Amount due

_____________________ $ _________________

17. The pecuniary loss suffered by the beneficiaries listed in Paragraph 15 is as follows:___

___________________________________________

(If additional space is needed, please continue on a separate page).

Wherefore, Petitioner requests that he/she be permitted into the settlement recited above, and that the Court enter an Order of Distribution as follows:

a. To: ______________________

$ _________________

Reimbursement for costs

b. To: ______________________

$ _________________

Costs

c. To: ______________________

$ _________________

Counsel fees

d. Wrongful Death Claim

i. To: Spouse; and/or

$ _________________

ii. To: Adult child(ren); and/or

$ _________________

iii. To: Minor child(ren) and/or incapacitated persons;

$ _________________

and/or

(a) in restricted accounts; or $ _________________

(b) to the guardian of the minor(s) estate; and/or $ _________________

iv. To: Parent(s)

$ _________________

e. Survival claim To: _______________________ , Administrator/

Executor of the Estate of _______________ ,

Deceased _________________

Respectfully submitted,

____________________

Attorney for Petitioner

VERIFICATION

I, _____________________________ , am the Petitioner in this action and hereby verify that the statements made in the foregoing Petition to Settle or Compromise Minor's Action are true and correct to the best of my knowledge, information and belief.

I understand that the statement in said Petition are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

___________________________ _____________

Petitioner Date

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

_____________________________________________________________________________________________________________________________________

_________________

vs. No. of _________________

NOTICE

To: _____________________________

(name of beneficiary) Date: ___________________________

You are hereby notified that, ____________ ,

Administrator/Executor of the Estate of __________ , deceased has filed (or will file) on ______ , a Petition to Approve a Settlement of a Wrongful Death and Survival Action. A copy of that Petition is enclosed.

If you object to the proposed settlement and/or proposed distribution, you must submit your written objections on Response to the Petition on or before _________ , ______ , to the following address:

Prothonotary

Warren County Courthouse

204 Fourth Avenue

Warren, PA 16365

Prothonotary

Forest County Courthouse

Tionesta, PA 16353

I hereby certify that the within Notice has been mailed to the above named individual(s) on the date set forth above.

_______________________________

Attorney for Petitioner

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

_________________

vs. No. of _________________

ORDER

AND NOW, this _______ day of _____________ , ______ , upon consideration of the Petition to Compromise Wrongful Death and Survival Action filed on ___________ , ______ , it is hereby ordered and decreed that Petitioner is authorized to enter into a settlement with Defendant(s) ______________________________ , in the gross sum of $ ___________ ) dollars. Defendant(s) shall forward all settlement drafts or checks to Petitioner's counsel for proper distribution.

It is further ordered and decreed that the settlement proceeds are allocated as follows:

1. Wrongful Death $ ___________________

2. Survival Claim $ ___________________

It is further ordered and decreed that the settlement proceeds be distributed as follows:

1. To: ___________________________ , Esq.

$ ______________

For costs

2. To: ___________________________ , Esq.

$ ______________

For counsel fees

3. The Wrongful Death Claim in the sum of

$ ______________

shall be paid as follows:

a. To: Spouse; and/or $ ______________

b. To: Adult Child(ren); and/or $ ______________

c. To: Minor Child(ren) as provided hereunder $ ______________

OPTION 1

To: ___________________________ , $ ___________ Guardian of the Estate of _____________________ , a minor; provided, however, that no payment shall be made to the guardian until the guardian has posted additional security as may be required by the Orphans' Court Division of ______________ County pursuant to 20 Pa. C.S. § 5121, et seq. An appropriate petition shall be filed with the Orphans' Court within thirty (30) days.

OPTION 2

Counsel is hereby authorized to execute all documentation necessary to purchase saving certificate(s), from federally insured banks or savings institutions having an office in Forest/Warren County, in the sum of $ _____________ , each not to exceed the insured amount, with the funds payable to the minor upon majority. The certificate shall be titled and restricted as follows:

Not to be redeemed except for renewal in its entirety, not to be withdrawn, assigned, negotiated, or otherwise alienated before the minor attains majority, except upon prior order of Court. Counsel shall open a savings account in the sum of $ __________ in the name of the minor. The savings account shall be restricted as follows:

Not to be withdrawn before the minor attains majority, except for the payment of city, state, and federal income taxes on the interest earned by the savings certificate and savings account, or upon prior order of Court.

d. To: Parent(s)

$ ______________

4. The Survival Claim in the sum of $ _________ shall be paid to ___________________________ , Administrator/Executor, of the Estate of ________________________ , deceased; provided, however, that counsel shall not distribute any funds to the said Administrator/Executor until the additional security as may be required by the Register of Wills of ________________ County pursuant to 20 Pa. C.S. § 3323(b)(3) is posted.

Within sixty (60) days from the date of this final Order, counsel shall file with the office of Civil Administration an Affidavit from counsel certifying compliance with this order. Counsel shall attach to the Affidavit a copy of the Certificate of Deposit and/or bank account containing the required restrictions.

BY THE COURT

____________________

Judge

cc: Register of Wills of _______________ County

IN THE COURT of COMMON PLEAS

OF THE 37T H JUDICIAL DISTRICT of PENNSYLVANIA

FOREST/WARREN COUNTY

CIVIL

__________________

vs. No. of __________________

AFFIDAVIT

I, _______________________ Esq. hereby state and affirm that I have complied with the Order issued on _________________ by the Honorable _____________________________ as follows:

Copies of bank accounts are attached hereto.

I verify that the statements in this affidavit are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.

________________ , Esq. ____________

Attorney for Petitioner Date

_____________________________________________________________________________________________________________________________________

Penn. 37 C.P.L. 2039, 2064, and 2206

Amended effective 1/14/2014 and 1/24/2014.