Title 249--PHILADELPHIA RULES PHILADELPHIA COUNTY Joint General Court Regulation; Trial Division and Orphans' Court Division; No. 97-1 [27 Pa.B. 3513] Procedure for Approval of Compromises Involving Minors, Incapacitated Persons, Wrongful Death and Survival Actions In order to fully implement a comprehensive procedure dealing with the settlement of cases involving Minors, Incapacitated Persons, Wrongful Death and Survival Actions in light of the experience gathered through the implementation of Joint General Court Regulation No. 93-2 issued by the Administrative Judges of the Trial and Orphans' Court Divisions, It Is Hereby Ordered and Decreed that the said Joint General Court Regulation is rescinded and consistent with Pa.R.C.P. No. 2039, 2064 and 2206 and Phila. Civ. R. No. *2039.1 and *2206, the following procedure shall be utilized in approving Petitions for settlements involving minors, incapacitated persons, wrongful death and survival actions:
I. Minor or Incapacitated Person's Compromises
(a) Situs of the Filing of the Petition. Petitions for Approval of Settlements in cases where minors or incapacitated persons have an interest shall be filed with the Prothonotary. The Prothonotary shall forward the Petition to the office of Civil Administration where it will be held until after the expiration of the Response period whereupon, by designation of the Administrative Judge of the Trial Division, and by agreement of the Administrative Judge of the Orphans' Court Division, the Petition will be assigned to a Judge of the Orphans' Court Division, as directed by the Administrative Judge of the Orphans' Court Division, for the entry of an appropriate final appealable Order. The Order will be returned to the office of Civil Administration for docketing and mailing to all interested parties.
(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. No. 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 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.
(c) Appointment of a Guardian. Pennsylvania Rules of Civil Procedure No. 2028 and 2053 require that the minor or incapacitated person be represented in the action by a guardian, when the minor or incapacitated person is a party to the action, who is to be duly appointed by the appropriate Orphans' Court Division or Court. In the event the circumstances of an individual case require the appointment of 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.
(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 Civil Administration 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.
II. 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. The Prothonotary shall forward the Petition to Civil Administration where it will be held until after the expiration of the Response period whereupon, by designation of the Administrative Judge of the Trial Division and by agreement of the Administrative Judge of the Orphans' Court Division, it will be assigned to a Judge of the Orphans' Court Division, as directed by the Administrative Judge of the Orphans' Court Division, for the entry of an appropriate final appealable Order. The Order will be returned to the office of Civil Administration for docketing and mailing to all interested parties.
(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. No. 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. No. 2205 and Phila. Civ. R. No. *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. § 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 Civil Administration, 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.
III. Petitions for Allowance
(a) Petitions for Allowance in those cases where a guardian has been appointed by the Orphans' Court Division of Philadelphia 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 Philadelphia, 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.
IV. Inconsistency with Phila. Civ. R. No. 2039.1, 2039.2 and 2206.
To the extent the terms of Phila. R. Civ. P. No. 2039.1, 2039.2 and 2206 differ from the terms provided in the within Joint General Court Regulation, the terms of the said rules are rescinded.
This Joint General Court Regulation is promulgated in accordance with the April 11, 1986, Order of the Supreme Court of Pennsylvania, Eastern District, No. 55 Judicial Administration, Docket No. 1, Phila. Civ. R. *51 and Pa.R.C.P. 239, and shall become effective thirty (30) days after publication in the Pennsylvania Bulletin. As required by Pa.R.C.P. 239, the original Joint General Court Regulation shall be filed with the Prothonotary in a docket maintained for General Court Regulations issued by the Administrative Judge of the Trial Division, and copies shall be submitted to the Administrative Office of Pennsylvania Courts, the Legislative Reference Bureau and the Civil Procedural Rules Committee. Copies of the Regulation shall also be submitted to Legal Communications, Ltd., The Legal Intelligencer, Jenkins Memorial Law Library and the Law Library for the First Judicial District.
JOHN W. HERRON,
Administrative Judge, Trial DivisionPETRESE B. TUCKER,
Administrative Judge, Orphans' Court DivisionIN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICTPLAINTIFF : CIVIL TRIAL DIVISION : v. : TERM, 19 : DEFENDANT : NO: PETITION FOR LEAVE TO SETTLE OR COMPROMISE MINOR'S ACTION1 To The Honorable, the Judges of the Said Court:
The Petition of ______ , a minor, by his Guardian (see Pa.R.C.P. 2028), by his attorney, ______ , Esquire 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.)9. A Complaint was filed against defendant(s) as fol- lows:__________
10. 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:2
__________
__________
__________
__________(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 needed, please continue on separate page.)
18. Counsel requests a fee in the sum of $_____ which is _____% per cent of the net settlement payable to the minor. A copy of the retainer agreement 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 attorneys 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 Distribution3 as follows:
__________Name of Attorneya. To __________Reimbursement for Costs $__________ b. To __________ $__________ c. To __________Counsel Fee $__________ d. To: Adult Plaintiff(s)
(if applicable)$__________ e. To ______ , a minor,4 in restricted accounts not to be withdrawn before majority or upon prior leave of Court.
OR$__________ e. To ______ , the Guardian of the Estate of _____ ,
A Minor, appointed or to be appointed by the Orphans' Court of __________County, after posting appropriate
security$__________
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.
PETITIONERDATE:__________ __________ 1 In the event the Petition involves an incapacitated Person, appropriate changes are to be made. See Pa.R.C.P. 2051, et seq.
2 Phila. Civ. R. *2039.1(D)(3)(e) provides that 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 specific reasons for such allocation must be set forth. Additionally, if more than one plaintiff is involved, whether minor, adult or incapacitated, Petitioner must set forth the amount each is to receive and shall provide justification for the requested allocation. 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 Counsel is cautioned to specifically provide the requested distribution. Requests that distribution be ''as per the attached Order'' are not acceptable.
4 Counsel is cautioned that the restricted account must be set up in the name of the minor only (not in the name of the parent as guardian for the minor). See Pa.R.C.P. 2039(b)(2).
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT: CIVIL TRIAL DIVISION : : TERM, 19 : : : No. ORDER APPROVING SETTLEMENT
AND
ORDER FOR DISTRIBUTIONAND NOW, this day of , 19 , 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 Defend- ant(s) _________________ in the gross sum of ______ ($ ) Dollars. Defendant(s) shall forward all settlement drafts or checks to Petitioners' counsel for proper distribution.
IT IS FURTHER ORDERED and DECREED that the settlement proceeds be allocated as follows:
1. To: Minor Plaintiff(s)
DATE OF NAME BIRTH SOC. SEC. # __________ __________ __________ $__________ __________ __________ __________ $__________ 2. To: Adult Plaintiff(s)
