Murray Estate v. Love

7 Pa. D. & C.4th 530, 1990 Pa. Dist. & Cnty. Dec. LEXIS 226
CourtPennsylvania Court of Common Pleas, York County
DecidedSeptember 27, 1990
Docketno. 90-SU-00585-01
StatusPublished
Cited by1 cases

This text of 7 Pa. D. & C.4th 530 (Murray Estate v. Love) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murray Estate v. Love, 7 Pa. D. & C.4th 530, 1990 Pa. Dist. & Cnty. Dec. LEXIS 226 (Pa. Super. Ct. 1990).

Opinion

UHLER, J.,

Before the court is a petition for approval to compromise action in the above-captioned action pursuant to rule 2206 of the Pennsylvania Rules of Civil Procedure.

[531]*531The background of this proceeding is as follows: The decedent, Georgia L. Murray, while a pedestrian on the streets of York, died September 9, 1989, as a result of being struck by an automobile operated by defendant, Jessica L. Love.

The decedent, who was unmarried, was survived by three children, Quintín T. Murray, age three; Philip M. Murray, age two; and Falisha L. Martin, age one year. The late Georgia Murray was also survived by her mother, Ethel L. Coleman, and her father, George O. Walter. She resided in a meretricious relationship with Philip A. Martin, who was the biological father of Falisha, but not of Quintín and Philip.

Ethel Coleman filed a petition with the Register of Wills of York County for the grant of letters of administration on her daughter’s estate. George Walter renounced in favor of Ethel Coleman. Philip Martin filed a caveat to the grant of letters of Mrs. Coleman.

The caveator, Philip Martin, renounced his claim to letters of administration and requested that the York Bank and Trust Company be appointed administrator. The Register of Wills on November 20, 1989, after testimony and findings, granted letters of administration to the York Bank and Trust Company. An appeal to the Orphans Court Division was filed by Ethel Coleman whereupon a citation was issued upon the administrator to show cause why the relief prayed for in the appeal should not be granted. A hearing was held on February 16, 1990, before the Honorable John T. Miller. The hearing before Judge Miller focused upon issues of proposed fees intended to be charged by the bank fiduciary and appellant, as well as potential attorney’s fees, to be incurred on a contingent basis in that the primary [532]*532asset of the estate is the cause of action generated by the untimely death of the decedent. Notwithstanding the representation made by Mrs. Coleman that she would not charge an administrator’s fee nor would she enter into a contingent fee in excess of 10 percent, the court found that, (based upon the animosity between Martin and Coleman, the Register’s decision was not an abuse of discretion. Testimony during the Orphan’s Court proceeding indicated that the bank had entered into a contingent fee agreement with the attorney who had represented Mr. Martin on a one-third basis (33 and one-third percent) bn November 20, 1989.

Judge Miller further provided in his order:

“The matter of fees to be charged is, indeed, a concern to those interested in the estate, and to those who assume the responsibility for caring for the minor children of decedent. However, the court is not without authority to supervise these aspects of estate administration. It is within the court’s discretion to regulate and approve the fees charged by fiduciaries and in the matter of the settlement of a wrongful death and survival claim involving minor beneficiaries, to regulate and approve counsel fees allowable out of that recovery. Probate, Estates and Fiduciaries Code section 3323, 20 P.S. §3323.”

The Honorable Sheryl Ann Dorney, in the interim, has appointed Ethel Coleman as custodian over Quintin and Philip, while Philip A. Martin was appointed custodian over the minor Falisha.

On August 16, 1990, a petition for approval to compromise action as to minor’s interest, designate persons entitled to recover damages, and allow deduction of expenses and counsel fees from minor’s share and direct payment of balance pursuant to Pa.R.C.P. 2206, was filed with the court.

[533]*533The petition represents as was confirmed at the hearing before it that defendant’s liability insurance carrier has offered the aváilable policy limits to the estate in full settlement of the cause of action. The petition further alleges that the insurance coverage is a single limit policy of $305,000. Third parties are entitled to property and liability payments. The available coverage for purposes of the proposed settlement are as follows:

Policy single limits $305,000.00
Third-party property payments (1,374.83)
Third-party liability (30,000.00)
Available coverage to estate $273,625.17

Further charges are asserted against the estate’s share for advanced costs for which counsel seeks reimbursement:

Police report . $6.00
Coroner’s report 70.00
Filing fees for complaint 50.00
Service costs 26.20
Preliminary hearing transcript 74.00
Department of Health records 8.00
Asset search on defendant 140.00
Total amount advance $374.20

Counsel fees are claimed pursuant to the November 20, 1989 contingency fee agreement, in the amount of $92,108.

Additional charges for payment or reimbursement of the funeral expenses are sought by the bank in the amount of $3,170 from the settlement proceeds.

Neither the petition nor the proposed order delineate any allocation of the proceeds of the proposed settlement as between the wrongful death and the survival counts alleged in the complaint.

[534]*534Ethel Coleman, guardian over two of the minors, has filed an answer to the within petition, challenging the settlement proposal, agreeing that the proposed settlement award is reasonable, but denying “that the contingent fee is the customary and normal fee in York County and that it represents a fair fee under all the circumstances.”

Testimony presented revealed that, the insurance carrier disclosed its policy limits as early as November 29, 1989, verbally advising counsel for the third-party complainant and petitioner that the policy limits were on the table only to be allocated between the potential claimants, before the filing of the complaint on February 20, 1990. This action encompassed the following pleadings: the complaint; petition for interpleader filed by defendant; answer filed by the York Bank and Trust Co.; petition by defendant to remit the settlement proceeds to the court; answer by the bank consenting to that process. No depositions or third-party discovery was pursued by petitioner which closely followed the criminal proceedings'scheduled before the court of common pleas. The bulk of the activity appears to have been negotiations between the third-party complainant and petitioner.

The bank concedes that it did not speak with either Ethel Coleman or Philip Martin as to whether the proposed resolution was acceptable. It should be further noted that first-party benefits were received by the estate in the amounts of $1,500 and $10,000 respectively, for funeral expenses and accidental death benefits coverage.

Obviously, the issue before the. court is whether the proposed settlement for and on behalf of the minor beneficiaries is “fair and equitable” and whether it should approve the agreement for the [535]*535payment of counsel fees and other proper expenses out of the share of damages to which the minors are entitled. See rule 2206.

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Bluebook (online)
7 Pa. D. & C.4th 530, 1990 Pa. Dist. & Cnty. Dec. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-estate-v-love-pactcomplyork-1990.