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February 16, 1979

Maria T. SOARES, Administratrix of the Estate of Paul Jeorge Soares, (Deceased), For and In Behalf of said Estate and For and In Behalf of Laurenio M. Soares and Maria R. Soares, next of kin and heirs at law of said Paul Jeorge Soares
John McCLOSKY, alias John Doe

The opinion of the court was delivered by: POLLAK

On May 22, 1976, Paul J. Soares was fatally injured in a two-car collision on a Pennsylvania highway. At his death, Paul Soares, a young man who had recently completed college, was still a citizen of Rhode Island the State in which he had grown up, and where other members of his family still resided although he had taken a job in Pennsylvania (Pottstown) and was temporarily living in Delaware (Newark). He died intestate; and a few weeks after his death, a Rhode Island Probate Court appointed his sister, Maria T. Soares, administratrix of his estate. In 1977, she brought suit in this Court against John McClosky, a citizen of Pennsylvania who was the driver of the other car involved in the accident. This diversity action, arising out of Paul Soares' death, was brought by the administratrix on behalf of her brother's estate and on behalf of their parents, Laurenio Soares and Maria R. Soares. In January, 1978, the administratrix petitioned this Court for approval of a proposed settlement. The settlement provided that the defendant would pay $ 60,000.00, to be divided into three parts: $ 20,000.00 for counsel fees; $ 13,333.33 to Laurenio Soares; and "the balance ($ 26,666.67) to Maria R. Soares, the mother of the decedent, or Maria R. Soares and Maria T. Soares, sister of the decedent and the administratrix equally."

Soon thereafter, Laurenio Soares who has been divorced from Maria R. Soares since 1973 filed a memorandum opposing the proposed distribution and asserting his entitlement, as a surviving parent of an unmarried son, to one-half of the proceeds of the settlement after deduction of attorneys' fees and expenses. After hearing oral argument, Judge Fogel, on May 1, 1978, in one of his last orders before leaving this Court, approved the distribution proposed by the administratrix.

 On July 25, 1978, Laurenio Soares moved to set aside the Local Rule 23(b) dismissal and to vacate Judge Fogel's order of May 1, approving the distribution.

 Because Judge Fogel was no longer on the bench when Laurenio Soares' motion was filed, the case remained dormant until it was placed on my calendar after I joined the Court in September of 1978.


 The administratrix advances three arguments challenging this Court's power to entertain Laurenio Soares' motion:

 1. The administratrix contends that this Court's subject matter jurisdiction has eroded, in that (1) the current distributional dispute only involves citizens of Rhode Island, and (2) the $ 6,666.67 ($ 20,000.00 minus $ 13,333.33) in incremental recovery sought by Laurenio Soares is less than the $ 10,000.00 jurisdictional minimum. But the contention is without force. Whether the elements of jurisdiction are present is determined "once and for all at the threshold and if found to be present . . . continues until final disposition of the action." Dery v. Wyer, 265 F.2d 804, 808 (2d Cir. 1959). Accord, 13 Wright, Miller & Cooper, Federal Practice and Procedure, § 3608.

 2. The Local Rule 23(b) order of dismissal was entered on May 4, 1978, and the motion to set it aside was filed on July 25, 1978, within the ninety-day period specified in the Rule. The administratrix argues, nonetheless, that the motion is time-barred, claiming that (1) Judge Fogel's May 1, 1978 order approving the proposed distribution was a final order closing the case; (2) the May 4 order of dismissal was therefore superfluous and without legal effect; (3) as a result the ninety-day grace period provided in Rule 23(b) did not apply to this case; and (4) Mr. Soares' only recourse was to appeal the May 1 order to the Court of Appeals an avenue foreclosed by the running of the appeal time well before July 25. The difficulty with this argument is that the established practice in this Court does not treat an order such as that entered on May 1 (approving the proposed distribution) as a final order; following the entry of such an order the Clerk (or a Judge) regularly enters an order of dismissal pursuant to Rule 23(b). *fn2" And, indeed, in reliance on the established practice, counsel on all sides of this very case evidently proceeded on the understanding that Laurenio Soares had ninety days from May 4 to seek to reopen the distribution issue. *fn3"

  3. At oral argument on November 21, 1978, the administratrix argued, apparently for the first time, that Laurenio Soares should be barred from seeking relief because he assented to the terms of the proposed settlement, through his counsel, at an October 1977 meeting. There is little in the record to support this claim; but even if Laurenio Soares' momentary assent could be established, it would not operate to preclude judicial inquiry into the propriety of the proposed distribution today any more than it did when Judge Fogel considered the question last May. This is not a case like Cohen v. Goldman, 85 R.I. 434, 132 A.2d 414 (1957), on which the administratrix relies. There, the Court considered the question whether an attorney can compromise a client's case without the client's express authority. Here, the plaintiff-administratrix has petitioned the Court to approve a proposed distribution. And under the relevant Pennsylvania statute, 20 Pa.C.S.A. § 3323(a) and (b), *fn4" a court on petition of the decedent's personal representative is required to rule on the propriety of the settlement (or other termination) of an action brought on behalf of an estate. This statutory provision serves several substantive ends: it protects potential beneficiaries, assures that the taxing authority gets its due, and shelters the decedent's representative from subsequent liability by eliciting a judicial determination whether a proposed settlement (or other termination) sufficiently protects the decedent's estate. In re Kreider's Estate, 42 Pa. D. & C. 2d 46 (1966); Condemnation of Marino's Property, 47 Wash. Co. 162 (1967). And the statute is not limited to actions arising under Pennsylvania law or to estates administered under the laws of this Commonwealth. (Compare Rule 2206(b)(1) of the Pennsylvania Rules of Civil Procedure, as limited by the definition of "action for wrongful death" in Rule 2201). Thus, once the administratrix petitioned for approval of the proposed settlement, this federal court, sitting in Pennsylvania, would have been obliged to scrutinize the terms of the settlement, even if no objections had been proffered. As the Pennsylvania Supreme Court has observed, a "judge is not bound by what the parties may have agreed to; he must exercise his independent judgment on the whole case." Norris's Estate, 329 Pa. 483, 491, 198 A. 142, 146 (1938).

 In short, this Court is both empowered and obligated to consider Laurenio Soares' challenge to the pattern of distribution agreed to by his daughter, as administratrix, and defendant. To the merits of that pattern of distribution, it is now appropriate to turn.



 Pennsylvania and Rhode Island have both enacted statutory schemes to replace the "barbarous" common law rule under which a violation was non-actionable if it was serious enough to cause death. ...

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