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DEBRA KLEIN v. RALPH J. CISSONE AND BARBARA CISSONE (02/05/82)

filed: February 5, 1982.

DEBRA KLEIN, A MINOR BY HER PARENTS AND NATURAL GUARDIANS, RICHARD KLEIN AND ROCHELLE KLEIN, APPELLANTS,
v.
RALPH J. CISSONE AND BARBARA CISSONE, INDIVIDUALLY AND TRADING AS PICKWICK NURSERY SCHOOL



No. 690 Philadelphia, 1980, Appeal from an Order of the Court of Common Pleas, Civil Division, of Bucks County, No. 1362 December Term, 1969.

COUNSEL

John J. Tinaglia, Philadelphia, for appellants.

John J. Hart, Sellersville, for appellees.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 297 Pa. Super. Page 209]

Presently before the court is appellants' appeal from the order of the lower court dated February 20, 1980 wherein the court made its previously issued rule absolute.*fn1

We affirm.

The critical issues before us are: (1) Did the parties herein affect a compromise settlement of a minor's claim or merely an executory accord; and (2) Assuming the parties effectuated a compromise settlement, may same be revoked or set aside under the facts presented in the case at bar?

The genesis of this case dates back to July 28, 1968 when then four-year old appellant minor, Debra Klein, was allegedly thrown from appellees' nursery school van. In December, 1969, appellants filed suit.*fn2

[ 297 Pa. Super. Page 210]

Prior to trial, a pretrial conference was held before Judge Robert M. Mountenay on October 14, 1975. The court's signed report of that pretrial conference noted that the injuries sustained by the minor appellant were "mouth injuries, front middle teeth knocked out. Orthodontia may be required with respect to permanent teeth. Minor appellant was five years old at the time of injury and is presently 12 years old." (R.3a). The special damages noted were "past medicals $384.68. Future orthodontic work estimated at about $3,000.00."

A jury trial was convened on March 10, 1976 before Judge Mountenay (now deceased). On that date, the only witness who testified was Dr. Edward Cherkas, an orthodontist, who testified that he examined the minor appellant following the accident in 1968, a few more times that year, and on March 9, 1976 (the day before the trial). Dr. Cherkas confirmed the fact that as a result of the July 28, 1968 accident, minor appellant lost five "baby teeth". Thereafter, the doctor identified two conditions from which minor appellant was suffering, to-wit: "tongue thrust" and "teeth protrusions". However, the doctor was unable, with a reasonable degree of medical certainty, to attribute either of those two problems to the July 28, 1968 accident. As a result of the doctor's equivocations, the court sustained appellees' objections to the further testimony of Dr. Cherkas with regard to the issue of causation. Faced with this legal dilemma, appellants' then counsel requested a short recess, during which the alleged or purported compromise settlement between the parties was reached. When court resumed and the jury returned, the trial court explained to the jury that a settlement had been reached. Procedurally, appellees then moved for a mistrial which was granted.

After the jury was excused, the court proceeded to hold a hearing on the proposed compromised settlement.

THE COURT: Now we're going into a proceeding to approve a minor's compromise and in the first place, we're

[ 297 Pa. Super. Page 211]

    certainly going to incorporate into the record what we already have in the record by reason of the trial.

With that opening, the court on the record set forth appellants' theory of liability as well as an itemization of incurred medical expenses and an estimate of ...


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