C. DeLuca v. Mountaintop Area Joint Sanitary Authority & T.G. Keiper ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen DeLuca, :
Appellant :
:
v. : No. 1024 C.D. 2019
: Submitted: May 12, 2020
Mountaintop Area Joint Sanitary :
Authority and Thomas G. Keiper :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 16, 2020
Colleen DeLuca (DeLuca) appeals two orders of the Court of Common
Pleas of Luzerne County (trial court). The first order denied the motion to recuse
the Honorable William H. Amesbury from conducting a hearing on the petition of
Mountaintop Area Joint Sanitary Authority and Thomas G. Keiper (collectively, the
Authority) to enforce a settlement agreement. The second order granted the
Authority’s petition. On appeal, DeLuca contends that Judge Amesbury was
obligated to recuse himself because of his involvement in the settlement
discussions. DeLuca further contends that the evidence showed that she did not
freely agree to the terms of the agreement that were entered into the record to settle
her de facto condemnation petition against the Authority. For the following
reasons, we affirm the trial court’s orders.
Background
DeLuca owns a single-family home in Mountain Top, Pennsylvania,
located adjacent to the Authority’s sewage treatment plant. On several occasions
between June 27, 2006, and April 26, 2011, DeLuca’s property was flooded with
untreated sewage. The infiltrations stopped when, in late 2011, the Authority
upgraded its system.
On May 14, 2015, DeLuca filed a petition for appointment of a board
of viewers pursuant to Section 502(c) of the Eminent Domain Code.1 The petition
alleged that the Authority had effected a de facto taking of her property by operating
its sewage system in a way that caused sewage infiltration of her property.
In response, the Authority filed preliminary objections pursuant to
Section 504(d) of the Eminent Domain Code,2 which challenged the legality of
1
Section 502(c) provides:
(c) Condemnation where no declaration of taking has been filed.--
(1) An owner of a property interest who asserts that the owner’s
property interest has been condemned without the filing of a
declaration of taking may file a petition for the appointment of
viewers substantially in the form provided for in subsection (a)
setting forth the factual basis of the petition.
(2) The court shall determine whether a condemnation has
occurred, and, if the court determines that a condemnation has
occurred, the court shall determine the condemnation date and the
extent and nature of any property interest condemned.
(3) The court shall enter an order specifying any property interest
which has been condemned and the date of the condemnation.
(4) A copy of the order and any modification shall be filed by the
condemnor in the office of the recorder of deeds of the county in
which the property is located and shall be indexed in the deed
indices showing the condemnee as grantor and the condemnor as
grantee.
26 Pa. C.S. §502(c) (emphasis added).
2
It states, in pertinent part, as follows:
(d) Preliminary objections.--
(1) Any objection to the appointment of viewers may be raised by
preliminary objections filed within 30 days after receipt of notice of
the appointment of viewers.
2
DeLuca’s petition. Alternatively, the Authority challenged the facts alleged in the
petition and requested an evidentiary hearing on whether it had effected a de facto
taking of DeLuca’s property. The trial court denied the Authority’s request to
dismiss DeLuca’s petition but granted the Authority an evidentiary hearing.
On June 29, 2016, after hearing the evidence of the parties, the trial
court held that the Authority had effected a de facto condemnation of DeLuca’s
property between June 27, 2006, and April 26, 2011. In In Re Mountaintop Area
Joint Sanitary Authority, 166 A.3d 553 (Pa. Cmwlth. 2017), this Court affirmed the
trial court. DeLuca’s de facto condemnation action proceeded with the appointment
of a board of viewers.
By way of further background, in 2011, DeLuca filed a two-count
action against the Authority.3 The first count sounded in trespass and sought
damages as a result of the sewage infiltrations. The second count was filed under
the Whistleblower Law, Act of December 12, 1986, P.L. 1559, as amended, 43 P.S.
§§1421-1428. DeLuca’s cleaning business had a contract with the Authority that
she alleged was terminated because she complained about the sewage entering her
house. The whistleblower/trespass action was assigned to Judge Amesbury.
On November 27, 2017, Judge Amesbury convened a pre-trial and
settlement conference, which resulted in a settlement of DeLuca’s de facto
(2) Objections to the form of the petition or the appointment or the
qualifications of the viewers in any proceeding or to the legal
sufficiency or factual basis of a petition filed under section 502(c)
(relating to petition for appointment of viewers) are waived unless
included in preliminary objections.
26 Pa. C.S. §504(d).
3
The case is captioned Colleen DeLuca v. Mountaintop Area Joint Sanitary Authority and
Thomas G. Keiper (C.C.P. Luzerne Cty., No. 2011 CV 14420).
3
condemnation and whistleblower/trespass actions. The terms of the settlement were
placed into the record, which states as follows:
THE COURT: We had a count of negligence. We have an
eminent domain issue which constituted a tak[ing] as verified by
an opinion that was rendered by my colleague Judge Tina
Polachek Gartley and was affirmed by the Appellate Court[.]
***
THE COURT: At the same time we have a claim for punitive
damages, as well as a whistleblower action.
The purpose in meeting today was to see if we could bring a
resolution, a complete resolution to all outstanding theories that
were presented before the [trial court], including the three that I
just mentioned. This would include any allegations against the
municipality and there will be no disparaging remarks to any
present employee, management personnel, non-management
personnel or solicitor past or present.
Did I cover that broad enough?
MR. KARPOWICH: And the public, Your Honor.
THE COURT: Okay.
MR. McDONOUGH: Your Honor, the eminent domain was
under a separate court term and number. This court term and
number was only for the trespass and for the whistleblower.
THE COURT: You brought the negligence claim separately?
MR. McDONOUGH: They were brought with the
whistleblower originally and then there was a separate eminent
domain proceeding.
THE COURT: That’s under 5864 of 2015. So all will be
included.
MR. McDONOUGH: Both lawsuits in all three counts, yes,
Your Honor.
4
THE COURT: The settlement amount is $450,000. That has
been entered into by the parties. On behalf of the plaintiff, sir, is
that an agreement?
Mr. McDONOUGH: That part of the settlement, yes, Your
Honor.
MR. KARPOWICH: Yes, Your Honor.
MR. ABELL: Yes, Your Honor.
Notes of Testimony (N.T.), 11/27/2017, at 2-3; Reproduced Record at 187a-88a
(R.R. __).4 The Authority also agreed to provide DeLuca with a letter from its
engineer detailing what “physical work was done by the Authority that addressed
the prior overflow events.” Id. at 4; R.R. 189a. The Authority’s counsel explained
that the “purpose of that letter will be so Ms. DeLuca can then provide that to a
prospective purchaser of her house as part of her required seller’s disclosure
statement.” Id.; R.R. 189a.
Following the conference, DeLuca’s counsel prepared a written
settlement agreement and release for execution by the parties. The document stated
that the Authority would pay DeLuca $450,000 and provide a letter from a
professional engineer. The document also provided that DeLuca would terminate
her whistleblower/trespass and condemnation actions and release the Authority.
Finally, the document included a mutual non-disparagement agreement.
DeLuca refused to sign the agreement as requested by her counsel. In
April 2018, the Authority filed a petition to enforce the settlement agreement.
On May 15, 2018, DeLuca’s counsel filed a motion to withdraw as
counsel. At the hearing on that motion, DeLuca’s counsel, Attorney Richard Abell,
4
Attorney Richard Abell represented DeLuca, and Attorneys Sean McDonough and Donald
Karpowich represented the Authority.
5
testified that DeLuca had not paid his invoices for legal services in several years
and that there had been a breakdown in the attorney-client relationship. DeLuca
voiced “no disagreement” with Attorney Abell’s request to withdraw as counsel;
the trial court granted the motion. N.T., 5/25/2018, at 47; R.R. 145a. The trial court
gave DeLuca 60 days to obtain new counsel.
DeLuca retained the law firm McNees Wallace & Nurick LLC, which
entered its appearance on behalf of DeLuca in both the condemnation and
whistleblower/trespass actions. The trial court postponed the hearing on the
Authority’s petition to enforce settlement scheduled for August 7, 2018, to October
30, 2018.
On October 12, 2018, DeLuca filed a motion to recuse Judge
Amesbury on the basis of Rule 2.11 of the Pennsylvania Code of Judicial Conduct.5
The motion alleged that because Judge Amesbury would have to consider his own
statements and actions during the settlement discussions, he was disqualified from
conducting the hearing on the petition to enforce settlement agreement. Motion to
Recuse at 4, ¶¶19-20; R.R. 153a.
5
It states, in pertinent part, as follows:
(A) A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited to
the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party
or a party’s lawyer, or personal knowledge of facts that are in
dispute in the proceeding.
***
(6) The judge:
***
(c) was a material witness concerning the matter.
PA. CODE OF JUDICIAL CONDUCT RULE 2.11 (emphasis added).
6
At the October 30, 2018, hearing on DeLuca’s recusal motion, the
Authority objected to DeLuca’s motion as untimely. DeLuca responded that her
motion was timely because she had engaged new counsel, who needed to retrieve
and review the files of prior counsel. The trial court postponed the hearing on the
Authority’s petition to enforce the settlement agreement.
On December 9, 2018, the trial court scheduled an evidentiary hearing
on DeLuca’s recusal motion for February 11, 2019. The parties agreed that the
evidentiary hearing would address both DeLuca’s recusal motion and the
Authority’s petition to enforce the settlement agreement.
At the evidentiary hearing, DeLuca testified that in September 2017,
her attorney advised her that the trial court wanted to conduct “a combined
pretrial/settlement conference in November” in her whistleblower/trespass action.
N.T., 2/11/2019, at 25; R.R. 223a. In October 2017, he notified her that the
conference had been scheduled for November 27, 2017, and that she should be
prepared to discuss settlement. DeLuca testified that on that day, she was escorted
into a room. Fifteen minutes later, Attorney Abell and Judge Amesbury entered the
room. DeLuca testified as follows:
Dick Abell walked around in front of me, sat at a desk, put his
feet up and locked his hands behind his head. Judge Amesbury
grabbed a rolling chair, rolled it towards me, grabbed my hands,
slid his knees between my skirt, screamed at the top of his lungs
with his halitosis coffee breath.
Id. at 35; R.R. 226a. DeLuca stated that Judge Amesbury told her that she needed
to take the Authority’s offer “to get off his f[**]king dockets.” Id. He told her that
it was the “best deal” she was going to get. Id. When asked how she responded,
DeLuca testified:
7
I was unaccepting of the $10,000, my job back and me throwing
away the win offered by Judge Gartley [in the condemnation
case].
Id. at 35-36; R.R. 226a.
DeLuca also testified that during the settlement conference, she
contacted Paul Logan, Esq., an attorney who had previously worked with Attorney
Abell in her dispute with the Authority. That conversation lasted approximately 30
minutes. DeLuca stated that Attorney Logan told her to “buckle down” and “get
this done”; he also told her to contact her bank for the payoff amount for her house.
Id. at 39; R.R. 227a.
DeLuca acknowledged that she stated on the record that she agreed to
the settlement, but she could not explain her statement. DeLuca testified that she
believed that the settlement applied only to the whistleblower/trespass action. On
cross-examination, DeLuca conceded that at no point during the settlement
conference did she tell Judge Amesbury that she was dissatisfied with Attorney
Abell or his representation.
The Authority presented testimony from Toni Rogan, the Chairwoman
of the Authority. Rogan testified that at the settlement conference, she did not
observe Judge Amesbury demonstrate either a lack of patience or frustration. She
did not observe DeLuca to be under duress. Rogan testified that after the settlement
conference, DeLuca hugged her and said “[t]hank you.” Id. at 87; R.R. 239a.
At the conclusion of that hearing, the parties agreed to keep the record
open for the sworn testimony of Attorney Abell, who had represented DeLuca at
the November 27, 2017, settlement conference. The record closed on May 15,
2019.
8
On May 15, 2019, Judge Amesbury entered an order denying
DeLuca’s motion for his recusal. The order gave the parties until June 15, 2019, to
submit final briefs on the Authority’s petition to enforce the settlement agreement.
Subsequently, on July 19, 2019, the trial court granted the Authority’s
petition to enforce the settlement agreement. The order directed DeLuca to execute
the written settlement agreement and release and to comply with its terms and
conditions. With regard to DeLuca’s assertion that her counsel had been
ineffective, the trial court reasoned that she may have a claim against her attorney
for malpractice, but that claim was not relevant to the enforceability of the
settlement agreement. The trial court found no basis for her claim of duress or
undue pressure and rejected her contention that she did not freely agree to the terms
of the settlement. The trial court also held that assuming that DeLuca mistakenly
agreed to the settlement, her mistake was unilateral. As such, it did not negate the
validity of the parties’ settlement agreement.
DeLuca then appealed the trial court’s orders.
Appeal
On appeal,6 DeLuca raises three issues. First, she argues that the trial
court abused its discretion in denying her motion for the judge’s recusal. Second,
6
When reviewing a trial court’s decision to enforce a settlement agreement:
[O]ur scope of review is plenary as to questions of law, and we are free to draw our
own inferences and reach our own conclusions from the facts as found by the court.
However, we are only bound by the trial court’s findings of fact which are
supported by competent evidence. The prevailing party is entitled to have the
evidence viewed in the light most favorable to its position. Thus, we will only
overturn the trial court’s decision when the factual findings of the court are against
the weight of the evidence or its legal conclusions are erroneous.
Hydrojet Services, Inc. v. Reading Area Water Authority, 220 A.3d 1199, 1204 n.4 (Pa. Cmwlth.
2019) (quoting Bennett v. Juzelenos, 791 A.2d 403, 406 (Pa. Super. 2002)).
9
she argues that the trial court erred in granting the petition to enforce the settlement
agreement when the evidence showed that DeLuca did not freely enter into the
agreement. Third, she argues that the trial court erred in ordering her to sign a
written settlement agreement with terms that had not been discussed or agreed upon
at the November 27, 2017, settlement conference.
Motion for Recusal
DeLuca argues that Judge Amesbury abused his discretion by failing
to recuse himself from the proceeding on the Authority’s petition to enforce the
settlement agreement. DeLuca contends that Judge Amesbury’s participation in the
settlement discussions and the pressure he placed upon DeLuca required his recusal.
The Authority responds that DeLuca waived her right to seek recusal because she
did not timely file her motion and, further, Judge Amesbury properly denied the
motion.
We begin with a review of the relevant law. The party requesting
recusal must produce evidence establishing bias, prejudice or unfairness “which
raises a substantial doubt as to the jurist’s ability to preside impartially.”
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998). The motion for recusal
“is initially directed to and decided by the jurist whose impartiality is being
challenged.” Id. The Supreme Court has explained:
In considering a recusal request, the jurist must first make a
conscientious determination of his or her ability to assess the
case in an impartial manner, free of personal bias or interest in
the outcome. The jurist must then consider whether his or her
continued involvement in the case creates an appearance of
impropriety and/or would tend to undermine public confidence
in the judiciary. This is a personal and unreviewable decision
that only the jurist can make…. Where a jurist rules that he or
she can hear and dispose of a case fairly and without prejudice,
that decision will not be overruled on appeal but for an abuse
10
of discretion…. In reviewing a denial of a disqualification
motion, we recognize that our judges are honorable, fair and
competent.
Id. (emphasis added and citations omitted).
A party is required to request a judge’s recusal “at the earliest possible
moment, i.e., when the party knows of the facts that form the basis for a motion to
recuse.” Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017). The party that does not
move promptly to recuse the assigned judge upon learning the facts relevant to
recusal waives the issue. Id.
With these principles in mind, we turn to DeLuca’s challenge to Judge
Amesbury’s denial of her motion to recuse. She contends that Judge Amesbury
abused his discretion because he was a fact witness to the settlement discussions
and was the target of “serious accusations” of misconduct. DeLuca Brief at 25. The
Authority responds that DeLuca’s sensational and unsubstantiated account is
refuted by the transcript of every proceeding in which Judge Amesbury participated,
where he demonstrated both patience and objectivity.7 The Authority also contends
that DeLuca waived the issue of Judge Amesbury’s disqualification.
7
On April 29, 2019, Attorney Abell testified that the conduct of which DeLuca has accused Judge
Amesbury did not occur:
BY MR. McDONOUGH:
Q. Was there anything in the conduct of Judge Amesbury, that you observed, that
led you to conclude Ms. DeLuca was being coerced by the [trial] [c]ourt into
accepting a settlement she did not want on November 27, 2017?
A. Nothing. I would not have put the settlement on the record if I felt that there
was any coercion at all that had led to her agreement.
Q. Including any coercion at all by Judge Amesbury?
A. Including any coercion by anyone, including Judge Amesbury.
N.T., 4/29/2019, at 41; R.R. 319a.
11
We address, first, the timeliness of DeLuca’s motion to recuse. On
June 25, 2018, DeLuca’s new counsel entered their appearances. On August 21,
2018, DeLuca moved to continue the hearing to enforce the settlement agreement,
explaining that prior counsel had not yet turned over the case file. The trial court
granted the continuance and scheduled the hearing on the Authority’s petition to
enforce the settlement agreement for October 30, 2018. DeLuca filed her motion
to recuse Judge Amesbury on October 12, 2018.
At the October 30, 2018, hearing, which addressed the intervening
recusal motion rather than the Authority’s petition to enforce the settlement
agreement, the Authority asserted that DeLuca had waived her right to seek the
judge’s recusal by waiting until the eve of trial to file the motion. DeLuca’s counsel
explained to Judge Amesbury the difficulties encountered taking over the case:
We were retained over the summer, as Counsel mentioned. We
began our due diligence. Obviously, this case has a very
extensive history. There was quite a file to review. As the Court
knows, based on our motion for continuance of this hearing, we
had difficulty initially retrieving records from her prior counsel,
the Powell firm, which went out of business, which further
compounded the inability to get those records.
So, yes, the motion was filed in the last month before this
hearing, but it was timely based on our due diligence in
retrieving the necessary records, reviewing the file and speaking
with Ms. DeLuca about her expected testimony here today.
Hearing Transcript, 10/30/2018, at 9-10; R.R. 171a-72a. Given these
circumstances, DeLuca argues to this Court that her motion for recusal was filed “at
the earliest possible moment.” Lomas, 170 A.3d at 390. In support, she notes that
a “request for the disqualification of a trial judge is a most serious undertaking
which should not be pursued absent thorough factual investigation and legal
12
research.” Johnson v. District Court In and For Jefferson County, 674 P.2d 952,
957 (Colo. 1984).
The Authority responds that DeLuca’s sensational accusation
underscores the need for a prompt recusal motion. The Authority notes that the
recusal motion itself did not contain a hint of the conduct to which DeLuca testified
on February 11, 2019. It argues that DeLuca waived the issue by waiting 14 months
to advance her “destructive narrative against a sitting jurist to support a basis to
renege on an agreement made over a year before in time.” Authority Brief at 15.
The Authority warns that allowing this kind of delay will only promote judge
shopping, a practice “universally condemned.” Id. See, e.g., Commonwealth v.
Ryan, 400 A.2d 1264 (Pa. 1979).8
A recusal motion must be filed at “the earliest possible moment” after
the facts relevant to disqualification of the judge are learned. Lomas, 170 A.3d at
390. In Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority,
489 A.2d 1291, 1300 (Pa. 1985), the recusal motion was filed eight months after
the relevant facts were learned. That delay was held untimely and the recusal issue
waived. In Lomas, 170 A.3d at 391, the facts supporting the recusal motion were
learned on September 6, 2007, and the motion was filed on October 15, 2007. This
was held not to satisfy the “earliest possible moment” standard. DeLuca points out
that these cases involved motions to recuse that were filed after an adverse ruling.
Here, by contrast, DeLuca’s motion was filed before the trial court had ruled on the
merits of the Authority’s petition to enforce the settlement agreement. We conclude
8
The Authority also notes that neither DeLuca nor her counsel questioned Attorney Abell, Judge
Amesbury’s staff that was present on November 27, 2017, or the Judge himself, and DeLuca’s
counsel did not advise the trial court of the nature of DeLuca’s charges when the parties appeared
before Judge Amesbury on October 30, 2018.
13
that the principles established in Lomas and Reilly are not limited to the singular
circumstance of a post-verdict motion to recuse.
The facts central to DeLuca’s motion to recuse were known to her in
November of 2017. DeLuca explains that her change in counsel, who needed to
investigate the settlement conference, excused her waiting almost one year to file
her recusal motion. We disagree that a change in counsel excuses this delay.
DeLuca had a responsibility to file the motion at least by April of 2018 when the
Authority filed its petition, thereby informing her that there was going to be a
hearing on the settlement. The fact that DeLuca’s relationship with her former
counsel was strained did not relieve her of this responsibility. We agree with the
Authority that DeLuca waived the issue of disqualification of Judge Amesbury by
waiting until October of 2018 to file her motion to recuse.
In any case, we agree with the Authority that Judge Amesbury did not
abuse his discretion in denying DeLuca’s motion. The party who seeks to disqualify
a trial judge must “produce evidence establishing bias, prejudice or unfairness
which raises a substantial doubt as to the jurist’s ability to preside impartially.”
Arnold v. Arnold, 847 A.2d 674, 680 (Pa. Super. 2004). DeLuca did not produce
this evidence.
There is a presumption that judges of this Commonwealth are
“honorable, fair and competent,” Abu-Jamal, 720 A.2d at 89 (citation omitted), and,
when confronted with a recusal demand, are able to determine whether they can
rule “in an impartial manner, free of personal bias or interest in the outcome.”
Arnold, 847 A.2d at 680 (citation omitted). Our Supreme Court has recognized
that:
[w]hile the mediation of courts is based upon the principle of
judicial impartiality, disinterestedness, and fairness pervading
14
the whole system of judicature, so that courts may as near as
possible be above suspicion, there is, on the other side, an
important issue at stake: that is, that causes may not be unfairly
prejudiced, unduly delayed, or discontent created through
unfounded charges of prejudice or unfairness made against the
judge in the trial of a cause.... If the judge feels that he can hear
and dispose of the case fairly and without prejudice, his decision
will be final unless there is an abuse of discretion. This must be
so for the security of the bench and the successful administration
of justice. Otherwise, unfounded and ofttimes malicious charges
made during the trial by bold and unscrupulous advocates might
be fatal to a cause, or litigation might be unfairly and improperly
held up awaiting the decision of such a question or the
assignment of another judge to try the case. If lightly
countenanced, such practice might be resorted to, thereby
tending to discredit the judicial system. The conscience of the
judge alone is brought in question; he should, as far as possible,
avoid any feelings of unfairness or hostility to the litigants in a
case.
Reilly, 489 A.2d at 1299 (emphasis added). Simply, DeLuca did not present
evidence to support her claim of bias or hostility on the part of Judge Amesbury.
Her “serious accusations” were not substantiated; contradicted by every other
participant in the settlement discussions; and had no support in the transcripts
involving Judge Amesbury’s conduct of the various proceedings.
DeLuca misapprehends the Pennsylvania Code of Judicial Conduct.
The “personal knowledge” that can disqualify a jurist refers to knowledge that is
extra-judicial. See PA. CODE OF JUDICIAL CONDUCT RULE 2.11(A)(1). Here, the
knowledge of the settlement that Judge Amesbury acquired occurred in the course
of his acting as a jurist. Further, our Supreme Court has explained that the Code of
Judicial Conduct is not enforceable “by any tribunal”:
To presume that the Code [of Judicial Conduct] or its alleged
violations can be reviewed by any tribunal other than those we
15
authorize is a misapprehension of the purpose of the Code [of
Judicial Conduct], and is seen as an impermissible meddling into
the administrative and supervisory functions of this Court over
the entire judiciary.
Reilly, 489 A.2d at 1299 (emphasis added).
The scandalous nature of DeLuca’s claims against Judge Amesbury
did not, in itself, require his recusal. To so hold would set a dangerous precedent.
We reject DeLuca’s claim that Judge Amesbury abused his discretion in denying
her recusal motion. We conclude that his decision that he could rule with
impartiality, notwithstanding DeLuca’s “serious accusations,” is “final,” Reilly, 489
A.2d at 1299, and will not be set aside, Abu-Jamal, 720 A.2d at 89.
Settlement Agreement
In her second argument, DeLuca asserts that the trial court erred in
granting the Authority’s petition to enforce the settlement agreement. She contends
that there was no meeting of the minds on the settlement; that her counsel was
ineffective; and that she was unduly pressured by her counsel and the trial judge at
the settlement conference.
The Authority responds that the terms of its settlement with DeLuca
were placed on the record before the trial judge. The agreement was complete in
its terms and, thus, binding and enforceable. In Mastroni-Mucker v. Allstate
Insurance Company, 976 A.2d 510, 519 (Pa. Super. 2009), for example, the
Superior Court held that “a settlement argument that was placed upon the record in
open court by all of the parties and their attorneys” was enforceable even though
the parties did not agree to “a particular form of release.”9 The Authority argues
9
The Authority also points out that federal court decisions routinely hold parties to their on-
the-record recitations of a settlement agreement, notwithstanding subsequent disputes.
Authority Brief at 37-38. See, e.g., United States v. Sforza, 326 F.3d 107, 115-116 (2d Cir.
16
that the record does not support DeLuca’s contention that she did not freely agree
to settle her dispute with the Authority.
A settlement agreement is “in essence a contract binding the parties
thereto.” Roe v. Pennsylvania Game Commission, 147 A.3d 1244, 1250 (Pa.
Cmwlth. 2016) (quoting Commonwealth v. U.S. Steel Corporation, 325 A.2d 324,
328 (Pa. Cmwlth. 1974)). For this reason, courts construe settlement agreements
according to the “traditional principles of contract construction.” Avery v.
Pennsylvania Labor Relations Board, 509 A.2d 888, 891 (Pa. Cmwlth. 1986).
Accordingly, a settlement agreement must contain all the elements of a valid
contract. Mazzella v. Koken, 739 A.2d 531, 536 (Pa. 1999). This includes an offer,
acceptance, and consideration. Muhammad v. Strassburger, McKenna, Messer,
Shilobod & Gutnick, 587 A.2d 1346, 1349 (Pa. 1991). As with any contract, the
enforceability of a settlement agreement requires that “the minds of the parties
should meet upon all the terms, as well as the subject-matter, of the [agreement].”
Mazzella, 739 A.2d at 536 (quoting Onyx Oils & Resins, Inc. v. Moss, 80 A.2d 815,
817 (Pa. 1951)). An oral settlement agreement is enforceable, and an agreement
presented to the presiding judge “to settle the case for an agreed amount of money,
is valid and binding despite the absence of any writing or formality.” Wolf v.
Consolidated Rail Corporation, 840 A.2d 1004, 1006 (Pa. Super. 2003).
Here, the record shows that the Authority offered DeLuca $450,000
and a letter from its engineer detailing the Authority’s repairs to the sewage system
in settlement of all claims. When asked if she would accept the offer, DeLuca
testified as follows:
2003) (affirming the district court’s enforcement of the parties’ on-the-record settlement
agreement despite the defendants’ subsequent contention that “they never agreed to settle
without a full release from all possible civil or criminal liability”).
17
[THE AUTHORITY]: If you could, I’d like Ms. DeLuca to state
her understanding that those terms are agreeable to her.
MS. DeLUCA: They are.
THE COURT: You are satisfied.
MS. DeLUCA: I’m satisfied.
[THE AUTHORITY]: You understand there’s [sic] no more
claims that will remain after today’s proceedings?
MS. DeLUCA: I do.
THE COURT: It’s all done. This is what we refer to as global.
All actions before us have now been resolved for the amount that
we’ve previously identified, the $450,000.
MS. DeLUCA: Eleven years later, they’re done.
N.T., 11/27/2017, at 5; R.R. 190a. The offer and acceptance of the settlement were
presented on the record.
Nevertheless, DeLuca argues that the settlement agreement is not
enforceable because: (1) she did not have effective assistance of counsel before or
during the settlement conference; (2) she felt a great deal of pressure from the trial
court and her prior counsel to agree to a settlement; (3) there was not a meeting of
the minds on the scope of the purported settlement agreement; and (4) the two
lawsuits subject to the settlement were never consolidated.
DeLuca’s dissatisfaction with her prior counsel does not negate her
settlement with the Authority, and she cites no legal authority to support this
argument. DeLuca confirmed her understanding of the settlement on the record,
and she did not voice any concern about her attorney’s representation. As the trial
court observed, DeLuca may have a claim of malpractice against her attorney. See
McMahon v. Shea, 657 A.2d 938 (Pa. Super. 1995) (holding that attorney’s
18
negligent failure to advise client about the impact of written divorce settlement on
future rights constituted malpractice). However, DeLuca’s claim against her prior
counsel is irrelevant to the validity of the settlement.
DeLuca asserts that she was under duress at the settlement conference,
which is defined as:
that degree of restraint or danger, either actually inflicted or
threatened and impending, which is sufficient in severity or
apprehension to overcome the mind of a person of ordinary
firmness.... The quality of firmness is assumed to exist in every
person competent to contract, unless it appears that by reason of
old age or other sufficient cause he is weak or infirm.... Where
persons deal with each other on equal terms and at arm’s length,
there is a presumption that the person alleging duress possesses
ordinary firmness.... Moreover, in the absence of threats of actual
bodily harm, there can be no duress where the contracting party
is free to consult with counsel.
Sofronski v. Civil Service Commission, City of Philadelphia, 695 A.2d 921, 925-26
(Pa. Cmwlth. 1997) (emphasis added) (quoting Carrier v. William Penn
Broadcasting Company, 233 A.2d 519, 521 (Pa. 1967)). In support of her claim of
duress, DeLuca cites her testimony at the hearing of February 11, 2019.
In that testimony, DeLuca asserted, in some detail, that her attorney
and Judge Amesbury behaved in an untoward manner. Nevertheless, after her
exchange with Judge Amesbury, DeLuca testified that she rejected a settlement
offer of “$10,000 [and her] job back[.]” N.T., 2/11/2019, at 36; R.R. 226a.
DeLuca’s own account shows that she stood up to this “duress.” It did not influence
her decision. Further, DeLuca had counsel with her for the entire settlement
conference, and she spoke with her other attorney during the settlement conference.
She was not threatened with bodily harm. To the extent DeLuca felt some pressure
19
to settle, that pressure was insufficient to “overcome the mind of a person of
ordinary firmness.” Sofronski, 695 A.2d at 925 (quoting Carrier, 233 A.2d at 521).
DeLuca insists that there was no meeting of the minds because she did
not intend to settle the condemnation action and, further, the issue of the salability
of her house was still outstanding. This argument lacks merit given the on-the-
record recital about her house:
[The Authority] will provide a letter that we will then have
verified by our engineer. The letter will be provided by an
engineer on behalf of the Authority, and it will set forth the
specifics as to what physical work was done by the Authority
that addressed the prior overflow events. The purpose of that
letter will be so Ms. DeLuca can then provide that to a
prospective purchaser of her house as part of her required
seller’s disclosure statement.
N.T., 11/27/2017, at 4; R.R. 189a (emphasis added). If there was any mistake here,
it was not a mutual mistake. See Smith v. Thomas Jefferson University Hospital,
621 A.2d 1030, 1032 (Pa. Super. 1993) (a unilateral mistake “not due to the fault of
the party not mistaken, but to the negligence of the one who acted under the mistake,
[] affords no basis for relief”).
Alternatively, DeLuca contends that the trial court improperly
dismissed her condemnation action because her two lawsuits were never
consolidated. This is just another way of advancing the argument that she did not
intend to settle the condemnation action. As explained above, the parties reached a
settlement of both lawsuits, i.e., DeLuca’s whistleblower/trespass and her de facto
condemnation matters. Both lawsuits were identified by docket number on the
record.
20
A settlement agreement is enforceable where the parties report to the
trial court that they reached an agreement; the terms of the agreement were placed
on the record; and each party confirmed their understanding of the agreement.
Johnston v. Johnston, 499 A.2d 1074, 1077 (Pa. Super. 1985). See also Luber v.
Luber, 614 A.2d 771, 774 (Pa. Super. 1992) (affirming trial court’s enforcement of
a settlement agreement where “[t]he agreement placed on the record and the
colloquies following thereafter clearly show[ed] that the parties agreed upon the
essential terms of the Settlement Agreement, [and] intended them to be binding
between them....” (quotation omitted)). Similarly, in Cook v. City of Philadelphia
(Pa. Cmwlth., No. 2304 C.D. 2015, filed November 28, 2016) (unreported), appeal
denied, 170 A.3d 1011 (Pa. 2017),10 this Court affirmed the trial court’s order to
enforce a settlement where the settlement terms were placed on the record.
DeLuca agreed to settle her whistleblower/trespass and condemnation
actions in exchange for the Authority’s payment of $450,000 and a letter from its
engineer regarding the repairs to the sewer lines. She confirmed her understanding
of the agreement. All these terms were recited on the record. DeLuca did not make
her case that her agreement to settle resulted from duress. Accordingly, the trial
court did not err in granting the Authority’s petition to enforce settlement
agreement.
Execution of Settlement Agreement
Finally, DeLuca argues that the trial court erred in directing her to sign
the proffered release. DeLuca contends that she did not authorize her counsel to
prepare that release. The Authority responds that ordering DeLuca to sign the
10
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
21
proffered release was the appropriate remedy for DeLuca’s continued refusal to
conclude the settlement to which the parties agreed in open court.
As explained, there was an agreement as to all material terms of the
settlement and, thus, it was enforceable. Mazzella, 739 A.2d at 536. As part of the
settlement, the parties agreed to sign a mutual general release. Specifically, the
parties agreed as follows:
MR. KARPOWICH: Counsel for [DeLuca], Your Honor, is
going to prepare a general release for the parties to sign.
MR. McDONOUGH: It will be a mutual general release with
non-disparagement provisions going both ways.
N.T., 11/27/2017, at 4; R.R. 189a. At no point did DeLuca inform the trial court or
the Authority that she would not sign a release. The proffered release was
consistent with the settlement terms that had been placed on the record on
November 27, 2017, and DeLuca does not argue otherwise.
“As a general rule, signatures are not required unless such signing is
expressly required by law or by the intent of the parties.” Shovel Transfer and
Storage, Inc. v. Pennsylvania Liquor Control Board, 739 A.2d 133, 136 (Pa. 1999)
(citations omitted). Neither party argues that signatures were required by statute or
regulation. Thus, the question is whether the parties intended for DeLuca to sign
the proffered release.
“Where the parties have agreed orally to all the terms of their contract,
and a part of the mutual understanding is that a written contract embodying these
terms shall be drawn and executed by the respective parties, such oral contract may
be enforced, though one of the parties thereafter refuses to execute the written
contract.” Id. at 138 (quoting Ketchum v. Conneaut Lake Company, 163 A. 534,
22
535 (Pa. 1932)). The record shows that the parties intended to be bound under the
terms of the settlement regardless of whether DeLuca executed the proffered
release. The settlement was not contingent on DeLuca signing the proffered release.
As the Pennsylvania Supreme Court has explained, “absent any legal
requirement for the signatures, an enforceable contract was formed between the
parties.” Shovel Transfer and Storage, 739 A.2d at 139. It was not necessary for
the trial court to order DeLuca to sign the proffered release. The settlement
agreement and release were not contingent upon execution of a written contract.
The trial court, however, did not abuse its discretion in ordering DeLuca to sign the
agreement and release because she had agreed on the record to sign a release.
Conclusion
For all the above-stated reasons, we affirm the trial court’s order to
deny DeLuca’s motion to recuse the judge presiding in the matter and its order
granting the Authority’s petition to enforce the parties’ settlement agreement of
November 17, 2017.
MARY HANNAH LEAVITT, President Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Colleen DeLuca, :
Appellant :
:
v. : No. 1024 C.D. 2019
:
Mountaintop Area Joint Sanitary :
Authority and Thomas G. Keiper :
ORDER
AND NOW, this 16th day of June, 2020, the orders of the Court of Common
Pleas of Luzerne County, dated May 15, 2019, and July 9, 2019, are AFFIRMED.
MARY HANNAH LEAVITT, President Judge