Hammel v. Christian

CAVANAUGH, Judge,

concurring:

I join in the majority’s disposition of all issues with the exception of whether it was proper for the lower court to permit the original defendant’s counsel to cross-examine plaintiff Lucille Hammel with a discrete portion of a joint tortfeasor release. I agree with the majority that the trial court did not err in allowing such cross-examination. However, I believe that the majority’s rationale is erroneous insofar as it relies for support on cases which interpret the *89common law rule for offer of compromise instead of cases which interpret 42 Pa.C.S.A. § 6141, the law which governs completed compromise agreements. See Part I, infra. In Part II, infra, I present my own rationale for permitting the cross-examination of plaintiff Lucille Hammell. The lower court was presented during trial with a provision in a joint tortfeasor release which appeared to require that the plaintiffs not to give testimony against the additional defendant. This provision could easily be seen as a direct attempt to frustrate the administration of justice. I would hold that the lower court committed no abuse of discretion, after not being convinced that the provision was innocuous after a lengthy side bar, in allowing limited cross examination.

I.

The majority’s analysis fails to acknowledge that our Commonwealth appears to treat differently admissions revealed during the course of negotiating a settlement agreement and information contained in a settlement agreement. I submit we are faced with the latter, not the former, as plaintiff Lucille Hammel was cross-examined based on a provision in a settlement agreement. I also submit that the rule which states admissions made during the course of settlement negotiations are admissible at trial, if it continues to have vitality,1 is not applicable to admissions appearing in a settlement agreement. The former is a rule derived from the common law, as opposed to the latter, *90which is governed by an explicit statutory provision, 42 Pa.C.S.A. § 6141.

The admissibility into evidence of a settlement agreement is governed by 42 Pa.C.S.A. § 6141. It reads in pertinent part as follows:

§ 6141. Effect of certain settlements.
(a) Personal injuries. — Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf this payment was made, unless the parties to such settlement or payment agree to the contrary.
(b) Damages to property. — Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(c) Admissibility in evidence. — Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.

This Court is no stranger to articulating the breadth of the above section. On numerous prior occasions we have opined on a request by counsel to utilize settlement agreements to show bias, prejudice or interest. On all of these occasions we have pronounced that the section is a formidable bar to counsel who wish to so utilize a settlement agreement. On at least two occasions we have characterized the protection of this section as relatively ‘inflexible.’ Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 534, 521 A.2d 25, 31 (1987) appeal dismissed, 518 Pa. 61, 540 A.2d 268 (1988); Weingrad v. Philadelphia Elec. Co., 324 Pa.Super. 16, 20 n. 3, 471 A.2d 100, 103 n. 3 (1984). On *91another occasion we have declared that “[i]t is axiomatic that the settlement agreement among the settling tortfeasors could not be admitted or used for any purpose during the trial of this matter.” Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 481, 574 A.2d 706, 711-2 (1990). Most recently, we have addressed whether a version of the so-called “Mary Carter Agreement,” a secret settlement agreement which realigns the interests of a co-defendant with a plaintiff in a heavy-handed fashion, was admissible. Hatfield v. Continental Imports, Inc., 396 Pa.Super. 309, 578 A.2d 530, 532 (1990), alloc. granted 527 Pa. 601, 589 A.2d 691 (1991). We found that such was not the case, as elaborated below.

A “Mary Carter Agreement” derives its name from the Florida decision Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.App.1967). It is a secret agreement between a plaintiff and a co-defendant which gives the co-defendant incentive to support the plaintiffs case. The classic formulation is that the defendant agrees to remain in the action and will pay to the plaintiff a set amount regardless of the action’s outcome, but the defendant’s own liability will be diminished proportionally by increasing the liability of the other co-defendants. In Hatfield, we held that even if the pertinent agreement was a “Mary Carter Agreement,” “the express mandate of § 6141(c) prohibits admission of such an agreement.” Id., 396 Pa.Superior Ct. at 312, 578 A.2d at 531.

Given our, if anything, rigid adherence to a broad interpretation of the statute’s scope, the majority opinion is puzzling.2 The tenor of the majority’s argument is that an admission contained in a settlement agreement may be used for cross-examination to display bias or prejudice of a *92witness. The Majority takes no notice of our pronouncements in Hatfield, Cipriani, Wilkerson, and Weingrad. The majority opinion instead looks to the analysis set forth in part II of Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982) for authority. This is troublesome, as this section indicates it was reaffirming the validity of the common law rule of an offer to compromise.3 Rochester, supra, at 551, 449 A.2d at 1369. Thus, the majority looks to the common law rule of an Offer to compromise to interpret a statutory provision which appears to be a different rule. The common law rule of an offer to compromise allows the admission of distinct admissions of fact made during the course of negotiation. Rochester, supra, 498 Pa. at 556, 449 A.2d at 1371. Section 6141, however, as our broad pronouncements in Hatfield et al. indicate, would keep admissions and declarations against interest appearing in a settlement agreement confidential.4

II.

I would dispose of this issue differently. The conduct of trial is within the discretion of the trial judge. Kearns v. *93Clark, 343 Pa.Super. 30, 40, 493 A.2d 1358,1363 (1985); see also, Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 433, 442 A.2d 1114, 1129 (1982). Moreover, the scope and limits of cross-examination are within the trial court’s discretion, and will not be reversed absent an abuse of discretion or an error of law. Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369,1371 (1984); see also, Gatling v. Rothman, 267 Pa.Super. 566, 571, 407 A.2d 387, 389 (1979). The facts sub judice differ in nature, not in degree, from those in our decisions in Hatfield, Cipriani, Wilkerson, and Weingrad. As the Majority notes, the joint tortfeasor release contains a provision which easily lends to the interpretation, that as part of the agreement, the plaintiffs agreed not to give testimony against the additional defendant. The provision reads: “[t]his Release expressly includes ... the express agreement of the Plaintiffs, LUCILLE E. HAMMEL and JOSEPH HAMMEL, her husband, not to present any evidence against MARY THERESA HAMMEL.” (emphasis in original). This provision conflicts with legislative enactments designed to ensure that a party receives justice by providing the trier of fact with an honest picture of events. Pursuant to 42 Pa.C.S.A. § 5941(a)5, the original defendant had a right to compel the plaintiff to testify as to her recollection of the accident. This testimony was subject to the penalties for perjury. See 18 Pa.C.S.A. § 4902. Accordingly, I would treat it void ab initia, and thus not entitled to the protection afforded by 42 Pa.C.S.A. § 6141. The legislature has indicated that, in interpreting the intention of the General Assembly in the enactment of a statute, there exists the presumption that the Assembly did not intend a result that is absurd or *94unreasonable, or that it intended to favor a private interest over a public interest. 1 Pa.C.S.A. § 1922(1) & (5). The Assembly in enacting § 6141 obviously wished to give incentive for the extrajudicial resolution of disputes, as opposed to protection, under the guise of settlement, for attempts to violate the integrity of our legal system.

*93§ 5941. Persons who may be compelled to testify (a) General rule. — Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.

*94A settlement agreement is a contract. Although courts will enforce a wide range and variety of contracts, there are certain things considered unenforceable. Inter alia, we will not enforce contracts for sex, contracts to commit crime, contracts to commit usury, and contracts to subvert justice. A contract to suppress evidence has traditionally been considered unenforceable:

It is quite as objectionable for the suppression of evidence, by paying witnesses to leave the state or otherwise, as . to bargain for its production, and any bargain having this for its object is invalid.

14 S. Williston, A Treatise on the Law of Contracts, § 1716 (3rd Ed.1972) (footnote omitted).

At trial, the lower court conducted a very lengthy side bar concerning the ability of the original defendant to use the offending provision to cross-examine the witness. After not being satisfied by plaintiffs’ and additional defendant’s arguments that the provision was innocuous, it determined that the provision could be utilized to cross-examination. The lower court allowed the following two questions to be asked: (1) Was plaintiff Lucille Hammel’s signature on the document? and (2) Whether, in the document, it says that she and her husband expressly agree not to present any evidence against Mary Theresa Hammel? The lower court allowed these questions under the express condition that the document was not to be referred to as a release. It is pertinent to note that both plaintiffs’ counsel and additional defendant’s counsel denied any knowledge that this provision was contained in the joint tortfeasor release. Neither gave the lower court a satisfactory explanation as to why the language appears in the agreement, and on appeal a satisfactory explanation is still lacking. *95Faced with the failure of counsel to explain the presence of this language in the provision, I would hold that the lower court did not abuse its inherent discretion in allowing a discrete portion of the agreement to be used to impeach the witness. Although admittedly we have interpreted the language in 42 Pa.C.S.A. § 6141 broadly, it would be unreasonable to stretch its protection to a contractual provision that would be unenforceable due to illegality.

. The majority cites three cases for the above mentioned rule: Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982); Manella v. City of Pittsburgh, 334 Pa. 396, 403, 6 A.2d 70, 73 (1939); Rabinowitz v. Silverman, 223 Pa. 139, 144, 72 A. 378, 380 (1909). In Rochester, only two justices affirmed on the basis of the above mentioned rule, three others preferring to affirm on narrower grounds while one justice concurred in the result and one dissented. Although I would adhere to this time-honored (though much questioned) rule until specific indication from our Supreme Court articulating a different rule, the votes in Rochester may indicate discomfort with the rule.

. I note that the Majority has not asserted there exists a parallel between the way settlement agreements are handled under the Federal Rules of Evidence and under 42 Pa.C.S.A. § 6141. Under the F.R.E. 408, although evidence relating to underlying liability is inadmissible, the rule does not exclude evidence offered for any other purpose, such as proving bias or prejudice. See F.R.E. 408; Louisell and Mueller, Federal Evidence, § 172 at 292. Most courts, however, consider using a settlement agreement for cross-examination purposes to be more prejudicial than probative and under F.R.E. 403 will not admit them. See Louisell and Mueller at 293.

. No mention is made of 42 Pa.C.S.A. § 6141 in Rochester. This section became effective on 6/27/78. If an Offer to Compromise was governed by § 6141, surely the Supreme Court in Rochester would have indicated this.

I also note that the majority’s reliance on Rochester may be seen as slightly troubling as only two Justices joined in Part II, and no case in our Commonwealth has subsequently reaffirmed the validity of this rule. However, as the dissenting and concurring Justices made no explicit attempt to question the vitality of the common law rule of an offer to compromise, it remains the law.

. The policy rationale behind the common law rule for Offer to Compromise appears to differ from the policy embodied in § 6141. The policy behind the common law rule is centered around giving the trier of fact broad access to relevant, non-prejudicial information which would be pertinent to its decision. Cf. Rochester, supra, 498 Pa. at 553, 449 A.2d at 1369-70; Arthur v. James, 28 Pa. 236 (1857). See also, Packel and Poulin, Pennsylvania Evidence, § 408 at 200. However, the policy behind 42 Pa.C.S.A. § 6141 apparently is that the expeditious and extrajudicial settlement of disputes is to be encouraged by holding the completed settlement agreement confidential. Cf. Hatfield, Cipriani, Wilkerson, and Weingrad supra. See also Packel and Poulin, Pennsylvania Evidence, § 408.1 at 201-2.

. 42 Pa.C.S.A. § 5941(a) reads as follows: