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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FREUNDLICH & LITTMAN, LLC AND : IN THE SUPERIOR COURT OF
GREGORY CREED LITTMAN, : PENNSYLVANIA
ESQUIRE, :
:
:
v. :
:
:
EDWARD T. FEIERSTEIN, BRUCE : No. 498 EDA 2020
CHASAN, ESQUIRE AND THE LAW :
OFFICES OF BRUCE J. CHASAN, LLC :
:
:
APPEAL OF: BRUCE CHASAN, :
ESQUIRE AND THE LAW OFFICES OF :
BRUCE J. CHASAN, LLC :
Appeal from the Order Entered January 14, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 150401569
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED DECEMBER 14, 2021
I respectfully dissent. To my mind, the trial court’s November 21, 2019
bench order was final and, thus, appealable because it precluded a trial on the
merits. Thus, I would order Appellants to praecipe the clerk of courts to
effectuate the entry of the bench order on the docket, proceed to the merits
of the issues, and reverse the holding below.
The Majority correctly observes that the bench order was never placed
on the docket pursuant to Pa.R.A.P. 301(a). It is unfortunate, however, that
the Majority opts to quash this appeal in lieu of directing Chasan to file a
praecipe for the entry of a written order. See Pa.R.A.P. 301(d) (“[T]he clerk
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of courts shall, on praecipe of any party . . . forthwith prepare, sign, and enter
an appropriate order, judgment, or final decree in the docket, evidencing any
action from which an appeal lies[.]”). This Court regularly permits such
ministerial correction rather than employing the harsh result of quashal.1 See
Yon v. Yarus, 700 A.2d 545, 546 (Pa.Super. 1997) (observing that the
jurisdictional requirements set forth pursuant to Rule 301 may be perfected
even while an appeal is pending).
Assuming, arguendo, that the bench order was properly entered on the
docket in this fashion, I would turn the focus of our inquiry to the discrete
issue of justiciability, i.e., whether the order is sufficiently final to permit an
appeal.2 While my learned colleagues conclude that an order simultaneously
revising and enforcing a settlement agreement is interlocutory, I must
disagree due to the specific circumstances of this case.
The central issue at the November 21, 2019 hearing that led to the
issuance of the bench order was the viability of the Settlement Agreement.
Under its terms, Bruce Chasan, Esquire and The Law Offices of Bruce J.
Chasan, LLC (collectively, “Chasan”) were to withdraw a pending appeal in a
related defamation case. That withdrawal never took place and the appeal
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1 See also, e.g., McCormick v. Northeastern Bank of Pennsylvania, 561
A.2d 328, 330 n.1 (Pa. 1989) (excusing the lack of a final order under
Pa.R.A.P. 301 in the interest of “judicial economy” and regarding “as done that
which ought to have been done” to reach the merits of the case).
2 Although Chasan misidentified the appealable order, we may correct the
caption. See In Interest of N.C., 171 A.3d 275, 278 n.1 (Pa.Super. 2017).
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proceeded to a decision on the merits in favor of Gregory Creed Littman,
Esquire, and Freundlich & Littman, LLC (collectively, “Littman”). In addition
to undermining one of the key points of consideration, this non-performance
also affected Littman’s concomitant obligations under the accord:
The issue . . . is that the settlement funds — there was a $25,000
total. The reason there were two payments, because $5,000 was
coming from [Littman] and the plaintiffs, and $20,000 was coming
from the insurance company in the defamation case. That money
is gone.
The insurance company in the defamation case brought by
[Chasan] against [Littman] has no interest in paying $20,000 for
a case that they had to litigate for five years and ultimately won[.]
Id. at 19. Although Littman no longer wanted to pay, it still wanted to secure
a written release from Chasan as a hedge against future litigation.
Chasan took the position that the terms of the Settlement Agreement
should be strictly enforced or that the matter should be listed for trial:
“[E]ither the case has to be relisted and [Littman] have to put on their case
and we defend it on the merits and we seek to get a jury verdict in our favor
to exonerate my client or they can . . . perform under the settlement.” N.T.
Trial, 11/21/19, at 23. Furthermore, Chasan argued that the source of the
settlement funds was not a part of the parties’ negotiations: “They agreed
they were going to pay the money. However they get the funds, that’s up to
them.” Id. at 25.
The trial court opted to preserve the contract by sua sponte revision,
reasoning that Chasan’s noncompliance should cancel out the monies to be
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paid by Littman: “My order is as follows: I retain jurisdiction to enforce the
settlement. I find that because [Chasan] did not comply with discontinuing
the defamation action, the plaintiffs are not required to make the payments
that they said they were going to make.” Id. at 28. In so doing, the trial
court also necessarily concluded the parties continued to be bound by the
reimagined Settlement Agreement and declined to relist the matter for trial.
Based on the foregoing discussion, I would hold that the bench order
was “final” insofar as it disposed of “all claims and of all parties”. Pa.R.A.P.
341(b)(1). “[T]o determine whether finality is achieved, we must consider
whether the practical ramification of the order will be to dispose of the case,
making review appropriate.” Friia v. Friia, 780 A.2d 664, 667 (Pa.Super.
2001) (cleaned up). The gravamen of the trial court’s holding is that the
decision to settle the case is inextricably binding, even if the precise terms of
the settlement have been fundamentally altered. Moreover, its holding
subsumed all parties and claims in the above-captioned case. By choosing to
enforce its revised Settlement Agreement, the trial court has extinguished any
potential litigation between the parties. Our precedent indicates that such a
holding is final and appealable. See Friia, supra at 667-68 (holding that an
order respecting the enforcement of a settlement agreement is “final” where
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“the circumstances of the case make the remedy of trial inaccessible”).3
Hence, Chasan’s appeal is jurisdictionally proper.
Having determined finality, I would turn to the merits and grant relief
based upon Chasan’s fourth issue, which asserts the trial court erred in
imposing its recast Settlement Agreement upon the parties. See Chasan’s
brief at 48-50. I am guided by the following legal principles. “Our standard
of review of a trial court’s grant or denial of a motion to enforce a settlement
agreement is plenary, as the challenge is to the trial court’s conclusion of law.”
Casey v. GAF Corp., 828 A.2d 362, 367 (Pa. 2003). “The enforceability of
settlement agreements is governed by principles of contract law.” Pennsbury
Village Associates, LLC v. Aaron McIntyre, 11 A.3d 906, 914 (Pa. 2011).
“As with any contract, it is essential to the enforceability of a settlement
agreement that the minds of the parties should meet upon all the terms, as
well as the subject matter, of the agreement.” Mazzella v. Koken, 739 A.2d
531, 536 (Pa. 1999). Thus, Pennsylvania courts will only “enforce a
settlement agreement if all its material terms have been agreed upon by the
parties.” Pennsbury, supra at 914 (citing Century Inn, Inc. v. Century
Inn Realty, 516 A.2d 765, 767 (Pa.Super. 1986)).
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3 The appeal in Friia v. Friia, 780 A.2d 664, 667-68 (Pa.Super. 2001)
concerned an order refusing to enforce a settlement agreement, as opposed
to an order of enforcement. I do not believe this distinction undermines the
general principle expressed in Friia, i.e., that a trial court order concerning a
settlement agreement that precludes litigants from their day in court is final.
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In response to the competing arguments of the parties concerning the
validity of the Settlement Agreement, the trial court redrafted the contractual
terms as described above. See N.T. Hearing, 11/21/19, at 26 (“Suppose I
cancel those two things out; you don’t have to pay, he can no longer perform
what he was supposed to perform.”). Furthermore, it announced its intention
to impose sanctions if the parties did not comply. Id. at 29. This was clear
legal error. The trial court may not unilaterally revise the terms of a
settlement agreement, particularly where those revisions conflict with the
terms originally contemplated by the parties and are supported by the threat
of sanctions for non-compliance. See Century Inn, supra at 769 (“The court
may not . . . order the parties to execute the court’s own agreement, or face
a contempt citation, where the agreement differs from the terms of the
settlement.”); Johnston v. Johnston, 499 A.2d 1074, 1078 (Pa.Super.
1985) (“[T]he trial court cannot compel appellants, as part of their settlement,
to sign a written contract which is not in all respects consistent with the
agreement reached during trial and placed upon the record by the parties and
their attorneys.”). Indeed, the withdrawal of the defamation appeal and the
payment of the settlement funds stand out as the two central pillars of
consideration undergirding the parties’ original accord.
Furthermore, I emphasize that both parties are in ongoing breach of
their obligations. While Littman complains that it should not be required to
pay, the terms of the Settlement Agreement predicated Chasan’s withdrawal
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of the appeal upon receipt of the settlement funds. See N.T. Hearing, 6/8/18,
at 5 (“The appeal that’s currently pending in the defamation lawsuit shall be
discontinued upon payment of all the settlement funds.” (emphasis
added)). However, this payment was similarly premised upon the execution
of a written release. Id. at 3. Thus, the parties have created a contractual
“catch-22” by which their inability to agree upon the terms of the written
release prevented further performance. Now that the appeal can no longer
be withdrawn by Chasan, future performance by either party seems
impossible. Furthermore, the record clearly evinces negotiations have stalled.
With neither party willing to give ground and performance of the
covenant undermined, the appropriate remedy is to set the Settlement
Agreement aside and remand for trial. See Koken, supra at 537 (holding
that where “ambiguities and undetermined matters” render a settlement
agreement “impossible to understand and enforce,” the agreement should be
set aside in favor of a trial on the merits).
For all the reasons stated above, I respectfully dissent.
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