Riviello v. First National Community Bank et al

Filing 19

MEMORANDUM re 15 Second MOTION to Enforce Settlement filed by Gerald Rosario Riviello, Jr. (order to follow)Signed by Honorable Malachy E Mannion on 4/3/13. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GERALD ROSARIO RIVIELLO, JR., :
CIVIL ACTION NO. 3:10-2347
Plaintiff

:

v.

:

FIRST NATIONAL COMMUNITY
BANK, JOHN DOES 1-10, and
X, Y, Z CORPORATIONS,
Defendants

(JUDGE MANNION1)

:
:
:

MEMORANDUM
Pending before the court is the plaintiff’s second motion to enforce
settlement agreement. (Doc. No. 15). Based upon the court’s review of the
motion and related materials, the motion will be denied.

I.

PROCEDURAL HISTORY
By way of relevant background, on August 26, 2010, the plaintiff filed a

class action complaint alleging violations of the Electronic Funds Transfer Act,
(“EFTA”), 15 U.S.C. §1693, et seq., in the Court of Common Pleas of
Lackawanna County. The action was removed by the defendant First National
Community Bank, (“FNCB”), on November 12, 2010. (Doc. No. 1).

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The instant action was originally assigned to the Honorable A. Richard

Caputo. By verbal order, on January 4, 2013, the matter was reassigned to
the undersigned.

A case management conference was held in the matter on February 2,
2012. In the case management plan filed in preparation for the conference,
counsel for the plaintiff indicated to the court that she no longer wished to
pursue class treatment of the claim. As a result of discussions during the case
management conference, the court directed the plaintiff to file a motion to
enforce settlement. Plaintiff filed an initial motion to enforce settlement
agreement on February 21, 2012, (Doc. No. 9), which was deemed withdrawn
by order of court dated June 1, 2012, for the plaintiff’s failure to file a timely
brief. (Doc. No. 14).
On June 11, 2012, the plaintiff filed the currently pending second motion
to enforce settlement, (Doc. No. 15), along with a brief in support thereof,
(Doc. No. 16). A response to the motion was filed by FNCB on June 13, 2012,
(Doc. No. 17), along with an opposing brief and exhibits, (Doc. No. 18).

II.

LEGAL STANDARD
Settlement agreements are essentially contracts to which the basic

contract principles apply. Williams v. Metzler, 132 F.3d 937, 946 (3d Cir.
1997); and see Cal. Sun Tanning USA v. Electric Beach, Inc., 369 Fed. Appx.
340, 346 at n.6 (3d Cir. 2010). The essential elements of a contract are an
offer, acceptance, and consideration or a mutual meeting of the minds.
Richter v. Pfundt, 2009 WL 5064383 (E.D. Pa.) (citing Yarnall v. Almy, 703
A.2d 535, 538 (Pa.Super. 1997) (citations omitted)).
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In order to be enforceable, an acceptance must be unconditional. Id.
(citing Yarnall, 703 at 539 (citations omitted)). Moreover, where an
acceptance is ambiguous, it must be construed against the acceptee. Eastern
Elec. Sales Co. v. Provident Tradesmens Bank & Trust Co., 162 A.2d 215
(Pa. 1960).
“[U]nder ordinary contract law, contracts are enforceable when parties
reach a mutual agreement, exchange consideration and have set forth the
terms of their bargain with sufficient definiteness to be specifically enforced.”
Aircraft Corp v. Strata Lift Inc., 103 F.Supp.2d. 830, 836 (E.D. Pa. 2000). An
agreement is definite when there is a clear indication that the parties intended
to form a contract, and there is basis for the court to grant relief. Id.
Because the enforceability of settlement agreements is governed by the
principles of contract law, a meeting of the minds is required. Mazzella v.
Koken, 739 A.2d 531 (Pa. 1999). As with all contracts, in the formation of an
enforceable settlement agreement, “the minds of the parties should meet
upon all of the terms, as well as the subject-matter.” Id. at 536 (citations
omitted). If there are matters yet to be determined about the essential terms
of a settlement, there is no agreement to enforce. Id. at 537. If all of the
material terms of a bargain are agreed upon, the settlement will be enforced;
however, if there are ambiguities and undetermined matters which render the
agreement impossible to enforce, the agreement will be set aside. Id.
Where it is found that there is an agreement to settle a lawsuit,
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voluntarily entered into, it is binding upon the parties, whether or not made in
the presence of the court, and even in the absence of a writing. Green v. John
H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970).

III.

DISCUSSION
Plaintiff argues in his motion that the parties agreed to settle the instant

matter for $3,500, as memorialized in e-mails between counsel for the parties.
According to the plaintiff, defendant later repudiated and refused to settle. As
a result, the plaintiff is seeking to have this court enforce the agreement and
award reasonable attorney’s fees.
In response to the plaintiff’s motion, the defendant has filed an opposing
brief with attached exhibits which reflect that, on April 11, 2011, defendant’s
counsel sent plaintiff’s counsel an e-mail indicating that “FNCB will settle for
$3,500 provided your client signs a settlement and release agreement. I will
draft one for your review.” (Doc. No. 18, Ex. A). Plaintiff’s counsel responded
that same day “Write it up.” (Id.).
Shortly thereafter, on April 15, 2011, apparently in response to a phone
call from plaintiff’s counsel, defendant’s counsel sent an e-mail indicating “I
am drafting a settlement agreement for Riviello v. FNCB.” (Doc. No. 18, Ex.
A).
When no agreement was received from defendant’s counsel, on May 6,
2011, plaintiff’s counsel sent an e-mail to defendant’s counsel stating “I have
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been waiting for you to produce a draft of the settlement agreement.” (Doc.
No. 18, Ex. B). Plaintiff’s counsel followed this e-mail with another on May 18,
2011, in which she stated “Thought we had a deal. What happened to our
settlement agreement?” (Doc. No. 18, Ex. C). That same day, defendant’s
counsel responded “I have contacted my client and have been informed that
they are not in a position to settle at this point.” (Id.).
Nearly one month later, on June 15, 2011, plaintiff’s counsel proceeded
to serve requests for discovery upon the defendant. (Doc. No. 18, Ex. D).
Several months later, on October 14, 2011, plaintiff’s counsel sent
defendant’s counsel an e-mail inquiring “Shousl [sic] I continue with discover
[sic] and a motio [sic] to enforce our previous settlement agreement? Or can
se [sic] settle this one?” (Doc. No. 18, Ex. E).
On January 3, 2012, plaintiff’s counsel continued discovery and served
initial disclosures upon defendant’s counsel. (Doc. No. 18, Ex. F).
Finally, on February 2, 2012, plaintiff’s counsel e-mailed defendant’s
counsel stating “$4,500 is the least I will recommend to my client for
settlement purposes, if you force me to file the motion to enforce our already
existing settlement agreement.” (Doc. No. 18, Ex. G).
In considering the above materials, there appears to be no valid
argument against finding that the e-mail sent by the defendant’s counsel to
plaintiff’s counsel on April 11, 2011, was an offer to settle the above matter
for $3,500 and conditioned upon the plaintiff signing a settlement and release
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agreement. If the plaintiff had clearly and unequivocally accepted all terms of
the offer, there would be a valid and enforceable agreement in place.
However, upon review, the plaintiff’s response is ambiguous. In response to
the offer, plaintiff’s counsel simply replied “Write it up.” This response could
be viewed to mean that counsel accepted all of the terms of the defendant’s
offer and that she was ready and willing to accept the $3,500 and sign any
settlement and release agreement forwarded by defendant’s counsel. It could
equally be viewed to mean that she wanted defendant’s counsel to forward
her a draft settlement and release agreement for her review prior to accepting
the $3,500 offer. In fact, in subsequent e-mails, it is the “draft” agreement
which plaintiff’s counsel requests, not any monetary settlement. As indicated
above, ambiguity in acceptance is construed against the acceptee. As such,
the court finds that there was no unequivocal acceptance of the defendant’s
offer and, therefore, there is no valid settlement agreement to enforce.
Further, it does not appear that there was a true meeting of the minds
in the negotiation of the settlement. To this extent, while the defendant did
offer to settle the action with the plaintiff for $3,500, that offer was conditioned
upon the plaintiff signing a settlement and release agreement, which never
occurred.
Moreover, with the exception of the $3,500, at no time in the exchanges
between the parties were the specific provisions of the settlement and release
agreement discussed. In light of the fact that the instant action was, at the
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time of the offer, filed as a class action lawsuit, it seems unlikely that either
counsel would settle the action without discussing the specific terms of the
agreement and release.
Adding to the indefiniteness of the agreement is the inquiry by plaintiff’s
counsel on October 14, 2011, as to whether she should continue discovery
or whether the parties could “settle this one,” as well as her subsequent
change of the amount which would be accepted by the plaintiff to settle the
matter from $3,500 to $4,500 on February 2, 2012.
In light of the foregoing, the court finds that there is no enforceable
settlement agreement in place and, therefore, the plaintiff’s second motion to
enforce will be denied. An appropriate order will issue.

s/Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
Date: April 3, 2013
O:\Mannion\shared\MEMORANDA - DJ\2010 MEMORANDA\10-2347-01.wpd

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