Pisarz v. PPL Corporation

Filing 99

MEMORANDUM AND ORDER: DENYING PPL Corp.'s motion 85 to enforce the parties' agreement to settle and discontinue plaintiff's civil action; scheduling an evidentiary hearing for 10/15/2013 10:00 AM in Williamsport - Courtroom 3 before Honorable Matthew W. Brann; directing the clerk to forward a copy of this order to the plaintiff by first class mail. (See order for details.)Signed by Honorable Matthew W. Brann on 4/19/13. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE J. PISARZ, JR.,
Plaintiff,
v.
PPL CORP.,
Defendant.

:
:
:
:
:
:
:
:
:

Case No. 4:10-cv-01432
(Judge Brann)

MEMORANDUM
April 19, 2013

I.

Background
The Court will recite only the history relevant to defendant PPL Corp.’s

“Motion to Enforce the Parties’ Agreement to Settle and Discontinue Plaintiff’s
Civil Action,” filed on December 28, 2012 (the “Motion to Enforce”). (Rec. Doc.
No. 85). On October 16, 2012, counsel for PPL Corp. notified the Court (in a letter
to Chief Judge Kane, who was then presiding over this case) that this matter had
been “resolved by agreement of the parties, subject to the execution of a Settlement
Agreement.” (Rec. Doc. No. 81). The same day, the Court issued a standard Order
dismissing the action without costs and without prejudice, but providing for
reinstatement of the action – upon good cause shown and within sixty days – if

settlement was not consummated. (Rec. Doc. No. 82). On December 11, 2012,
plaintiff Pisarz’s counsel filed a “Motion to Reopen/Reinstate Case” (the “Motion
to Reinstate”), which explained that “settlement ha[d] not been consummated”; that
Pisarz had “not returned the release”; and that he had “indicate[d] that he w[ould]
not agree to the terms set forth therein.” (Rec. Doc. No. 83 at 1-2). The motion was
granted on December 21, 2012. (Rec. Doc. No. 84).
On December 28, 2012, PPL Corp. filed the Motion to Enforce and papers in
support. (Rec. Doc. Nos. 85 & 86).The papers set forth the following timeline of
events. On October 11, 2012, counsel for Pisarz and PPL Corp. reached a
settlement agreement that was, to PPL Corp.’s knowledge, duly authorized by the
parties’s respective clients. (Rec. Doc. No. 86 at 2). At its core, the agreement
involved a lump sum payment to Mr. Pisarz in exchange for a general release of
claims against PPL Corp. (Id.). A day later on October 12, 2012, “[i]n furtherance
of the agreement,” Pisarz’s counsel prepared “an executed IRS Form W-9 as well
as a breakdown for disbursement of the lump sum payment.” (Id. at 3). On October
16, 2012, PPL Corp. notified the Court of the settlement agreement and the Court
entered the dismissal Order. Thereafter, on November 7, 2012, PPL Corp. sent to
Pisarz’s counsel a “Confidential Separation Agreement and General Release” for
Pisarz’s signature. (Id.).
In early December 2012, however, PPL Corp.’s counsel learned from
2

Pisarz’s counsel that Pisarz had not signed the agreement. Pisarz’s counsel then
filed the Motion to Reinstate on December 11, 2012, which the Court granted on
December 21, 2012. (Id.).
PPL Corp.’s Motion to Enforce argued that, applying the governing caselaw
to the facts set forth above, PPL Corp. and Pisarz reached a binding settlement
agreement in spite of Pisarz’s ultimate refusal to reduce the agreement to writing.
(Rec. Doc. No. 86 at 7). Accordingly, PPL Corp. asserted that it was entitled to
Pisarz’s specific performance under the agreement. (Id. at 7-8)
Pisarz’s counsel did not file an opposing brief because, he later explained to
the Court, he felt he could not do so without violating, on the one hand, his duty of
candor to the Court or, on the other hand, his duty of loyalty to his client. But
Pisarz himself sent short letters to the Court and called chambers repeatedly to
express his opposition to the settlement.
Without an opposing brief from Pisarz’s counsel, and lacking an
understanding of the relevant circumstances adequate to decide the pending
motion, the Court ordered Pisarz, Pisarz’s counsel, and counsel for PPL Corp. to
attend an in-person status conference. (Rec. Doc. No. 92). That conference took
place on April 4, 2013. The Court heard from counsel of both parties publicly and
in chambers, and, with the consent of counsel for both parties, met in chambers
with Pisarz himself. See generally Code of Conduct for United States Judges
3

Canon 3(A)(4)(d); Committee on Codes of Conduct, Advisory Op. 95 (2009).
The following Order is based on a number of conclusions reached by the
Court as a result of the April 4, 2013 conference: (1) the attorney-client
relationship between Pisarz and his counsel is, in the words of his counsel,
“irreconcilably broken”; (2) there is no dispute that Pisarz’s counsel and PPL Corp.
reached agreement on the terms of settlement; (3) there is a factual dispute between
Pisarz and PPL Corp. as to whether Pisarz’s counsel was authorized to settle the
case on the terms reached with PPL Corp.; (4) Pisarz’s counsel is ethically
constrained – at the hearing he cited the attorney-client privilege and continued
loyalty to his client – in terms of his ability to reveal, by his own telling or that of
his client, the circumstances surrounding the settlement.
II.

Discussion
When a party, here PPL Corp., seeks enforcement of a settlement agreement,

the Court treats the motion like one for summary judgment. See Tiernan v. Devoe,
923 F.2d 1024, 1031-32 (3d Cir. 1991). Assuming for the sake of analysis that the
assertions of the nonmovant, here Pisarz, are true, the Court must determine
whether PPL Corp. is entitled to enforcement as a matter of law. Id. Where material
facts are in dispute, the Court must order further proceedings to resolve the factual
controversy and, ultimately, determine whether enforcement is warranted. See
Henry v. Merrill Lynch, 169 F. App’x 102, 105 (3d Cir. 2006) (“On the record
4

before us, without transcripts of testimony or other documents containing relevant
facts, it is impossible to determine the existence and extent of [attorney’s] authority
in [client’s] settlement negotiations. Considered in a light most favorable to
[client], we hold that the record evidence is not so one-sided as to support
judgment in favor of [movant] and that an evidentiary hearing is necessary in order
to establish the relevant facts.”).
Although the Court’s federal question jurisdiction allows it to hear this case,
and although Mr. Pisarz’s only surviving claim arises under federal law, the Court
will apply Pennsylvania’s law to resolve PPL Corp.’s Motion to Enforce. The
alternative would be to apply federal common law, but the Court determines that
doing so would be inappropriate “[b]ecause our focus [will be] on an attorney’s
relationship with his client[], [and] no substantial federal interest is affected here.”1
Tiernan, 923 F.2d at 1033. See also id. at 1032 (quoting Gen. Eng’g v. Martin

The Court recognizes that the statute under which Pisarz’s remaining claim
arises, the Americans with Disabilities Act of 1990 (the “ADA”), provides at 42
U.S.C. § 12212 that, “[w]here appropriate and to the extent authorized by law, the
use of alternative means of dispute resolution, including settlement negotiations,
conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is
encouraged to resolve disputes arising under this chapter.” This provision does not
suggest a strong federal interest in the attorney-client relationship or the requisite
procedures for reaching a bona fide settlement agreement. In any case, under
Pennsylvania law as well, settlement agreements are highly favored. See Mowrer
v. Warner-Lambert Co., 98-cv-2908, 2000 WL 974394, at *5 n.8 (E.D. Pa. July
13, 2000) (citing authority).
1

5

Marietta Alumina, 783 F.2d 352, 356 (3d Cir. 1986)) (“‘Federal courts are able to
create federal common law only in those areas where Congress or the Constitution
has given the courts authority to develop substantive law, as in labor and admiralty,
or where strong federal interests are involved, as in cases concerning the rights and
obligations of the United States.’”). This is consistent with the approach of other
courts in the Third Circuit. See Mowrer v. Warner-Lambert Co., 98-cv-2908, 2000
WL 974394, at *5 (E.D. Pa. July 13, 2000).
The Supreme Court of Pennsylvania “has clearly stated that an attorney may
only bind his client to the terms of a settlement based on express authority.”
Reutzel v. Douglas, 582 Pa. 149, 159, 870 A.2d 787, 793 (2005). Based on the
representations of Pisarz and his counsel, the Court has determined that there is a
genuine dispute as to whether Pisarz’s counsel possessed such authority when the
terms of the settlement were agreed upon. Accordingly, PPL Corp.’s Motion to
Enforce must be denied at this time.2 In light of the inconvenient location of
counsel for both litigants relative to this Court, it is with regret that the Court must
order an evidentiary hearing in this matter.3

While the Court has been made aware of the respective positions of Pisarz,
his counsel, and PPL Corp., there is no competent evidence in the record that
would allow it to make findings of fact.
2

As further guidance, the Court notes that because Pennsylvania law will
govern the Court’s determination of whether Pisarz has a valid defense to PPL
Corp.’s claim to an enforceable settlement, Pennsylvania’s privilege law will also
3

6

An Order follows.

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

govern. See Fed. R. Evid. 502 (“[I]n a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the rule of decision.”).
Recent application of Pennsylvania’s privilege rule in a similar context appears in
Salsman v. Brown, 51 A.3d 892, 894-95 (Pa. Super. 2012).
7

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE J. PISARZ, JR.,
Plaintiff,
v.
PPL CORP.,
Defendant.

:
:
:
:
:
:
:
:
:

Case No. 4:10-cv-01432
(Judge Brann)

ORDER
AND NOW, this 19th day of April, 2013, it is hereby ORDERED in
accordance with the accompanying memorandum:
1.

PPL Corp.’s Motion to Enforce is DENIED at this time.

2.

An evidentiary hearing is scheduled for October 15, 2013, at 10:00

a.m. The hearing will take place in Courtroom #3, Third Floor, United States
Courthouse and Federal Building, Williamsport, Pennsylvania. The Court will take
testimony and receive other admissible evidence bearing on the authority of
Pisarz’s counsel to settle Pisarz’s claims against PPL Corp. PPL Corp. will bear the
burden of proving that Pisarz’s counsel possessed settlement authority. See Mowrer
v. Warner-Lambert Co., 98-cv-2908, 2000 WL 974394, at *5 (E.D. Pa. July 13,
2000)
3.

Pisarz’s counsel shall withdraw. Pisarz shall be afforded 90 days from

the date of this Order to secure new counsel and have such counsel enter an
appearance in this case.
4.

No more than 14 days after Pisarz’s new counsel has entered an

appearance, the parties shall confer with the goal of reaching agreement on whether
discovery relevant to the issue of settlement authorization is necessary and, if so,
the limits on such discovery.
5.

The parties shall inform the Court of their agreement no more than

seven days after their initial conference.
6.

If the parties agree that discovery is necessary, the discovery period

shall last no more than 30 days after the parties notify the Court.
7.

The Clerk of Court is directed to forward a copy of this Order to the

Plaintiff, George J. Pisarz, Jr., by first class mail.

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge