PECINA v. MCDONALD

Filing 49

MEMORANDUM OPINION resolving 36 plaintiff's pro se motion to reopen case and 36 , 37 all accompanying motions. Signed by Judge David S. Cercone on 3/21/17. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PAUL PECINA,
Plaintiff,
v.
ROBERT A. MCDONALD, Secretary,
United States Department of Veteran Affairs,
Defendant.

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2:15cv264
Electronic Filing

MEMORANDUM OPINION
At counsels' request a mediation conference was scheduled on Friday, May 25, 2016.
The conference occurred after the completion of discovery but prior to the filing of dispositive
motions under the deadlines established in the court's case management order. At the conclusion
of the conference the parties through counsel placed a stipulation of settlement on the record.
The parties then executed a stipulation of dismissal with prejudice. The court granted the
stipulation and dismissed the case with prejudice. Plaintiff then signed a release and received the
proceeds of the settlement agreement about three weeks later. Approximately five weeks after
that plaintiff filed a pro se motion to reopen the case, rescind the settlement, obtain new counsel,
reopen discovery and proceed with his claims. Plaintiff recently augmented his motion through
the filing of a "Response to Defendant's and Joel Sansone's Responses." Plaintiff's pro se motion
will be denied for four basic reasons.
First, the court entered an unconditional order dismissing the case with prejudice on June
3, 2016. See Doc. No. 34. Of course, "[a] voluntary dismissal with prejudice operates as a final
judgment on the merits." Phillips v. Transunion, LCC, 2012 WL 1439088, at *6 (E.D. Pa. April
25, 2012) (citing Vacanti v. Apothaker & Assocs., P.C., 2010 WL 4702382, at *4 (E.D. Pa.
Nov.12, 2010); Toscano v. Connecticut Gen. Life Ins. Co., 288 F. App'x 36, 38 (3d Cir. 2008)

("Judicially approved settlement agreements are considered final judgments on the merits for the
purposes of claim preclusion."); Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir. 1972)
(holding that "[d]ismissal with prejudice constitutes an adjudication of the merits as fully and
completely as if the order had been entered after trial") (citing Lawlor v. Nat'l Screen Serv.
Corp., 349 U.S. 322, 327 (1955)); Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560, 564 (3d
Cir. 1976) (same)). Consequently, the order of dismissal bars further action on plaintiff's claims.
Moreover, the parties performed their settlement agreement. The court is now without
jurisdiction to take further action that would involve the settlement agreement. Kokkonen v.
Gaurdian Life ins. Co., 511 U.S. 375, 381 (1994) (absent the expressed retention of jurisdiction
over some aspect of the parties' settlement agreement, a stipulation of dismissal with prejudice
divests the court of ongoing jurisdiction over the parties' agreement unless there is some other
independent basis for federal court jurisdiction over it); Shaffer v. GTE North, Inc., 284 F.3d
500, 502-04 (3d Cir. 2002) (same). Thus, the court is without jurisdiction over any remaining
aspects of the parties' dispute.
Second, at the outset of the mediation conference the parties and counsel were advised by
the neutral that the Pennsylvania statute cloaking mediation sessions with an evidentiary
privilege of confidentiality would govern all communications made during the conference. See
42 Pa. Cons. Stat. Ann. § 5949 (“Disclosure of mediation communications and mediation
documents may not be required or compelled through discovery or any other process. Mediation
communications and mediation documents shall not be admissible as evidence in any action or
proceeding, including, but not limited to, a judicial, administrative or arbitration action or
proceeding.”). The four exceptions to this evidentiary protection were highlighted. See 42 Pa.

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Cons. Stat. Ann. §§ 5949(b)(1) – (4).1 The parties acknowledged that they would be bound by
these principles by voluntarily proceeding with the conference.
Pennsylvania courts endorse "a strong policy . . . for keeping mediation communications
and documents confidential." Dietz & Watson, Inc. v. Liberty Mut. Ins. Co., 2015 WL 365949,
*4 E.D. Pa. January 28, 2015).2 This privilege protects the lifeblood of mediation and is
essential to the ongoing viability and success of this form of alternative dispute resolution. Dietz
& Watson, Inc. , 2015 WL 365949, at *4 (collecting cases). The need for strict enforcement of

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These exceptions are:

(b) Exceptions.-(1) A settlement document may be introduced in an action or proceeding to enforce the
settlement agreement expressed in the document, unless the settlement document by its terms
states that it is unenforceable or not intended to be legally binding.
(2) To the extent that the communication or conduct is relevant evidence in a criminal matter,
the privilege and limitation set forth in subsection (a) does not apply to:
(i) a communication of a threat that bodily injury may be inflicted on a person;
(ii) a communication of a threat that damage may be inflicted on real or personal property
under circumstances constituting a felony; or
(iii) conduct during a mediation session causing direct bodily injury to a person.

(3) The privilege and limitation set forth under subsection (a) does not apply to a fraudulent
communication during mediation that is relevant evidence in an action to enforce or set aside a
mediated agreement reached as a result of that fraudulent communication.
(4) Any document which otherwise exists, or existed independent of the mediation and is not
otherwise covered by this section, is not subject to this privilege.
42 Pa. Cons. Stat. Ann. §§ 5949(b)(1)-(4).
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This protective policy is reflected throughout Pennsylvania law. See, e.g., Pennsylvania Rule
of Civil Procedure 4011(d) (barring discovery of mediation communications).
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these principles is even more compelling where a member of the judicial staff trained in the art
has extended to the parties a voluntary opportunity to engage in the process and thereby
determine whether a resolution can be reached short of an adjudication on the merits.
The communications highlighted in plaintiff's pro se motion were generated by a process
that falls squarely within the heart of what the privilege is designed to protect. The
communications are "mediation communications" within the meaning of 42 Pa. Cons. Stat. Ann.
§ 5949. See 42 Pa. Cons. Stat. Ann. § 5949(c) (A mediation communication is "[a]
communication, verbal or nonverbal, oral or written, made by, between or among a party,
mediator, mediation program or any other person present to further the mediation process when
the communication occurs during a mediation session or outside a session when made to or by
the mediator or mediation program."). Plaintiff's pro se motion fails to identify any basis that
triggers an exception to the rules of confidentiality. Consequently, he cannot use the
communications from the session against defendant in an effort to undue the decision he made to
forego further development of his claims and settle his lawsuit.
Third, plaintiff is bound by the release he signed. "A signed release is binding upon the
parties unless executed and procured by fraud, duress, accident or mutual mistake." Three
Rivers Motors Co. v. Ford Motor Co., 522 F.2d 885, 892 (3d Cir. 1975) (citing Kent v. Fair, 140
A.2d 445 (Pa. 1958). Plaintiff had the entire day of the mediation conference to explore,
negotiate and reflect on the terms of the ultimate settlement agreement. The potential
remedies/recoveries that were being released and the benefits that were being gained were
highlighted numerous times throughout the day-long conference and plaintiff discussed these
extensively with counsel – both in the neutral's presence and in private consultation. Plaintiff's
submissions indicate these consultations with counsel continued up until the time plaintiff signed
the release.
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There is no basis to infer that plaintiff was under duress. "[U]nder Pennsylvania law,
'duress is not established merely by showing that the release was given under pressure. Rather,
where the contracting party is free to come and go and to consult with counsel, there can be no
duress in the absence of threats of actual bodily harm." Thomas v. Sandstrom, 459 F. App'x 93,
95 (3d Cir. 2012) (quoting Three Rivers Motor Co., 522 F.2d at 892 and citing Carrier v.
William Penn Broad. Co., 233 A.2d 519, 521 (Pa. 1967); accord Robins v. Bimbo Foods
Bakeries Distribution, Inc., 2013 WL 5803783, *6 (E.D. Pa. Oct. 28, 2013) (duress cannot be
established by identifying facts that indicate the release was executed under financial or other
similar pressure) (collecting cases).

Plaintiff's Monday-morning quarterbacking and

concomitant regrets concerning the bargain he struck fall woefully short of showing a factual
basis to undue the release on the basis of duress.
Nor has plaintiff alleged sufficient facts showing that defendant or its representatives
fraudulently induced him to sign the release. Under Pennsylvania law, claims for fraudulent
inducement have six elements: (1) a representation; (2) which is material to the transaction at
hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or
false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the
misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Robins,
2013 WL 5803783 at *7 (citing Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 256-57
(3d Cir. 2013) (citing EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 275 (3d Cir. 2010)).
Plaintiff advances three basic grounds in support of his motion. First, defendant and its
counsel failed to provide accurate and complete information in defendant's response to discovery
requests. In this regard plaintiff is aware of extensive details about the events underlying his
case which were not disclosed or fully accounted for in the discovery produced by defendant.
Second, plaintiff's counsel did not fully disclose to plaintiff the information obtained during
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discovery and permitted the depositions of defendant's witnesses to occur without the full array
of information that could have been brought to bear on the matters addressed therein. Similarly,
plaintiff's counsel permitted defense counsel to depose plaintiff without apprising plaintiff of all
information that had been gained from defendant through discovery. Finally, plaintiff's counsel
failed to defend against and prepare plaintiff properly for defendant's stance during the mediation
conference that it would seek to establish that the mix-motives framework governed the
disposition of plaintiff's claims - which in turn assertedly would have precluded plaintiff from
obtaining the remedy of reinstatement.
Each of plaintiff's grounds fails to raise a basis to establish that defendant fraudulently
induced plaintiff to accept the settlement and execute the release. Defendant's responses in
discovery, even if evasive and incomplete, simply cannot supply the factual underpinnings
needed to meet the elements noted above. The balance of the information highlighted by
plaintiff does not involve conduct that properly can be attributed to defendant for the purposes of
establishing a claim of fraudulent inducement. It follows that plaintiff has failed to present any
basis to support a reopening based on a fraud by his adversary.
Third, plaintiff's contention that he was unaware of all of the terms of the settlement
agreement memorialized on the record at the end of the day on May 25, 2015, is at the very least
disingenuous. Throughout the entire day all necessary steps were taken to accommodate
plaintiff's hearing impairment. The defendant's position and movement in negotiations during
the mediation were forthrightly disclosed to plaintiff and his counsel at each step in the session.
Plaintiff was given an opportunity to consult with his counsel before responding with countercommunications to defendant. At various intervals plaintiff's consulted extensively with counsel
before taking the next step in the process. Plaintiff and his counsel were able to engage the
neutral as they deemed appropriate and vis-a-versa. Plaintiff was made aware at the outset and
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repeatedly throughout the day that the communications with the neutral about defendant's
posturing were not intended to be legal advice and plaintiff was required to consult with and rely
on his counsel for such advice. All of the terms of the parties' settlement agreement placed on
the record of May 25, 2016, were discussed extensively with plaintiff prior to his agreement to
accept them as a final resolution and place a binding agreement of settlement on the record.
Finally, all other matters raised in plaintiff's pro se motion appear to be the product of
rumination and without any foundation whatsoever. And in any event they are not the proper
subject of a motion to set aside a contract of settlement placed on the record and effectuated
through a subsequently executed release.
For the reasons set forth above, plaintiff's pro se motion to re-open the case will be
denied. All accompanying motions will be denied as moot. An appropriate order will follow.
Date: March 21, 2017
s/David Stewart Cercone
David Stewart Cercone
United States District Judge

cc:

Joel S. Sansone, Esquire
Massimo A. Terzigni, Esquire
Jennifer R. Andrade, AUSA
(Via CM/ECF Electronic Mail)
Paul Pecina
5637 Willow Terrace Dr.
Bethel Park, PA 15102
(Via United States Postal Service Mail)

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