J-S24017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LOUIS VIOLA, JR. AND LOUIS VIOLA,              IN THE SUPERIOR COURT OF
SR.,                                                 PENNSYLVANIA

                          Appellants

                     v.

GENERAL ACCIDENT INSURANCE
CORPORATION, GENERAL ACCIDENT
INSURANCE AND CAMDEN FIRE
INSURANCE ASSOCIATION,

                          Appellees                No. 2446 EDA 2014


                 Appeal from the Order entered July 2, 2014,
            in the Court of Common Pleas of Philadelphia County,
            Civil Division, at No(s): 03865 September Term 1997


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED APRIL 13, 2015

      Father and son, Louis Viola, Sr., and Louis Viola, Jr., (collectively

“Appellants”), appeal from the trial court’s order denying Appellants’ motion

for sanctions against General Accident Insurance Corporation, General

Accident Insurance, and Camden Fire Insurance Association, (collectively

“General Accident”), and interest on the settlement proceeds that Appellants

were due to receive from General Accident. We affirm.

      In resolving the first of two prior appeals which Appellants have

presented to our Court, we summarized the “pertinent facts and procedural

history” of this action as follows:

           In April and September 1993, Appellant Louis Viola, Jr.
      was involved in two separate motor vehicle accidents. The
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      vehicles he operated during each accident were owned by his
      father, Appellant Louis Viola, Sr., who was also a passenger in
      the September 1993 accident. Appellant Louis Viola, Sr. was
      insured by State Farm, and Louis Viola[,] Jr. was insured by
      General Accident.

            Appellants commenced this action by filing a petition to
      appoint third/neutral arbitrator and complaint on September 29,
      1997, against [General Accident], alleging damages resulting
      from both motor vehicle accidents. By order dated November
      23, 2001, Appellants were directed to support their claims
      against [General Accident] with evidence, including supporting
      documentation of any wage loss incurred, by January 31, 2002.
      Five years elapsed without Appellants providing this
      documentation. [General Accident] filed motions for summary
      judgment. Appellants filed a reply to each motion. The trial
      court granted both motions, thereby dismissing Appellants’
      claims with prejudice.

Viola v. Krouse, et al., 954 A.2d 49 (Pa. Super. 2008) (unpublished

memorandum) at 1-2, petition for allowance of appeal denied 964 A.2d 2

(Pa. 2009) (“Viola I”).

      In Viola I, Appellants queried “[w]hether the trial court erred in

granting summary judgment with respect to the wage loss claims of

[Appellants] where [Appellants] did not possess documentary evidence

relating to such claims but where [they] did propose to offer oral testimony

to support their wage loss claim?”   Id. at 2.   We noted that “[w]ithin the

argument portion of their brief, Appellants also argue that the trial court

erred in dismissing Appellant Louis Viola, Jr.’s claim for unpaid medical

expenses. As this claim was not identified in their statement of the issues,

we will not consider it further. See generally, Pa.R.A.P. 2116(a).” Viola I,

at 4 n.3.


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     After reviewing the record, including the trial court’s assertion that

Appellants “have failed over five years to comply with the [trial] Court’s

discovery order   and provide    evidence   to   support their   claims,”   we

“concluded that the trial court did not err in granting summary judgment” in

favor of General Accident. Id. at 5-6.

     In resolving Appellants’ second appeal to our Court, we provided the

following additional background regarding this action:

            [Following our Supreme Court’s denial of Appellants’
     petition for allowance of appeal referenced above,] [o]n October
     1, 2009, the arbitration panel, tasked with resolving the
     outstanding uninsured/underinsured motorist claims, dismissed
     [Appellants’] [reasserted] wage-loss claims for failure to provide
     documentation.       On December 9, 2009, Arbitrator James
     McEldrew, Esquire, scheduled an arbitration hearing to resolve
     the single remaining uninsured/underinsured motorist claim.
     However, due to a scheduling error the other two arbitrators
     were not present. As the hearing could not proceed, the parties
     entered settlement negotiations facilitated by Arbitrator
     McEldrew, and the parties allegedly agreed on the sum of
     $10,000 to Louis Viola, Sr. and $15,000 to Louis Viola, Jr. [FN4:
     There appears to be agreement on the award, as the record
     indicates that [Appellants] repeatedly requested that General
     Accident pay this sum.] General Accident also contends that
     [Appellants] agreed to release General Accident and its
     successor-in-interest from all claims related to the 1993
     accidents.     Arbitrator McEldrew affirmed the terms of the
     settlement as described by General Accident in an affidavit.

           General Accident immediately presented [Appellants] with
     release letters for signature accepting the terms of the
     settlement, and requested tax information needed to process the
     payments. [Appellants] initially failed to respond to General
     Accident’s communications. They then objected to the “release
     of all claims” provision and refused to release OneBeacon
     America Insurance Company, the successor-in-interest to the
     now defunct parties [Appellants] originally sued. After several
     months of continued negotiation over the release language, on

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        or about May 11, 2010, General Accident filed a Motion to
        Enforce Settlement, first with the arbitration panel, and when
        [Appellants] objected to that forum, with the trial court. The
        trial court issued the order now on appeal, which enforced the
        settlement as described by General Accident and Arbitrator
        McEldrew.

              [Appellants] contend that the trial court erred in enforcing
        the settlement without first holding a full evidentiary hearing to
        determine if a settlement had actually been reached at the
        December 2009 meeting, and if so, what the terms of that
        settlement are. [FN5: [Appellants] claim that only a “tentative
        settlement” was reached, that was conditioned on General
        Accident paying the $25,000 as a “condition precedent” to any
        final resolution of the outstanding claims.             Appellants’
        Memorandum in Support of Answer to [General Accident’s]
        Motion, 1/3/2012.          We note that all claims except the
        uninsured/underinsured motorist claim have been dismissed,
        either by the trial court or by the arbitration panel.]

Viola    v.   Krause,    et   al.,   68   A.3d   369   (Pa.   2013)   (unpublished

memorandum) at 3-4 (“Viola II”).           Citing prior precedent from our Court

requiring trial courts to “hold evidentiary hearings to determine questions of

fact relating to a contested settlement[,]” we vacated the trial court’s order

and remanded the case “for a hearing to determine if the parties reached a

settlement on December 9, 2009 and if so, what the terms of that

settlement are, and if it should be enforced.” Id. at 5-6.

        Instantly, the trial court set forth the following additional details

germane to the present appeal:

             On May 9, 2014, this Court was assigned the instant
        Motion to Enforce Settlement. Said Motion was originally filed
        December 15, 2011 and, as noted above, was the subject of an
        appeal.   The Motion asserted that prior to arbitration on
        December 9, 2009, the parties had settled on the remaining
        Uninsured Motorist (“UIM") claims for the sum of $10,000 to


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     Louis Viola, Sr. and $15,000 to Louis Viola, Jr., in exchange for
     full releases. See Appellee's Motion to Enforce Settlement, ¶ 11.
     [General Accident] had forwarded Appellants signed release
     forms on December 14, 2009; on January 28, 2010, Appellants
     responded that the releases were unacceptable. See [General
     Accident’s] Motion to Enforce Settlement, ¶ 17.           Despite
     [General Accident’s] efforts to obtain specific objections to the
     releases or otherwise effectuate a release, such attempts were
     unsuccessful.     See [General Accident’s] Motion to Enforce
     Settlement, ¶ 21-30. Thus, alleging they had been prejudiced
     due to their reliance upon the settlement, [General Accident]
     filed the Motion to Enforce. See [General Accident’s] Motion to
     Enforce Settlement, ¶ 32-33.

          On May 19, 2014, this Court issued a Rule to Show Cause
     why the requested relief should not be granted.

           On June 12, 2014, this Court heard argument and
     evidence in this matter. A settlement was reached between the
     parties in 2009. Notes of Testimony, hereinafter N.T., 6/12/14
     at 7-8, 11. There was no dispute that a settlement had been
     reached, only a dispute regarding the terms. N.T. 6/12/14 at
     11. Appellants had sued three entities collectively known as
     General Accident: General Accident Insurance Corporation,
     General Accident Insurance, and Camden Fire Insurance
     Association.    N.T. 6/12/14 at 9.     However, prior to the
     settlement of the case, General Accident went out of business
     and sold its interests to OneBeacon America Insurance. N.T.
     6/12/14 at 9. [General Accident] presented Appellant with a
     corrected release naming the three parties sued as well as
     OneBeacon America Insurance as successor in interest. N.T.
     6/12/14 at 10. Appellants then refused to sign the release. N.T.
     6/12/14 at 10. Appellants also sought the [ex]clusion of medical
     and wage loss claims [from] the release as well as interest from
     December of 2009. N.T. 6/12/14 at 17-18. However, the
     medical and wage loss claims had been dismissed by the neutral
     arbitrator prior to the hearing on December 9, 2009. N.T.
     6/12/14 at 19-20.

            James McEldrew (“McEldrew"), the neutral arbitrator,
     testified that prior to the hearing on December 9, 2009, he had
     dismissed the wage claim because sixteen (16) years after the
     accident underlying this case, Appellants had still provided no
     documentation of lost wages. N.T. 6/12/14 at 21-22. [FN2:
     McEldrew, the court-appointed arbitrator, had in error forgotten

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     to notify the other two arbitrators of the arbitration date. N.T.
     6/12/14 at 20, 22.         McEldrew offered to reschedule the
     arbitration and stated that the matter could be rescheduled; that
     the parties could proceed to arbitration before him alone; or that
     the time could be used for a settlement conference.           N.T.
     6/12/14 at 20. All parties agreed to proceed with a settlement
     conference. N.T. 6/12/14 at 20.] He sat down with counsel for
     both Appellants and [General Accident] to explain the
     settlement, and all parties were in agreement with the terms,
     including the dismissal of the wage loss claim. N.T. 6/12/14 at
     22-23. All parties were colloquied prior to settlement. N.T.
     6/12/14 at 22-23. McEldrew had never been presented with
     medical bills as part of the claim or packages, so medicals were
     not part of the issue. N.T. 6/12/14 at 23.

           Additionally, at the outset of the hearing, Allen Feingold
     ("Feingold"), a disbarred attorney who had represented
     [Appellants] at the outset of the case, was present. N.T.
     6/12/14. Feingold attempted to enter his appearance at the bar
     of the court; however, he was not permitted to do so. N.T.
     6/12/14 at 6. Following the hearing, Feingold presented an
     entry of appearance for review by the Prothonotary.         See
     [General Accident’s] Motion to Object to the Entry of Allen
     Feingold, ¶ 1.

           On June 16, 2014, [General Accident] filed a motion
     objecting to Feingold's entry of appearance. See [id.] [General
     Accident] noted Feingold had been disbarred by Order of the
     Supreme Court of Pennsylvania on August 22, 2008. See [id. at]
     ¶ 2. Additionally, on September 2, 2009, the President Judge of
     this Court entered an Order enjoining Feingold from entering any
     courtroom, tribunal, arbitration hearing, deposition, and/or to
     function in any capacity in a legal proceeding other than as a
     witness, party or spectator. See [id. at] ¶ 3. Additionally, the
     Philadelphia Prothonotary's Office may not accept any filing, by
     electronic means or otherwise, from Feingold without prior
     approval of the President Judge. See [id.]

           On June 25, 2014, this Court concluded its hearing in the
     matter. At that time, [General Accident] stated that it had
     received Appellants’ release forms drafted and signed by
     Appellants. N.T. 6/25/14 at 6. However, the forms sought only
     to release "an entity known as GA ... GA does not exist and
     never has existed." N.T. 6/25/14 at 7. Thus, less than two
     weeks after receiving the releases, [General Accident] returned

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     them to Appellant with "GA" stricken out and the parties properly
     identified, as well as an additional digit needed to correct the
     policy number. N.T. 6/25/14 at 7-8. No substantive changes
     were made. N.T. 6/25/14 at 9, 11.

            When questioned regarding the differences in language
     between the release Appellants’ counsel had generated and sent
     to [General Accident], and the release [General Accident] had
     returned to Appellants, Appellants w[ere] unable to point to any
     differences between the language. N.T. 6/25/14 at 14-15.
     Indeed, [General Accident] agreed that the amounts of money in
     the settlements were correct. N.T. 6/25/14 at 18. Instead,
     Appellants argued they were entitled to interest on the amount
     of the settlement because [General Accident] had “not paid” the
     money. N.T. 6/25/14 at 15. On the second day of argument,
     Feingold was again present and came to the bar of the court
     several times during the proceedings to consult with counsel for
     Appellants, handing counsel for Appellants handwritten notes, as
     well as making gestures and loudly whispering in the back of the
     courtroom. N.T. 6/25/14 at 16. This Court again requested that
     Feingold cease disrupting court proceedings. N.T. 6/25/14 at
     16.

           Following argument, this Court found that there was a
     settlement and that it should be enforced, and instructed the
     parties to submit proposed orders with two or three pages of
     argument on the interest. N.T. 6/25/14 at 21-22. This Court
     held the matter under advisement for no more than five (5) days
     so that Appellants and [General Accident] could prepare the
     requested materials. N.T. 6/25/14 at 22.

          On June 30, 2014, [General Accident] filed a proposed
     Order and Memorandum of Law in support of their position.

           On July 1, 2014, this Court granted [General Accident’s]
     Motion to Enforce Settlement, and ordered Appellants to sign
     and execute releases in a form substantially identical to that
     attached as exhibit “S” to the original Motion.

           On July 8, 2014, over one (1) week after the due date of
     the proposed orders and memorandums of law and over one (1)
     week after the Order was signed, Appellants untimely filed a
     “True History of This Case and Memorandum.”

          On August 1, 2014, Appellants filed a timely Notice of
     Appeal to the Superior Court.

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            On August 4, 2014, this Court issued its Order pursuant to
      Pa. R.A.P. 1925(b), directing Appellants to file their Concise
      Statement of Matters Complained of on Appeal within twenty-
      one (21) days.

            That same day, [General Accident] filed a Motion for
      Sanctions, as Appellants had not yet returned the signed
      releases.

            On August 6, 2014, this Court ordered that the entry of
      Allen Feingold be stricken, and [for] the Prothonotary [to] refuse
      to accept an additional entry of appearance from Mr. Feingold
      without prior approval from the President Judge of the Court of
      Common Pleas, per the Order of the Honorable Pamela Dembe of
      September 2, 2009.

            On August 13, 2014, Appellant filed his Concise Statement
      of Matters Complained of on Appeal[.] []

             On September 5, 2014, this Court dismissed [General
      Accident’s] Motion for Sanctions without prejudice, as it lacked
      jurisdiction to rule upon it due to the pendency of the instant
      appeal.

Trial Court Opinion, 10/22/14, at 1-6.

      On appeal, Appellants present the following issue:

      1. Whether the trial court erred in refusing to grant [A]ppellants
         sanctions and interest on the settlement proceeds which
         [General Accident] has repeatedly wrongfully refused to pay?

Appellants’ Brief at 3.

      Our review of Appellants’ issue requires an examination of the trial

court’s application of Pennsylvania Rule of Civil Procedure 229.1, which

governs the imposition of sanctions following a settling defendant’s failure to

deliver settlement proceeds in a timely manner following the receipt of an

executed release from a plaintiff.




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     We conduct our review mindful that:

     “As questions regarding the interpretation of the Rules of Civil
     Procedure are questions of law, our standard of review is de
     novo and our scope of review is plenary.” Marlette v. State Farm
     Mut. Auto. Ins. Co., 618 Pa. 617, 57 A.3d 1224, 1228 (2012).
     “Within the ambit of the discretionary authority allocated by the
     rules to the trial courts, we review for abuse of discretion.”
     Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482, 488 (2006).

Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d

680, 686 (Pa. 2014).

     Rule 229.1 provides in pertinent part:

     Rule 229.1.       Settlement     Funds.     Failure   to   Deliver.
     Sanctions[.]

     (c) If a plaintiff and a defendant have entered into an agreement
     of settlement, the defendant shall deliver the settlement funds to
     the attorney for the plaintiff, or to the plaintiff if unrepresented,
     within twenty calendar days from receipt of an executed release.

                                    ***

     Upon receipt of the settlement funds, the plaintiff shall file a
     discontinuance or deliver a discontinuance to the defendant.

     (d) If settlement funds are not delivered to the plaintiff within
     the time required by subdivision (c), the plaintiff may seek to

     (1) invalidate the agreement of settlement as permitted by law,
     or

     (2) impose sanctions on the defendant as provided in subdivision
     (e) of this rule.

     (e) A plaintiff seeking to impose sanctions on the defendant shall
     file an affidavit with the court attesting to non-payment. The
     affidavit shall be executed by the plaintiff’s attorney and be
     accompanied by

     (1) a copy of any document evidencing the terms of the
     settlement agreement,


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     (2) a copy of the executed release,

     (3) a copy of a receipt reflecting delivery of the executed release
     more than twenty days prior to the date of filing of the affidavit,

     (4) a certification by the attorney of the applicable interest rate,

     (5) the form of order prescribed by subdivision (h), and

     (6) a certification by the attorney that the affidavit and
     accompanying documents have been served on the attorneys for
     all interested parties.

     (f) Upon receipt of the affidavit and supporting documentation
     required by subdivision (e), the defendant shall have twenty
     days to file a response.

     (g) If the court finds that the defendant violated subdivision (c)
     of this rule and that there is no material dispute as to the terms
     of the settlement or the terms of the release, the court shall
     impose sanctions in the form of interest calculated at the rate
     equal to the prime rate as listed in the first edition of the Wall
     Street Journal published for each calendar year for which the
     interest is awarded, plus one percent, not compounded, running
     from the twenty-first day to the date of delivery of the
     settlement funds, together with reasonable attorneys’ fees
     incurred in the preparation of the affidavit.

Pa.R.C.P. 229.1(c) – (g).

     In rebutting Appellants’ claim of error, the trial court explained:

           Appellants argue they are entitled to interest per Pa.R.C.P.
     229.1(c), “if a plaintiff and a defendant have entered into an
     agreement of settlement, the defendant shall deliver the
     settlement funds to the attorney for the plaintiff ... within twenty
     (20) calendar days from receipt of an executed release.”
     Pa.R.C.P. 229.1(c). Although in such cases a plaintiff may seek
     sanctions including interest, such action would not be proper
     in a case such as this, where the delay was due to
     [Appellants’] actions. Indeed, Appellants refused to sign the
     corrected release signed and returned to them by [General
     Accident]. N.T. 6/12/14 at 10.

           Thus, this Court properly denied Appellants’ claim for
     interest.

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Trial Court Opinion, 10/22/14, at 8 (emphasis supplied).        Based on our

review of the record, we discern no trial court error.

      To invoke Rule 229.1, the parties are required to “have entered into an

agreement of settlement,” see Pa.R.C.P. 229.1(c), the occurrence of which

Appellants specifically denied and appealed to our Court, and which was the

very issue we remanded for determination by the trial court during the June

2014 hearings.    While the trial court ultimately determined, following the

June 2014 hearings, that the parties had settled this matter in 2009,

Appellants are not entitled to any interest that accrued while they disputed

the existence and terms of the agreement.

      Further, Rule 229.1 requires “the defendant [to] deliver the settlement

funds … within twenty calendar days from receipt of an executed release.”

Pa.R.C.P. 229.1(c).   As noted by the trial court, and as noted by General

Accident in their motion for sanctions, at of the time of Appellants’ filing of

their notice of the instant appeal, Appellants still had not executed the

revised release in this matter, which correctly identifies the settling payors

and the policy number.     See Trial Court Opinion, 10/22/14, at 6.      While

Appellants emphasize their execution of a prior version of the release,

Appellants disregard their longstanding dispute regarding the effect of that

executed release and the claims and terms covered therein.

      Appellants further disregard that the trial court can only impose

sanctions and interest “[i]f the court finds that the defendant violated

subdivision (c) of this rule and that there is no material dispute as to the

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terms of the settlement or the terms of the release[.]” Pa.R.C.P. 229.1(g)

(emphasis supplied). Here, the trial court did not find that General Accident

violated 229.1(c).   Moreover, because Appellants raised “material disputes

as to the terms of the settlement” and the “terms of the release” following

the 2009 agreement, the trial court properly declined to “impose sanctions in

the form of interest” against General Accident. See Pa.R.C.P. 229.1(g).

      In sum, the trial court did not err in denying Appellants’ motion for

sanctions and interest against General Accident.    We thus affirm the trial

court’s order.

      Order affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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