DLD-025                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3175
                                       ___________

                                    FRANK FORBA,
                                             Appellant

                                             v.

                  THOMAS JEFFERSON UNIVERSITY HOSPITAL
                    ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-15-cv-01722)
                      District Judge: Honorable Mark A. Kearney
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 27, 2016

           Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                           (Opinion filed: November 22, 2016)
                                        _________

                                        OPINION *
                                        _________
PER CURIAM

       Frank Forba appeals from the District Court’s order granting the motion of


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Thomas Jefferson University Hospital (“Jefferson”) to enforce the parties’ settlement

agreement. We will affirm.

                                             I.

        Forba was employed by Jefferson from 2001 until 2012. During that time, he

took several periods of leave under the Family Medical Leave Act (“FMLA”) for

depression and anxiety. Jefferson terminated Forba in 2012 on the ground that he

violated Jefferson’s attendance policy. Forba, through counsel, later filed suit alleging

that Jefferson actually terminated him in retaliation for taking FMLA leave. The parties

engaged in discovery, and Jefferson filed a motion for summary judgment raising several

arguments. Among them was an argument that Forba’s suit was untimely under the

FMLA’s two-year statute of limitations because Jefferson terminated his employment on

May 4, 2012, but he did not file suit until April 2, 2015. Forba did not respond to

Jefferson’s motion.

       Against this backdrop, the parties engaged in a settlement conference before a

Magistrate Judge. At the conference, the parties orally agreed to a settlement under

which Jefferson would pay Forba $1,000 in exchange for a full release of his claims.

Jefferson also agreed to draft and forward to Forba’s counsel a written settlement

agreement to that effect. The Magistrate Judge reported the parties’ agreement to the

District Court, and the District Court entered an order dismissing the action on that basis.

       Approximately two months later, Jefferson filed a motion to enforce the oral

settlement agreement. Jefferson asserted that it had forwarded a written settlement
                                             2
agreement to Forba’s counsel but that Forba’s counsel reported that Forba refused to sign

it. Forba filed a counseled response in opposition. Forba attached a declaration stating

that, “[a]lthough the terms of the settlement were explained to me by [Forba’s counsel]

and [the Magistrate Judge], I was confused and anxious and because of that I agreed to

the settlement terms without fully understanding the matter.” (ECF No. 24-1 at 1-2 ¶ 7.)

       The District Court then conducted a two-day evidentiary hearing, at which

Jefferson’s counsel, Forba’s counsel and Forba himself all testified. Jefferson’s counsel

testified that, when she called Forba’s counsel to follow up on the settlement agreement,

he told her that Forba would not sign it because he had “changed his mind.” Jefferson’s

counsel also testified that Forba did not appear anxious during the conference, and both

Jefferson’s counsel and Forba’s counsel testified that the Magistrate Judge fully reviewed

the terms of the settlement with the parties. Forba testified that his anxiety prevented him

from understanding the settlement, but he agreed that he did not raise the issue of his

anxiety or inability to understand with the Magistrate Judge. He also testified that his

anxiety did not prevent him from understanding what occurred during his previous

deposition or at the evidentiary hearing itself. 1




1
 During the first day of the hearing, concerns arose regarding a potential conflict
between Forba and his counsel as to the settlement. In light of those concerns, the
District Court continued the hearing for approximately one and a half months to give
Forba an opportunity to consult with different counsel. Forba consulted with different
counsel but, when the hearing resumed, Forba elected to proceed pro se.

                                               3
       After the hearing, the District Court entered an order granting Jefferson’s motion

and deeming the parties’ oral settlement agreement enforceable. The District Court

explained that it found not credible Forba’s testimony that he did not understand the

settlement when he agreed to it at the conference and concluded that Forba had merely

changed his mind. Forba appeals pro se. 2

                                             II.

       Forba has filed a response on the issue of possible summary action or dismissal of

this appeal, along with several motions and other documents with this Court. Forba’s

filings, however, are devoted almost entirely to his underlying claims and barely mention

the settlement that is the only issue on appeal. Forba’s only mention of the settlement is

in his supplement to his motion to stay the District Court’s order. In that filing, he asserts

that “I did not agree to any of the terms and conditions” and “I did not agree to settle my

case with Jefferson Hospital for $1000.00[.]” (Appellant’s Supp. Mot. to Stay at 1)

(emphasis added). Those assertions are at odds with Forba’s declaration and testimony

below, and he provides no support for them. Nor has he raised anything calling the

District Court’s enforcement of the settlement into question. Nevertheless, we have



2
  We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s findings
of fact for clear error and its legal conclusions de novo. See Coltec Indus., Inc. v.
Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). After filing his notice of appeal, Forba filed
a motion for reconsideration and other relief. The District Court denied that motion for
lack of jurisdiction, but Forba did not file another or an amended notice of appeal as
required to challenge that ruling, see Fed. R. App. P. 4(a)(4)(B)(ii), and his time to do so
has expired. For the District Court’s benefit, however, we note that district courts retain
                                              4
reviewed the available record 3 and will affirm primarily for the reasons explained by the

District Court. We add only three observations. First, under applicable Pennsylvania

law, one of the factors that is relevant in determining a person’s mental competence to

enter into a settlement and release is the amount paid for the release. See Taylor v. Avi,

415 A.2d 894, 897 (Pa. Super. Ct. 1979). At the time of the settlement in this case, Forba

was seeking almost four years of backpay and reinstatement to his position. Thus, it may

seem implausible at first blush that Forba would have knowingly released these claims in

exchange for $1,000.

       The District Court did not expressly address this issue. As the District Court

explained, however, the parties’ settlement discussions occurred against the backdrop of

Jefferson’s motion for summary judgment. That motion raised several potentially

dispositive arguments to which Forba never responded, and it could have resulted in a

complete judgment in Jefferson’s favor. It is not implausible that Forba would have

released his claims for $1,000 against that backdrop.

       Second, it appears that Forba submitted to the District Court a potentially relevant

note from a therapist but that the District Court did not admit it into evidence. In its



jurisdiction to consider timely motions for reconsideration under Fed. R. Civ. P. 59(e)
notwithstanding the filing of a notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(i).
3
  Only the first day of the hearing has been transcribed. Forba neither ordered the
complete transcript as required by Fed. R. App. P. 10(b)(1), nor filed a motion for
transcripts at the Government’s expense. In any event, Forba has not raised any
argument requiring review of the complete transcript, and we see nothing suggesting that
such review might provide a basis for disturbing the District Court’s ruling.

                                              5
opinion, the District Court stated that Forba hand-delivered several documents shortly

before the second day of the hearing and that the documents included “ a handwritten

note of a therapist allegedly treating Mr. Forba for several years but who only reported

Mr. Forba’s statements to her after our first hearing.” (ECF No. 29 at 5.) The District

Court further explained that Forba attempted to offer the documents into evidence but

that it sustained Jefferson’s objection because the documents were not probative of

Forba’s understanding of the settlement. (Id.)

       The note to which the District Court referred appears to be the same undated,

handwritten note attached to Forba’s motion for reconsideration at ECF No. 35-1, page

46. That note is from a therapist who treated Forba both before and after the settlement

conference. As the District Court observed, the note largely reports Forba’s own

statements to the therapist that his anxiety during the settlement conference prevented

him from understanding the settlement. The note closes, however, with the assertion that

“[t]he impact of [Forba’s] anxiety on his absorption of information at the settlement

conference obstructed his goal of pursuing a just outcome.” Forba’s therapist, whom

Forba did not call as a witness, did not explain the basis for forming any independent

opinion to that effect and did not affirmatively opine that Forba did not understand the

settlement on the day of the settlement conference.

       The District Court did not specifically discuss that statement. Even if the District

Court should have admitted the note into evidence, however, any error in that regard was

harmless. As the District Court explained, “a person’s mental capacity is best determined
                                             6
by his spoken words and his conduct, and . . . the testimony of persons who observed

such conduct on the date in question out-ranks testimony as to observations made prior to

and subsequent to that date.” Sobel v. Sobel, 254 A.2d 649, 651 (Pa. 1969); see also

Elliott v. Clawson, 204 A.2d 272, 273 (Pa. 1964) (rejecting medical testimony that

contracting part was not competent where, inter alia, the witness “did not examine him on

the day of the conveyance”).

       In this case, Jefferson’s counsel testified that Forba did not appear anxious at the

settlement conference. The only evidence that Forba was unable to understand the

settlement was his testimony to that effect, but Forba also testified that he did not raise

that issue with the Magistrate Judge and that his anxiety had not prevented him from

understanding other stages of the proceeding. Thus, the District Court found Forba’s

testimony regarding a lack of understanding not credible and concluded that Forba had

simply changed his mind. To the extent that the note from Forba’s therapist can be read

to express an independent opinion on these matter, it is too conclusory to support a

contrary finding.

       Finally, as the District Court appreciated, the mere fact that Forba may have

suffered from depression and anxiety in general does not require the conclusion that he

did not understand the settlement. “Mere mental weakness, if it does not amount to

inability to comprehend the contract, and is unaccompanied by evidence of imposition or

undue influence, is insufficient to set aside a contract.” Estate of McGovern v. Commw.

State Emps.’ Ret. Bd., 517 A.2d 523, 526 (Pa. 1986) (quotation marks omitted),
                                              7
overruled in part on other grounds by Leon E. Wintermyer, Inc. v. Workers Comp. App.

Bd., 812 A.2d 478 (Pa. 2002). Forba presented no such evidence in this case.

                                          III.

      For these reasons, we will affirm the judgment of the District Court. Forba’s

pending motions are denied.




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