J. A34005/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THOMAS J. GRECO,                        :   IN THE SUPERIOR COURT OF
A/K/A THOM GRECO,                       :         PENNSYLVANIA
                                        :
                         Appellant      :
                                        :
                    v.                  :        No. 666 MDA 2014
                                        :
MICHAEL LESLIE BERNBACK, ET AL.         :


                Appeal from the Order Entered March 20, 2014,
               in the Court of Common Pleas of Luzerne County
                        Civil Division at No. 2027-2005


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 23, 2015

      Appellant appeals the order entered March 20, 2014, which imposed a

“gag order” pertaining to the settlement of appellant’s defamation and

invasion of privacy action against the various defendants/appellees. During

an earlier appeal, a prior panel of this court found that the settlement

agreement among the parties called for the entry of a gag order, and that

panel directed the trial court to enter same.    On appeal now, appellant

asserts that the gag order is inadequate.

      The factual and procedural history of this case was well stated by the

prior panel of this court:

                 In 2005, Greco filed suit against Appellee
            Michael Leslie Bernback (Bernback), alleging claims
            of defamation and false light invasion of privacy.
            Also included as defendants in the suit were
            Shamrock Communications, Inc., the Citizen’s Voice
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          newspaper, and numerous partners and staff
          members of the Citizen’s Voice (the Media
          Appellees).  Ultimately, a trial date was set for
          May 14, 2012.

                 Settlement negotiations remained ongoing as
          the trial approached. On May 9, 2012, counsel for
          Media Appellees e-mailed a “final settlement offer” to
          counsel for Greco. Media Appellees’ Brief at 2. This
          offer included the requirement that Greco “agree not
          to publicize this settlement and to keep the terms of
          the settlement confidential.”     Id.   In response,
          Greco’s counsel sent counsel for Media Appellees the
          following fax.

                     I reviewed your final settlement
               offer with my client, Thom Greco who
               has provided me authority to accept said
               offer. The acceptance is contingent
               upon a proper gag order being
               entered that will provide the parties
               are not permitted to speak to anyone
               regarding this matter and shall
               suffer consequences should any
               party fail to comply.

               It is my understanding that [counsel for
          Bernback] is preparing a proposed Order and will
          forward [it] to us for review.

          Greco’s Answer to Bernback’s Motion to Enforce,
          7/13/2012, Exhibit A (emphasis added).

                On May 11, 2012, Greco’s counsel sent a fax to
          the trial court indicating that the case had been
          settled.

                     As you are already aware, this
               matter has been resolved. I am waiting
               to receive the proposed settlement
               agreement as well as the gag order for
               my review. I was anticipating presenting
               the gag order to you on Monday but was
               advised by Attorney Steinbrenner that
               you will not be in your office on Monday

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                and furthermore, I am not confident I
                will have the final gag order to present
                on said day.      It is my intention to
                present the gag order to you next week
                upon final resolution of this matter.

          Greco’s Petition for Reconsideration, 10/12/2012,
          Exhibit E. As a result, the trial scheduled for May 14,
          2012, was cancelled. Also on May 11, 2012, counsel
          for Bernback e-mailed a proposed settlement
          agreement to counsel for Greco. Paragraph 4 of that
          agreement stated, in relevant part, as follows.

                The parties expressly agree that good
                and valuable consideration for this
                agreement includes the mutual promises
                among them to consent to an order of
                court stating that the matter has been
                confidentially resolved, and that no party
                is permitted comment of any kind about
                the litigation, the facts which gave rise to
                the litigation, or the resolution of the
                litigation to any third parties whatsoever.
                The parties further expressly agree to
                consent to an order of court which
                expressly states that violations of the
                order will result in penalties and
                attorneys’ fee awards to the non
                breaching parties within the discretion of
                the court. The parties agree that the
                form of the aforementioned order will be
                that attached as Exhibit A to the release.

          Greco’s Motion for Settlement Conference and
          Contempt of Court, 8/27/2012, Exhibit 1. A gag
          order was included as “Exhibit A” to the proposed
          settlement.      Revised versions of this proposed
          settlement were circulated on May 18 and 22, 2012,
          which featured the same or nearly the same
          language as quoted above, as well as an attached
          gag order. During this time, Greco requested that a
          $50,000 liquidated damages provision be included in
          the settlement as a penalty for violating
          confidentiality.     Neither Media Appellees, nor
          Bernback, was agreeable with this suggestion.

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                On June 28, 2012, Bernback filed a Motion to
          Enforce Settlement.      In this Motion, Bernback
          indicated that a settlement had been reached by the
          parties but that Greco refused to comply. Bernback
          indicated that the “[e]ssential terms [of the
          settlement agreement] were agreed to by all parties,
          including    ...   a    confidentiality   provision[.]”
          Bernback’s Motion to Enforce Settlement, 6/28/2012.
          Bernback stated that subsequent to reaching a
          settlement agreement, he “proposed an additional
          provision providing for a ‘gag’ order” and that Greco
          was now using the absence of a gag order from the
          proposed settlement “as a pretext to breach the
          agreement to settle as to the essential terms.” Id.
          On July 3, 2012, the Media Appellees filed their own
          Motion to Enforce Settlement. The Media Appellees
          indicated that “while the parties did not reach an
          agreement on the specific details of a gag order
          provision, an agreement had been reached regarding
          the essential terms including confidentiality of the
          settlement terms.”      Media Appellees’ Motion to
          Enforce Settlement, 7/3/2012.          Greco filed an
          answer to these motions, indicating that no
          settlement agreement had been reached between
          the parties.

                A hearing was held on July 20, 2012. At the
          hearing, the trial court concluded that a settlement
          agreement had been reached by the parties, but that
          a gag order was not included as an essential term of
          that agreement.           N.T., 7/20/2012, at 15.
          Specifically, the trial court indicated “I’m going to
          allow you to conclude [sic] the gag, although I don’t
          find it to be an essential term.” Id. The court
          stated that the parties had “until Monday,” July 23,
          2012, to reach an agreement on the issue of whom
          the parties would be allowed to discuss the
          settlement      terms      with     without    violating
          confidentiality, and explained that “if you believe
          there is a violation, there will be no set penalty. The
          penalty will be determined by the [trial c]ourt in the
          nature of the violation.” Id. at 15.



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                 On August 27, 2012, Greco filed a Motion for
          Settlement Conference and Contempt of Court. In
          this motion, Greco contended that Bernback was
          flouting the trial court’s ruling during the July 20,
          2012 hearing that a gag order must be included in
          the settlement. Bernback filed an answer to this
          motion, arguing that the trial court merely indicated
          that the trial court would allow a gag order to be
          included, not that one was required.        Bernback
          abandoned his previously-stated position that
          confidentiality was included in the terms of the
          settlement.    Instead, Bernback claimed that the
          “settlement . . . does not include a successfully
          negotiated agreement of confidentiality or a ‘gag
          order[,’] given that the parties have never agreed
          upon any specific parameters of confidentiality.”
          Bernback’s Answer with New Matter, 9/26/2012.

                On September 27, 2012, another hearing was
          held. At this hearing, the trial court agreed with
          Bernback, and explained that it did not mandate that
          a gag order be included in the settlement during the
          previous hearing. N.T., 9/27/2012, at 5. The trial
          [court] also explained its position that the gag order
          was not an essential term in the contract because
          such orders are disfavored by courts. Id. at 2, 5 (“I
          went through a very long dissertation as to why a
          gag order is disfavored by courts. Okay. And quite
          honestly, that’s why I don’t see it as an essential
          term in contract.”). All parties agreed on the record
          to the inclusion of a confidentiality provision. Id. at
          6, 9-10, 16.      However, despite the protests of
          counsel for Greco, the trial court confirmed that
          there would be no gag order. Id. at 16. The trial
          court stated that Greco would have to sign an
          agreement to this effect “[b]y Monday,” October 1,
          2012, or else the trial court would order the case
          discontinued with prejudice. Id. at 19-20.

                On October 3, 2012, the trial court entered an
          order stating that this matter is “settled,
          discontinued and ended with [p]rejudice.” The trial
          court did not make any order with respect to
          confidentiality or a gag order. In its opinion, the trial
          court explained that

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                  [b]ased on the narrowly described
                  agreement of the parties as to a
                  confidential[ity] clause and reviewing
                  proposed Orders as presented by the
                  parties, the [trial c]ourt forwarded a
                  proposed Order which was not agreeable
                  to all parties. Based upon the lack of
                  agreement, the [trial c]ourt entered the
                  October 3, 2012 Order marking the
                  instant action as “settled, discontinued
                  and ended.”

            Trial Court Opinion, 2/25/2013, at 2.

                 On October 12, 2012, Greco filed a Petition for
            Reconsideration.   This petition was denied on
            October 25, 2012, and Greco filed a timely notice of
            appeal.

Greco v. Bernback, et al., slip memorandum, filed November 3, 2013 at

1-6.

       As noted, this court found that the settlement agreement anticipated

the entry of a gag order, and this court remanded the case for entry of the

same. In response, the trial court entered the following order:

                 AND NOW, this 20th day of March, 2014, the
            Order of Court dated March 10, 2014 is hereby
            Amended as follows:

                   It is hereby ORDERED that pursuant to the
            settlement agreement reached, and pursuant to the
            Superior Court decision issued on November 13,
            2013, NEITHER PARTY, as set forth above, nor their
            attorneys,    other   representatives,    agents,    or
            employees, will in any way disclose nor comment in
            any way about the litigation or resolution, or the
            details of the settlement to any third persons or
            entities with the exception of the insurers of the
            parties, the attorneys of either the parties or of their
            insurers, and accountants of the parties. The parties

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            shall not publicize or cause to be publicized in any
            news or communication media including, but not
            limited to, newspapers, magazines, journals, radio or
            television, social media, blogs on-line, digital media
            the facts or the terms and conditions of this
            settlement. Additionally, the parties shall decline
            comment on any aspect of this settlement to any
            members of the news media or the general public.
            Any violations of the Order, upon hearing before the
            Court, may result in an award of damages within the
            discretion of the Court. There will be no liquidated
            damages awarded pursuant to the Superior Court
            decision.

                   The Office of Judicial Records & Services of
            Luzerne County, Pa. shall give notice of this order to
            all parties pursuant to Pa.R.C.P. 236.

                   THIS ORDER SHALL BE SEALED.

Amended Order, 3/20/14.

      On appeal, appellant argues that this order is insufficient in that while

it bars comment or disclosure as to the litigation, it does not bar comment or

disclosure on “the facts which gave rise to the litigation.”          Appellant

contends that when the prior panel of this court quoted Paragraph 4 of

Greco’s   Motion   for   Settlement   Conference   and   Contempt     of   Court,

8/27/2012, which contained that language, it was essentially a direction to

the trial court to include that language in its order. We disagree.

      First, the prior panel of this court found that confidentiality was an

essential term to the parties’ settlement agreement and that the agreement

anticipated the entry of a gag order. However, the panel did not, in any way

whatsoever, purport to dictate actual language that must be included:



                                      -7-
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                   Therefore, we vacate the trial court’s order
            marking     the    underlying  action   as   “settled,
            discontinued and ended with [p]rejudice,” and we
            remand so that the trial court may enter a new order
            consistent with our conclusions, supra. The parties
            will be bound by confidentiality, subject to their
            previously negotiated exceptions. Confidentiality will
            be enforced by an order of court. Should any party
            violate this order, damages will be assessed at the
            trial court’s discretion. There will be no liquidated
            damages.

Greco v. Bernback, et al., slip memorandum, filed November 3, 2013 at

11.

      Second, we find that appellant is attempting to split a hair that is

already exceedingly fine. The gag order explicitly states, “NEITHER PARTY

. . . will in any way disclose nor comment in any way about the litigation”

(emphasis added). We find that this language necessarily includes and bars

disclosure or comment as to the facts which gave rise to the litigation

because that would be tantamount to disclosure or comment on the litigation

itself. Consequently, we will affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/23/2015




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