J-S03017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A. AGENCY MANAGEMENT, INC.                         IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ASHLEY DEVELOPMENT CORPORATION

                            Appellant                   No. 1417 EDA 2014


                  Appeal from the Order Entered April 3, 2014
             In the Court of Common Pleas of Northampton County
                    Civil Division at No(s): C48CV20088174


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED JULY 29, 2015

       Ashley Development Corporation (Ashley) appeals from the order

entered April 3, 2014, in the Court of Common Pleas of Northampton

County, enforcing a settlement agreement between Ashley and A. Agency

Management, Inc. (Agency).             The order required Ashley to pay Agency

$32,500.00, plus $250.00 for reasonable attorneys’ fees, within ten days of

the date of the order, in full settlement of the action filed at C-48-CV-2008-

8147. Ashley claims Agency’s proper remedy is execution of the judgment

Agency entered against it on November 19, 2013. After a thorough review


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
 Judge Panella did not participate in the consideration or decision of this
case.
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of the submissions by the parties, relevant law, and the certified record, we

agree with Ashley, reverse the order, and remand for further proceedings.1

       This timely appeal presents a novel procedural question regarding how

to enforce the payment of an agreed upon $32,500.00 debt.          Agency and

Ashley entered into a contractual agreement regarding the marketing of

certain retirement condominiums, known colloquially as the Creekside

Condominiums.       Agency claimed Ashley breached the contract and sought

payment of $64,510.00, plus interest and costs.            See Complaint, ad

damnum clause, 8/14/2008. The matter was scheduled for trial on July 16,

2013. However, prior to the commencement of trial, the parties agreed to

settle the matter for $32,500.00, to be paid within 120 days. The trial court

noted the agreement, and stated:

       THE COURT: Very well. I’ll adopt it as an order of the Court,
       we’ll mark the case settled and discontinued, is that correct? Is
       there anything else I need to do?

       [PLAINTIFF’S COUNSEL]: Not today, Your Honor.

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1
       Our standard of review of a trial court's grant or denial of a
       motion to enforce a settlement agreement is plenary, as the
       challenge is to the trial court's conclusion of law. We are free to
       draw our own inferences and reach our own conclusions from the
       facts as found by the trial court. However, we are only bound by
       the trial court's findings of fact which are supported by
       competent evidence.

Casey v. GAF Corp., 828 A.2d 362, 367 (Pa. Super. 2003) (citation
omitted).




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N.T., 7/16/2013, at 2.

        Payment was not forthcoming. On October 11, 2013, the trial court

entered a copy of the transcript of July 16, 2013, as an order of the Court.2

On November 19, 2013, Agency filed a praecipe to enter judgment in the

amount of $32,500.00 against Ashley.                 The praecipe contains no language

indicating    upon      what   authority       the   judgment   was    to    be   entered.

Nonetheless,      the    judgment     was       entered.      Ashley   has    specifically

acknowledged and accepted the validity of the judgment in its Appellant’s

brief.3

        On March 28, 2014, Agency filed a motion to enforce the settlement

agreement. In that motion, Agency stated it had entered judgment against

Ashley in the amount of $32,500.00 pursuant to the trial court order

memorializing the settlement agreement. Ashley opposed the motion on the

grounds that by entering judgment against it, Agency had effectively

terminated the settlement contract, and had opted to enforce the debt by

means of executing on the judgment. The trial court disagreed, claiming the
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2
    It appears this order was entered sua sponte.
3
   “Here, [Agency] filed a praecipe for default against [Ashley] and [Ashley]
effectively consented to the entry of judgment by forgoing the opportunity to
file a Motion to Open/Strike Judgment and by forgoing the opportunity to
appeal the judgment.” Appellant’s Brief at 9. We reiterate that the praecipe
did not indicate a default judgment, having cited no specific authority for the
entry of the judgment. Nonetheless, we agree that Ashley has consented to
an enforceable judgment and cannot claim it does not owe Agency the
$32,500.00.



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judgment merely created a lien against Ashley and the settlement

agreement was still enforceable.

      Initially, we note that we have never been presented with this

particular fact pattern.   Indeed, neither the trial court nor either of the

parties has cited any case law or rule of procedure that addresses this

situation. Therefore, we are left with examining general principles of law.

      First, pursuant to Pa.R.C.P. 229, the only method of voluntarily

terminating an action, in whole or in part, prior to the start of trial is via

discontinuance.   Although Agency has asserted the case settled after trial

had begun, see Agency’s Brief, at 2, the certified record discloses no

indication trial had convened. The docket does not reflect trial had started

and the notes of testimony from July 16, 2013 only make reference to the

settlement of the dispute. Accordingly, pursuant to the certified record, the

matter was settled by agreement prior to trial. Therefore, the only method

of termination of the matter was via a praecipe to settle, discontinue and

end. The trial court made mention that the case would be marked as settled

and discontinued, but that never appears on the docket. This is important

because when an action is discontinued, it is no longer pending before the

trial court and, therefore, the trial court has no jurisdiction over the matter.

See Motley Crew, LLC. V. Bonner Chevrolet Co., Inc., 93 A.3d 474, 476

(Pa. Super. 2014).

      Settling the matter and filing the discontinuance essentially creates an

enforceable contract between the relevant parties for the payment of

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money. This agreement is in lieu of a judgment for damages. If the terms

of the settlement are not fulfilled, the aggrieved party typically seeks redress

through a motion to enforce settlement.           See Pa.R.C.P. 229.1. The Rule

contains a variety of options, including invalidating the agreement and

proceeding with the lawsuit, or seeking sanctions which include the award of

attorneys’ fees and/or interest.4

       This straightforward procedure, used to great effect throughout the

Commonwealth on a daily basis, was not employed.                   Because no

discontinuance had been filed, the matter remained open, even though an

enforceable contract to terminate the matter existed.

       Rather than discontinue the matter, the trial court entered the notes of

testimony from July 16, 2013, as an order. As reported above, the language

of the settlement was not wholly phrased in the manner of a typical court

order, but the clear gist of the transcript was the requirement that Ashley

pay Agency $32,500.00 within 120 days of July 16, 2013. The funds were

therefore due by November 16, 2013.              Because the case had not been

discontinued, as would normally occur, this order created a second method




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4
 Although not specifically mentioned in Rule 229.1, if a party still refuses to
pay the agreed to settlement amount including any sanctions that have
accrued, the court might resort to contempt or, pursuant to Pa.R.C.P. 3101,
enforcing the order as a judgment.




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by which Agency could collect the payment owed it.                 Agency could seek

enforcement of the order.

       Although the terms of both the order and the settlement were

identical, the methods of enforcement are not.                   As noted above, a

settlement is enforced as a contract with specific remedies available to the

plaintiff, including, but not mandating, attorney’s fees and interest. On the

other hand, enforcement of money judgments is subject to the requirements

found at Pa.R.C.P. 3101, et seq.               Methods of collection from recalcitrant

debtors include garnishment, execution against property, sheriff’s sales, and

liens. Also notable is the fact that a judgment is entitled to the addition of

interest from the date of judgment, at the lawful rate, as a matter of law.

See 42 Pa.C.S. § 8101. The lawful rate of interest, as defined by statute, is

6% per annum. See 41 P.S. § 202.5

       Because the methods of enforcement and remedies are different, it

matters which method is employed. As noted, once the trial court entered

an order directing Ashley to pay the sum certain by a specific date, Agency

had two methods to proceed.              Agency tried to use both methods, by

entering a judgment based upon the trial court’s order and then by seeking

to enforce the contractual settlement agreement. Ashley has argued Agency
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5
  The optional interest awarded pursuant to Pa.R.C.P. 229.1 is the prime rate
as published in the first edition of The Wall Street Journal for each calendar
year plus one percent. For 2014 and 2015, the WSJ rate is 3.25% (4.25%
total). See 45 Pa.B. 291, 1/17/2015.



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is required to pick one and proceed.             Specifically, Ashley argues that by

entering judgment upon the order, Agency opted to enforce the judgment.

We believe Ashley’s approach is sound.

       Here, the judgment was entered upon the order that memorialized the

settlement, not upon any judicial finding of liability and damages.           “It is

elementary that judgment settles everything involved in the right to recover,

not only all matters that were raised, but those which might have been

raised.” EMC Mortgage, LLC v. Biddle, ___ A.3d ___, 2015 PA Super 79,

at 7 (quoting Lance v. Mann, 60 A.2d 35 (Pa. 1948)).6               Having entered

judgment upon the settlement agreement, Agency did not diminish its ability

to collect the sum owed. Rather Agency affirmatively chose the method by

which it was able to collect the debt.             Because a judgment subsumes

everything involved in the right to recover, essentially, by taking the

judgment on the settlement order, Agency terminated its right to contractual

enforcement pursuant to a motion to enforce settlement, Pa.R.C.P. 229.1, in

favor of following the procedures outlined under Pa.R.C.P. 3101, et seq.

regarding enforcement of money judgments.

       Order reversed.      Matter remanded for further proceedings consistent

with this decision. Jurisdiction relinquished.


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6
  Agency argues this does not apply because Lance v. Mann did not
address a settlement. We do not believe that the method by which the
matter terminated is dispositive to the issue.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015




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