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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ANDY SU AND DON NGUYEN,                     :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
MT REALTY, LLC, TERRY WANG                  :
AND KATHY H. LOUIE,                         :
                                            :
                          Appellee          :
                                            :     No. 3373 EDA 2014

                 Appeal from the Order Entered October 9, 2014
              In the Court of Common Pleas of Philadelphia County
               Civil Division No(s): February Term, 2012, No. 3439

BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 26, 2015

        Plaintiffs/Appellants, Andy Su and Don Nguyen, appeal from the order

entered in the Court of Common Pleas denying their motion to enforce the

settlement agreement between them and Defendants/Appellees, MT Realty,

LLC, Terry Wang, and Kathy H. Louie.        We hold the order is not final and

appealable under Pa.R.A.P. 341 and thus quash.

        On February 29, 2012, Appellants commenced this breach of warranty

of title action against Appellees. On August 29, 2013, “[a]fter approximately

eight days of trial, a settlement was reached [and] placed on the record.”

Trial Ct. Op., 2/3/15, at 1. The settlement agreement required “the transfer

*
    Former Justice specially assigned to the Superior Court.
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of title to the [subject] property back to [Appellees], the exchange of certain

funds, and other conditions[.]” Id. After the parties stated their settlement

agreement on the record, the trial court remarked, “I’ll mark my file closed.”

N.T. Settlement Agreement, 8/29/13, at 7.          The relevant docket entry

stated, “Settled after assignment for trial. 8/29/13 by the court: Judge R.C.

Jackson.”1 Trial Docket, 11/7/14, at 22.

        Seven months later, on March 29, 2013, Appellants filed the

underlying motion, invoking Pa.R.C.P. 229.12 and alleging Appellees failed to

satisfy two terms of the settlement agreement.       The petition stated, inter

alia, Appellants had “two exclusive remedies: 1) to move to enforce the

settlement, or 2) to abrogate the settlement and move to trial,” and that

they were “exercis[ing] their exclusive right to sanctions and entry of a

judgment.” Appellants’ Aff. Under Pa.R.C.P. #229.1 for Failure of Appellees

to Deliver Settlement Funds, 3/19/14, at ¶¶ 23, 25.

        The court held hearings on June 10 and July 8, 2014. Appellants’ Brief

at 12. On October 8, 2014, the court denied Appellants’ motion, finding: (1)

Appellants’ first allegation against Appellees had “been resolved and any

claim for enforcement is moot;” and (2) where Appellees’ payment of certain

proceeds was conditional on Appellants’ obtaining a reduction of the

1
  Trial was conducted before the Honorable Ricardo Jackson. After his
retirement, the underlying motion to enforce settlement was heard by the
Honorable Idee C. Fox.
2
    See Pa.R.C.P. 229.1 (Settlement Funds. Failure to Deliver. Sanctions).



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inheritance tax lien on the property, Appellants failed to present proof of the

reduction.3 Order, 8/9/14. Appellant took this appeal.

        On December 22, 2014, this Court issued a per curiam order, stating

the general rule that an order denying a motion to enforce a settlement is

not final and appealable, because it does not dispose of all claims and all

parties and the parties retain the remedy of proceeding to trial to resolve all

disputed issues.     Order, 12/22/14 (citing Pa.R.A.P. 341(b); Friia v. Friia,

780 A.2d 664 (Pa. Super. 2001)).        The order directed Appellants to show

cause why this appeal should not be quashed.4 Appellants filed a response,


3
    The trial court summarized this issue as follows:

           The [$36,011.17] lien was for outstanding Inheritance
           Taxes due from the Estate of [the real owners. Appellants]
           contend that the parties agreed that [Appellants] would
           seek to reduce the lien, any outstanding tax would be paid
           and the difference between the tax and the lien reduction
           would be shared between the parties 60% to [Appellees
           and] 40% to [Appellants]. Also, [Appellants] would try to
           find the Administrator of the . . . Estate and have the
           Administrator file an inheritance tax return. . . .

Trial Ct. Op. at 2. The court stated that in support of Appellants’ claim that
they reduced the lien, they presented a Pennsylvania state tax return filed
on behalf of the estate and “a receipt from the Department of Revenue
dated October 22, 2012, which indicated a payment of $2,177.72 and that
no balance was due from the return filed.” Id. at 3. Appellees, meanwhile,
“submitted a title report . . . dated June 25, 2014, listing the open lien on
the [subject] Property in the amount of $36,011.17.” Id. The trial court
thus found, “The full lien remained against the Property and had not
changed from the date of the Agreement.” Id.
4
 See Knisel v. Oaks, 645 A.2d 253, 255 (Pa. Super. 1994) (“[B]ecause the
question of appealability implicates the jurisdiction of [this] Court, a non-



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stating their appeal does not involve a denial to enforce a settlement

agreement, but instead they now seek to attempt “to reject the settlement

and place the matter back on the trial list for trial” under Pa.R.C.P.

229.1(d)(1).5 Appellants’ Ltr., 1/2/15, at 3, 7.

      Although Appellants rely on Pa.R.C.P. 229.1(d)(1),6 this Court has

stated, “Rule 229 . . . governs voluntary termination of a matter by the

plaintiff before commencement of trial.       If involvement by the court in

settlement discussions were to occur during trial, the appropriate method to

voluntarily terminate the action would be by nonsuit pursuant to Pa.R.C.P.

230.” Wright v. Lexington & Concord Search & Abstract LLC, 26 A.3d

1134, 1138 n.2 (Pa. Super. 2011) (emphases added).7 Rule 230 states:

            (a) A voluntary nonsuit shall be the exclusive method of
         voluntary termination of an action in whole or in part by
         the plaintiff during the trial.

waivable matter,”. . . we are . . . required to determine the appealability of
the order that we have been asked to review.”).
5
  In their appellate brief, Appellants request reversal of the instant order
denying their motion to enforce settlement “and remand with instructions to
award [them] damages, interest, counsel fees and costs.” Appellants’ Brief
at 31.
6
   See Pa.R.C.P. 229.1(d)(1) (“If settlement funds are not delivered to the
plaintiff within the time required by subdivision (c), the plaintiff may seek to
. . . invalidate the agreement of settlement as permitted by law[.]”).
7
  See also Wright, 26 A.3d at 1138 (“Rule 229.1(d) permits a plaintiff who
reaches a pre-trial settlement to seek the following relief if the defendant
does not deliver the settlement funds within twenty calendar days from
receipt of an executed release: the plaintiff may ‘seek to invalidate the
agreement of settlement as permitted by law,’ or ‘seek to impose sanctions
on the defendant.’ Pa. R.C.P. 229.1(d)(1), (2).” (emphasis added)).



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              (b) A plaintiff may not obtain a voluntary nonsuit
           without leave of court upon good cause shown and cannot
           do so after the close of all the evidence.

Pa.R.C.P. 230(a)-(b) (note omitted).

      Generally, an appeal may only be taken from a final order. Pa.R.A.P.

341(a). “A final order is any order that (1) disposes of all claims and of all

parties; or (2) is expressly defined as a final order by statute; or (3) is

entered as a final order pursuant to subdivision (c)[.]” Pa.R.A.P. 341(b)(1)-

(3). As stated above, an “order denying a motion to enforce settlement . . .

is not final because it does not dispose of all claims and all parties; the

parties retain the remedy of proceeding to trial to dispose of disputed

issues.”   Friia, 780 A.2d at 667 (citing National Recovery Systems v.

Perlman, 533 A.2d 152, 152-53 (Pa.Super. 1987)); see also Knisel, 645

A.2d at 256 (holding order refusing to enforce a settlement was not

appealable).

      However, “where the circumstances of the case make the remedy of

trial inaccessible, an order refusing to enforce settlement is final as

contemplated by rule 341.”      Friia, 780 A.2d at 667 (citing Kramer v.

Schaeffer, 751 A.2d 241, 244-45 (Pa. Super. 2000)).

      In Friia, parties entered into a settlement agreement and the trial

court contemporaneously dismissed the plaintiff’s complaint with prejudice.

Friia, 780 A.2d at 668.     The trial court denied the plaintiff’s subsequent

motion to enforce settlement.    Id. at 666. This Court held the order was


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appealable, emphasizing the trial “court’s express dismissal of the underlying

action with prejudice” “effectively removed the option of trial,” and “finality

was achieved when the court denied [the plaintiff’s] petition to . . . Enforce

Settlement.” Id. at 668.

      In Kramer, the plaintiffs’ negligence action proceeded to trial, and the

jury entered a verdict, finding the defendant was liable but awarding $0

damages. Kramer, 751 A.2d at 243. Subsequently, a substitute insurance

adjuster, “not aware that the case had already been tried to a jury verdict,”

presented a settlement offer of $3,500 to the plaintiffs’ attorney. Id. The

attorney accepted. Id. When the substitute insurance adjuster learned of

the jury verdict, he informed the plaintiffs’ attorney that the insurance

company “will be standing by the $0.00 verdict.” Id. The plaintiffs filed a

petition to enforce settlement, which was denied. Id. On appeal, this Court

noted “the case has already been tried to a verdict[ and] damages have

been determined,” and held the appeal was properly before it. Id. at 244-

45.

      As stated above, in their response to this Court’s rule to show cause,

Appellants aver the trial “court refused to set the case to resume trial”

pursuant to Pa.R.C.P. 229.1(d)(1).     Appellants’ Ltr. at 3, 7.   They quote

extensively from Friia, Knisel, and Kramer.8       Likewise, their underlying


8
  Appellants also rely on Geniviva v. Frisk, 725 A.2d 1209 (Pa. 1999).
Appellants’ Ltr. at 3 (“Genevivia . . . does not support that this case is not



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motion to enforce settlement requested “sanctions and entry of judgment”

under Rule of Civil Procedure 229.1.    Appellants’ Aff. At ¶ 25.   However,

because the settlement agreement was executed during trial, Rule 229.1 is

not applicable, and instead Rule 230 applies. See Pa.R.C.P. 230; Wright,

26 A.3d at 1138 & n.2. Rule 230 does not set forth sanctions or other relief

in the event of the failure to deliver settlement funds, but instead merely

provides that “[a] voluntary nonsuit shall be the exclusive method of

voluntary termination of an action in whole or in part by the plaintiff during

the trial.” See Pa.R.C.P. 230.

      Here, Appellants did not file a voluntary nonsuit. See id. At the time

the settlement agreement was entered on the record, the trial court marked

the matter “settled” but did not discontinue or dismiss the underlying action.

Furthermore, the underlying order of October 9, 2014, merely denied

Appellant’s request to enforce the settlement agreement; the order did not

rule on their request for the entry of judgment or any purported request to

resume trial proceedings. The parties thus “retain the remedy of proceeding

to trial to dispose of disputed issues.”     See Friia, 780 A.2d at 667.

Appellant has not established this matter falls outside the general rule that

an order denying a motion to enforce settlement is not appealable.

appealable as of right.”). However, Appellants properly note that in that
decision, the appeal lied from the trial court’s refusal to approve a
settlement agreement, and that “[t]he appeal at bar does not involve the
refusal of a court to approve a settlement requiring court approval.” See id.




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Compare Friia, 780 A.2d at 668; Kramer, 751 A.2d at 244-45.

Accordingly, we hold the court’s October 9, 2014 order is not final and not

appealable.

        For the foregoing reasons, we quash this appeal. The Prothonotary is

directed to remove this case from the October 27 and 28, 2015, argument

list.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2015




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