J-S52028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROGER D. SHAFFER AND ANN                         IN THE SUPERIOR COURT OF
DOLIVEIRA SHAFFER, HIS WIFE,                           PENNSYLVANIA

                         Appellants

                    v.

EBENSBURG POWER CO.; BABCOCK &
WILCOX EBENSBURG POWER INC.;
T/D/B/A EBENSBURG POWER CO.;
EBENSBURG INVESTORS LIMITED
PARTNERSHIP T/D/B/A EBENSBURG
POWER CO, POWER SYSTEMS
OPERATIONS, INC.,

                         Appellees                    No. 225 WDA 2015


               Appeal from the Order Entered January 8, 2015
              In the Court of Common Pleas of Cambria County
                      Civil Division at No(s): 2001-4552


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 13, 2015

      Appellants, Roger D. Shaffer (Roger) and Ann Doliveira Shaffer (Ann)

(collectively, Appellants), appeal from the order entered on January 8, 2015

denying Appellants’ request for interest on settlement funds. We affirm.

      The facts and protracted procedural history of this case are as follows.

On February 5, 2001, Roger was injured at the Ebensburg Power Company

electrical generation plant. As a result, he filed a personal injury suit against

Appellees (collectively, hereinafter “Ebensburg”). In 2003, just prior to trial,

the parties reached a settlement agreement.             Thereafter, Ebensburg

presented Appellants with three settlement options, two providing annuity
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options and another providing for a lump sum payment.                 However,

Appellants attempted to rescind and never signed an agreement. In October

2003, Ebensburg sought to enforce the settlement agreement.           Following

argument, the trial court enforced the settlement agreement and directed

Appellants to execute all settlement documents and releases. Moreover, the

trial court determined Ebensburg was not responsible for any interest on the

settlement proceeds. Appellants appealed and this Court affirmed. Shaffer

v. Ebensburg Power, 864 A.2d 591 (Pa. Super. 2004).            Following this

Court’s   decision,   Ebensburg   again   presented   Appellants    with   three

settlement options that they refused to execute. On February 16, 2005, the

trial court ordered Ebensburg to deposit a portion of the settlement with the

Prothonotary and release another portion to Appellants’ counsel.

     Meanwhile, in November 2003, Ebensburg’s insurance company,

Liberty Mutual Insurance Company (Liberty), attempted to fund an annuity

with Liberty Life Assurance Company of Boston (Liberty Life).         However,

because Appellants did not finalize the settlement agreement, Liberty Life

unilaterally returned the funds to Liberty in June 2010.           Liberty then

attempted to release the settlement funds to Appellants, but they demanded

interest and again refused to execute necessary documentation. On August

14, 2014, Appellants filed a petition for the enforcement of a structured

settlement, asserting that structured settlement sequestration was an

integral part of settlement and they expected the funds had been invested

and yielded some return.    In an order and opinion entered on October 2,

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2014, the trial court determined that Appellants had not entered into a

written settlement agreement, despite numerous orders directing Appellants

to do so.      Accordingly, it concluded that Appellants could not rely upon

unsigned documents or Liberty’s spontaneous act of initially funding the

annuity to obligate Liberty to provide interest or investment returns.

However, the trial court noted that equity required any interest or return on

investments earned from November 12, 2003 through June 2, 2010 be

provided to Appellants, but that Appellants were not entitled to additional

interest.

       After receiving affidavits from Liberty Life that no interest or earned

returns accrued on the funds because an annuity was never funded, the

parties sought clarification of the October 2, 2014 order. After argument, on

January 8, 2015, the trial court entered an order stating Appellants were not

entitled to additional interest on the settlement funds.     This timely appeal

resulted.1

       On appeal, Appellants present the following issue for our review:

            Whether the [trial] court erred in holding [] Appellants are
            not entitled to interest on [their] settlement?

Appellants’ Brief at 4 (complete capitalization omitted).
____________________________________________


1
  Appellants filed a timely notice of appeal on February 5, 2015. On
February 25, 2015, the trial court entered an order pursuant to Pa.R.A.P.
1925(b) directing Appellants to file a concise statement of errors complained
of on appeal. Appellants complied on March 19, 2015. In response, the trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a) on March 31, 2015.



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      In sum, Appellants argue:

        [] Appellants maintain that the [trial court] should have
        ordered interest on the proceeds that were held by the
        insurance company from 2003 to 2010 on the annuity sum
        as part of a structured settlement that was ordered by the
        [trial court]. An abuse of discretion would be warranted if
        such an interest was not declared by the [trial court]. []
        Appellants had a reasonable expectation that interest on an
        annuity sum would be earned from 2003 to 2010 and [are]
        asking this Court to order the lower court to reconsider the
        decision and issue an [o]rder declaring interest due and
        payable from 2003 to 2014 on the principle annuity sum
        held by the insurance company in this matter.

        [] Appellants maintain that the money due to [] Appellants
        on this settlement was a liquidated sum and applicable to
        have interest paid on said sum. [] Appellants maintain that
        because the amounts to be paid to [] Appellants were
        overdue, those payments should have earned interest from
        the time they were due to [] Appellants, i.e., 2010. In fact,
        the insurance representative contacted [] Appellants about
        having the payout made in 2010. There is a liquidated
        amount due in a fixed amount to [] Appellants. As such,
        interest is due on those proceeds. The duty to pay by the
        insurance company was a certain duty to pay and was fixed
        and liquidated. That amount became liquidated when it was
        capable of ascertainment with mathematical precision. In
        this case, the $100,000[.00] due to [] Appellants was put in
        the enforced agreement and the insurance company knew it
        had to pay that rate. The [trial court] had discretion as to
        whether to award interest and abused this discretion based
        on the application of [] law which requires interest be paid
        to [] Appellants on this liquidated fixed certain sum.

Id. at 9-10.

      “The issue before us involves the proper interpretation of a rule. This is

a question of law, and thus, our standard of review is de novo. Our scope of

review, to the extent necessary to resolve the legal question before us is the



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entire record, and thus, is plenary.”     Wright v. Lexington & Concord

Search & Abstract LLC, 26 A.3d 1134, 1136 (Pa. Super. 2011).

Pennsylvania Rule of Civil Procedure 229.1 governs the procedure for

seeking interest on settlement funds. 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. Id. More specifically, “[i]f 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.” Pa.R.C.P. 229.1(c) (emphasis added). “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[.]”        Pa.R.C.P.

229.1(g) (emphasis added).

      Here, the trial court noted that this matter has been ongoing for well

over 11 years. Trial Court Opinion, 3/31/2015, at 6. It recognized that this

Court has determined that the settlement agreement was enforceable. Id.

The trial court stated that despite that determination “and multiple orders

that [Appellants] execute the settlement documents[,] they did nothing to




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secure the release of the funds or aid in the establishment of an annuity.”

Id.

      Based upon our review, we agree Appellants are not entitled to

interest on the settlement funds. Initially, we note Appellants do not

acknowledge Rule 229.1 in their brief to this Court or argue it is somehow

inapplicable to this matter.     Appellants have not executed a release under

Rule 229.1(c) and, thus, the duty to transfer the settlement proceeds (and

any related duty to pay interest) was not triggered under our procedural

rules. This Court previously affirmed an order to this effect. See Shaffer v.

Ebensburg Power, 864 A.2d 591 (Pa. Super. 2004).          Instead, Appellants

baldly maintain that interest is due because the amounts owed them have

been withheld and are now overdue. The record, however, establishes that

the settlement funds have been ready and available to Appellants and their

refusal has produced the long delay. Under these circumstances, Appellants

simply are not entitled to interest and we discern no legal error or abuse of

discretion in the trial court’s ruling.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015


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