                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-1996

Livingstone v. North Belle Vernon
Precedential or Non-Precedential:

Docket 95-3252




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Recommended Citation
"Livingstone v. North Belle Vernon" (1996). 1996 Decisions. Paper 139.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/139


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                         _______________

                           NO. 95-3252
                         _______________

                   FRANCES E. LIVINGSTONE and
              JOSEPH A. LIVINGSTONE, her husband,

                                    Appellants

                               v.

NORTH BELLE VERNON BOROUGH; FAYETTE CITY BOROUGH; WASHINGTON
TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as
officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOODY, individually
and in his capacity as officer for FAYETTE CITY BOROUGH; OFFICER
DARHL SNYDER, individually and in his capacity as an officer for
NORTH BELLE VERNON BOROUGH

                         _______________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania

                    D.C. No. 91-00059
                         _______________

                     Argued January 25, 1996

           Before: COWEN and SAROKIN, Circuit Judges
and POLLAK, District Judge


                        -----------------

                  ORDER AMENDING SLIP OPINION

                        ------------------


     It is hereby ordered that the slip opinion in the above-
entitled appeal filed July 31, 1996 be amended in accordance with
the following.

     On page 9, the second full paragraph should read:


          With this background history as predicate, the court
     in Livingstone I then proceeded to review the elements of
     proof for a showing of voluntariness, finding that the
     parties seeking to enforce the release-dismissal
     agreement bore the burden of showing that the
     Livingstones' assent was "voluntary, deliberate and
     informed." 12 F.3d at 1211. We concluded that the
     defendants had not met this burden with the certainty
     called for on summary judgment, given that Mrs.
     Livingstone was confused as to the terms of the release-
     dismissal arrangement, that the claimed release-dismissal
     agreement was never written down, and that the asserted
     agreement -- assuming there was a meeting of the minds --
     was made, if at all, during a brief and ambiguous oral
     colloquy. See id. at 1211-14. Accordingly, we reversed
     the grant of summary judgment and directed that the case
     be remanded for further proceedings.

     On page 16, the first paragraph should read:

          The Livingstones also question whether North Belle
     Vernon Borough and Fayette City Borough -- which we will
     refer to, for brevity, as "the two boroughs" -- had the
     same status under the release-dismissal agreement as did
     Washington Township. In the voluntariness proceeding in
     the district court, counsel for the Livingstones had
     requested that a specific question on the verdict form
     address the status of the two boroughs under the
     agreement. The district court declined to include such
     a question on the form, finding that Ceraso's statements
     in the colloquy before Judge Cicchetti included all three
     municipalities, and that all three therefore had the same
     status for purposes of the voluntariness question. In
     response to the objections of the Livingstones' counsel
     to this ruling, the district court permitted him to argue
     to the jury that the ambiguous nature of the agreement
     between the Livingstones and the two boroughs rendered
     the release-dismissal agreement involuntary as a whole.
     App. at 804-06.

     The last paragraph on page 45 continuing on to page 46 should
read:

          However, we anticipate that the Pennsylvania Supreme
     Court would be very attentive to how the voluntariness of
     a release-dismissal agreement is established. Such
     judicial attentiveness would be called for both because
     of the danger that such agreements will be concluded in
     improper circumstances, and because Pennsylvania has a
     policy of declining to enforce contracts concluded under
     duress or threat of prosecution. See, e.g., Germantown
     Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super.
     1985) (applying a rule that threats of criminal
     prosecution constitute duress rendering a contract
     voidable, and stating: "It is an affront to our judicial
     sensibilities that one person's ability to seek another's
     prosecution can be bartered and sold the same as
     commodities in the market place. It is even more
     repugnant when the foul stench of oppression pervades the
     transaction."). For reasons we have already discussed,
     the voluntariness of oral release-dismissal agreements is
     especially likely to be problematic, and -- precisely
     because such agreements are not evidenced by a writing --
     determinations of the voluntariness of such agreements
     are particularly likely to be unreliable. See supra at
     31-36. Accordingly, we predict that the Pennsylvania
     Supreme Court, when faced with the question, will subject
     the voluntariness of oral release-dismissal agreements to
     a heightened standard of proof, and we therefore conclude
     that the voluntariness of the release-dismissal agreement
     now before us must be demonstrated by clear and
     convincing evidence.


                                        BY THE COURT:


/s/ Louis H. Pollak

                                            District Judge


Dated:   August 14, 1996
