J-A03024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    AHAB III, INC. AND GINGER                  :   IN THE SUPERIOR COURT OF
    KATZENMOYER                                :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    FRANCESCO SATIRO                           :
                                               :   No. 2249 EDA 2017
                       Appellant               :

                   Appeal from the Order Dated July 13, 2017
    In the Court of Common Pleas of Chester County Civil Division at No(s):
                                  2013-07561

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 28, 2018

       Appellant Francesco Satiro appeals from the order1 of the trial court

granting the motion of Appellees, Ahab III, Inc. and Ginger Katzenmoyer, to

enforce a settlement. Also before the Court is Appellees’ request to award




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.
1 Satiro filed a first Notice of Appeal on July 13, 2017, purporting to appeal
from the orders entered June 14, 2017, and July 13, 2017. He later filed a
second Notice of Appeal on August 3, 2017, following the court’s denial of his
Motion for Reconsideration, purporting to appeal from the orders entered
March 10, 2017, July 13, 2017, and July 14, 2017. We deem the orders dated
July 13, 2017 (docketed July 14, 2017) – which granted Appellees’ Motion for
Enforcement of Settlement, denied Satiro’s Petition to Set Aside the
Settlement, and directed the Prothonotary to mark the case as “settled” and
remove it from the trial list – to be the final, immediately appealable orders.
See generally Pa.R.A.P. 341. For simplicity, we refer to the two orders dated
July 13, 2017 as a single order.
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counsel fees in connection with this appeal. We affirm the order of the trial

court and deny Appellees’ request for counsel fees.

        In 2011, the parties entered into an Installment Sale Agreement under

which Appellees were to sell four parcels of real estate, including a restaurant

known as Harpoon Louie’s, to Satiro. In 2013, Appellees filed suit against

Satiro for breach of contract. After several years of “contentious and

protracted” discovery,2 the trial court entered several orders indicating that

the case would be listed for trial;3 the last of these was an order entered on

March 10, 2017, stating that the case “shall be included on the first trial list

published on or after July 1, 2017.” Order, 3/10/17. Approximately three

months later, on June 13, 2017, the court issued an order setting a slightly

earlier trial date of June 26, 2017.

        On the first day of trial, the parties entered into a settlement.

Negotiations between the parties and their attorneys “took place over more

than ninety minutes in the courtroom and hallway.” Trial Ct. Op. at 3. The

terms of the settlement were memorialized on the record, with Satiro’s

express agreement, as follows:

        THE COURT:        Please be seated. Okay. Who wants to put it on
        the record? Mr. Thomas, do you want to do it?

        MR. THOMAS [(Appellees’ attorney)]: I do, but I’d like the
        defendant to be here when I did it.

____________________________________________


2   Trial Court Opinion, filed Aug. 17, 2017, at 1.

3   See, e.g., Orders filed Oct. 12, 2016 and Nov. 29, 2016.

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     THE COURT:        I guess that would be helpful.

                        Okay. Whenever you’re ready.
     MR. THOMAS:        Good afternoon, Your Honor. Leno Thomas on
     behalf of the plaintiff, Ginger Katzenmoyer. Opposing counsel, Mr.
     Bambrick, and I have negotiated a settlement in this matter.

                       The settlement is as follows: Mr. Satiro is to
     issue a certified cashier[’]s check in the amount of $50,000
     payable to Ginger Katzenmoyer and her attorneys, mailed to my
     office at 317 Swede Street, Norristown, Pennsylvania, 19401
     dated no later than tomorrow. Additionally, another $50,000 in
     120 days from today, same conditions: Certified bank check or
     cashier[’]s check payable to Ginger Katzenmoyer and her
     attorneys, mailed to my office at 317 Swede Street, Norristown,
     Pa 19401.

                       Is that your understanding, sir?

     MR. BAMBRICK: That’s my understanding. Are you in agreement,
     Mr. Satiro?

     MR. SATIRO:       If I can’t get an extension, I don’t have a choice.

     MR. BAMBRICK: Well, is it a yes or no?

     THE COURT:        Is it a yes or no? Do we have a settlement or
     don’t we?

     MR. SATIRO:       Yes, Your Honor.

     THE COURT:        Thank you.

     MR. SATIRO:       If I can’t get an –

     THE COURT:        I said either yes or no. You said yes?

     MR. SATIRO:       Yes, Your Honor.

     THE COURT:        Anything further, Mr. Thomas?

     MR. THOMAS:       Nothing, Your Honor. Except that in the event
     that he does not pay we’d respectfully ask for a motion to –


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       THE COURT:          Well, you can file a motion to [en]force the
       settlement if he does not comply, but I want you to file a praecipe
       to settle, discontinue and end this case.

       MR. THOMAS:          I will. Can I file that after I get the first 50,000?

       THE COURT:           Yes. But I don’t want you to wait 120 days to do
       it.

       MR. THOMAS:           I will not, Your Honor. After I get the first
       50,000, I’ll file it, and if he doesn’t pay the other 50,000 –

       THE COURT:           Then you can file a motion.

       MR. THOMAS:          Yes, Your Honor.

       THE COURT:           Very    well.      Thank   you   very   much.   We’re
       adjourned.

N.T., 6/26/17, at 2-4.

       Appellees filed a Motion for Enforcement of Settlement on June 29,

2017. In the Motion, Appellees stated that Satiro had not paid $50,000 by

June 27, 2017, as was agreed in the settlement. See Mot. for Enforcement of

Settlement, filed July 3, 2017, at 2 (unpaginated).4 Instead, on the day

payment was due, Satiro allegedly advised them that his bank was preventing

him from issuing a check until the next day; the following day, Satiro allegedly

told Appellees that his wife had drained their joint bank account at his direction

and had put all of their money into her own account. Id.

       The trial court thereafter issued a Rule to Show Cause, requesting that

Satiro respond as to why the settlement should not be enforced. Satiro filed a
____________________________________________


4The motion was time-stamped as received by the Prothonotary on July 3,
2017.



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J-A03024-18



pro se response to the Motion for Enforcement of Settlement on June 30,

2017, as well as a pro se Petition to Set Aside the Settlement.5 In these filings,

Satiro alleged that his attorney did not inform him that the trial date had been

set for June 26 (i.e., on a date prior to the anticipated July listing) until June

22. See Pet. to Set Aside Settlement, filed June 30, 2017, at ¶ 14. Satiro

claimed that on the first day of trial, his attorney told him that he (the

attorney) was not prepared for trial, did not have his complete file with him,

and no witnesses “were called” by either party to appear for trial, “[m]aking

a trial impossible.” See id. at ¶ 17; Reply to Mot. for Enforcement of

Settlement, filed June 30, 2017, at ¶ 2-3. Bambrick allegedly told Satiro that

trial would start immediately if Satiro did not accept the settlement

agreement; that if Satiro elected to proceed to trial, he would lose; and that

he stood to lose $2.2 million. Satiro claimed that he “was literally dragged into

____________________________________________


5 Satiro titled the latter petition, “Rule to Show Cause,” but the trial court
concluded that the filing was “in the nature of a petition to set aside the
parties’ settlement agreement.” See Order, filed July 14, 2017. We refer to
this filing in the same manner as the trial court.
      At the time that he filed these pro se documents, Satiro was still
represented by his trial counsel, Attorney Bambrick. Although Attorney
Bambrick had filed for leave to withdraw two days earlier, on June 28, 2017,
the court had not ruled on this request. (Attorney Bambrick later filed a
Praecipe to Withdraw his Motion to Withdraw on July 17, 2017.) Satiro’s
appellate counsel, Ronald F. Brien, did not begin representing Satiro until July
14, 2017. In its Rule 1925(a) opinion, the trial court addresses Satiro’s
representation at the time of his pro se filings in a footnote, stating, “[Satiro]
continues to be represented by counsel; however, he files documents that he
has written. Since such hybrid representation is not prohibited, we have
entertained his filings.” Trial Ct. Op. at 2 n.3. Appellees have not challenged
the propriety of the trial court’s consideration of Satiro’s pro se filings.

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the courtroom,” and was not sworn in before the above-quoted discussion,

which took place on the record. See Pet. to Set Aside Settlement at ¶ 18.

Satiro stated that he had requested a continuance from the court, but it was

denied. Ultimately, Satiro claimed that the settlement agreement was made

“without his consent and under duress.” Id. at ¶ 25, 27. He therefore

requested that the trial court void the settlement agreement.

      The trial court held a “short proceeding” on July 13, 2017, see Trial Ct.

Op. at 2, at which Satiro was represented by new counsel; the certified record

does not reflect what transpired on that date. The court thereafter granted

Appellees’ Motion to Enforce the Settlement and denied Satiro’s Petition to Set

Aside Settlement. The court also ordered the Prothonotary to mark the case

“settled” on the docket and remove it from the trial list. Id. Satiro filed a

Motion for Reconsideration, which the court denied on July 31, 2017.

      Satiro appealed, and presents the following issues for our review:

      1. Did the trial court abuse its discretion by not granting
         Defendant’s request for a continuance on June 26, 2017?

      2. Did the trial court abuse its discretion, or commit legal error,
         in granting Plaintiff’s Motion to Enforce Settlement Agreement,
         in the Order dated July 13, 2017?

Satiro’s Br. at 2-3.

      Appellees argue that the trial court should be affirmed, and request that

we “award the Appellees attorneys’ fees and costs associated with the appeal,

and such other relief that the court deems just and proper.” Appellees’ Br. at

8, 9, 30. Appellees repeated this request at oral argument.


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      We begin with Satiro’s second issue, in which he claims that the trial

court erred or abused its discretion in enforcing the settlement. “The

enforceability of settlement agreements is determined according to principles

of contract law.” Mastroni-Mucker v. Allstate Ins. Co., 976 A.2d 510, 517-

18 (Pa.Super. 2009). Contract interpretation is a question of law, and

therefore our standard of review is de novo and our scope is plenary. Id. at

518. “With respect to factual conclusions, we may reverse the trial court only

if its findings of fact are predicated on an error of law or are unsupported by

competent evidence in the record.” Id. “A settlement will not be set aside

absent a clear showing of fraud, duress or mutual mistake.” Rago v. Nace,

460 A.2d 337, 339 (Pa.Super. 1983) (citation omitted).

      Satiro argues that the trial court should not have enforced the

settlement because he was under duress at the time he agreed to settle. See

Satiro’s Br. at 13. According to Satiro, any person would have felt duress when

faced with the “predicament” of going immediately to trial, unprepared. Id. at

17. Satiro argues that the transcript evinces that both his lawyer and the trial

court pressured him to agree to the settlement. Id. at 13, 17. Satiro contends

that when he requested that the court set aside the settlement on the basis

of duress, the court should have held an evidentiary hearing. Id. at 12, 17

(citing Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (Pa.Super.

2004) and Rago, 460 A.2d at 337). Satiro also argues that he manifested an

intent not to consent to the agreement, through his verbal protestations on


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the transcript, the fact that he did not comply with the settlement agreement

afterwards, and the fact that he has taken this appeal. See Satiro’s Br. at 13-

16.6

       We reject Satiro’s claim of duress. “We have long defined duress as that

degree of restraint or danger, either actually inflicted or threatened and

impending, which is sufficient in severity or apprehension to overcome the

mind of a person of ordinary firmness.” Adams v. Adams, 848 A.2d 991, 993

(Pa.Super. 2004) (quotation marks and citations omitted). Moreover, “A party

who has reasonable opportunity to consult with counsel before entering a

contract cannot later invalidate it by claiming duress.” Id.

       For example, where an ex-wife petitioned the court to set aside her post-

nuptial agreement with her ex-husband, we affirmed the trial court’s denial of

her request because the ex-wife was never subject to force or threat of force,


____________________________________________


6 In addition to the above, Satiro argues that the court violated his due process
rights by not holding a trial. See Satiro’s Br. at 17. His entire argument on
this point reads:
       Article I, Section 6 of the Constitution of Pennsylvania states:
       “Trial by jury shall be as heretofore, and the right thereof remain
       inviolate.” Given the totality of circumstances in the proceeding
       below, and the fact that the Parties were in a breach of contract
       lawsuit for almost four years, and considering his previous
       arguments as to why the Court erred in enforcing the settlement
       agreement, it is in the interest of Justice for Mr. Satiro to have his
       day in court.
Id. (emphasis omitted). Because Satiro did not present this slim argument to
the trial court, he has waived it. See Pa.R.A.P. 302 (providing that issues may
not be raised for first time on appeal).


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and nothing prevented her from contacting her attorney. Lugg v. Lugg, 64

A.3d 1109, 1114 (Pa.Super. 2013). We noted that “[d]aily badgering and one

and one-half hours of pressure and negotiations does not rise to the level of

coercion necessary to find duress.” Id. at 1113-14 (Pa.Super. 2013) (internal

quotation marks omitted). The burden rests with the party seeking to avoid

the contract to prove duress with clear and convincing evidence. See Cooper

v. Oakes, 629 A.2d 944, 948 (Pa.Super. 1993).

      We hold that the trial court did not err in enforcing the settlement, as

Satiro’s claims do not rise to the level of duress. Satiro faced no other danger

than to proceed to trial, an event that had been impending for years, and for

which Satiro and his attorney had had ample time to prepare. Satiro was given

sufficient time to negotiate the settlement agreement, and was supported

during the process by his attorney. Even if, after much pre-trial litigation and

a grim trial prediction, Satiro felt some pressure to settle due to statements

by his attorney and the trial judge, we cannot conclude that this set of

circumstances constitutes a threat so severe as to overcome the mind of a

person of ordinary firmness. His attorney and the trial judge’s statements at

most displayed impatience or exasperation. Neither urged him to settle;

rather, they asked him to give a clear answer as to whether he agreed to the

settlement. The record reflects that Satiro chose to settle rather than proceed

to jury selection and risk losing his case.




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      We also disagree with Satiro’s contention that the trial court was

obligated to hold an evidentiary hearing following the open-court settlement,

when Satiro, who bore the burden to prove duress, did not request one. The

cases Satiro cites on this point, Felix and Rago, do not support his argument.

In neither case did we hold that the trial court must hold an evidentiary

hearing before enforcing a settlement agreement. In Felix, the appellant

argued that the trial court had improperly selected a remedy for a breach of

a settlement agreement without holding an evidentiary hearing. See Felix,

848 A.2d at 950 n.3. We rejected that argument, pointing out that the

appellant had never asked the trial court to hold one. Id. at 950. Here, Satiro

has the same problem as the appellant in Felix – he never asked the trial

court for an evidentiary hearing.

      In Rago, the appellant never argued, and we did not state, that an

evidentiary hearing was necessary. Rather, we affirmed the denial of a petition

to set aside a settlement agreement because the appellant had bound herself

to the settlement by responding “yes” after the court asked her on the record

if its recitation of the settlement terms was consistent with her understanding

of it. Id. at 338-39. Satiro is in the same boat as the appellant in Rago: he

agreed to the settlement on the record. Rather than supporting Satiro’s

argument, our actual holdings in both Felix and Rago cut against his position.

      Satiro’s further argument that his actions contradicted his on-the-record

agreement to the settlement is likewise unavailing. “In ascertaining the intent


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of the parties to a contract, it is their outward and objective manifestations of

assent, as opposed to their undisclosed and subjective intentions, that

matter.” Espenshade v. Espenshade, 729 A.2d 1239, 1243 (Pa.Super.

1999). “[O]nce the offeree has exercised his power to create a contract by

accepting the offer, a purported revocation is ineffective as such.” Mastroni-

Mucker, 976 A.2d at 518. Here, Satiro stated twice on the record that he

agreed to the settlement. His hesitation to do so, and his later failure to abide

by the settlement, cannot undo his earlier assent to the settlement

agreement.

      Satiro’s first issue – that the court erred in denying his request for a

continuance – fairs no better than his second issue. Satiro claims on appeal

that the parties jointly sought a continuance from the court, but the request

was denied. See Satiro’s Br. at 9. However, no written continuance request

appears in the certified record, and to the extent Satiro’s statements on the

record at the time of settlement could be construed as a continuance request,

his agreement to the settlement rendered the request moot. See Erie Ins.

Exch. v. Moore, 175 A.3d 999, 1007 n.8 (Pa.Super. 2017) (stating appellant

risks waiver if certified record lacks items necessary to evaluate appellant’s

argument); Erie Ins. Exch. v. Claypoole, 673 A.2d 348, 353-54 (Pa.Super.

1996).

      Finally, we turn to Appellees’ request that we award attorneys’ fees and

costs associated with the appeal. We may award counsel fees upon a


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determination “that an appeal is frivolous or taken solely for delay or that the

conduct of the participant against whom costs are to be imposed is dilatory,

obdurate or vexatious.” Pa.R.A.P. 2744. We see no indication that Satiro

pursued this appeal in an attempt to be dilatory, obdurate, or vexatious. Nor

do we find the appeal to be frivolous. See Murphy v. Murphy, 599 A.2d 647,

654 (Pa.Super. 1991) (“[A]n appeal is considered ‘frivolous’ and warrants the

award of attorney fees if, either as a matter of fact or law, the appellant's

contentions have no likelihood of success”). We therefore deny the request for

attorneys’ fees. As we affirm the order of the trial court, standard appeal costs

are taxed against Appellant; no further costs are allowed. See Pa.R.A.P.

2741(2).

      Order affirmed. Motion for counsel fees denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/18




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