                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                  _____________

                                   No. 11-3210
                                  _____________

                             MARK D. DEHAINAUT,
                                  Appellant

                                         v.

  CALIFORNIA UNIVERSITY OF PENNSYLVANIA; PENNSYLVANIA STATE
                 SYSTEM OF HIGHER EDUCATION

                                    _____________
                  On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           District Court No. 2-10-cv-00899
                 District Judge: The Honorable Terrence F. McVerry

                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 March 30, 2012

             Before: FUENTES, SMITH, and JORDAN, Circuit Judges

                               (Filed: July 25, 2012)

                             _____________________

                                   OPINION
                             _____________________

SMITH, Circuit Judge.

      Mark D. DeHainaut, who was an associate professor at California University of

Pennsylvania (CALU), taught on-line and on-campus courses from 2002 to 2007. In


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April of 2008, he suffered a hemorrhagic stroke, which limited his activities of daily

living. As a result, he sought an accommodation from CALU that would enable him to

teach only on-line courses. CALU declined to provide the accommodation. Thereafter,

DeHainaut commenced this civil action in the United States District Court for the

Western District of Pennsylvania. He asserted several claims, including a claim under

the Rehabilitation Act, 29 U.S.C. § 791, against CALU and the Pennsylvania State

System of Higher Education (PSSHE). A motion to dismiss resulted in the filing of an

amended complaint, which alleged disability discrimination and retaliation in violation of

the Rehabilitation Act. After an initial case management conference, the case proceeded

to mediation.

      The mediator explored the expectations of the parties and the merits of

DeHainaut’s claims. As the mediation session concluded, DeHainaut’s counsel prepared

a handwritten document entitled “MEMO OF AGREEMENT.” It set forth the terms of

the settlement reached by the parties and the date of the mediation. The document was

signed by DeHainaut, his wife (even though she was not a party to the lawsuit), his

counsel, and counsel for CALU and the PSSHE. The terms set forth a formula for

calculating an award of back wages, provided that CALU would cooperate with

DeHainaut’s application for disability retirement, which would entitle him to health care

benefits commensurate with any other retiree, required the execution of a release and

settlement agreement, established that DeHainaut’s employment would terminate at the

conclusion of the 2010-2011 academic year and that he would not apply for further

employment, and obligated CALU to pay for the cost of the mediation.

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       Several days later, counsel for CALU and the PSSHE advised DeHainaut’s

counsel of the back pay award calculated under the formula. To the surprise of both

counsel, the amount was lower than the $35,000 figure contemplated by CALU at the

mediation. Nonetheless, counsel advised that CALU and the PSSHE were willing to

tender that amount plus an additional sum to reach the $35,000 figure it had envisioned

the formula would yield. DeHainaut was not receptive to the news, and he eventually

retained new counsel. CALU and PSSHE then filed a motion to enforce the settlement.

At a hearing on the motion before the District Court, the mediator and DeHainaut’s

former counsel testified about the mediation proceeding. According to the mediator,

although DeHainaut and his wife “grudgingly” signed the agreement, he was of the belief

that a settlement had been reached.

       After consideration of the record, the District Court granted the motion to enforce

the settlement. It found that the “parties entered into an agreement at the mediation

session on March 4, 2011, the material terms of which were agreed upon by both parties

and memorialized in the Memo of Agreement written by [DeHainaut’s] then counsel, and

are sufficiently definite to be specifically enforced.” [A13] The Court noted that the

settlement varied from DeHainaut’s subjective expectations, but that he “grudgingly”

agreed to the terms. The Court rejected DeHainaut’s contention that he was forced to

sign the document before he could leave the mediation, finding credible the testimony of

DeHainaut’s former counsel to the contrary. The Court concluded that the signatures of

DeHainaut and his wife demonstrated that they “understood at that moment that the

resolution of the litigation had been reached.”

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       This timely appeal followed. 1        Because the District Court conducted an

evidentiary hearing, we review the District Court’s factual findings for clear error, and

conduct plenary review of the issues of law. See Tiernan v. Devoe, 923 F.2d 1024, 1031

n.5 (3d Cir. 1991).

       We apply Pennsylvania state law to the enforceability of the parties’ settlement

agreement.    Id. at 1033.     In Mazzella v. Koken, 739 A.2d 531 (Pa. 1999), the

Pennsylvania Supreme Court noted that:

       The enforceability of settlement agreements is governed by principles of
       contract law. To be enforceable, a settlement agreement must possess all of
       the elements of a valid contract. As with any contract, it is essential to the
       enforceability of a settlement agreement that the minds of the parties should
       meet upon all the terms, as well as the subject-matter, of the [agreement].
       Where the parties have agreed on the essential terms of a contract, the fact
       that they intend to formalize their agreement in writing but have not yet
       done so does not prevent enforcement of such agreement.

Id. at 536 (citations and internal quotation marks omitted). After review of the record

before us, we conclude that the District Court did not clearly err in finding that the parties

had reached an agreement at the mediation session. We appreciate DeHainaut’s assertion

that the District Court erred in finding that the parties had resolved their dispute as the

key terms of the settlement, i.e., the amount of the back pay to be paid and the provision

of medical benefits, had yet to be definitively determined. Nonetheless, we will not

disturb the District Court’s finding because the Court explained that the agreement

concerned the formula to be used in computing the back pay award and the mechanism

by which DeHainaut could pursue the desired medical coverage.

1
   The District Court exercised jurisdiction under 28 U.S.C. § 1331. We have final order
jurisdiction under 28 U.S.C. § 1291.
                                              4
       DeHainaut also contends that the District Court erred as a matter of law in

concluding that the Memo of Agreement was sufficiently definite to constitute an

enforceable agreement. In DeHainaut’s view, the Memo of Agreement failed to establish

the key terms of the settlement, the amount of the back pay award and the continuation of

medical coverage. We agree that the absence of these terms in some circumstances might

preclude a determination that the material terms of an agreement had been reached by the

parties. But under the circumstances before us, where what the parties agreed to was a

formula to utilize in calculating the back pay and a means to pursue a continuation of

medical coverage, we find no error by the District Court in concluding that the Memo of

Agreement contained the necessary elements of a contract.

       DeHainaut further challenges the District Court’s order enforcing the settlement

on the ground that CALU and PSSHE did not have requisite authority to settle the

dispute. This issue was not raised in the District Court and we will not consider it for the

first time on appeal. See Newark Morning Ledger Co. v. United States, 539 F.2d 929,

932 (3d Cir. 1976).

       Finally, DeHainaut asserts that because this settlement is of a claim that his civil

rights were violated, CALU and PSSHE must demonstrate that he executed the Memo of

Agreement knowingly and voluntarily. Appellant’s Br. at 39 (citing W.B. v. Matula, 67

F.3d 484, 497 (3d Cir. 1995) (overruled on other grounds)).           The District Court’s

Memorandum Opinion demonstrates that it fully considered the totality of the

circumstances and concluded that the circumstances demonstrated that DeHainaut knew

he was signing a settlement and that the terms were not as favorable as those for which he

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had hoped. The voluntariness of DeHainaut’s execution is further supported by the

District Court’s finding that his former counsel credibly testified that DeHainaut was not

forced to sign the Memo of Agreement in order to leave the mediation session.

      For the reasons stated above, we will affirm the District Court’s order granting the

motion to enforce the settlement.




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