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ROSSO v. FOODSALES

March 10, 1980

Raymond ROSSO and Eugene M. Radler
v.
FOODSALES, INC. and Raymond J. McCormick, Jr



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

Presented to the Court is a motion by the plaintiff Eugene M. Radler to enforce a settlement agreement which was entered into by all the parties to this litigation on May 30, 1979. For the following reasons the motion will be granted.

 The plaintiffs brought this action in June 1978. Trial commenced on May 21, 1979 and continued until May 30, 1979. The parties and their respective counsel attended the trial. On May 30, 1979, all counsel after consulting with all the parties to this action met and as a result of this meeting they dictated a "stipulation of settlement" to the court stenographer. The attorneys represented that the terms of settlement were agreed to and approved by all the parties and that all counsel had authority from their respective clients to entertain this "stipulation of agreement". A copy of the agreement is attached hereto as "Exhibit A".

 In pursuance of the "stipulation of agreement" the attorneys prepared a written agreement to be executed by all parties. All parties except Raymond Rosso signed the agreement and Mr. Rosso without renouncing the terms of the settlement agreement or disclaiming his attorney's authority has maintained this stance.

 On October 25, 1979, depositions of the plaintiffs' attorneys were taken in regard to the settlement and the negotiations which lead to the agreement.

 Plaintiffs' counsel, Arthur Lefkoe's deposition revealed the following: There were rather lengthy settlement discussions during the trial period beginning on May 23, 1979. The discussions were held in two conference rooms adjacent to the courtroom, and in the hallway. The defendants and their counsel used one room, and the plaintiffs and their counsel another room. On some occasions all of the parties and their attorneys occupied the same room. Plaintiffs Rosso and Radler were always available for their counsel to confer with during the negotiations and to respond to any and all that arose and to provide whatever help was necessary in order to resolve whatever issues might arise. Plaintiffs' counsel not only communicated all the proposals to the plaintiffs, but plaintiffs had a great deal of input into the terms of the settlement as well as advising as to their acceptability.

 Mr. Lefkoe went on to say that plaintiffs had minds of their own, made decisions of their own, and the proposals made by them manifested themselves in the final agreement. He stated that plaintiffs' counsel had authority to discuss settlement. Plaintiffs had final approval as to every proposal.

 The settlement negotiations continued until May 30, 1979, when the settlement agreement was reached. The trial continued during these negotiations with plaintiffs' case having been completed, and defense testimony had begun. The Court had permitted recesses during the trial for the parties and their counsel to attempt to negotiate a settlement.

 When a settlement agreement was reached by the parties and the Court notified, the court reporter made a record of the "stipulation of settlement". All counsel were present and participated when the stipulation of settlement was dictated to the court reporter. The settlement was dictated from a hand-written outline which had been prepared by all counsel. The only conditions attached were that two banks had to approve the settlement agreement, one of which, First Valley Bank of Bethlehem, had financed the defendant corporation, and the other, American Bank & Trust Company of Pennsylvania, who had loaned a substantial sum of money to plaintiff Rosso, and to whom Rosso had assigned his rights under his contract with defendants which was the subject matter of the present litigation.

 At the deposition of Mr. Goldich, Mr. Lefkoe's associate, he testified that Mr. Rosso telephoned him while Mr. Lefkoe was on vacation (sometime after June 22, 1979) inquiring as to the status of the settlement agreement, and whether the defendants executed it, and when was he going to get his money. The deposition of Cassin Craig, Esq. of the same law firm, confirms the testimony of both Mr. Lefkoe and Mr. Goldich.

 On July 18, 1979, Mr. Rosso sent a letter to Mr. Craig informing him that he was dropping his case against Foodsales, Inc. Mr. Rosso also sent a letter to this court on July 18, 1979 stating that because of his present financial posture and other matters, he was forced to drop his case against Foodsales, Inc.

 The court has carefully examined the circumstances surrounding the settlement negotiations. It is clear that Mr. Rosso actively participated in the negotiations, and further authorized his counsel to agree to the settlement terms dictated to the court reporter. It is apparent that Mr. Rosso's refusal to execute the written settlement agreement is because of his inability to satisfactorily resolve his problems with American Bank. We find that the agreement reached between the plaintiffs and defendants was not conditioned upon Mr. Rosso negotiating a satisfactory settlement with American Bank.

 The law is well settled that a district court has jurisdiction to enforce a settlement agreement entered into by litigants in a case pending before it. Hobbs v. American Investors Management, Inc., 576 F.2d 29 (3d Cir. 1978); Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714 (2nd Cir. 1974); Autera v. Robinson, 136 U.S. App. D.C. 216, 419 F.2d 1197 (D.C. Cir. 1969); Read v. Baker, 438 F. Supp. 732 (D.Del.1977); Mungin v. Calmar S. S. Corp., 342 F. Supp. 484 (D.Md.1972).

 The authority of the trial court to enforce a settlement agreement has as its foundation the policy favoring the amicable adjustment of disputes and the avoidance of costly and time-consuming litigation. Dacanay v. Mendoza, 573 F.2d 1075 (9th Cir. 1978).

 In the case sub judice the plaintiff Rosso voluntarily and intelligently entered into a binding settlement agreement. The attorneys prepared a written agreement embodying the terms of the dictated agreement and which comports to that which they dictated earlier and to which all agreed thus settling the lawsuit before this court.

 EXHIBIT A

 May 30, ...


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