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NATIONAL RECOVERY SYSTEMS v. ALLEN PERLMAN (11/06/87)

filed: November 6, 1987.

NATIONAL RECOVERY SYSTEMS, APPELLANT,
v.
ALLEN PERLMAN, APPELLEE



Appeal from the Order entered October 10, 1986, in the Court of Common Pleas of Lehigh County, Civil No. 85-C-1903.

COUNSEL

Melvin Rubin, Ardmore, for appellant.

Kevin Kercher, Allentown, for appellee.

Olszewski, Del Sole and Beck, JJ. Olszewski, J., files a dissenting opinion.

Author: Beck

[ 367 Pa. Super. Page 547]

This appeal presents the issue of whether an order denying a motion to enforce an alleged settlement agreement is appealable. We find that it is not, and therefore quash this appeal.

On September 19, 1985, appellant National Recovery Systems filed an action in assumpsit to recover $18,000 which appellee Allen Perlman had allegedly borrowed and failed to repay. Appellee filed preliminary objections which were argued and subsequently denied. On December 26, 1985,

[ 367 Pa. Super. Page 548]

    appellee filed an answer and new matter to appellant's action. The case was then scheduled to be heard by an arbitration panel on May 21, 1986.

Prior to the hearing date, however, the parties exchanged correspondence regarding settlement. Appellant claims that in that correspondence, appellee offered appellant the sum of $9,000.00 in full and final settlement of the suit, to be paid within ten days after appellant's acceptance of the settlement offer. Appellant avers that he accepted this settlement offer and a binding contract arose. Appellee, on the other hand, claims that appellant's purported acceptance added the condition of payment within ten days and was therefore no more than a counteroffer, which appellee did not accept.

On May 9, 1986, appellant filed a motion to enforce the alleged settlement agreement, which the trial court denied. Appellant filed a timely appeal of the trial court's order. Appellee then moved to quash the appeal as being interlocutory in nature.

We agree with appellee that the denial of a motion to enforce a settlement agreement is non-appealable. We therefore quash this appeal.

This is not the first time that this court has considered whether an order denying enforcement of an alleged settlement agreement is appealable. In Darabant v. Atwood Home Builders, Inc., 281 Pa. Super. 153, 421 A.2d 1194 (1980), this court dismissed an appeal from an order striking a settlement agreement and placing the case on the trial list. The court in Darabant found that such an order was neither a final order from which an appeal could be taken pursuant to Pa.R.App.P. 341, nor was it one of the appealable interlocutory decrees from which an appeal is authorized by Pa.R.App.P. 311. Id., 281 Pa. Super. at 155, 421 A.2d at 1195. The court did not consider, however, whether or not the order was appealable under the doctrine first enunciated in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949),

[ 367 Pa. Super. Page 549]

    and adopted by Pennsylvania in Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

We therefore consider whether an order denying enforcement of a settlement agreement is appealable under the Cohen doctrine.

Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978).

The trial court's order in the instant case is separable from and collateral to the main cause of action. The order disposed of the issue of whether the purported settlement agreement was enforceable, a matter separable from the merits of appellant's claim in assumpsit. We assume arguendo that appellant's right to enforcement of the settlement agreement is a right too important to be denied review. However, we do not find that the question of the validity of a settlement agreement is "such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost." Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 545.

The right appellant is asserting in this action is the right to the benefit of what appellant alleges is a valid settlement agreement. The primary benefit of such an agreement is, of course, the avoidance of the time, expense, and other burdens incidental to proceeding to trial on the underlying assumpsit claim. While our quashing this appeal has the effect of requiring appellant to proceed to trial on the underlying claim, it does not affect in any way appellant's right to the benefits of his settlement agreement. Appellant is free to raise the issue of the validity of the settlement agreement on appeal from the judgment on the underlying ...


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