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RODNEY SMITH v. DONALD BRINK (04/18/89)

submitted: April 18, 1989.

RODNEY SMITH, LYMAN SMITH AND MARION SMITH, APPELLANTS,
v.
DONALD BRINK, JAMES BALDWIN, ANTHONY BASEHORE AND SWATARA TOWNSHIP, APPELLEES



Appeal from the Order of the Court of Common Pleas of Dauphin County, Civil at No. 3327 S 1987.

COUNSEL

Spero T. Lappas, Harrisburg, for appellants.

Frank J. Lavery, Jr., Harrisburg, for appellees.

Rowley, Popovich and Johnson, JJ. Rowley, J., concurs in the result.

Author: Popovich

[ 385 Pa. Super. Page 598]

This appeal from an order of the Court of Common Pleas of Dauphin County presents an opportunity to explain the doctrine of election of remedies as it applies to a plaintiff's choice of pursuing a contract action for breach of a settlement agreement or litigating the underlying claim. Applying the doctrine of election of remedies, the lower court herein sustained the appellees' demurrer and dismissed the appellants' complaint alleging breach of a settlement agreement by the appellees. Though we find that the trial court's reliance on the doctrine of election of remedies was misplaced, we affirm.*fn1

[ 385 Pa. Super. Page 599]

On February 16, 1986, Rodney Smith was allegedly assaulted and subjected to an illegal arrest by the appellees who are officers of the Swatara Township Police Department. Lyman and Marion Smith, Rodney's parents, witnessed the alleged use of excessive force.

Based on the aforementioned event, the appellants filed suit on August 1, 1986, in the United States District Court for the Middle District of Pennsylvania. Rodney alleged violation of his civil rights and malicious prosecution. In the same suit, his parents alleged intentional infliction of mental or emotional distress.

On September 28, 1986, the District Court granted summary judgment in favor of the appellees on the claims of Rodney's parents due to a lack of subject matter jurisdiction.*fn2 During the ensuing months, counsel for the parties discussed settlement of the federal lawsuit and the parents' state claims. The appellants contend that the parties reached an agreement whereby all claims would be settled for a sum of $22,000. However, on August 12, 1987, the appellees retained new counsel who allegedly informed the appellants that his clients would not comply with the agreement.

[ 385 Pa. Super. Page 600]

Thereafter, Lyman and Marion filed a complaint in the Dauphin County Court of Common Pleas at 2752 S 1986, setting forth their claims for intentional infliction of emotional distress. This action is still pending.

The federal lawsuit went to trial on October 26, 1987. Although Lyman and Marion testified on behalf of their son, the jury trial resulted in a verdict in favor of the defense. Nevertheless, on December 10, 1987, the appellants filed the instant ...


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