Music Center, 89-6846, 1990 U.S. Dist. LEXIS 16895 (E.D.Pa. December 12, 1990) (defendants' substantial performance of payment obligations under settlement agreement requires rejection of plaintiff's attempt to reinstate a settled case on the trial list).
The Mendelson defendants' failure to escrow the interim payments does not excuse Feingold from his obligation to refrain from suit. First, the Mendelson defendants had no obligation to escrow the interim payments. Specifically, the settlement agreement of December 29, 1992 did not include a requirement that the Mendelson defendants make interim payments to the escrow agent on specific dates since the due dates of the interim payments set forth in the agreement preceded the date of the agreement's execution, and the October 6, 1992 letter created no binding duty to escrow the funds. Second, even if a requirement to escrow interim payments on specific dates existed, the Mendelson defendants' failure to comply with that requirement did not constitute a material breach of the settlement, so that Feingold is not excused from performing his duties thereunder. For these reasons, Feingold's motion must be denied and the Mendelson defendants' motion must be granted.
An appropriate Order will be entered.
October 6, 1992
The day after our settlement conference I received copies of letters to Judge Robrino [sic] from each of you suggesting that you would agree to a counter proposal made by my clients.
Specifically we suggested that all of the settlement funds ($ 330,000) be paid within the next ninety days as per the agreement reached on September 24th, with the last two $ 25,000 payments being made by Mr. Mendelson within sixty and ninety days respectively. If all settlement monies are in fact paid, they will be disbursed to the plaintiffs, the necessary releases and assignments will be exchanged and the case will be dismissed with prejudice pursuant to Local Rule 23(b). If, however, all of the $ 330,000 settlement fund is not fully paid within ninety days, any monies paid will be returned, there will be no settlement, and the case would proceed to trial against all parties. I assume that the case management schedule which was handed to us on September 24th would be held in abeyance pending the ninety day period.
As I understand the details of the settlement agreement, the "Mendal" defendant have agreed to pay a total of $ 155,000 - $ 27,000 within five days and the balance of $ 128,000 within thirty days. The "Mendelson" defendants have agreed to pay a total of $ 175,000 - $ 100,000 within five days, $ 25,000 withing thirty days, $ 25,000 within sixty days and the final $ 25,000 within ninety days. This would create a settlement fund of $ 330,000 which would be disbursed to the plaintiffs as follows:
John Capek $ 85,000
C.R. Scipione 85,000
William Kozin 80,000
A. Feingold 40,000
A. Jacobi 40,000
The money will be placed in an interest-bearing account and each of the plaintiffs will receive his/her pro-rata share of the total interest in proportion to his/her respective share as stated above.
In addition, mutual general releases will be exchanged between the plaintiffs and defendants and Capek and Scipione will assign any claims they may have against other parties arising out of the Kidder Street property to the Feingold plainiffs. The Mendel defendants and the Mendelson defendants agree to execute mutual General Releases of all claims against each other and all Hampton entities except Mr. Mendel's claims against Franklin Square Hospital and Hampton Hospital Group, Inc. and any of their predecessor or successor entities or any assignee or designee thereof. The Mendelson defendants will release the Mendel defendants from all claims arising out of the Kidder Street property.
Since we essentially reached this agreement on or about September 28th and since I have been advised by counsel for Mendel and Mendelson that the checks for the first payments have already been cut, the second payments by both parties would be due on or before October 28th. The third payment by Mendelson would be due by November 28th and the final payment by Mendelson would be due on or before December 28, 1992.
John Walter's firm has agreed to act as the escrow agent for the settlement funds and all checks should be delivered to him.
If the foregoing is agreeable, please sign below to indicate that we have reached a settlement agreement in principle with the understanding that the necessary releases and assignments will still have to be drafted.
I will send a copy of this letter once it is signed to Judge Robrino [sic] and request that he hold the discovery schedule in abeyance until December 28, 1992. Everyone should understand that unless all settlement funds are paid by the defendants by December 28, 1992 and can be disbursed to plaintiffs the next day, there is no settlement and the case will proceed to trial.
[LETTER SENT BY COUNSEL FOR PLAINTIFFS CAPEK AND SCIPIONE AND SUBSEQUENTLY SIGNED BY ALL PARTIES]
AND NOW, TO WIT, this 10th day of May, 1993, upon consideration of Plaintiff Allen L. Feingold's motion to strike, set aside, and mark void the settlement agreement between the parties (Docket No. 44), defendants Mark Mendelson and Hampton Real Estate Group, Inc.'s ("the Mendelson defendants") motion to enforce the settlement agreement and strike Feingold's motion (Docket No. 46), and the Mendelson defendants' motion to quash Feingold's subpoena and notice of deposition and for sanctions (Docket No. 45), IT IS ORDERED, for the reasons set forth in the accompanying memorandum, that:
i. Feingold's motion to strike, set aside, and mark void the settlement agreement is DENIED as moot, in that no settlement agreement was ever recorded on the docket of this Court;
ii. The Mendelson defendants' motion to enforce the settlement agreement is GRANTED ;
iii. The Mendelson defendants' motion to strike Feingold's motion to enforce the settlement agreement is DENIED ;
iv. The Mendelson defendants' motion to quash Feingold's subpoena is DENIED AS MOOT ;
v. The Mendelson defendants' motion for sanctions is DENIED. This denial is based primarily on the fact that the Court cannot conclude that it was outrageous for Feingold to contend that a document signed by counsel for all parties was a binding agreement. Although this contention was rejected by the Court, its assertion does not rise to a level of frivolity sufficient to justify the imposition of sanctions. The Court also concludes that Feingold's failure to demonstrate sufficient damage arising out of the alleged breach of the settlement agreement does not justify the award of sanctions under the facts of this case;
vi. Defendants shall cause the escrow agent to deliver to Feingold forthwith those funds to which Feingold is entitled under the terms of the December 29, 1992 settlement agreement;
vii. The Clerk shall mark this case "closed."
EDUARDO C. ROBRENO, J.