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06/11/97 EVAN H. PERRY v. TIOGA COUNTY

June 11, 1997

EVAN H. PERRY, APPELLANT
v.
TIOGA COUNTY



Appealed From No. 927-1991. Common Pleas Court of the County of Tioga. Judge SAXTON, Jr.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge, Opinion BY Senior Judge Mirarchi, Judge Pellegrini concurs in the result only.

The opinion of the court was delivered by: Mirarchi

OPINION BY SENIOR JUDGE MIRARCHI

FILED: June 11, 1997

Evan H. Perry (Perry) appeals from an order of the Court of Common Pleas of Tioga County (trial court) granting Tioga County's (County) motion for summary judgment and dismissing Perry's complaint.

After Perry was terminated from his Maintenance Supervisor position with County, he filed an action alleging wrongful discharge and breach of his employment contract. County responded by filing preliminary objections in the nature of a demurrer. While the objections were pending, negotiations ensued between Perry's counsel and the County Solicitor (Solicitor).

Solicitor then prepared and sent a Release, which was unsigned by the County Commissioners, proposing to pay Perry $40,000 in exchange for his discontinuing the litigation. Perry executed the Proposed Release and returned it to the Solicitor. Thereafter, the County Commissioners refused to sign the document or otherwise ratify it at a public hearing, refused to tender the settlement monies, and alleged that Solicitor was without legal authority to make binding offers on County's behalf.

Perry amended his complaint to incorporate a third count, claiming breach of contract based upon the County's failure to execute the Proposed Release. County filed preliminary objections to the new count in Perry's complaint arguing that County could not have tendered a legitimate offer because the terms of the Proposed Release had not been approved in an open meeting, as required by the Sunshine Act, *fn1 and because Solicitor was without express authority to offer settlement of the claim. The County finally argued, that even if the Proposed Release constituted a valid offer which Perry accepted, he did not discontinue the lawsuit and therefore, failed to uphold his end of the bargained-for exchange. The trial court sustained County's objections and dismissed Perry's complaint with prejudice on all counts. Perry appealed.

This Court affirmed the trial court's dismissal of the wrongful discharge and breach of employment contract claims, but vacated the dismissal of Perry's claim for breach of contract relating to the Proposed Release. See Perry v. Tioga County, 168 Pa. Commw. 126, 649 A.2d 186 (Pa. Commw. 1995), appeal denied, 540 Pa. 609, 655 A.2d 995 (1995). Reasoning that the trial court's dismissal of Perry's

third claim was improperly based upon his failure to discontinue the litigation, this Court remanded "to the trial court to determine whether the Proposed Release was properly authorized and [whether] the County Solicitor had the authority to make an offer that was enforceable." Id. at 189.

On remand, further discovery was conducted and the parties filed cross motions for summary judgment. Perry argued that the Release, the depositions of County Commissioners Hall and Barnes, and the affidavit of former Commissioner Bartlett, all showed that a valid offer was presented to him by the County Commissioners through their Solicitor. Once Perry signed and placed this offer into the mail, Perry again contended, that his actions constituted acceptance, and a valid enforceable contract was formed. Because County failed to execute this document, Perry argued that he was entitled to summary judgment on his breach of contract claim. Conversely, County argued that there was no meeting of the minds, that none of the statutory requirements for executing a binding document were followed by the Commissioners, and that the Solicitor, as a matter of law, does not have the requisite authority to negotiate binding contracts on the County's behalf.

In deciding the cross-motions, the trial court invoked its discretionary powers and refused to dismiss the action on the grounds that the proposed settlement offer was in violation of the Sunshine Act. *fn2 Instead, the trial court assumed arguendo that a contract had been formed between the parties, but granted County's motion for summary judgment holding that the Release was "invalid because it was never properly executed by the County according to statute." (Trial Court Opinion, p. 4).

On appeal, Perry again avers that Solicitor was authorized by the Commissioners to prepare and send the Release containing the negotiated-for provisions, and that County's offer was accepted and a contract formed, when he placed the Release in the mailbox. Thus, Perry argues that Commissioners' subsequent failure to sign or publicly ratify the Release ...


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