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Mastroni-Mucker v. All State Insurance Co.

May 29, 2009

DONNA MASTRONI-MUCKER, CHARLES MUCKER, AND JOANNE MASTRONI-MORTON APPELLANTS
v.
ALL STATE INSURANCE COMPANY AND MASTRONI BROTHERS ROOFING APPELLEES



Appeal from the Judgment entered November 20, 2007 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 003115, March Term, 2005.

The opinion of the court was delivered by: Orie Melvin, J.

BEFORE: ORIE MELVIN, BOWES AND DONOHUE, JJ.

¶ 1 This is an appeal from an Order entered October 31, 2007, denying Appellants', Donna Mastroni-Mucker, Charles Mucker and Joanne Mastroni-Morton, post-trial motion to enforce settlement against Appellees, Allstate Insurance Company*fn1 and Mastroni Brothers Roofing (Mastroni Brothers).*fn2 For the reasons that follow, we reverse the Order denying enforcement of the settlement, and vacate the judgment entered on November 20, 2007.

¶ 2 The facts and procedural history may be summarized as follows. On March 28, 2005, Appellants filed a civil complaint for breach of contract and negligence against Allstate and the Mastroni Brothers for damages that occurred to their home and the subsequent loss of use thereof, following the allegedly defective installation of a new roofing system. On June 8, 2007, a jury was empanelled and trial began. Until the first few days of trial, Mastroni Brothers was solely represented by Glenn Ricketti, Esquire, and Appellants were represented by Lynda O'Brien, Esquire. However, due to an assortment of coverage disputes that existed between the Mastroni Brothers and its insurer, Donegal Mutual Insurance Company (Donegal), D. Scott Bonebrake, Esquire, entered his appearance on behalf of Donegal. A Petition to Intervene on behalf of Donegal was subsequently filed and granted on the last day of trial. Additionally, on June 15, 2007, Bernard J. McLafferty, Esquire entered his appearance as personal counsel for the owners of Mastroni Brothers in their individual capacities.

¶ 3 On Thursday, June 14, 2007, following the conclusion of the proceedings for that day Attorney Ricketti offered $45,000.00 to settle the case. The following morning, Ms. O'Brien advised Mr. Ricketti that her clients had rejected that offer. On June 15, 2007, the trial proceeded through presentment of closing arguments by the defense, and the court recessed for lunch prior to allowing rebuttal argument by Appellants' counsel. During the one hour lunch break, Mr. Ricketti increased the Mastroni Brothers' offer to $60,000. After discussing the offer with her clients, Ms. O'Brien informed the Mastroni Brothers' counsel that her clients accepted the offer of $60,000 to settle the case. Just prior to the return of the jury from its lunch break, the following colloquy took place on the record at 1:30 p.m.:

MR. RICKETTI: Your Honor, we may have a settlement.

THE COURT: You either do or don't. It's like being pregnant.

MR. RICKETTI: I was just going to make one phone call back to the insurance company to confirm everything and it may be settled. If I could have a few minutes.

THE COURT: Sure. I will start -- Charles, no, no. Bring the jury in at a quarter to 2:00.

MR. RICKETTI: I can get Mr. Bonebrake out, and she can start --

THE COURT: We're going to bring the jury in at a quarter to 2:00. Unless you tell me it's settled, we'll proceed. (Whereupon an off-the-record discussion was held.) (Whereupon a short recess was taken.) (The following transpired in open court outside the presence of the jury:)

MS. O'BRIEN: Your Honor, Your Honor, until this is resolved --

THE COURT: Excuse me?

MS. O'BRIEN: Until-

THE COURT: We're back in session. Yes.

MR. RICKETTI: Your Honor, the defendants have extended an offer of $60,000 in monetary compensation to the plaintiffs in exchange for a full general release of the Mastroni Brothers, Inc., Mastroni Brothers Roofing, William Mastroni and Frank Mastroni, and also an indemnification and defense in the release for any future claims.

THE COURT: Is the case settled or not?

MR. RICKETTI: In exchange for $60,000. It's all just happening now, Your Honor.

THE COURT: Is it settled?

MS. O'BRIEN: For a general release with the --

MR. McLAFFERTY: General release and indemnification for all fees or claims. We don't want any claims by any future owner coming against Mastroni Brothers. For that payment, they want out of this totally.

MS. O'BRIEN: It's agreed.

THE COURT: The case is settled?

MS. O'BRIEN: Yes, Your Honor.

THE COURT: Your clients understand that?

MS. O'BRIEN: Yes, sir.

THE COURT: Your clients approve it?

MR. MUCKER: Yes, sir.

MR. McLAFFERTY: Where's Donna?

THE COURT: I'm asking you [referring to Ms. O'Brien]. Your clients approved it?

MS. O'BRIEN: Yes, sir.

THE COURT: Is the case settled, Counsel?

MR. RICKETTI: Yes, Your Honor.

THE COURT: Is the case settled, Counsel?

MR. McLAFFERTY: As far as I'm concerned, Your Honor. But Donna is not here, and during earlier discussions all she did was kept shaking her head no. I want to make sure she's on board here, on the same page.

THE COURT: Okay. What are the terms of the general release? Standard general release; is that what we're talking about?

MR. RICKETTI: Yes, Your Honor.

THE COURT: Is that what we're talking about?

MS. O'BRIEN: I don't -- I would like to see the general release.

THE COURT: Then the case isn't settled. Bring in the jury, Charles. We're up to rebuttal. As far as I'm concerned, we are a matter of hours away from a verdict or at least a day away from the verdict, and if there's any ambiguity, I'm going to take the verdict. You can settle it after verdict as easily as before verdict. This thing is either totally settled without any possibility of coming back or it's not. I'm not going to have an ambiguous situation when we're moments away from the jury rendering a verdict.

MS. O'BRIEN: Your Honor, if I can have a minute to speak with Mr. Ricketti.

THE COURT: You can have a minute, but we're up to rebuttal.

MS. O'BRIEN: Can I speak to Mr. Ricketti?

THE COURT: Sure.

MS. O'BRIEN: Thank you. (Whereupon an off-the-record discussion was held.) (Whereupon the jury entered the courtroom at 1:42 p.m.)

COURT CRIER: Court is back in session.

THE COURT: Good afternoon, ladies and ...


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