Himelright v. Himelright

22 Pa. D. & C.4th 483, 1994 Pa. Dist. & Cnty. Dec. LEXIS 115
CourtPennsylvania Court of Common Pleas, Lebanon County
DecidedNovember 3, 1994
Docketno. 91-20645
StatusPublished

This text of 22 Pa. D. & C.4th 483 (Himelright v. Himelright) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lebanon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Himelright v. Himelright, 22 Pa. D. & C.4th 483, 1994 Pa. Dist. & Cnty. Dec. LEXIS 115 (Pa. Super. Ct. 1994).

Opinion

WALTER, P.J.,

On October 14, 1991 plaintiff, Barbara Himelright, filed a complaint in divorce requesting equitable distribution, alimony, alimony pendente lite, counsel fees, costs, and expenses. Plaintiff filed an amended complaint in divorce under 23 Pa.C.S. §3301(d) on January 10, 1994.

On October 22, 1993, at plaintiff’s request, Allan H. Krause, Esquire, was appointed special master to take testimony and make recommendations. The special master’s hearing was scheduled for February 18, 1994. On February 16, 1994 plaintiff’s attorney notified Mr. Krause that no hearing would be required because the parties had reached “an agreement in principal with respect to the issues” for which the special master was appointed. (Hearing, September 8, 1994, exhibit 6.) However, once the settlement agreement was reduced to writing, defendant began requesting more concessions from plaintiff, and he refused to sign the document.

Plaintiff then filed the present motion to enforce settlement and petition for bifurcation. A hearing was held on September 8,1994 and both parties submitted briefs. The matters are now ripe for disposition.

MOTION TO ENFORCE SETTLEMENT

A review of the record reveals that defendant, through his attorney Robert Keys, presented a settlement offer to plaintiff’s attorney, Bradford Charles, around January 13, 1994. On January 28, 1994 Attorney Charles sent a letter to Attorney Keys stating plaintiff agreed to defendant’s terms and outlining the proposed terms of [485]*485the settlement agreement. (Hearing, September 8, 1994, exhibit 5.)

On February 3, 1994 Attorney Keys sent a letter to Attorney Charles confirming the proposed outline of the settlement agreement sent on January 28 with one minor exception: Defendant wanted all petitions pending before the court withdrawn as a condition of settlement. (Hearing, September 8, 1994, exhibit 7.) On February 9, 1994 Attorney Keys sent another letter to Attorney Charles stating that defendant had requested two more changes to the settlement agreement: (1) defendant wanted his dog, Tillie, and (2) defendant wanted to receive his share of the marital residence $30,000 60 days from the date of settlement rather than the previously agreed upon 90 days and he wanted his name removed from the mortgage so that he could obtain credit. (Hearing, September 28, 1994, exhibit 2.) Plaintiff agreed to these new demands.

On February 16, 1994 both parties confirmed to this court and to the special master that a settlement agreement had been reached, and no special master’s hearing would be necessary. (Hearing, September 8, 1994, exhibit 6.) On February 24, 1994 Attorney Charles sent a rough draft of the settlement agreement to Attorney Keys. (Hearing, September 8, 1994, exhibit 4.)

After the rough draft of the agreement was sent to Attorney Keys, the attorney-client relationship between Attorney Keys and defendant apparently broke down. Defendant refused to sign the agreement unless plaintiff agreed to more concessions, and Attorney Keys withdrew as defendant’s attorney. Defendant then hired his present attorney, John Feather.

On May 11, 1994 Attorney Feather sent a letter to Attorney Charles stating defendant was prepared to sign the settlement agreement as it had already been drafted [486]*486provided the two previously agreed upon concessions were made: (1) plaintiff would release defendant from the mortgage on the marital residence, and defendant would receive his share of the marital home within 60 days from the date of settlement, and (2) defendant would receive title to and possession of the dog, Tillie. (Hearing, September 8, 1994, exhibit 8.) Attorney Charles communicated to Attorney Feather that plaintiff had already and still agreed to the concessions. Despite this agreement reached on May 11, 1994 defendant still refused to sign the settlement agreement.

Plaintiff then filed this motion to enforce settlement. At the September 8,1994 hearing on this motion, defendant stated that he would not sign the settlement agreement unless plaintiff agreed to further concessions.

Recently the Pennsylvania Superior Court discussed the enforceability of property settlement agreements stating as follows:

“A property settlement agreement is enforceable by utilizing the same rules of law used in determining the validity of contracts. Lipschutz v. Lipschutz, 391 Pa. Super. 537, 571 A.2d 1046 (1990). It is established law in this Commonwealth that parties may bind themselves contractually prior to the execution of a written document through mutual manifestations of assent, even where a later formal document is contemplated. Krause v. Great Lakes Holdings Inc., 387 Pa. Super. 56, 563 A.2d 1182 (1989), appeal denied, 524 Pa. 629, 574 A.2d 70 (1989). The intent of the parties to be bound is a question of fact which must be determined by the factfinder. Johnston v. Johnston, 346 Pa. Super. 427, 499 A.2d 1074 (1985).” Luber v. Luber, 418 Pa. Super. 542, 546, 614 A.2d 771, 773 (1992), allocatur denied, 535 Pa. 636, 631 A.2d 1008 (1993).

[487]*487Defendant argues that, unlike the parties in Luber where the Superior Court held the agreement enforceable, he and plaintiff never appeared before a special master where the terms of the agreement were outlined to both parties and both parties acknowledged concurrence with the terms on the record. Furthermore, defendant argues, the correspondence that took place between all three attorneys refers to the agreement as a “proposal” or “rough draft” indicating no final commitment had been made by either party. Finally, defendant contends Attorney Keys was acting without his authority in the settlement negotiations. We disagree.

First, we do not read Luber to hold that unwritten or unsigned settlement agreements are enforceable only if the parties consented to the terms on the record before a special master. We believe it is the conduct and intent of the parties that determines whether an agreement has been reached.

In the present case defendant offered a settlement agreement which plaintiff accepted and proceeded to draft. Based upon the proposed agreement both parties told this court and the special master that no hearing was necessary. Defendant then demanded two changes: (1) his name be removed from the mortgage lien against the marital residence, and he receive his share of the marital residence within 60 days after signing the settlement agreement rather than the 90 days stated in the proposal, and (2) that he be given title to and possession of the dog, Tillie.

Plaintiff agreed to those conditions, whereupon defendant refused to sign the agreement. Then, once again, defendant’s attorney contacted plaintiff’s attorney and stated that the original agreement was acceptable as long as the two conditions were met. Plaintiff again agreed, and defendant again refused to sign.

[488]*488Defendant contends that he never intended to be bound to the agreement. We find defendant’s testimony incredible.

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Related

Weeast v. Borough of Wind Gap
621 A.2d 1074 (Commonwealth Court of Pennsylvania, 1993)
Springer v. Springer
386 A.2d 122 (Superior Court of Pennsylvania, 1978)
Lipschutz v. Lipschutz
571 A.2d 1046 (Supreme Court of Pennsylvania, 1990)
Wolk v. Wolk
464 A.2d 1359 (Supreme Court of Pennsylvania, 1983)
Krause v. Great Lakes Holdings, Inc.
563 A.2d 1182 (Supreme Court of Pennsylvania, 1989)
Johnston v. Johnston
499 A.2d 1074 (Supreme Court of Pennsylvania, 1985)
Katz v. Katz
514 A.2d 1374 (Supreme Court of Pennsylvania, 1986)
Luber v. Luber
614 A.2d 771 (Superior Court of Pennsylvania, 1992)
Board of Supervisors v. DiEgidio
396 A.2d 920 (Commonwealth Court of Pennsylvania, 1979)

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Bluebook (online)
22 Pa. D. & C.4th 483, 1994 Pa. Dist. & Cnty. Dec. LEXIS 115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himelright-v-himelright-pactcompllebano-1994.