Geniviva v. Frisk

Citation725 A.2d 1209,555 Pa. 589
PartiesCosmo S. GENIVIVA, Jr., Executor of the Estate of Helen U. Geniviva and individually, Appellee, v. Nick A. FRISK, Jr., Appellant.
Decision Date01 April 1999
CourtUnited States State Supreme Court of Pennsylvania

Frank G. Verterano, New Castle, for Nick A. Frisk, Jr.

Robert C. Tourek, Pittsburgh, for Cosmo Geniviva.

Louis R. Pomerico for Brian and Marilyn Geniviva.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

The question in this appeal is whether a common pleas court order denying a motion to approve a settlement filed pursuant to 20 Pa.C.S. § 3323, is a collateral order appealable as of right under Pa.R.A.P. 313. Superior Court quashed the appeal as interlocutory. We affirm.

Helen U. Geniviva died on April 24, 1981. Her will named her son, Cosmo S. Geniviva, as executor and he hired attorney Nick A. Frisk, Jr., to assist him in his duties. In 1989, the other beneficiaries under the will petitioned the Orphans' Court for an inventory and accounting. Ultimately, the executor was required to reimburse the estate for interest and penalties due on account of the estate's failure to pay taxes, loss caused by failure to timely liquidate securities, and various other amounts. See In re Estate of Helen U. Geniviva, 450 Pa.Super. 54, 675 A.2d 306 (1996), alloc. denied, 546 Pa. 666, 685 A.2d 545 (1996).

Cosmo Geniviva commenced this action against Frisk by praecipe for writ of summons in January of 1991. The complaint, which was not filed until June of 1994 following the aforementioned decision of the Orphans' Court, alleged that the estate suffered financial losses due to Frisk's negligence. In February of 1997, pursuant to 20 Pa.C.S. § 3323, the parties filed a Motion to Approve Settlement.1 After a conference and indication by the court that the motion would be denied, the parties filed a Motion and Stipulation for Approval of a Revised Settlement. On March 6, 1997, the court entered an order denying the motions. The court concluded that the amount of the proposed settlement was inadequate, and that the likelihood of recovery and the amount of potential recovery were greater than argued by the defendant. The court also objected to the proposed allocation of the settlement proceeds.

Frisk filed an appeal, which Superior Court quashed sua sponte. The court's per curiam order stated that the appeal was "interlocutory and not collateral," citing Knisel v. Oaks, 435 Pa.Super. 169, 645 A.2d 253 (1994).

Pennsylvania Rule of Appellate Procedure 313(a) provides that "[a]n appeal may be taken as of right from a collateral order of an administrative agency or a lower court." Subsection (b) defines "collateral order" as "an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost." The Note to the Rule states that it is "a codification of existing case law with respect to collateral orders," and cites Pugar v. Greco, 483 Pa. 68, 394 A.2d 542, 545 (1978) (quoting Cohen v. Beneficial Industrial Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).

Although the "collateral order doctrine" has often been applied in determining whether the appeal was proper in particular cases, our courts have not provided significant analysis of the elements defining a collateral order — separability, importance, and irreparable loss if review is postponed — so as to allow for predictable application to different circumstances. In Darlington, McKeon, Schuckers, and Brown, 1 Pennsylvania Appellate Practice Second Edition, § 313.2, it is observed that "[i]n light of the considerable amount of discretion involved in determining whether an order is a `collateral order' for purposes of appeal under the collateral order doctrine, it is difficult to predict whether a particular order will be deemed to be appealable under the doctrine." Although we cannot resolve all of the uncertainty in one fell swoop, this case allows us the opportunity to examine the contours of two of the factors.

The Appellant's argument focuses on the third element of the collateral order definition. He identifies the question involved as whether the court abused its discretion in refusing to approve the settlement, and argues that review of this question will be irreparably lost if the litigation proceeds to final judgment. Because the settlement agreement was conditioned on approval by the court, by definition it will be unenforceable following trial, and the various advantages to the parties of resolving the dispute without trial will have been irretrievably lost. The Appellant argues that Knisel v. Oaks, the case cited by Superior Court, and National Recovery Systems v. Perlman, 367 Pa.Super. 546, 533 A.2d 152 (1987), which the court relied on in Knisel, are both distinguishable. He further argues that as regards the irreparable loss factor this case is more analogous to Lanci v. Metropolitan Insurance Co., 388 Pa.Super. 1, 564 A.2d 972 (1989).

National Recovery Systems was a contract action. Although the defendant made an offer of settlement, the parties disagreed about the nature and effect of the plaintiff's response. The plaintiff asserted that the acceptance created a binding agreement and filed a motion to enforce the alleged settlement. The defendant argued that the acceptance was conditional, and thus no more than a counter-offer, which he had not accepted. The common pleas court agreed with the defendant and denied the plaintiff's motion to enforce settlement. Superior Court held that the order was not appealable under the collateral order doctrine. The court concluded that the plaintiff's claim about the validity of the settlement agreement would not be irreparably lost if immediate review were denied because it could be raised either on appeal from an adverse judgment in the underlying action or in a separate action. In either case, a determination that the settlement agreement was enforceable would entitle the plaintiff to damages caused by the defendant's breach, including the expenses and other burdens incident to trying the case.2

Knisel involved a wrongful death and survival action, as well as an underinsured motorist claim against an insurer. The parties ostensibly agreed to settle the bodily injury claims and the court approved the settlement, but the plaintiffs returned the check tendered by the insurer on account of a dispute over the effect of the release on the underinsured motorist claim. The insurer then filed a motion to enforce the settlement, which the court denied. The court also directed that its previous order approving the settlement "be held in abeyance" so as not to prejudice the plaintiffs' underinsured motorist claim. Superior Court quashed the insurer's appeal, likening the case to National Recovery Systems. The court observed that the ultimate fate of the settlement agreement was undetermined because the common pleas court had held it in abeyance. This analysis, however, failed to account for the fact that holding the settlement in abeyance was tantamount to rejecting the insurer's interpretation of the settlement agreement, i.e., that the settlement barred the uninsured motorists claim. Nevertheless, even if the court had correctly recognized that the fate of the settlement agreement effectively had been determined against the appellant, as stated in National Recovery Systems the appellant's interests could still be vindicated either on appeal from an adverse judgment or in a separate action. Thus Knisel is consistent with the rationale of National Recovery Systems even if the opinion did not fully articulate the application of its holding.

We have serious doubts, however, about whether the Lanci opinion accurately represented or applied the rationale of National Recovery Systems in reaching a different result based on different facts. That case arose out of an auto accident between Lanci and an uninsured driver. Lanci agreed to settle all claims with his insurer for $15,000, but later refused to accept the proceeds, asserting that the insurer had misrepresented this amount as the applicable policy limit, when in reality the limit was $250,000. The common pleas court denied the insurer's motion to enforce the settlement, finding that it was based on a mutual mistake of fact.

Superior Court held that the order was appealable under the collateral order doctrine. The court distinguished National Recovery Systems on the grounds that the result of the order denying enforcement in that case was that the matter would proceed to trial, whereas in Lanci, the matter would proceed to an uninsured motorist arbitration hearing. Given that the scope of appellate review from such a hearing would be limited to mistakes of law, the court concluded that the insurer would lose any opportunity to appeal the court's factual determination of mutual mistake. This conclusion, however, ignored the alternative means of vindicating the insurer's rights identified in National Recovery Systems, a separate action in the nature of breach of contract. Thus even if the court's determination of mutual mistake would be unreviewable on appeal (a conclusion that is not beyond question), the insurer's claim that Lanci should have been required to abide by the settlement would not have been irreparably lost.

Notwithstanding these reservations about Lanci, it is apparent that that case, as well as Knisel and National Recovery Systems, differs from this case in one significant respect. Whereas each of those cases involved one of the parties refusing to go forward with the settlement, in this case the settlement was not effectuated because of the court's refusal to approve it. This is not analogous to a breach of contract. Indeed, by its terms the settlement agreement...

To continue reading

Request your trial
114 cases
  • Brooks v. Ewing Cole, Inc.
    • United States
    • Pennsylvania Supreme Court
    • September 22, 2021
    ..." ‘involve rights deeply rooted in public policy going beyond the particular litigation at hand.’ " Id. (quoting Geniviva v. Frisk , 555 Pa. 589, 725 A.2d 1209, 1214 (1999) ). Applying this standard, the Commonwealth Court concluded the right involved, sovereign immunity, "implicates public......
  • Commonwealth v. Pownall
    • United States
    • Pennsylvania Supreme Court
    • July 20, 2022
    ...with assessing whether "the interests implicated in any given case" outweigh "the costs of piecemeal litigation." Geniviva v. Frisk , 555 Pa. 589, 725 A.2d 1209, 1213 (1999). A trial court's order is weighty enough to warrant interlocutory review where it involves "rights deeply rooted in p......
  • Commonwealth v. Williams
    • United States
    • Pennsylvania Supreme Court
    • February 19, 2014
    ...by the final order rule. It is not sufficient that the issue is important to the particular parties involved. See Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209, 1213–14 (1999). In this case, the right asserted by the Commonwealth is the work product doctrine.6 As noted above, the Court has ......
  • Com. v. Davis
    • United States
    • Pennsylvania Superior Court
    • November 24, 1999
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT