J-A19029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK STEWART, REPRESENTATIVE OF                   IN THE SUPERIOR COURT OF
THE ESTATE OF STEPHAN STEWART                           PENNSYLVANIA

                            Appellant

                       v.

WAL-MART STORES EAST, LP,
WAL-MART STORES, INC.

                            Appellee                  No. 3301 EDA 2015


               Appeal from the Order Entered September 16, 2015
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): July Term, 2012 - No. 4533


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                          FILED SEPTEMBER 16, 2016

        Mark Stewart, Representative of the Estate of Stephan Stewart

(Stewart), appeals from order entered on September 16, 2015, in the Court

of Common Pleas of Philadelphia County, granting Wal-Mart Stores East,

L.P.’s and Wal-Mart Stores, Inc.’s (Wal-Mart) motion to enforce settlement.

In this timely appeal, Stewart raises two issues.      Stewart claims the trial

court erred in: (1) granting the motion to enforce the settlement, and (2)

determining there had been no mutual mistake at the time of the

settlement.     After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     We take the factual and procedural history from the trial court opinion.

Our review of the certified record confirms the facts are supported by the

record.

     This matter comes before the Superior Court following a four day
     jury trial, which commenced on March 23, 2015. Although jury
     deliberations concluded, the parties agreed to settle the matter
     just before the verdict was received by court staff but not yet
     revealed. On August 7, 2015, approximately five months later,
     Mark Stewart, as personal representative for the Estate of
     Stephan Stewart filed a Motion for a Pre-Trial Conference
     contending that the settlement was predicated upon a mutual
     mistake of a [lack of] governmental lien; the Court denied the
     Motion. Wal-Mart Stores East, L.P. and Wal-Mart Stores, Inc. …
     then filed a Motion to Enforce Settlement, which the Court
     granted.
                                    …

     In August 2012, [Stewart’s] decedent, Stephan Stewart, filed
     suit against [Wal-Mart] under a theory of negligence for injuries
     he sustained while working at a distribution center associated
     with [Wal-Mart]. The matter went to trial on March 23, 2015.
     After four days of testimony before a jury, the parties settled the
     case at the close of jury deliberations but before the verdict was
     reported. (Trial Worksheet, March 26, 2015). The settlement
     was made of record. Five months later, on August 7, 2015,
     [Stewart] filed a Motion for Pre-Trial Conference for the trial to
     be relisted after [Stewart] and his counsel received a notice of
     lien from the Pennsylvania Department of Public Welfare
     (“DPW”).     The lien comprised DPW’s recovery for medical
     assistance benefits provided to the decedent. (Mot. For Pre-Trial
     Conf. Aug. 7, 2015). [Stewart] contended there was a mutual
     mistake of fact about the lien resulting in an invalid settlement
     agreement.      This Court denied the Motion for Pre-Trial
     Conference. (Order Entered by J. Tucker, Sept. 9, 2015). [Wal-
     Mart] then filed a Motion to Enforce Settlement for the
     settlement agreement the parties reached at the conclusion of
     the trial. This Court granted the Motion to Enforce Settlement,
     agreeing with [Wal-Mart] that there was no mutual mistake of
     fact.



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     [Stewart] filed a Notice of Appeal for the instant matter and the
     Court ordered a concise statement of error complained on appeal
     pursuant to Pa.R.A.P. 1925(b) (hereinafter referred to as
     “1925(b) Statement”). [Stewart] filed his 1925(b) Statement
     and alleged three errors made by this Court in relation to the
     Motion to Enforce Settlement and the Motion for Pre-Trial
     Conference. Specifically, [Stewart] claims the Court erred in (1)
     granting the Motion to Enforce Settlement as the settlement was
     premised on a mutual mistake; (2) denying the Motion for a Pre-
     Trial Conference as the settlement was premised on a mutual
     mistake; and (3) concluding the dispositive question regarding
     the lack of mutual mistake was whether the lien by the
     Department of Public Welfare existed at the time of settlement.

Trial Court Opinion, 11/16/2015, at 1-2.

     Our standard of review of a trial court's grant or denial of a
     motion to enforce a settlement agreement is plenary, as the
     challenge is to the trial court's conclusion of law. We are free to
     draw our own inferences and reach our own conclusions from the
     facts as found by the trial court. However, we are only bound by
     the trial court's findings of fact which are supported by
     competent evidence.

Casey v. GAF Corp., 828 A.2d 362, 367 (Pa. Super. 2003) (citation

omitted).

     Additionally, the question of whether there existed a mutual mistake

“presents a pure question of law, and, therefore, our standard of review is

plenary.” Jones v. Prudential Property & Cas. Ins. Co., 856 A.2d 838,

842 (Pa. Super. 2004) (citation omitted).

     Further, we note:

     Settlement agreements are enforced according to principles of
     contract law. Pulcinello v. Consolidated Rail Corp., 784 A.2
     122, 124 (Pa. Super. 2001). Courts will enforce a settlement
     agreement if all its material terms are agreed upon. Century
     Inn, Inc. v. Century Inn Realty, 358 Pa.Super. 53, 516 A.2d
765, 767 (1986). A settlement agreement will not be set aside


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       absent a clear showing of fraud, duress or mutual mistake. Rago
       v. Nace, 313 Pa.Super. 575, 460 A.2d 337, 339 (1983).

Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943, 947 (Pa. Super.

2004).    Evidence of a mutual mistake must be shown by evidence that is

“clear, precise and convincing.” Id. at 948.

       Finally,

       As elsewhere, Pennsylvania courts recognize mutual mistake as
       a valid ground for rescinding or reforming a settlement
       agreement. See, e.g., Lanci v. Metropolitan Ins. Co., 388
       Pa.Super. 1, 564 A.2d 972, 974 (1989). “Mutual mistake exists
       where both parties to a contract are mistaken as to existing facts
       at the time of a execution.” Holt v. Dep’t of Public Welfare,
       678 A.2d 421, 423 (Pa.Commw.Ct 1996). Furthermore, the
       doctrine will apply only where the mistake: (i) relates to the
       basis of the bargain; (ii) materially affects the parties'
       performance; and (iii) is not one as to which the injured party
       bears the risk. See Lanci, 564 A.2d at 974; Restatement
       (Second) Contracts, § 152 (1981).

Consolidated Rail Corp. v. Portlight, Inc., 188 F.3d 93, 96 (1999).1

       The only basis alleged by Stewart to avoid this settlement agreement

is mutual mistake; there are no allegations of fraud or duress. Therefore, if

the trial court correctly determined there had been no mutual mistake, all of

Stewart’s claims must fail.

       As noted above, immediately after the jury reached a verdict in this

matter, but before it was announced, the parties agreed to settle the

underlying negligence action for payment of $325,000 to the Estate, the

____________________________________________


1
  We are aware that this federal decision is not binding upon us, however,
the quoted text represents an accurate statement of Pennsylvania law.



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settlement was made part of the record and the jury was dismissed with the

verdict unrevealed.

      Records indicate that Stephan Stewart was injured on or about March

1, 2011 and received extensive in patient medical treatment at the Lehigh

Valley Hospital from March 30, 2011 to October 27, 2011, incurring more

than $1,000,000 in medical bills.    The approved payment amount totaled

$206,156.29. By letter dated July 1, 2015, approximately four months after

the settlement had been entered on the record, DPW claimed the approved

payment amount as a lien.

      Upon receipt of the lien information, Stewart sought to rescind the

settlement agreement, claiming that based on the belief DPW was asserting

no lien, there had been a mutual mistake in entering into the settlement

agreement.

      Upon our review of the certified record and the submissions by the

parties, we agree with the trial court that any misunderstanding regarding

the existence of an enforceable lien represents a unilateral mistake on the

part of Stewart, and not a mutual mistake attributable to both parties.

      The trial court accurately stated, “It is a long held principle that a

party’s failure to adequately estimate damages or a party’s decision to settle

before damages are accurately assessed does not constitute a mutual

mistake.   Smith [v. Thomas Jefferson University Hospital], 621 A.2d

[1030] at 1032 [(Pa. Super. 1993)]; Leyda v. Norelli, 564 A.2d 244, 245

(Pa. 1989); Emory v. Mackiewicz, 240 A.2d 68, 70 (Pa. 1968).”             Trial

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Court Opinion, 11/16/2015 at 4.                Here, Stewart was aware that the

decedent, Stephan Stewart, had been provided substantial care at the

Lehigh Valley Hospital, and that DPW had the right to assert a lien to recover

benefits provided.      See Trial Court Opinion at 4-5. We also note that the

affidavit of Mark W. Stewart, presented to the court as part of the petition

for approval of settlement, states that he was aware that it was his

obligation to investigate the existence and amounts of any liens as well as to

satisfy those any such liens.          See Affidavit, 6/9/2015.    Therefore, any

mistake regarding the existence of a DPW lien was Stewart’s and directly

affected the amount of damages.            As such, Stewart’s failure to accurately

assess damages does not qualify as a mutual mistake rendering the

settlement void.

       Additionally, the trial court noted that the doctrine of mutual mistake

applies to those facts known at the time of the settlement and not to any

incorrect predictions of future events. Prior to the trial, on July 21, 2014,

Stewart’s counsel had received a letter from DPW in response to a letter

apparently inquiring about the existence of a lien.2         The letter from DPW

stated, in toto:
____________________________________________


2
 The certified record does not contain the letter to DPW. Accordingly, we do
not know what information was provided to DPW, nor do we know the
precise question asked of DPW. Additionally, the letter from DPW was
addressed to an entity named “Garretson Firm Resolution Group Inc.” of
Charlotte, North Carolina. We assume that Garretson was hired by Stewart’s
counsel to investigate the existence of a lien.



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      Pursuant to your letter dated June 20, 2014, the Department of
      Public Welfare (DPW), Third Party Liability (TPL) – Casualty Unit,
      has reviewed the information you provided regarding the above
      referenced individual.

      DPW has determined this individual stopped receiving medical
      assistance on February 29, 2012. Therefore, the Department’s
      TPL – Casualty Unit has no claim on this individual.

      If you have any questions, please feel free to contact me.

Letter from DPW, 7/16/2014.

      Stewart asserts this letter confirmed DPW was not intending to assert

a lien against any recovery obtained in the instant lawsuit.       However, as

noted previously, Stephan Stewart treated extensively and had incurred

substantial medical bills. Despite this knowledge, Stewart never questioned

the letter.   Stewart’s failure to further inquire before trial and settlement

was his mistake.

      Finally, the trial court determined there was no indication at the time

of the agreement that the non-existence of a DPW lien was an element of

the settlement. Specifically, the trial court stated:

      After the jury sent two questions to the Court during
      deliberations, the parties began negotiating a possible
      settlement and ultimately agreed to settle the matter for
      $325,000 (Trial Tr. 140-150, March 26, 2015). The possibility of
      a lien by DPW or any decision to waive such a lien did not enter
      these discussions, which were on the record.

Trial Court Opinion, 11/16/2015, at 5.       There was no indication, in the

record, that the existence of a DPW lien was a material consideration in the

formation of the settlement agreement.




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      Finally, the doctrine of mutual mistake only applies to those instances

where the mistake is not one as to which the injured party bears the risk.

See Consolidated Rail, supra.        Here, the affidavit submitted by Mark

Stewart clearly states that it is Stewart’s duty to ascertain the existence and

amount of any lien. Therefore, any mistake regarding the existence and/or

amount of a lien was a risk which Stewart bore. As such, it is not subject to

the doctrine of mutual mistake.

      Because there was no mutual mistake, none of Stewart’s claims of

error have merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




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