1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-1996

Livingstone v. North Belle Vernon

Precedential or Non-Precedential:

Docket 95-3252

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Recommended Citation

"Livingstone v. North Belle Vernon" (1996). 1996 Decisions. Paper 139.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/139
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _______________ 

 NO. 95-3252 

 _______________ 

 FRANCES E. LIVINGSTONE and 

 JOSEPH A. LIVINGSTONE, her husband, 

 Appellants 

 

 v. 

NORTH BELLE VERNON BOROUGH; FAYETTE CITY BOROUGH; WASHINGTON 

TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as 

officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOODY, individually 

and in his capacity as officer for FAYETTE CITY BOROUGH; OFFICER 

DARHL SNYDER, individually and in his capacity as an officer for 

NORTH BELLE VERNON BOROUGH 

 _______________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 

 D.C. No. 91-00059 

 _______________ 

 Argued January 25, 1996 

 Before: COWEN and SAROKIN, Circuit Judges 

and POLLAK, District Judge 

 

 ----------------- 

 ORDER AMENDING SLIP OPINION 

 ------------------ 

 It is hereby ordered that the slip opinion in the aboveentitled appeal filed July 31, 1996 be amended in accordance with 

the following. 

 On page 9, the second full paragraph should read: 

 With this background history as predicate, the court 

 in Livingstone I then proceeded to review the elements of 

 proof for a showing of voluntariness, finding that the 
 parties seeking to enforce the release-dismissal 

 agreement bore the burden of showing that the 

 Livingstones' assent was "voluntary, deliberate and 

 informed." 12 F.3d at 1211. We concluded that the 

 defendants had not met this burden with the certainty 

 called for on summary judgment, given that Mrs. 

 Livingstone was confused as to the terms of the release- 

 dismissal arrangement, that the claimed release-dismissal 

 agreement was never written down, and that the asserted 

 agreement -- assuming there was a meeting of the minds -- 

 was made, if at all, during a brief and ambiguous oral 

 colloquy. See id. at 1211-14. Accordingly, we reversed 

 the grant of summary judgment and directed that the case 

 be remanded for further proceedings. 

 On page 16, the first paragraph should read: 

 The Livingstones also question whether North Belle 

 Vernon Borough and Fayette City Borough -- which we will 

 refer to, for brevity, as "the two boroughs" -- had the 

 same status under the release-dismissal agreement as did 

 Washington Township. In the voluntariness proceeding in 

 the district court, counsel for the Livingstones had 

 requested that a specific question on the verdict form 

 address the status of the two boroughs under the 

 agreement. The district court declined to include such 

 a question on the form, finding that Ceraso's statements 

 in the colloquy before Judge Cicchetti included all three 

 municipalities, and that all three therefore had the same 

 status for purposes of the voluntariness question. In 

 response to the objections of the Livingstones' counsel 

 to this ruling, the district court permitted him to argue 

 to the jury that the ambiguous nature of the agreement 

 between the Livingstones and the two boroughs rendered 

 the release-dismissal agreement involuntary as a whole. 

 App. at 804-06. 

 The last paragraph on page 45 continuing on to page 46 should 

read: 

 However, we anticipate that the Pennsylvania Supreme 

 Court would be very attentive to how the voluntariness of 

 a release-dismissal agreement is established. Such 

 judicial attentiveness would be called for both because 

 of the danger that such agreements will be concluded in 

 improper circumstances, and because Pennsylvania has a 

 policy of declining to enforce contracts concluded under 

 duress or threat of prosecution. See, e.g., Germantown 

 Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super. 

 1985) (applying a rule that threats of criminal 

 prosecution constitute duress rendering a contract 

 voidable, and stating: "It is an affront to our judicial 

 sensibilities that one person's ability to seek another's 

 prosecution can be bartered and sold the same as 
 commodities in the market place. It is even more 

 repugnant when the foul stench of oppression pervades the 

 transaction."). For reasons we have already discussed, 

 the voluntariness of oral release-dismissal agreements is 

 especially likely to be problematic, and -- precisely 

 because such agreements are not evidenced by a writing -- 

 determinations of the voluntariness of such agreements 

 are particularly likely to be unreliable. See supra at 

 31-36. Accordingly, we predict that the Pennsylvania 

 Supreme Court, when faced with the question, will subject 

 the voluntariness of oral release-dismissal agreements to 

 a heightened standard of proof, and we therefore conclude 

 that the voluntariness of the release-dismissal agreement 

 now before us must be demonstrated by clear and 

 convincing evidence. 

 BY THE COURT: 

 

/s/ Louis H. Pollak 

 

 District Judge 

Dated: August 14, 1996