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. e du/thir dc ir c uit_1996/139UNITED 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; W ASHINGTON TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOO DY, individually and in his capacity as officer for FAYETTE CITY BOR OUGH; OFFICER DARHL SNYDER, individually and in his capacity as a n officer for
NORTH BELLE VERNON BOROUGH

_______________
On Appeal from the United States District Court for the Western District of Pennsylvan ia

D.C. No. 91-00059

_______________
Argued January 25, 1996

Before: COWEN and SAROKIN, Circuit Judg es and POLLAK, District Judge

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ORDER AMENDING SLIP OPINION

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

It is hereby ordered that the slip opinion in the aboveentitled appeal filed July 31, 1996 be amended in a ccordance with the following.

On page 9, the second full paragraph should re ad:

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 theparties seeking to enforce the release-dismiss al

agreement bore the burden of showing that the Livingstones' assent was "voluntary, deliberat e and informed." 12 F.3d at 1211. We concluded tha t the defendants had not met this burden with the ce rtainty called for on summary judgment, given that Mrs

. Livingstone was confused as to the terms of th e release- dismissal arrangement, that the claimed releas e-dismissal agreement was never written down, and that the asserted agreement -- assuming there was a meeting of t he minds -- was made, if at all, during a brief and ambigu ous oral colloquy. See id. at 1211-14. Accordingly, w e reversed the grant of summary judgment and directed tha t the case be remanded for further proceedings.

On page 16, the first paragraph should read:

The Livingstones also question whether No rth Belle Vernon Borough and Fayette City Borough -- whi ch we will refer to, for brevity, as "the two boroughs" - - had the same status under the release-dismissal agreem ent as did Washington Township. In the voluntariness pro ceeding in the district court, counsel for the Livingston es had requested that a specific question on the verd ict form address the status of the two boroughs under t he agreement. The district court declined to inc lude such a question on the form, finding that Ceraso's statements in the colloquy before Judge Cicchetti include d all three municipalities, and that all three therefore h ad the same status for purposes of the voluntariness quest ion. In response to the objections of the Livingstones ' counsel to this ruling, the district court permitted h im to argue to the jury that the ambiguous nature of the a greement 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 Pennsylva nia Supreme Court would be very attentive to how the volun tariness of a release-dismissal agreement is established. Such judicial attentiveness would be called for bot h because of the danger that such agreements will be con cluded in improper circumstances, and because Pennsylvan ia has a policy of declining to enforce contracts concl uded under duress or threat of prosecution. See, e.g., G ermantown Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super. 1985) (applying a rule that threats of crimina l prosecution constitute duress rendering a cont ract voidable, and stating: "It is an affront to ou r judicial sensibilities that one person's ability to see k another's prosecution can be bartered and sold the same ascommodities in the market place. It is even m ore

repugnant when the foul stench of oppression p ervades the transaction."). For reasons we have already d iscussed, the voluntariness of oral release-dismissal ag reements is especially likely to be problematic, and -- pr ecisely because such agreements are not evidenced by a writing -- determinations of the voluntariness of such ag reements are particularly likely to be unreliable. See supra at 31-36. Accordingly, we predict that the Penns ylvania Supreme Court, when faced with the question, w ill subject the voluntariness of oral release-dismissal ag reements to a heightened standard of proof, and we therefo re conclude that the voluntariness of the release-dismissa l agreement now before us must be demonstrated by clear an d convincing evidence.

BY THE COUR T:

/s/ Louis H. Pollak

Distri ct Judge

Dated: August 14, 1996