1 On the docket, Troilo is misspelled “Triolo,” and there

is no first name for this officer. The Court takes the first

name and spelling from the Release and Settlement Agreement.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHANIQUA SUBER, : CIVIL ACTION

:

v. :

:

OFFICER JOSEPH PETERSON, :

et al., : NO. 04-1896

MEMORANDUM AND ORDER

McLaughlin, J. June 2, 2006

This case involves claims by Shaniqua Suber under 42

U.S.C. § 1983 for the use of excessive force, and under state law

for assault and battery. The claims arise out of Suber’s arrest

on November 22, 2003. Suber originally made claims against

Police Officers Joseph Peterson and Angelo Troilo1 (collectively,

“the officers”) and the Borough of Norristown (“the Borough”),

but Troilo and the Borough were granted summary judgment on all

claims against them. 

 As the trial date approached in March of 2006, the

parties discussed settlement. On March 10, 2006, Suber’s

attorneys represented to the defendants’ attorney that Suber had

agreed to accept the defendants’ settlement offer of $15,000. 

Suber now disputes that she agreed to settle the case, or

authorized her attorneys to do so. 

The Court decides here the defendants’ motion for

Case 2:04-cv-01896-MAM Document 108 Filed 06/02/06 Page 1 of 11
2 Although no claims remain against two of the three

defendants, all three defendants move to enforce the settlement,

and the Release and Settlement Agreement that they seek to

enforce calls for the release of claims against all three

defendants.

2

enforcement of the settlement agreement2 and the plaintiff’s

attorneys’ motion for leave to withdraw as attorneys. The Court

will grant the defendants’ motion to enforce the settlement, and

deny the plaintiff’s attorneys’ motion as moot.

I. Procedural History

Suber filed her complaint against the officers and the

Borough on April 30, 2004. The complaint included claims against

the officers under § 1983 for the use of excessive force and

failure to provide timely medical attention, and under

Pennsylvania state law for assault and battery and negligence. 

The complaint also included a claim for respondeat superior

liability against the Borough. All of the claims arose out of

incidents surrounding Suber’s arrest on November 22, 2003.

On June 20, 2005, the defendants filed a motion for

summary judgment. The motion was granted with respect to all

claims against Troilo and the Borough, and otherwise denied, on

August 5, 2005. In addition, the plaintiff voluntarily withdrew

her claims of negligence and failure to provide timely medical

attention against the officers. 

After several continuances, a final pretrial conference

Case 2:04-cv-01896-MAM Document 108 Filed 06/02/06 Page 2 of 11
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date of March 7, 2006, and a trial date of March 20, 2006, were

set. The final pretrial conference was held. 

On March 16, 2006, the defendants filed their motion to

enforce the settlement agreement. On March 22, 2006, the

plaintiff’s attorneys filed their motion for leave to withdraw as

attorneys. The Court held a hearing on these motions on March

24, 2006. Suber was present at the hearing.

II. Facts

A. Undisputed Facts

On Tuesday, March 7, 2006, the Court held a final

pretrial conference (“FPT”). After the FPT, Suber spoke to her

attorneys, Amanda Yarusso and Blake Horwitz. Yarusso told Suber

that the Court had ruled against them on several motions in

limine at the FPT. Yarusso encouraged Suber to settle the case. 

Suber said that she needed time to think about it. (Tr. of

3/24/06 Hrg. (“Tr.”) at 10-11, 15). 

Suber and Yarusso spoke several times over the next few

days. On Friday, March 10, 2006, some time after 3:30 P.M., they

spoke again. Yarusso again encouraged Suber to settle. The rest

of their conversation is disputed, as described below. (Tr. at

12, 17). 

Late in the afternoon on March 10, 2006, Yarusso sent a

letter to Suber confirming that she had agreed to settle the case

Case 2:04-cv-01896-MAM Document 108 Filed 06/02/06 Page 3 of 11
4

for $15,000, and called opposing counsel, Joseph Santarone, Jr.,

to communicate Suber’s acceptance of the defendants’ settlement

offer. On March 13, 2006, Santarone faxed a confirming letter to

Yarusso. (Tr. at 4-5, 17). 

Also on March 13, Suber spoke to Yarusso again. Suber

expressed that she did not want to settle. Yarusso said that she

had already called opposing counsel and agreed to the settlement.

 (Tr. at 12-13).

After receiving telephone calls from Suber, the Court

set up a telephone conference with the attorneys for March 14,

2006. On the call, Yarusso stated that she had had express

authority from her client to accept the settlement offer. (Tr.

at 5-6).

B. Disputed Facts

Suber contends that she was frustrated because earlier

in the case, when she wanted to settle, her attorneys encouraged

her to go to trial. After the FPT, they pressured her to settle

when she wanted to go to trial. Suber states that during their

conversation on the afternoon of March 10, 2006, after Yarusso

encouraged her to settle the case, Yarusso stated that if she

wanted to proceed, she would need to find new counsel. She

states that she told Yarusso to “Go ahead and do what you want to

do.” She explains that she meant that her attorneys should

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5

withdraw if they wanted to do so. Suber states that she

eventually “hung up the phone, because [she] was upset.” (Tr. at

11-12). 

Suber states that she tried to call the law office back

to clarify that she did not want to settle, but the phones at the

law office were broken and she could not get through until two

hours later. By the time she got through, her attorneys had left

the office. She left a message on Yarusso’s voicemail indicating

that she did not want to settle. (Tr. at 12). 

Yarusso states that during their conversation on the

afternoon of March 10, 2006, Suber agreed to settle the case for

$15,000. Yarusso states that she asked Suber if she was sure,

and she said yes. Some time after that, Yarusso sent the

confirmation letter to Suber and contacted Santarone to inform

him of the acceptance of the settlement offer. Yarusso states

that over the weekend, when she called the office to check her

messages, she received a message from Suber indicating that she

had changed her mind and no longer wanted to settle. (Tr. at 17,

19). 

Yarusso states that it was only on Monday, after she

had received Suber’s message indicating that she changed her mind

and no longer wanted to settle, that she told Suber that she

might have to find new counsel, because she was trying to back

out of an enforceable settlement agreement. (Tr. at 17-18). 

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III. Analysis

The Court concludes that Suber expressly authorized her

attorneys to accept the defendants’ settlement offer of $15,000. 

Therefore, the settlement agreement is enforceable, and the

plaintiff’s attorneys’ motion is moot.

“An agreement to settle a law suit, voluntarily entered

into, is binding upon the parties, whether or not made in the

presence of the court, and even in the absence of a writing. 

Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970). 

There is a rebuttable presumption that a settlement entered into

by an attorney was authorized by the client. Garabedian v.

Allstates Engineering Co., 811 F.2d 802, 803 (3d Cir. 1987). 

“[O]nce the client has authorized the lawyer to settle

a case, and the lawyer has done so, the client may not

whimsically renege on her promise and refuse to uphold her end of

the bargain.” Anderson v. United States Postal Serv., 1998 U.S.

Dist. LEXIS 1735 at *3 (Feb. 19, 1998). “The [Green] rule

applies to parties who agree to settle and change their mind

before signing a written settlement agreement.” Bailey v. City

of Philadelphia, 2003 U.S. Dist. LEXIS 2195 at *6 (E.D. Pa. Feb.

13, 2003)(aff’d, 90 Fed. App’x 434 (3d Cir. 2004)).

Generally, however, “an attorney has no authority to

settle his client’s case solely by virtue of his general power to

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7

handle the case. Instead, an attorney can only enter a binding

compromise if the client has authorized him to do so.” 

Garabedian, 811 F.2d 802 at 803 (citations omitted). “[A]n

attorney has to have an express authority to settle a client’s

claims.” Covington v. Continental General Tire, Inc., 381 F.3d

216, 221 (3d Cir. 2004). In Covington, 381 F.3d at 220-21, the

United States Court of Appeals for the Third Circuit expressly

held that apparent authority was not sufficient to render a

settlement agreement entered into by an agent enforceable, and

that express authority was required. The court squarely rejected

a Pennsylvania Superior Court case that had held otherwise. Id.

(discussing Hannington v. Trustees of the Univ. of Pennsylvania,

809 A.2d 406 (Pa. Super. 2002)).

When the determination of whether an attorney was

authorized to enter into a settlement agreement on his client’s

behalf “hinges upon a factual issue and credibility

determinations are involved, a hearing should be held to

determine entitlement to relief.” Garabedian, 811 F.2d at 803.

The Court is faced with varying versions of the

conversations between Suber and Yarusso that took place on March

10 and 13, 2006. Because the substance of these conversations is

key to the determination of whether the settlement agreement is

enforceable, the Court held a hearing on March 24, 2006. 

Under Yarusso’s version of the facts, it is clear that

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8

Suber expressly authorized Yarusso to settle the case. Once

Yarusso communicated the settlement offer to Santarone, the

settlement agreement became enforceable, and Suber could not

renege on it. If Suber did state on her message to Yarusso that

she had “changed her mind,” that indicates that she had at one

point expressly authorized Yarusso to accept the settlement

offer. On the telephone call on March 14, 2006, Yarusso

described this sequence of events. At the hearing on March 24,

2006, Yarusso offered a more detailed version of the

conversations that occurred. 

The Court will accept Yarusso’s version of the events,

and finds that Suber expressly authorized Yarusso to settle the

case, and then changed her mind, and called back. Although the

Court found that all of the parties involved testified credibly

at the hearing, the Court finds it illogical that Yarusso would

have communicated to Santarone an acceptance that never occurred. 

Yarusso’s version of the events is detailed. She states that she

confirmed whether Suber was sure that she wanted to settle, which

would have made sense given that she knew that Suber had doubts. 

Suber admits that she was in an agitated state, and that she

“hung up the phone, because [she] was upset.” (Tr. at 12). It

is difficult to understand why Suber would have called Yarusso

back after they had spoken, except to indicate that she had

changed her mind. Given the Court’s conclusion that Suber

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9

expressly authorized Yarusso to accept the settlement offer, the

settlement agreement became enforceable when Yarusso communicated

the acceptance to Santarone.

The Court notes that even under Suber’s version of the

events, the settlement agreement appears to be enforceable. 

Suber, knowing that Yarusso felt that she should settle the case,

told Yarusso to do what she wanted to do. In a sense, then, even

under her own version of the events that occurred, Suber

expressly authorized Yarusso to settle the case.

The Court recognizes that this case has been

emotionally draining for Suber. The Court hopes that she is able

to find some closure and comfort in its settlement.

An appropriate Order follows.

Case 2:04-cv-01896-MAM Document 108 Filed 06/02/06 Page 9 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHANIQUA SUBER, : CIVIL ACTION

:

v. :

:

OFFICER JOSEPH PETERSON, :

et al., : NO. 04-1896

ORDER

AND NOW, this 2nd day of June, 2006, upon consideration

of the defendants’ Motion for Enforcement of Settlement Agreement

(Docket No. 102), and the Plaintiff’s Motion for Leave to

Withdraw as Attorneys (Docket No. 105), IT IS HEREBY ORDERED

that:

1. The defendants’ motion is GRANTED. Settlement of

the claims of the plaintiff, Shaniqua Suber, in the amount of

fifteen thousand dollars ($15,000.00) is hereby confirmed. The

defendant shall send to Blake Horwitz the payment of fifteen

thousand dollars ($15,000.00) made payable to Shaniqua Suber and

Blake Horwitz as her attorney within fourteen (14) days of the

date of this order. Upon receipt of this payment, the

plaintiff’s attorney shall notify the Court, and this matter

shall be settled, discontinued and ended with prejudice in

accordance with the terms of the Release and Settlement Agreement

included in the Exhibit to the defendant’s motion. 

2. The plaintiff’s attorneys’ motion is DENIED AS 

Case 2:04-cv-01896-MAM Document 108 Filed 06/02/06 Page 10 of 11
2

MOOT.

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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