IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen DeLuca

, : Appellant :

:

v. : No. 14 05 C.D. 2019

: Submitted : May 12 , 2020 Mountaintop Area Joint Sanitary : Authority and Thomas G . Keiper :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE J. ANDREW CROMPTON , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: June 16, 2020

Colleen DeLuca (DeLuca) appeals two order s of the Court of Common

Pleas of Luzerne County (trial court). The first order denied the motion to recuse

the Honorable William H. Amesbury from conducting a hearing on the petition of

Mountaintop Area Joint Sanitary Authority and Thomas G . Keiper (collectiv ely, the

Authority) to enforce a settlement agreement. The second order granted the
Authority’s petition. On appeal, DeLuca contends that Judge Amesbury was

obligated to recuse himself because of his involvement in the settlement discussions.

DeLuca fur ther contends that the evidence showed that she did not freely agree to

the terms of the agreement that were entered into the record to settle her

whistleblower and tort claim s against the Authority. For the following reasons, we

affirm the trial court’s orders.

DeLuca owns a single

- family home in Mountain T op, Pennsylvania,

located adjacent to the Authority’s sewage treatment plant. On several occasions2

between June 27, 2006, and April 26, 2011, DeLuca’ s property was flooded with

untreated sewage. The i nfiltrations stopped when, in late 2011, the Authority

upgraded its system

.

During this time, DeLuca was performing cleaning services at the
Authority’s offices. After her home flooded with sewage in April 2011, DeLuca

retained counsel , who requested the Authority to stop the infiltration of sewage into
DeLuca’s home. On June 23, 2011, the Authority terminated DeLuca’s cleaning

services.

DeLuca filed a two

- count action against the Authority. 1 The first count

sounded in trespass and sought damage s as a result of the sewage infiltrations. The

second count was filed under the Whistleblower Law , Act of December 12, 1986,

P.L. 1559, as amended , 43 P.S. §§1421

- 1428, and asserted that the Authority had

terminated its contract with DeL uca because she complained about sewage entering

her house . DeLuca also filed a petition for appointment of a board of viewers under

the Eminent Domain Code

, 26 Pa. C.S. §§101

- 1106, which was successful. 2 See

DeLuca v. Mountaintop Area Joint Sanitary Authority , 166 A.3d 553 (Pa. Cmwlth.

2017) (holding that the Authority’s intentional operation of its sewage system ca used

infiltrations of sewage on to DeLuca’s property)

.

The whistleblower/trespass action was assigned to Judge Amesbury

. On November 27, 2017, Judge Amesbury convened a pre

- trial and settlement

conference, which resulted in a settlement of DeLuca’s de facto condemnation and

1 The case is captioned Colleen DeLuca v. Mountaintop Area Joint Sanitary Authority and Thomas G. Keiper (C.C.P. Luzerne Cty., No. 201 5

- CV

- 0 5864 )

.
2 In May 2015, DeLuca filed a petition for appointment of a board of viewers pursuant to Section 502(c) of the Eminent Domain Code, 26 Pa. C.S. §502(c), alleging that the repeated infiltration of sewage on her property constituted a de facto taking.3

whistleblower/trespass actions. The terms of the settlement were placed into the

record, which states as follows:

THE COURT: We had a count of negligence. We have an eminent domain issue which constituted a tak[ing] as verified by an opinion that was rendered by my colleague Judge Tina Polachek Gartley and was affirmed by the Appellate Court[.]

* * *

TH E COURT: At the same time we have a claim for punitive damages, as well as a whistleblower action.

The purpose in meeting today was to see if we could bring a

reso lution, a complete resolution of all outstanding theories that were presented before the [tr ial court], including the three that I just mentioned. This would include any allegations against the municipality and there will be no disparaging remarks to any present employee, management personnel, non

- management personnel or solicitor past or presen t.

Did I cover that broad enough?

MR. KARPOWICH: And the public, Your Honor.

THE COURT: Okay.

MR. McDONOUGH: Your Honor, the eminent domain was under a separate court term and number. This court term and number was only for the trespass and for t he whistleblower.

THE COURT: You brought the negligence claim separately?

MR. McDONOUGH: They were brought with the whistleblower originally and then there was a separate eminent domain proceeding.

THE COURT: That’s under 5864 of 2015. So all will be i ncluded.

MR. McDONOUGH: Both lawsuits in all three counts, yes,
Your Honor.4 THE COURT: The settlement amount is $450,000. That has been entered into by the parties. On behalf of the plaintiff, sir, is that an agreement?

Mr. McDONOUGH: That part of the settlement, yes, Your
Honor

.
MR. KARPOWICH: Yes, Your Honor.

MR. ABELL: Yes, Your Honor.

Notes of Testimony (N.T.) , 11/27/2017, at 2

- 3; Reproduced Record at 103a (R.R.

__). 3

Following the conference, DeLuca’s counsel prepared a written

settlement agreement and release for execution by the parties

. The document stated
that the Authority would pay DeLuca $450,000 and provide a letter from a

professional engineer detailing the work done by the Authority to address the

infiltration events. The docume nt also provided that DeLuca would terminate her

whistleblower

/trespass and condemnation actions and release the Authority.

Finally, t he document included a mutual non

- disparagement agreement.

DeLuca refused to sign the agreement as requested by her counsel. In

April 2018, the Authority filed a petition to enforce the settlement agreement.

On May 15, 2018, DeLuca’s counsel filed a motion to withdraw as

counsel. At the hearing on that mo tion, DeLuca’s counsel, Attorney Richard Abell

,
testified that DeLuca had not paid his invoices for legal services for several years

and that there had been a breakdown i n the attorney

- client relationship. DeLuca
voiced “no disagreement” with Attorney Abe ll’s request to withdraw as counsel; the

3 Attorney Richard Abell represented DeLuca, and Attorneys Sean McDonough and Donald Karpowich represented the Authority.5

trial court granted the motion. N.T., 5/25/2018, at 47; R.R. 194 a. The trial court

gave DeLuca 60 days to obtain new counsel.

DeLuca retained the l aw firm McNees Wallace & Nurick LLC, which

entered its appearan ce on behalf of DeLuca in both the condemnation and

whistleblower/trespass actions. The trial court postponed the hearing on the
Authority’s petition to enforce settlement scheduled for August 7, 2018, to October

30, 2018.

On October 12, 2018, DeLuca fi led a motion to recuse Judge Amesbury

on the basis of Rule 2.11 (A) of the Pennsylvania Code of Judicial Conduct

. 4 The

motion alleged that because Judge Amesbury would have to consider his own

statements and actions during the settlement discussions , he wa s disqualified from

conducting the hearing on the petition to enforce settlement agreement

. Motion to

Recuse at 4, ¶¶19

- 20; R.R. 210a.

At the October 30, 2018, hearing on DeLuca’s recusal motion, the
Authority objected to DeLuca’s motion as untimely. D eLuca responded that her

motion was timely because she had engaged new counsel, who needed to retrieve

4 It states, in pertinent part, as follows:
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding

. * * *
(6) The judge:

* * *
(c) was a material witness concerning the matter.

P A

. C ODE O F J UDICIAL C ONDUCT R ULE 2.11 (A) (emphasis added).6

and review the files of prior counsel. The trial court postponed the hearing on the
Authority’s petition to enforce the settlement.

On December 9, 201 8, the trial court scheduled an evidentiary hearing
on DeLuca’s recusal motion for February 11, 2019. The parties agreed that the
evidentiary hearing would address both DeLuca’s recusal motion and the
Authority’s petition to enforce the settlement agreeme nt.

At the evidentiary hearing, DeLuca testified that in September 2017

, her attorney advised her that the trial court wanted to conduct “a combined
pretrial/settlement conference in November” in her whistleblower/trespass action.

N.T., 2/11/2019, at 25 ; R. R. 354 a. In October 2017, he notified her that the

conference had been scheduled for November 27, 2017, and that she should be

prepared to discuss settlement. DeLuca testified that on that day, she was escorted

into a room. Fifteen minutes later, At torney Abell and Judge Amesbury entered the

room. DeLuca t estified as follows :

Dick Abell walked around in front of me, sat at a desk, put his feet up and locked his hands behind his head. Judge Amesbury grabbed a rolling chair, rolled it towards me, gra bbed my hands, slid his knees between my skirt, screamed at the top of his lungs with his halitosis coffee breath.

Id. at 35; R.R. 357 a. DeLuca stated that Judge Amesbury told her that she needed
to take the Authority’s offer “to get off his f[**]king dockets.” Id . He told her that
it was the “best deal” she was going to get. Id . When asked how she responded,

DeLuca testified:

I was unaccepting of the $10,000, my job back and me throwing away the win offered by Judge Gartley [in the condemnation case].7

Id. at 36; R.R. 357a

.

DeLuca also testified that during the settlement conference, she

contacted Paul Logan, Esq., an attorney who had previously worked with Attorney

Abell in her dispute with the Authority. T hat conversation lasted approximately 30
minutes. DeLuca stated that Attorney Logan told her to “ buckle down” and “get this

done ” ; he also told her to contact her bank for the payoff amount for her house. Id.

at 39; R.R. 357a

- 58a.

DeLuca acknowledged that she stated on the record that she agreed to

the settlement, but she could not explain her statement. DeLuca testified that she

believed that the settlement applied only to the whistleblower/trespass action. On

cross

- examination, DeLuca conceded that at no point during the settlement

conference did she tell Judge Amesbury that she was dissatisfied with Attorney

Abell or his representation.

The Authority presented testimo ny from Toni Rogan, the Chairwoman

of the Authority. Rogan testified that at the settlement conference, she di d not

observe Judge Amesbury demonstrate either a lack of patience or frustration. She

did not observe DeLuca to be under duress. Rogan testifi ed that after the settlement
conference, DeLuca hugged her and said “[t]hank you.” Id. at 87; R.R. 370 a.

At the conclusion of that hearing, the parties agreed to keep the record

open for the sworn testimony of Attorney Abell, who had represented DeLuca a t the

November 27, 2017, settlement conference. The record closed on May 15, 2019.

On May 15, 2019, Judge Amesbury entered an order denying DeLuca’s

motion for his recusal. The order gave the parties until June 15, 2019, to submit

final briefs on the Au thority’s petition to enforce the settlement agreement.8 Subsequently, on July 19, 2019, the trial court granted the Authority’s

petition to enforce the settlement agreement. The order directed DeLuca to execute

the written settlement agreement and rele ase and to comply with its terms and
conditions. With regard to DeLuca’s assertion that her counsel had been ineffective,

the trial court reasoned that she may have a claim against her attorney for

malpractice, but that claim was not relevant to the enfor ceability of the settlement.

The trial court found no basis for her claim of duress or undue pressure and rejected

her contention that she did not freely agree to the terms of the settlement. The trial

court also held that assuming that DeLuca mistakenly agreed to the settlement, her
mistake was unilateral. As such, it did not negate the validity of the parties’

settlement agreement.

DeLuca the n appealed the trial court’s orders.

On appeal, 5 DeLuca raises three issues. First, she argues that the tri al
court abused its discretion in denying her motion for the judge’s recusal. Second,

she argues that the trial court erred in granting the petition to enforce the settlement

agreement w hen the evidence showed that DeL uca did not freely enter into the

agr eement. Third, she argues that the trial court erred in ordering her to sign a

5 When reviewing a trial court’s decision to enforce a settlement agreement: [O]ur scope of review is plenary as to que stions of law, and we are free to draw our own inferences and reach our own conclusions from the facts as found by the court. However, we are only bound by the trial court’s findings of fact which are supported by competent evidence. The prevailing party is entitled to have the evidence viewed in the light most favorable to its position. Thus, we will only overturn the trial court’s decision when the factual findings of the court are against the weight of the evidence or its legal conclusions are erroneo us. Hydrojet Services, Inc. v. Reading Area Water Authority , 220 A.3d 1199, 1204 n.4 (Pa. Cmwlth. 2019) (quoting Bennett v. Juzelenos , 791 A.2d 403, 406 (Pa. Super. 2002)).9

written settlement agreement with terms that had not been discussed or agreed upon

at the November 27, 2017, settlement conference.

The issues presented in this matter are id entical to those presented and

resolved by this Court in the related matter of DeLuca v. Moun taintop Area Joint

Sanitary Authority

, and Thomas G

. Keiper

, __ A.3d __ (Pa. Cmwlth., No. 1024 C.D.

2019, filed June 16, 2020 ) ( DeLuca I )

. In that case, we affirmed the trial court’s

decision to deny DeLuca’s recusal motion and to grant the Authority’s petition to

enforce the settlement agreement

. Accordingly , we affirm the trial court on the basis

of this Court’s decision in DeLuca I

.

M ARY H ANNAH L EAVITT , President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Colleen DeLuca, : Appellant :

:

v. : No. 1405 C.D. 2019

: Mountaintop Area Joint Sanitary : Authority and Thomas G . Keiper :

O R D E R

AND NOW, this 16 th day of June

, 2020, the orders of the Court of Common

Pleas of Luzerne County , dated May 15, 2019, and July 9, 2019, are AFFIRMED.

M ARY HANNAH LEAVITT , President Judge