J. A15013/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

BERNIE ENTERPRISES, INC., 

DONALD METZGER AND BAILEY & 

BILLERA ENTERPRISES, INC.

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

MICHEAL FOSTER, INDIVIDUALLY, 

MICHEAL FOSTER, TRUSTEE, AND 

HEYWOOD E. BECKER

:

:

: No. 55 EDA 2012

:

APPEAL OF: MICHEAL FOSTER :

Appeal from the Order, November 23, 2011,

in the Court of Common Pleas of Lehigh County

Civil Division at No. 2006-C-0035

BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 17, 2016

Micheal Foster appeals from the order of November 23, 2011, granting 

plaintiffs/appellees’ motion to declare the November 1, 2010 settlement 

agreement complete and directing the clerk of courts to mark the matter 

settled, discontinued, and ended with prejudice. We affirm.

The trial court has described the history of this matter as follows:

These attenuated matters proceeding under 

the above-captioned consolidated cases stem from 

disputes arising out of the disposition of proceeds 

and properties relating to real-estate purchase and 

investment schemes involving the parties. In the 

most general sense, the controversy concerns 

whether properties were purchased by Defendants 

individually on behalf of themselves or, conversely, 
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on behalf of their employers or beneficiaries and held 

in trust therefor. 

After protracted proceedings, including 

arguments over disqualification of counsel and 

various and sundry ancillary procedural wranglings 

and recriminations, the parties entered into a 

one-hundred-and-seventy-page settlement 

agreement, which was adopted as an order of court 

entered on November 1, 2010. A dispute thereafter 

arose concerning compliance with the settlement 

terms, whereupon Plaintiffs, on March 17, 2011, filed 

a motion to enforce the settlement agreement, 

contending in pertinent part that Defendant Heywood 

Becker was obliged to convey his interests in a 

subject Delaware corporation, Hanoverian, Inc., as 

well as a Pennsylvania entity under a similar name. 

Defendants countered with a motion for sanctions, 

filed on April 15, 2011, arguing that Plaintiffs had 

failed to discharge their responsibilities under the 

settlement agreement in respect to, among other 

things, proper recordation of the deeds to the

subject properties. Argument on both issues was 

scheduled on June 15, 2011, and, thereafter, on 

October 5, 2011, a rule setting a hearing date for 

October 25, 2011, was issued on the parties to show 

cause why a special master, identified by the Court, 

should not be appointed to implement the settlement 

agreement, with the parties to incur the expenses of 

the master’s services.

At [the] hearing convened on October 25, 

2011, Plaintiffs indicated they were now satisfied 

that the settlement agreement had been fully 

implemented and their motion was thus rendered 

moot. Defendants were represented by 

Ronald Clever, Esq., who was also proceeding 

pro se. Mr. Clever did not offer any legal authority 

or substantive evidence at the hearing to 

demonstrate why a master should not be appointed 

nor did he offer any evidence in support of the 

motion for sanctions. Instead, in an attempt to exalt 

form over substance, he contended, incorrectly, that 

the sole matter before the Court consisted of 
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Plaintiffs’ March 17, 2011, motion. (See N.T., 

10/25/2011, at 5-6, 9-10.) Counsel refused to 

accede to the appointment of a master to address 

the convoluted morass presented by his motion for 

sanctions for alleged non-compliance with the 

170-page settlement agreement. Accordingly, on 

the basis of the evidence presented at [the] hearing, 

the Court invited Plaintiffs to file a motion to declare 

the settlement agreement resolved. (See id. at 11.) 

On October 28, 2011, Plaintiffs filed such a motion. 

After receiving Defendants’ response thereto on 

November 17, 2011, the Court on November 23, 

2011, entered an order declaring the settlement 

agreement resolved and directing the clerk of judicial 

records to mark the matter settled, discontinued, 

and ended with prejudice. 

Trial court opinion, 2/17/12 at 2-3. This timely appeal followed. Appellant 

complied with Pa.R.A.P. 1925(b), and the trial court has filed an opinion.

Appellant has raised the following issues for this court’s review:

A. When the court (sua sponte) has summoned 

the lawyers into court, to “show cause” why a 

“special master” should not be appointed to 

“implemen[t] the settlement agreement,” is it 

error for the court – instead – to expect a 

party to be prepared (then and there) to 

litigate his motion (and it is [sic] error to 

deem the motion “waived”)?

B. When the “settlement agreement” has 

obligations that continue into the future, and 

when there is a pending motion pointing out 

fraud by one of the parties and breach of those 

obligations, is it error to close the case

(especially “with prejudice”) (and especially 

when the order to close the case arises 

out of the kind of “waiver” addressed in 

Argument Section “A” above)?

C. When deeds have already been signed, 

notarized, and delivered, 
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. . . and when this was done, pursuant to 

a consent order, 

. . . and when this was done, pursuant to 

a stipulation (in which each and every 

page of the deeds-to-be-signed had 

been initialed in advance by counsel 

for both parties), 

. . . is it proper for the grantee/plaintiff to add 

extra pages – (pages designed to show the 

grantor making representations) (pages 

designed to fraudulently avoid real estate 

transfer taxes)?

Appellant’s brief at 4 (brackets in original; emphasis in original; 

capitalization deleted).

At a hearing on April 15, 2011, appellant voiced his concerns that 

appellees were making changes to the deeds before filing. (Notes of 

testimony, 4/15/11 at 2-3, 17.) Counsel for appellee Bernie Enterprises, 

Inc., Craig T. Edwards, Esq., explained that some of the deeds were not 

accepted because appellant was not listed as the trustee. (Id. at 4-5.) 

Therefore, Attorney Edwards inserted the word “trustee” in some of the 

deeds. (Id. at 7.) Attorney Edwards also had to correct a deed that listed 

the wrong parcel number. (Id. at 10.) According to Attorney Clever, 

however, Attorney Edwards had made material and substantial changes to 

the deeds before filing, including inserting trust agreements into them. (Id.

at 17.) The trial court expressed its impatience with the delay in 
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implementing the settlement agreement, and set a new hearing date of 

June 15, 2011: 

THE COURT: You guys come back on June 15th, and 

you bring all the corrected deeds that you need to 

have signed in recordable form. And you bring your 

clients, and you guys are going to sit in this 

courtroom, and you are going to execute all of those 

documents, whatever it takes to get them done 

properly. I am not interested in anymore [sic] 

motions. I’m really not. I am interested in 

implementing an agreement that all of the parties 

agreed to in open Court under oath.

Id. at 14-15.

I have got the date of June 15th on my calendar. We 

are going to keep the date. You guys get this thing 

resolved between now and then. To the extent that 

you don’t, you come on back on June the 15th, and I 

will decide whatever I have to decide, but I am 

telling you right up front, I have no patience for this, 

I really don’t. And I am going to start imposing 

sanctions, including attorney’s fees, if there are 

attorneys, and/or other kinds of fines; 

reimbursements, to implement what you all agreed 

to. Now go back and read the agreement, figure out 

what you have got to do under the agreement, and 

go ahead and do it.

Id. at 18.

On June 15, 2011, appellant again claimed that appellees had altered 

the deeds and inserted pages prior to recording them. (Notes of testimony, 

6/15/11 at 23-27.) Attorney Edwards explained that he was required to file 

a trust agreement with the deeds and that appellees will pay any real estate 

transfer taxes due on the properties. (Id. at 39-41.) He noted that the 

settlement agreement contained an indemnification clause. (Id. at 39.) 
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Attorney Edwards denied that there were any substantive changes made to 

the deeds, except one in Bucks County which had the wrong parcel number. 

(Id. at 42-43.) 

The trial court proposed appointing a special master, knowledgeable in 

real estate matters, to examine the deeds and recommend to the court 

whether any other filings needed to be made in order to comply with the 

parties’ settlement agreement. (Id. at 48.) The trial court observed that 

the case had settled 11⁄2 years prior and expressed its frustration with the 

parties’ inability to execute the terms of the settlement agreement:

If you think that I am going to sit here -- that I have 

the time to sit here, and to go through every one of 

those deeds, and to see whether they are in 

“substantial compliance” with what was part of the 

settlement agreement, I am not going to do that. I 

don’t have that kind of time.

Id. at 47. “And it astounds me how this case hasn’t been settled. And here 

we are almost what, a year-and-a-half, two years, past the settlement date, 

and we are still arguing about things -- about whether there was compliance 

with the terms of the settlement agreement.” (Id.)

Frankly, I have no confidence in the litigants doing 

any of this themselves, because you don’t have any 

confidence in the other party doing it. We will be 

right back here again. I am astounded as to -- I will 

put it as charitably as possible -- the ineptitude that 

has really marked this case, and almost everything 

that has been done here, astounded by it. How 

difficult should this have been?

Id. at 48-49.
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The trial court proposed that each side come up with an advance 

deposit of $10,000 to pay for a special master:

So I have a pot of $20,000 to pay for the Master’s 

time, to go over all of these things, to have the 

master re-draw the documents if anything has to be 

re-drawn, to have the master go ahead and file it, to 

have the master get a certified copy of it, and to get 

the master to get the receipt, and to provide it to 

everybody. Anything short of that, I don’t think is 

going to work.

Id. at 48. Counsel for both sides agreed to the appointment of a special 

master. (Id. at 53-55.) Although co-counsel for appellant, Kevin T. 

Fogerty, Esq., balked at the $10,000 deposit, he agreed to appointment of a 

special master:

MR. FOGERTY: Judge, I am fine -- I don’t know 

about the $10,000. That’s a little bit steep. 

THE COURT: Someone is going to have to pay.

MR. FOGERTY: And I agree, and the only request I 

would make, is that the master should have the 

power to determine who was at fault for what 

happened --

THE COURT: I have no problem with that.

MR. FOGERTY: -- and there should be a shifting of 

that fee responsibility.

THE COURT: That may be, but someone is going to 

advance the money.

Id. at 53.

Similarly, although he disputed that there were any material changes 

made to the deeds, Attorney Edwards agreed to appointment of a special 
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master: “They are not substantive changes. But if the master needs to 

decide that, I am okay with that.” (Id. at 55.) On October 5, 2011, the trial 

court issued a rule to show cause why Edward P. Sheetz, Esq., should not be 

appointed special master for purposes of implementing the settlement 

agreement reached between the parties, returnable October 25, 2011.

The parties appeared before the court on October 25, 2011. The trial 

court expressed confidence that Attorney Sheetz, an experienced real estate 

lawyer and counsel to a title company, would be able to “tie it up and get it 

resolved.” (Notes of testimony, 10/25/11 at 3-4.) The trial court remarked, 

“And as I indicated back in June, I thought given the complexity of the 

issues that have to be addressed, and the numbers of deeds, and the history 

between the litigants and/or the attorneys, that you needed some outside 

help in order to consummate your settlement.” (Id. at 3.) “I don’t know 

what else to do. I am open to suggestions, but this case can’t linger on like 

this. And so it’s got to be dealt with.” (Id. at 4.)

At that time, Attorney Clever suggested that the plaintiffs’ motion to 

enforce the settlement was moot, as Mr. Becker had assigned his interest in 

Hanoverian, Inc., a Delaware Corporation. (Notes of testimony, 10/25/11 at 

5.) Although Attorney Clever continued to insist that the recorded deeds 

were not acceptable, he stated that appellant’s motion for sanctions, filed 

April 15, 2011, was not before the court. (Id. at 6, 9.) According to 
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Attorney Clever, the rule returnable only related to plaintiffs’ motion to 

enforce the settlement. (Id. at 9.)

Patrick J. Reilly, Esq., counsel for appellee Donald Metzger, stated, “I 

thought we were here because the Plaintiffs [sic] weren’t satisfied with 

deeds that were filed. I agree that the Hanoverian, Inc., issue is not an 

issue.” (Id. at 6.) Attorney Edwards indicated his continuing willingness to 

put the issue before a special master: “That’s why we were going to the 

Master, as I understood. And I am here today, to say we are perfectly 

happy to go to a Master; show every deed that we filed, that we did them 

appropriately and properly. And we are prepared to do so, Your Honor.” 

(Id. at 7-8.) Attorney Clever, however, argued that sanctions are squarely 

a matter for the court, not a special master. (Id. at 10.) Attorney Clever 

objected to appointment of a special master. (Id.) At that point, the trial 

court indicated that it would entertain a written motion to declare the matter 

resolved and discontinue the case with prejudice. (Id. at 11.)

Appellant cites no authority for the proposition that a special master 

could not be appointed to help decide the issue; and, in fact, at the hearing 

of June 15, 2011, appellant agreed to appointment of a special master. See 

In re Thirty-Fifth Statewide Investigating Grand Jury, 112 A.3d 624, 

633-634 (Pa. 2015) (Baer, J., concurring) (“When a court seeks to engage in 

fact-finding, it employs a special master. . . . The function of a special 

master is to gather necessary factual information, consider pertinent legal 
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questions, and provide the court with recommendations. Special masters 

operate as an arm of the court, investigating facts on behalf of the court and 

communicating with it to keep it apprised of its findings. . . .”) (footnote 

omitted); In re City of Pittsburgh, 600 A.2d 630, 632 (Pa.Cmwlth. 1991) 

(holding that “[c]ourts historically possess the inherent authority to appoint 

masters to assist them in performing their various functions”). It was made 

abundantly clear at the hearing of June 15, 2011, that the trial court 

intended to address the allegations regarding appellees’ alteration of the 

deeds by appointing a special master. Despite agreeing on the record to this 

course of action, counsel for appellant appeared at the October 25, 2011 

hearing and objected to appointment of a special master. Nor was appellant 

prepared to move forward on his motion for sanctions, filed April 15, 2011. 

As the trial court states,

As a review of the transcript of the October 25, 2011 

hearing suggests, the Court and Plaintiffs were well 

aware that the purpose of the hearing was to 

address the need for, and the issues giving rise to, 

an appointment of a master to address any 

remaining dispute over compliance with the 

settlement agreement. Counsel’s unwillingness to 

address those matters on the merits and failure to 

present any evidence in support of claims of 

non-compliance was thus deemed a waiver and the 

issues related to non-compliance with the settlement 

agreement by either Plaintiffs or Defendants were 

thus held to be resolved on the strength of the 

superior credibility of Plaintiffs as represented at the 

hearing on October 25, 2011. (See N.T., 

10/25/2011, at 6-7 (representations as to steps 

Plaintiffs undertook in compliance with settlement 

agreement).)
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Trial court opinion, 2/17/12 at 4. It is axiomatic that credibility 

determinations cannot be disturbed on appeal. Furthermore, as the above 

quotations from the hearings in this matter illustrate, the trial court was 

justifiably losing its patience with the parties’ inability to comply with the 

terms of the settlement agreement. The trial court eventually proposed 

appointment of a special master to examine the deeds to determine whether 

they complied with the settlement agreement, to which both sides agreed. 

Then, inexplicably, Attorney Clever objected to appointment of a special 

master at the October 25, 2011 hearing and insisted that his motion for 

sanctions was not properly before the court. Under these circumstances, we 

cannot find the trial court erred in declaring the settlement agreement 

resolved and ordering the matter settled, discontinued, and ended with 

prejudice. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/17/2016