DLD-025 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3175

___________

FRANK FORBA,

 Appellant

v.

THOMAS JEFFERSON UNIVERSITY HOSPITAL

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-15-cv-01722)

District Judge: Honorable Mark A. Kearney

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 27, 2016

Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

(Opinion filed: November 22, 2016)

_________

OPINION*

_________

PER CURIAM

Frank Forba appeals from the District Court’s order granting the motion of 

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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Thomas Jefferson University Hospital (“Jefferson”) to enforce the parties’ settlement 

agreement. We will affirm.

I.

 Forba was employed by Jefferson from 2001 until 2012. During that time, he 

took several periods of leave under the Family Medical Leave Act (“FMLA”) for 

depression and anxiety. Jefferson terminated Forba in 2012 on the ground that he 

violated Jefferson’s attendance policy. Forba, through counsel, later filed suit alleging 

that Jefferson actually terminated him in retaliation for taking FMLA leave. The parties 

engaged in discovery, and Jefferson filed a motion for summary judgment raising several 

arguments. Among them was an argument that Forba’s suit was untimely under the 

FMLA’s two-year statute of limitations because Jefferson terminated his employment on 

May 4, 2012, but he did not file suit until April 2, 2015. Forba did not respond to 

Jefferson’s motion.

Against this backdrop, the parties engaged in a settlement conference before a 

Magistrate Judge. At the conference, the parties orally agreed to a settlement under 

which Jefferson would pay Forba $1,000 in exchange for a full release of his claims. 

Jefferson also agreed to draft and forward to Forba’s counsel a written settlement 

agreement to that effect. The Magistrate Judge reported the parties’ agreement to the 

District Court, and the District Court entered an order dismissing the action on that basis.

Approximately two months later, Jefferson filed a motion to enforce the oral 

settlement agreement. Jefferson asserted that it had forwarded a written settlement 
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agreement to Forba’s counsel but that Forba’s counsel reported that Forba refused to sign 

it. Forba filed a counseled response in opposition. Forba attached a declaration stating 

that, “[a]lthough the terms of the settlement were explained to me by [Forba’s counsel] 

and [the Magistrate Judge], I was confused and anxious and because of that I agreed to 

the settlement terms without fully understanding the matter.” (ECF No. 24-1 at 1-2 ¶ 7.)

The District Court then conducted a two-day evidentiary hearing, at which 

Jefferson’s counsel, Forba’s counsel and Forba himself all testified. Jefferson’s counsel 

testified that, when she called Forba’s counsel to follow up on the settlement agreement, 

he told her that Forba would not sign it because he had “changed his mind.” Jefferson’s 

counsel also testified that Forba did not appear anxious during the conference, and both 

Jefferson’s counsel and Forba’s counsel testified that the Magistrate Judge fully reviewed 

the terms of the settlement with the parties. Forba testified that his anxiety prevented him 

from understanding the settlement, but he agreed that he did not raise the issue of his 

anxiety or inability to understand with the Magistrate Judge. He also testified that his 

anxiety did not prevent him from understanding what occurred during his previous 

deposition or at the evidentiary hearing itself.1

 1 During the first day of the hearing, concerns arose regarding a potential conflict 

between Forba and his counsel as to the settlement. In light of those concerns, the 

District Court continued the hearing for approximately one and a half months to give 

Forba an opportunity to consult with different counsel. Forba consulted with different 

counsel but, when the hearing resumed, Forba elected to proceed pro se. 
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After the hearing, the District Court entered an order granting Jefferson’s motion 

and deeming the parties’ oral settlement agreement enforceable. The District Court 

explained that it found not credible Forba’s testimony that he did not understand the 

settlement when he agreed to it at the conference and concluded that Forba had merely 

changed his mind. Forba appeals pro se.

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II.

Forba has filed a response on the issue of possible summary action or dismissal of 

this appeal, along with several motions and other documents with this Court. Forba’s 

filings, however, are devoted almost entirely to his underlying claims and barely mention 

the settlement that is the only issue on appeal. Forba’s only mention of the settlement is 

in his supplement to his motion to stay the District Court’s order. In that filing, he asserts 

that “I did not agree to any of the terms and conditions” and “I did not agree to settle my 

case with Jefferson Hospital for $1000.00[.]” (Appellant’s Supp. Mot. to Stay at 1) 

(emphasis added). Those assertions are at odds with Forba’s declaration and testimony 

below, and he provides no support for them. Nor has he raised anything calling the 

District Court’s enforcement of the settlement into question. Nevertheless, we have 

 2 We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s findings 

of fact for clear error and its legal conclusions de novo. See Coltec Indus., Inc. v.

Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). After filing his notice of appeal, Forba filed 

a motion for reconsideration and other relief. The District Court denied that motion for 

lack of jurisdiction, but Forba did not file another or an amended notice of appeal as 

required to challenge that ruling, see Fed. R. App. P. 4(a)(4)(B)(ii), and his time to do so 

has expired. For the District Court’s benefit, however, we note that district courts retain 
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reviewed the available record3 and will affirm primarily for the reasons explained by the 

District Court. We add only three observations. First, under applicable Pennsylvania 

law, one of the factors that is relevant in determining a person’s mental competence to 

enter into a settlement and release is the amount paid for the release. See Taylor v. Avi, 

415 A.2d 894, 897 (Pa. Super. Ct. 1979). At the time of the settlement in this case, Forba 

was seeking almost four years of backpay and reinstatement to his position. Thus, it may 

seem implausible at first blush that Forba would have knowingly released these claims in 

exchange for $1,000. 

The District Court did not expressly address this issue. As the District Court 

explained, however, the parties’ settlement discussions occurred against the backdrop of 

Jefferson’s motion for summary judgment. That motion raised several potentially 

dispositive arguments to which Forba never responded, and it could have resulted in a 

complete judgment in Jefferson’s favor. It is not implausible that Forba would have 

released his claims for $1,000 against that backdrop. 

Second, it appears that Forba submitted to the District Court a potentially relevant 

note from a therapist but that the District Court did not admit it into evidence. In its 

 

jurisdiction to consider timely motions for reconsideration under Fed. R. Civ. P. 59(e) 

notwithstanding the filing of a notice of appeal. See Fed. R. App. P. 4(a)(4)(B)(i).

3 Only the first day of the hearing has been transcribed. Forba neither ordered the 

complete transcript as required by Fed. R. App. P. 10(b)(1), nor filed a motion for 

transcripts at the Government’s expense. In any event, Forba has not raised any 

argument requiring review of the complete transcript, and we see nothing suggesting that 

such review might provide a basis for disturbing the District Court’s ruling.
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opinion, the District Court stated that Forba hand-delivered several documents shortly 

before the second day of the hearing and that the documents included “ a handwritten 

note of a therapist allegedly treating Mr. Forba for several years but who only reported 

Mr. Forba’s statements to her after our first hearing.” (ECF No. 29 at 5.) The District 

Court further explained that Forba attempted to offer the documents into evidence but 

that it sustained Jefferson’s objection because the documents were not probative of 

Forba’s understanding of the settlement. (Id.)

The note to which the District Court referred appears to be the same undated, 

handwritten note attached to Forba’s motion for reconsideration at ECF No. 35-1, page 

46. That note is from a therapist who treated Forba both before and after the settlement 

conference. As the District Court observed, the note largely reports Forba’s own 

statements to the therapist that his anxiety during the settlement conference prevented 

him from understanding the settlement. The note closes, however, with the assertion that 

“[t]he impact of [Forba’s] anxiety on his absorption of information at the settlement 

conference obstructed his goal of pursuing a just outcome.” Forba’s therapist, whom 

Forba did not call as a witness, did not explain the basis for forming any independent 

opinion to that effect and did not affirmatively opine that Forba did not understand the 

settlement on the day of the settlement conference.

The District Court did not specifically discuss that statement. Even if the District 

Court should have admitted the note into evidence, however, any error in that regard was 

harmless. As the District Court explained, “a person’s mental capacity is best determined 
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by his spoken words and his conduct, and . . . the testimony of persons who observed 

such conduct on the date in question out-ranks testimony as to observations made prior to 

and subsequent to that date.” Sobel v. Sobel, 254 A.2d 649, 651 (Pa. 1969); see also

Elliott v. Clawson, 204 A.2d 272, 273 (Pa. 1964) (rejecting medical testimony that 

contracting part was not competent where, inter alia, the witness “did not examine him on 

the day of the conveyance”). 

In this case, Jefferson’s counsel testified that Forba did not appear anxious at the 

settlement conference. The only evidence that Forba was unable to understand the 

settlement was his testimony to that effect, but Forba also testified that he did not raise 

that issue with the Magistrate Judge and that his anxiety had not prevented him from 

understanding other stages of the proceeding. Thus, the District Court found Forba’s 

testimony regarding a lack of understanding not credible and concluded that Forba had 

simply changed his mind. To the extent that the note from Forba’s therapist can be read 

to express an independent opinion on these matter, it is too conclusory to support a 

contrary finding.

Finally, as the District Court appreciated, the mere fact that Forba may have 

suffered from depression and anxiety in general does not require the conclusion that he 

did not understand the settlement. “Mere mental weakness, if it does not amount to 

inability to comprehend the contract, and is unaccompanied by evidence of imposition or 

undue influence, is insufficient to set aside a contract.” Estate of McGovern v. Commw. 

State Emps.’ Ret. Bd., 517 A.2d 523, 526 (Pa. 1986) (quotation marks omitted),
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overruled in part on other grounds by Leon E. Wintermyer, Inc. v. Workers Comp. App. 

Bd., 812 A.2d 478 (Pa. 2002). Forba presented no such evidence in this case.

III.

For these reasons, we will affirm the judgment of the District Court. Forba’s 

pending motions are denied.