J-A24038-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN HASTINGS, MATTHEW ROSSI, 

PHIL DIGIACOMO, BRIAN BLAIR AND 

JOHN LEICHNER,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

COS HOMES CORPORATION, ROBERT 

FOLEY, VINCENT W. BEBB, EDWARD 

MCGAHAN AND ANDREA D. D’ALLESSIO 

T/A COS HOMES, L.P.,

Appellants No. 417 EDA 2014

Appeal from the Order Entered December 26, 2013

in the Court of Common Pleas of Bucks County

Civil Division at No.: 2009-09369

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 06, 2014

Appellants, COS Homes Corporation, Robert Foley, Vincent W. Bebb, 

and Andrea D. D’Allessio T/A COS Homes, L.P.,1appeal from the order 

entering judgment in favor of Appellees, John Hastings, Matthew Rossi, Phil 

DiGiacomo, Brian Blair, and John Leichner, on their petition to enforce 

settlement agreement. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Although Edward McGahan is listed in the caption as an Appellant, he is not 

a party to this appeal. 
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On September 2, 2009, Appellees commenced this action by filing a 

praecipe for writ of summons. On September 11, 2009, Appellees placed a 

lis pendens on the property subject to the dispute. Appellees alleged that 

Appellants and Edward McGahan defaulted on a loan Appellees made to 

them in connection with a real estate transaction and development.

On January 27, 2012, Appellees, Appellants, and McGahan reached a 

counseled settlement agreement. Relevant to our disposition, the 

settlement agreement provided:

1. Within fourteen (14) days from the date that [Appellants 

and McGahan] receive[] a fully executed copy of this Agreement, 

[Appellants and McGahan] shall deliver to [Appellees], by and 

through [Appellees’] attorney, Mark C. Clemm, Esquire, a check 

in the amount of Sixty Thousand Dollars ($60,000.00) reflecting 

the amount of the settlement between the parties.

2. In order to facilitate this payment, upon full execution of 

this Agreement, [Appellants and McGahan] shall present a copy 

of this Agreement to CoreStates Capital Advisors, LLC, which 

shall use its best efforts to immediately release the funds held in 

the name of Carole McGahan in an account designated Schwab 

Money Market Fund from any lien or attachment in favor of 

[Appellees]. A portion of said funds shall be paid to [Appellees] 

within the time limits set forth in Paragraph 1, hereinabove.

(Settlement Agreement, 1/27/12, at 1-2 ¶¶ 1, 2).

On or about February 21, 2012, McGahan and his wife, Carole 

McGahan, filed bankruptcy proceedings in the United States Bankruptcy 

Court for the Eastern District of Pennsylvania. Appellees are unsecured 

creditors in the bankruptcy.
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On April 9, 2013, Appellees filed a petition to enforce settlement 

agreement against Appellants and McGahan. On April 19, 2013, Appellees 

filed an amended petition seeking enforcement only as to Appellants. On 

June 3, 2013, Appellants filed a response.2 On December 26, 2013, the trial 

court granted Appellees’ amended petition and entered judgment in their 

favor and against Appellants in the amount of $60,000.00 plus attorneys’ 

fees. Appellants timely appealed.3

Appellants raise four questions for our review:

I. Did the [trial c]ourt abuse its discretion and/or err as a 

matter of law in entering an order granting Appellees’ Petition to 

Enforce Settlement Agreement against Appellants where the 

terms of the Settlement Agreement unambiguously provided 

that the settlement was to be funded through payment by 

defendant Edward McGahan, a defendant in the underlying 

action but against whom no relief was sought in Appellees’ 

Petition to Enforce Settlement Agreement?

II. Did the [trial c]ourt abuse its discretion and/or err as a 

matter of law when it granted Appellees’ Petition to Enforce 

Settlement Agreement despite the fact that no court order had 

been entered approving the Settlement Agreement and 

Appellees failed to file a separate breach of contract action?

____________________________________________

2 The response indicates that it was filed on behalf of Appellant, Andrea 

D’Allessio. (See Answer to Petition to Enforce Settlement Agreement, 

6/03/13, at 1, 3 (identifying counsel as representing Appellant, Andrea 

D’Allessio)). However, both the answer’s language and the docket make 

clear that the attorneys who filed the response represent all Appellants, and 

the document was filed on their behalf. (See id. at 1-3; Bucks County 

Docket, Case No. 2009-09369, at 1).

3 Appellants filed a timely Rule 1925(b) statement of questions on appeal on 

February 24, 2014 pursuant to the court’s order. The court filed a Rule 

1925(a) opinion on April 7, 2014. See Pa.R.A.P. 1925.
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III. Did the [trial c]ourt abuse its discretion and/or err as a 

matter of law in entertaining Appellees’ Petition to Enforce 

Settlement Agreement prior to conclusion of bankruptcy 

proceedings filed by Edward McGahan, a named defendant in the 

underlying action and a party to the Settlement Agreement, 

where Appellees are named unsecured creditors in the 

bankruptcy proceedings because of the debt owed to them by

McGahan under the Settlement Agreement?

IV. Did the [trial c]ourt abuse its discretion and/or err as a 

matter of law when it issued an order entering judgment against 

Appellants but not against defendant Edward McGahan, where 

defendant Edward McGahan was a party to the Settlement 

Agreement and a named defendant in the underlying action?

(Appellants’ Brief, at 4).

All of Appellants’ issues challenge the court’s grant of Appellee’s 

motion to enforce the settlement agreement. Our standard of review of this 

matter is well-settled:

Our standard of review of a trial court’s grant or denial of a 

motion to enforce a settlement agreement is plenary, as the 

challenge is to the trial court’s conclusion of law. We are free to 

draw our own inferences and reach our own conclusions from the 

facts as found by the trial court. However, we are only bound by 

the trial court’s findings of fact which are supported by 

competent evidence.

Casey v. GAF Corp., 828 A.2d 362, 367 (Pa. Super. 2003), appeal denied, 

844 A.2d 550 (Pa. 2004) (citation omitted). “The enforceability of 

settlement agreements is determined according to principles of contract 

law.” Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 408 (Pa. Super. 

2010) (citation omitted).
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Here, in Appellants’ first issue, they argue that “[t]he [trial] [c]ourt 

erred by enforcing the Settlement Agreement against Appellants.” 

(Appellants’ Brief, at 13). Specifically, they claim that the court erred in 

enforcing the agreement “where [t]he terms of the Settlement Agreement 

unambiguously provided that the Settlement was to be funded through 

payment by . . . Edward McGahan, a defendant in the underlying action, but 

against whom no relief was sought in Appellees’ petition to enforce 

settlement agreement.” (Id. at 11 (underlining and most capitalization 

omitted)). This issue lacks merit.

“Generally, an event mentioned in a contract will not be construed as a 

condition precedent unless expressly made such a condition.” West Dev. 

Group, Ltd. v. Horizon Fin., F.A., 592 A.2d 72, 76 (Pa. Super. 1991 

(citation omitted). In this case, the Settlement Agreement contained the 

following pertinent language:

. . . . In order to facilitate this payment, upon full execution of 

this Agreement, [Appellants and McGahan] shall present a copy 

of this Agreement to CoreStates Capital Advisors, LLC, which 

shall use its best efforts to immediately release the funds held in 

the name of Carole McGahan in an account designated Schwab 

Money Market Fund from any lien or attachment in favor of 

[Appellees]. A portion of said funds shall be paid to [Appellees] 

within the time limits set forth in Paragraph 1, hereinabove.

(Settlement Agreement, 1/27/12, at 2 ¶ 2).

The Settlement Agreement does not state that the fulfillment of the 

terms of this paragraph was a condition precedent to Appellants’ duty to pay 

Appellees. “Accordingly, we will not construe the language in that manner.” 
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West Dev. Group, Ltd., supra at 76 (citation omitted) (declining to find 

condition precedent where contract did not expressly state one). Therefore, 

we conclude that the trial court did not err when it found that Appellants’ 

obligation to pay Appellees under the Settlement Agreement was not 

conditioned on the source of the funds. (See Trial Court Opinion, 4/07/14, 

at 5-6). Appellants’ first issue lacks merit. See Casey, supra at 367.

In their second issue, Appellants argue that the trial court erred in 

granting Appellees’ petition to enforce the Settlement Agreement because: 

1. the agreement had not been entered as a court order; and 2. Appellees 

“failed to file a separate breach of contract action. (Appellants’ Brief, at 14) 

(capitalization omitted). Appellants’ issue does not merit relief.

The law of this Commonwealth establishes that an 

agreement to settle legal disputes between parties is favored. 

There is a strong judicial policy in favor of voluntarily settling 

lawsuits because it reduces the burden on the courts and 

expedites the transfer of money into the hands of a complainant. 

If courts were called on to reevaluate settlement agreements, 

the judicial policies favoring settlements would be deemed 

useless. Settlement agreements are enforced according to 

principles of contract law. There is an offer (the settlement 

figure), acceptance, and consideration (in exchange for the 

plaintiff terminating his lawsuit, the defendant will pay the 

plaintiff the agreed upon sum).

Where a settlement agreement contains all of the 

requisites for a valid contract, a court must enforce the terms of 

the agreement. 

Step Plan Serv., supra at 408-09 (citation omitted). 

Here, the parties entered into a valid Settlement Agreement in which 

Appellants agreed to pay Appellees $60,000.00 in exchange for Appellees’ 
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execution of a “praecipe to settle, discontinue and end the Civil Action.” 

(Settlement Agreement, 1/27/12, at 2 ¶ 3; see id. at 1 ¶ 1, 2 ¶ 4). 

Therefore, there was an offer ($60,000.00), acceptance (Appellees signed 

the Settlement Agreement), and consideration (Appellees agreed to 

terminate the civil litigation in exchange for Appellants’ payment). 

Accordingly, the trial court properly found that it was required to enforce the 

Settlement Agreement. See Step Plan Serv., supra at 409. Thus, the 

first argument in support of this issue lacks merit.

In their second argument, Appellants claim that the trial court erred in 

granting Appellees’ motion because they should have commenced a separate 

contract action to enable the court to receive evidence outside of the 

Settlement Agreement. (See Appellants’ Brief, at 18). We conclude that 

this argument is not legally persuasive.

It is well-settled that:

[a] fundamental rule in construing a contract is to ascertain and 

give effect to the intent of the contracting parties. It is firmly 

settled that the intent of the parties to a written contract is 

contained in the writing itself. When words of a contract are 

clear and unambiguous, the meaning of the contact is 

ascertained from the contents alone.

Kmart of Pa., L.P. v. M.D. Mall Assoc., LLC, 959 A.2d 939, 943-44 (Pa. 

Super. 2008), appeal denied, 980 A.2d 609 (Pa. 2009) (citation omitted; 

emphasis added); see also Nevyas v. Morgan, 921 A.2d 8, 15 (Pa. Super. 

2007) (noting that a court “must construe a contract only as written and 
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may not modify the plain meaning under the guise of interpretation.”) 

(citation omitted; emphasis added).

Only “where a settlement [agreement] is ambiguous rendering it 

impossible to understand and enforce, [will we] set aside the settlement 

agreement and remand the matter to the court below for a trial on the 

merits thereof.” Greentree Cinemas, Inc. v. Hakim, 432 A.2d 1039, 

1041 (Pa. Super. 1981) (citation omitted); see also Step Plan Serv., 

supra at 409-10 (“The court might consider extrinsic or parol evidence to 

determine the parties’ intent only where the language of the agreement is 

ambiguous.”) (citation omitted; emphasis added).

Here, the court found that it could rule on Appellees’ petition “rather 

than dismissing the case and forcing [Appellees] to file a separate action” 

where the parties “entered a valid settlement agreement, with clear terms 

imposing a $60,000.00 liability on [Appellants].” (Trial Ct. Op., at 4). We 

agree.

The Settlement Agreement’s unambiguous terms provided that 

Appellants were obligated to pay Appellees within fourteen days, in 

exchange for Appellees’ discontinuance of the litigation. (See Settlement 

Agreement, 1/27/12, at 1 ¶ 1, 2 ¶¶ 3-4). Appellants did not pay the 

$60,000.00 obligation. Therefore, the court properly granted Appellees’ 

petition to enforce the Settlement Agreement based on its “clear and 
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unambiguous” terms. Kmart of Pa., supra at 944 (citation omitted); see 

also Nevyas, supra at 15. Appellants’ second issue does not merit relief.

In their third issue, Appellants argue that the trial court erred in 

deciding Appellees’ petition before McGahan’s bankruptcy proceedings, in 

which Appellees are named unsecured creditors, concluded. (See

Appellants’ Brief, at 21). This issue does not merit relief.

Pursuant to Section 362(a)(1) of the United States Bankruptcy Code, a 

bankruptcy filing operates as an automatic stay of any “judicial, 

administrative, or other action or proceeding against the debtor that was 

or could have been commenced before the commencement of [the 

bankruptcy proceeding].” 11 U.S.C. § 362(a)(1) (emphasis added). “As a 

consequence, [i]t is universally acknowledged that an automatic stay of 

proceedings accorded by § 362 may not be invoked by entities such as 

sureties, guarantors, co-obligors, or others with a similar legal or factual 

nexus to the . . . debtor.” McCartney v. Integra Nat. Bank North, 106 

F.3d 506, 509-10 (3d Cir. 1997)4(citations and internal quotation marks 

omitted). “Only the bankruptcy debtor . . . receives the benefit of an 

automatic stay of all proceedings in a Chapter 11 bankruptcy.” First Union 

____________________________________________

4 We recognize that “decisions of federal district courts and courts of appeal, 

including those of the Third Circuit Court of Appeals, are not binding on 

Pennsylvania courts, even when a federal question is involved. [However,] 

[d]ecisions of the federal courts lower than the United States Supreme Court 

possess a persuasive authority.” Martin v. Hale Products, Inc., 699 A.2d 

1283, 1287 (Pa. Super. 1997) (citations omitted).
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Mortg. Corp. v. Frempong, 744 A.2d 327, 336 (Pa. Super. 1999) (citing 

11 U.S.C. § 362).

Appellants argue that, because McGahan is a partner in Appellant, COS 

Homes, L.P., there is such an identity between him and Appellants that a 

judgment against Appellants is a judgment against him. (See Appellants’ 

Brief, at 22-24). We disagree.

Preliminarily, on this question, we observe that, although Appellants 

cite boilerplate law in support of this issue, (see id. at 21-25), they fail to 

provide this Court with any pertinent citation that supports the argument 

that an automatic stay must be applied where one of the partners of a nondebtor limited partnership is engaged in bankruptcy proceedings. (See id.); 

see also Pa.R.A.P. 2119(a)-(c). However, because we can discern 

Appellants’ argument, we will not deem this issue waived.

Courts have applied the automatic stay to non-debtor third parties 

only “where there is such identity between the debtor and the third-party 

defendant[s] that they debtor may be said to be the real party defendant 

and that a judgment against the third-party defendant will be a judgment or 

finding against the debtor.” McCartney, supra at 510 (citation omitted).

Here, each of the individual Appellants signed the Settlement 

Agreement agreeing to be bound by its terms. (See Settlement Agreement, 

1/27/12, at 8-9). While a judgment against Appellant COS Homes, LP, may 

result in an action against McGahan for indemnification, Appellants fail to 
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provide any facts that support a conclusion that “there is such an identity 

between [McGahan] and [Appellants] that [McGahan] may be said to be the 

real party defendant.” McCartney, supra at 510 (citation omitted). 

Accordingly, we conclude that the court properly found that the automatic 

stay did not act to preclude Appellees from enforcing the Settlement 

Agreement against Appellants. Appellants’ third issue lacks merit.5

Finally, Appellants argue that the trial court erred in entering judgment 

against them, but not against McGahan (See Appellants’ Brief, at 26). 

Appellants’ one-page treatment is undeveloped and lacks any discussion or 

citation to pertinent authority. (See id.); see also Pa.R.A.P. 2119(a)-(c). 

Therefore, this issue is waived.

Moreover, the fourth argument merely re-asserts the claims made in 

Appellants’ first and third issues. (See Appellants’ Brief, at 26 (“As 

discussed in Sections I and III, supra, there was no circumstance under 

____________________________________________

5 Appellants also argue that McGahan “was the agreed-upon obligor under 

the Settlement Agreement,” thus entitling them to the automatic stay. 

(Appellants’ Brief, at 24). Because we already concluded that the plain 

meaning of the Settlement Agreement does not support Appellants’ 

argument that McGahan was the only party liable, this argument is moot.

We further observe that Appellants provide absolutely no discussion or 

citation to pertinent authority in support of their argument that, because 

Appellees are named unsecured creditors in McGahan’s bankruptcy 

proceedings, they are prohibited from enforcing the agreement against the 

non-debtor Appellants. (See id. at 21-25); see also Pa.R.A.P. 2119(a)-(c). 

Therefore, because we are precluded from meaningful review, we deem this 

argument waived.
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which the [trial] [c]ourt could enter judgment against Appellants without 

simultaneously affecting a judgment against McGahan. This is precisely the 

reason that the automatic stay should have extended to Appellants . . . .”)). 

Because we already have concluded that Appellants’ first and third issues do 

not merit relief, Appellants’ fourth claim, which summarily relies on those 

arguments, without any further development, fails as well.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2014