J-S52028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ROGER D. SHAFFER AND ANN DOLIVEIRA SHAFFER, HIS WIFE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants

v. EBENSBURG POWER CO.; BABCOCK & WILCOX EBENSBURG POWER INC.; T/D/B/A EBENSBURG POWER CO.; EBENSBURG INVESTORS LIMITED PARTNERSHIP T/D/B/A EBENSBURG POWER CO, POWER SYSTEMS OPERATIONS, INC., Appellees No. 225 WDA 2015

Appeal from the Order Entered January 8, 2015 In the Court of Common Pleas of Cambria County Civil Division at No(s): 2001-4552

BEFORE: SHOGAN, OLSON and WECHT, JJ. MEMORANDUM BY OLSON, J.: FILED NOVEMBER 13, 2015 Appellants, Roger D. Shaffer (Roger) and Ann Doliv eira Shaffer (Ann) (collectively, Appellants), appeal from the order e ntered on January 8, 2015 denying Appellants’ request for interest on settlem ent funds. We affirm. The facts and protracted procedural history of thi s case are as follows. On February 5, 2001, Roger was injured at the Ebens burg Power Company electrical generation plant. As a result, he filed a personal injury suit against Appellees (collectively, hereinafter “Ebensburg”). In 2003, just prior to trial, the parties reached a settlement agreement. Therea fter, Ebensburg presented Appellants with three settlement options, two providing annuityJ-S52028-15

- 2 -

options and another providing for a lump sum paymen t. However, Appellants attempted to rescind and never signed an agreement. In October 2003, Ebensburg sought to enforce the settlement ag reement. Following argument, the trial court enforced the settlement a greement and directed Appellants to execute all settlement documents and releases. Moreover, the trial court determined Ebensburg was not responsibl e for any interest on the settlement proceeds. Appellants appealed and this Court affirmed. Shaffer v. Ebensburg Power , 864 A.2d 591 (Pa. Super. 2004). Following this Court’s decision, Ebensburg again presented Appella nts with three settlement options that they refused to execute. O n February 16, 2005, the trial court ordered Ebensburg to deposit a portion of the settlement with the Prothonotary and release another portion to Appella nts’ counsel. Meanwhile, in November 2003, Ebensburg’s insurance company, Liberty Mutual Insurance Company (Liberty), attempt ed to fund an annuity with Liberty Life Assurance Company of Boston (Libe rty Life). However, because Appellants did not finalize the settlement agreement, Liberty Life unilaterally returned the funds to Liberty in June 2010. Liberty then attempted to release the settlement funds to Appell ants, but they demanded interest and again refused to execute necessary doc umentation. On August 14, 2014, Appellants filed a petition for the enfor cement of a structured settlement, asserting that structured settlement se questration was an integral part of settlement and they expected the f unds had been invested and yielded some return. In an order and opinion e ntered on October 2,J-S52028-15

- 3 -

2014, the trial court determined that Appellants ha d not entered into a written settlement agreement, despite numerous orde rs directing Appellants to do so. Accordingly, it concluded that Appellant s could not rely upon unsigned documents or Liberty’s spontaneous act of initially funding the annuity to obligate Liberty to provide interest or investment returns. However, the trial court noted that equity required any interest or return on investments earned from November 12, 2003 through J une 2, 2010 be provided to Appellants, but that Appellants were no t entitled to additional

interest. After receiving affidavits from Liberty Life that n o interest or earned returns accrued on the funds because an annuity was never funded, the parties sought clarification of the October 2, 2014 order. After argument, on January 8, 2015, the trial court entered an order s tating Appellants were not

entitled to additional interest on the settlement f unds. This timely appeal

resulted. 1 On appeal, Appellants present the following issue f or our review: Whether the [trial] court erred in holding [] Appel lants are not entitled to interest on [their] settlement? Appellants’ Brief at 4 (complete capitalization omi tted).

____________________________________________

1 Appellants filed a timely notice of appeal on Febr uary 5, 2015. On February 25, 2015, the trial court entered an order pursuant to Pa.R.A.P. 1925(b) directing Appellants to file a concise stat ement of errors complained of on appeal. Appellants complied on March 19, 201 5. In response, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a ) on March 31, 2015.J-S52028-15

- 4 -

In sum, Appellants argue:

[] Appellants maintain that the [trial court] shoul d have ordered interest on the proceeds that were held by the insurance company from 2003 to 2010 on the annuity sum as part of a structured settlement that was ordered by the [trial court]. An abuse of discretion would be war ranted if such an interest was not declared by the [trial cou rt]. [] Appellants had a reasonable expectation that intere st on an annuity sum would be earned from 2003 to 2010 and [ are] asking this Court to order the lower court to recon sider the decision and issue an [o]rder declaring interest du e and payable from 2003 to 2014 on the principle annuity sum held by the insurance company in this matter. [] Appellants maintain that the money due to [] App ellants on this settlement was a liquidated sum and applica ble to have interest paid on said sum. [] Appellants maint ain that because the amounts to be paid to [] Appellants wer e overdue, those payments should have earned interest from the time they were due to [] Appellants, i.e., 2010 . In fact, the insurance representative contacted [] Appellant s about having the payout made in 2010. There is a liquida ted amount due in a fixed amount to [] Appellants. As such, interest is due on those proceeds. The duty to pay by the insurance company was a certain duty to pay and was fixed and liquidated. That amount became liquidated when it was capable of ascertainment with mathematical precisio n. In this case, the $100,000[.00] due to [] Appellants w as put in the enforced agreement and the insurance company kn ew it had to pay that rate. The [trial court] had discre tion as to whether to award interest and abused this discretio n based on the application of [] law which requires interes t be paid to [] Appellants on this liquidated fixed certain s um. Id. at 9-10. “The issue before us involves the proper interpreta tion of a rule. This is a question of law, and thus, our standard of review is de novo. Our scope of review, to the extent necessary to resolve the lega l question before us is theJ-S52028-15

- 5 -

entire record, and thus, is plenary.” Wright v. Lexington & Concord

Search & Abstract LLC , 26 A.3d 1134, 1136 (Pa. Super. 2011). Pennsylvania Rule of Civil Procedure 229.1 governs the procedure for seeking interest on settlement funds. If the terms of the settlement are not fulfilled, the aggrieved party typically seeks redr ess through a motion to

enforce settlement. See Pa.R.C.P. 229.1. The Rule contains a variety of options, including invalidating the agreement and p roceeding with the lawsuit, or seeking sanctions which include the awa rd of attorneys' fees and/or interest. Id. More specifically, “[i]f a plaintiff and a defend ant have entered into an agreement of settlement, the defend ant shall deliver the settlement funds to the attorney for the plaintiff, or to the plaintiff if unrepresented, within twenty calendar days from receipt of an executed

release .” Pa.R.C.P. 229.1(c) (emphasis added). “If the c ourt finds that the defendant violated subdivision (c) of this rule and that there is no material dispute as to the terms of the settlement or the terms of the release , the court shall impose sanctions in the form of int erest[.]” Pa.R.C.P. 229.1(g) (emphasis added). Here, the trial court noted that this matter has be en ongoing for well over 11 years. Trial Court Opinion, 3/31/2015, at 6. It recognized that this Court has determined that the settlement agreement was enforceable. Id. The trial court stated that despite that determinat ion “and multiple orders that [Appellants] execute the settlement documents[ ,] they did nothing toJ-S52028-15

- 6 -

secure the release of the funds or aid in the estab lishment of an annuity.”

Id. Based upon our review, we agree Appellants are not entitled to interest on the settlement funds. Initially, we not e Appellants do not acknowledge Rule 229.1 in their brief to this Court or argue it is somehow inapplicable to this matter. Appellants have not e xecuted a release under Rule 229.1(c) and, thus, the duty to transfer the s ettlement proceeds (and any related duty to pay interest) was not triggered under our procedural rules. This Court previously affirmed an order to this effect. See Shaffer v. Ebensburg Power , 864 A.2d 591 (Pa. Super. 2004). Instead, Appell ants baldly maintain that interest is due because the am ounts owed them have been withheld and are now overdue. The record, how ever, establishes that the settlement funds have been ready and available to Appellants and their refusal has produced the long delay. Under these c ircumstances, Appellants simply are not entitled to interest and we discern no legal error or abuse of discretion in the trial court’s ruling.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/2015