1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-31-1996

Livingstone v. North Belle Vernon

Precedential or Non-Precedential:

Docket 95-3252

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Livingstone v. North Belle Vernon" (1996). 1996 Decisions. Paper 138.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/138
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 _______________ 

 NO. 95-3252 

 _______________ 

 FRANCES E. LIVINGSTONE and 

 JOSEPH A. LIVINGSTONE, her husband, 

 Appellants 

 

 v. 

NORTH BELLE VERNON BOROUGH; FAYETTE CITY BOROUGH; WASHINGTON 

TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as 

officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOODY, individually 

and in his capacity as officer for FAYETTE CITY BOROUGH; OFFICER 

DARHL SNYDER, individually and in his capacity as an officer for 

NORTH BELLE VERNON BOROUGH 

 _______________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 

 D.C. No. 91-00059 

 _______________ 

 Argued January 25, 1996 

 Before: COWEN and SAROKIN, Circuit Judges 

and POLLAK, District Judge 

 (Filed July 31, 1996) 

 

 Peter M. Suwak (argued) 

 Post Office Box #1 

 Washington, PA 15301 

 Attorney for Appellants 

 Thomas P. McGinnis 

 Dara A. DeCourcy (argued) 

 Zimmer Kunz, P.C. 

 3300 USX Tower 

 Pittsburgh, PA 15219 

 

 John W. Jordan, IV 

 Gaca, Matis & Hamilton 

 Four PPG Place, Suite 300 

 Pittsburgh, PA 15222 
 Attorneys for Borough of

 North Belle Vernon and Darhl Snyder 

 Simon B. John 

 John & John 

 96 East Main Street 

 Uniontown, PA 15401 

 Attorney for Borough of 

Fayette City and Raymond Moody 

 

 Albert C. Gaudio 

 513 Schoonmaker Avenue 

 Monessen, PA 15062 

 Attorney for Washington 

 Township 

 Timothy M. Maatta 

 513 Schoonmaker Avenue 

 Monessen, PA 15062 

 Attorney for 

 Frank E. Monack, Jr. 

 ______________ 

 OPINION OF THE COURT 

 _______________ 

POLLAK, District Judge. 

 This is the second time that this matter has come before this 

court. 

 Appellants Frances and Joseph Livingstone commenced this civil 

rights suit, pursuant to 42 U.S.C.  1983, in January, 1991 against 

defendants North Belle Vernon Borough, Fayette City Borough, 

Washington Township, Officer Darhl Snyder, Officer Raymond Moody, 

and Officer Frank E. Monack. The defendants moved for summary 

judgment, asserting that the Livingstones' claims were barred by an 

agreement said to have been made in 1990 in which the Livingstones 

waived any civil claims in exchange for the termination of a 

criminal prosecution of Frances Livingstone. (Agreements like this 

one, in which a criminal defendant waives potential civil claims in 

exchange for the dismissal of the case against her, are called 

"release-dismissal agreements.") 

 The district court granted summary judgment in favor of the 

defendants. In Livingstone v. North Belle Vernon Borough, 12 F.3d 

1205 (3d Cir. 1993) (in banc) ("Livingstone I"), this court 

reversed, finding that there was a genuine issue of material fact 

as to whether the Livingstones had concluded the release-dismissal 

agreement voluntarily. 12 F.3d at 1214. In that opinion, we also 

observed that the agreement raised a number of other possible legal 

questions, including whether its enforcement would be in the public 

interest and whether it was invalidated by the municipalities' 

failure to formally ratify it. 

 On remand, the district court granted partial summary judgment 

in favor of the defendants as to the latter two questions, finding 

that the agreement's enforcement would be in the public interest 
and that no formal ratification was necessary. The district court 

then conducted a jury trial devoted to the single question whether 

the Livingstones had concluded the release-dismissal agreement 

voluntarily. The jury found that the Livingstones did indeed 

voluntarily conclude the release-dismissal agreement. Accordingly, 

the district court ordered that judgment be entered in favor of the 

defendants and against the Livingstones as to all of the 

Livingstones' claims. This appeal followed. 

I. Factual Background and Procedural History 

A. Livingstone I. 

 In Livingstone I, we compendiously summarized this case's 

elaborate factual and procedural history. It seems efficient to 

reproduce that summary here verbatim. (Except as noted, all 

footnotes and all emendations are from Livingstone I.) 

 This civil suit filed by Frances and Joseph Livingstone 

 against the police officers and municipalities arose from the 

 conduct of the police officers on the night of January 12-13, 

 1989, at the Livingstone home in Washington Township, 

 Pennsylvania. During a family argument between Carrie 

 Livingstone, age twenty-two, who was unmarried and living at 

 her parents' home with her fourteen-month-old son, and Joseph, 

 her father, Mr. Livingstone struck Carrie on the face, causing 

 her lip to split and bleed. Carrie ran out of the house and 

 to the community ambulance service across the street, where an 

 employee called the police. When Officer Frank Monack 

 arrived, Carrie told him that her father had struck her and 

 that her parents were holding her son without her consent. 

 Monack, who was at that time an officer in the Washington 

 Township Police Department and is now Chief of Police, radioed 

 for assistance pursuant to an intermunicipal police 

 cooperation agreement. Raymond Moody, who was and is the 

 Chief of Police for the Borough of Fayette City, and Darhl 

 Snyder, an officer in the North Belle Vernon Police 

 Department, responded. They proceeded to the Livingstone home 

 where Mr. Livingstone permitted them to enter for the 

 purpose, he later testified, of discussing possible criminal 

 charges against him arising out of the incident. Following a 

 brief discussion, Monack and Snyder accompanied Mr. 

 Livingstone outside, and Monack told him to go to the nearby 

 police station to make a statement. No charges were filed 

 against Mr. Livingstone that evening or at any later time. 

 Monack and Snyder then reentered the Livingstone 

 household, this time in search of Carrie's son and admittedly 

 without a warrant or court order. Mrs. Livingstone had 

 retreated to the back bedroom with her grandson, and had 

 locked and barricaded the door. When she refused to open the 

 door, Monack picked the lock and then tried to push the door 

 open. From the partially opened door, Mrs. Livingstone hit 

 him with a fishing rod and scratched him. Monack and Snyder 

 broke the door down to enter the room, and then Monack told 
 Mrs. Livingstone she was under arrest. 

 Mrs. Livingstone testified that both men struck her, 

 causing her to lose consciousness and sustain bruises, 

 lacerations, lost teeth, and head injuries. According to 

 defendants, they used force only for the purpose of getting 

 handcuffs on her after she struck the officer, and a stun gun 

 to subdue her because she was screaming and kicking. Snyder 

 held her down while Monack used the gun. Mrs. Livingstone 

 claims that Monack then said "you want a thrill, I'll give you 

 a thrill" and applied the stun gun between her legs. A 

 medical examination conducted at the hospital that night notes 

 a burn in the vulval area. 

 The officers removed Mrs. Livingstone, handcuffed, from 

 the house. She states that they dragged her outside and 

 dropped her several times, banging her head, and then left her 

 lying in cold muddy water for hours. The officers claim that 

 her thrashing caused them all to fall, and that she refused to 

 get up. 

 On January 13, 1989, the morning after the altercation, 

 Mrs. Livingstone was charged by Monack, on behalf of the 

 Washington Township Police Department, with disorderly 

 conduct, aggravated assault, terroristic threats, resisting 

 arrest, and interference with custody. At a preliminary 

 hearing on April 18, 1989, Mrs. Livingstone was held over for 

 a jury trial on all but the terroristic threats charge, and 

 the aggravated assault charge was reduced to simple assault. 

 The trial in Fayette County Court of Common Pleas began 

 on February 13, 1990, with attorney Thomas R. Ceraso 

 representing Frances Livingstone and Jack R. Heneks, Jr., an 

 Assistant District Attorney, representing the Commonwealth of 

 Pennsylvania. Carrie Livingstone testified for the 

 prosecution, followed by Monack, Snyder, Moody, Police Chief 

 Robert Matthews of Washington Township, and Evelyn Rehe of the 

 community ambulance service. The Commonwealth rested, and 

 Mrs. Livingstone demurred to all of the charges. The demurrer 

 was granted on the charge of interference with custody on the 

 ground that there were no facts showing danger to the child, 

 but was denied as to the other charges. 

 Thereafter, Joseph Livingstone and his son, James, 

 testified for the defense. Before Mrs. Livingstone was to 

 take the stand (and presumably would have testified about her 

 claims with regard to police use of a stun gun on her private 

 parts), the trial judge, Judge Cicchetti of the Court of 

 Common Pleas, met with Heneks and Ceraso to discuss whether 

 the matter could be resolved. After settlement negotiations, 

 a conference was held in camera with Judge Cicchetti. Present 

 were Moody, Monack, Matthews (now deceased), the Livingstones, 

 Ceraso, and Heneks. 
 Ceraso summarized the arrangement by stating that the 

 defense would move for a judgment of acquittal after James 

 Livingstone finished his testimony; that expenses for the 

 physical damage to the Livingstone house and for Mrs. 

 Livingstone's reasonable medical care would be paid; and that 

 once those bills were paid, the Livingstones would release any 

 civil claims. Ceraso stated on the record: 

 there will be an agreement on the part of my client, Mrs. 

 Livingston[e], and also her husband, Joe Livingston[e], 

 who is present, that upon payment of reasonable medical 

 bills that w[e]re associated with the incident that 

 occurred, based on my forwarding those to Washington 

 Township with confirmation, together with bills 

 reflecting damage incurred at the household of Mr. and 

 Mrs. Livingston[e], that Washington Township will cause 

 the same to be paid. At the time of final payment of 

 those bills, there will be a full and complete release 

 signed with reference to any civil action on the part of 

 Mr. and Mrs. Livingston[e]. It's also my understanding 

 that at that time there will also be a release signed by 

 Washington Township, or any of its proper officials, or 

 any member of the police force necessary to release Mr. 

 and Mrs. Livingston[e] from any liability . . . . 

 App. at 1109. 

 In response to the judge's inquiry, the parties voiced an 

 expression of assent. The court asked whether "you all think 

 this is in the best interest for everyone" and Matthews, 

 Monack, and Heneks said they did. App. at 1112. When they 

 returned to the courtroom, Ceraso moved for a judgment of 

 acquittal on the criminal charges against Mrs. Livingstone, 

 which the court granted. 

 It is undisputed that the settlement agreement was never 

 reduced to writing. The Livingstones never submitted for 

 payment any medical bills or household repair bills, and no 

 payments have been made. The Board of Supervisors of 

 Washington Township took no action to officially ratify the 

 agreement until almost two years after the conference in 

 chambers, and only then after this suit was started. There 

 is no evidence that the other two municipal defendants, North 

 Belle Vernon Borough and Fayette City Borough, have ever taken 

 any action to ratify any putative settlement. 

 On January 14, 1991, almost a year after the criminal 

 trial, the Livingstones filed this action against the police 

 officers and the three employer municipalities. The complaint 

 consisted of seven claims: a federal claim filed pursuant to 

 42 U.S.C.  1983 (1988), and state law claims alleging assault

 and battery, malicious prosecution, malicious abuse of 

 process, invasion of privacy, intentional infliction of 

 emotional distress, and conversion. 
 The defendants filed motions to dismiss or, in the 

 alternative, for summary judgment. The district court 

 referred the case to a magistrate judge, who ordered the 

 parties to engage in discovery [footnote omitted] and to 

 submit briefs and materials in support of the motions. 

 

 In their briefs in support of summary judgment, 

 defendants argued that the suit was barred by the 

 release-dismissal agreement reached during the in cameraconference 

before Judge Cicchetti. The Livingstones claimed 

 that they never intended to waive their rights to sue, 

 pointing out that the agreement was never reduced to writing 

 and that Washington Township never made the contemplated 

 payments. They also contended that the agreement was never 

 properly entered into by the municipalities, as the Washington 

 Township Board of Supervisors never formally approved it and 

 the other boroughs' governing bodies never considered it, and 

 that the agreement was invalid and unenforceable under 

 Pennsylvania law. 

 On April 8, 1992, the magistrate judge submitted a Report 

 and Recommendation recommending that summary judgment be 

 granted for the defendants on the basis of the release- 

 dismissal agreement. Although the court acknowledged that 

 Washington Township may not have formally approved the 

 agreement, it noted that two supervisors, a quorum, had 

 approved it, thereby satisfying Pennsylvania law. Without 

 comment on the absence of the other municipalities and 

 officers from the agreement, the magistrate judge concluded 

 that plaintiffs had contracted with all of the defendants, and 

 thus the plaintiffs' civil suit was barred; that the 

 agreement comported with due process because the plaintiffs 

 understood that they were waiving their rights to assert 

 future civil claims and had entered into the release 

 voluntarily; and that there was sufficient consideration 

 because the plaintiffs, in exchange for the surrender of their 

 potential civil claims, had secured the dismissal of the 

 criminal charges and a promise by the defendants not to sue 

 them. 

 Objections were filed but the district court adopted the 

 magistrate judge's opinion as its own and granted summary 

 judgment for all defendants. This timely appeal followed. 

 Livingstone I, 12 F.3d at 1206-09. 

 With this background history as predicate, the court in 

Livingstone I then proceeded to review the elements of proof for a 

showing of voluntariness, finding that the parties seeking to 

enforce the release-dismissal agreement bore the burden of showing 

that the Livingstones' assent was "voluntary, deliberate and 

informed." 12 F.3d at 1211. We concluded that the defendants had 

not met this burden with the certainty called for on summary 

judgment, given that Mrs. Livingstone was confused as to the terms 
of the release-dismissal arrangement, that the claimed releasedismissal agreement was never written down, and that the asserted 

agreement Ä assuming there was a meeting of the minds Ä was made, 

if at all, during a brief and ambiguous oral colloquy. See id. at 

1211-14. Accordingly, we reversed the grant of summary judgment 

and directed that the case be remanded for further proceedings. 

B. Post-Livingstone I Proceedings 

 Following remand, the defendants filed a motion for summary 

judgment challenging the Livingstones' complaint on a variety of 

grounds other than the release-dismissal agreement. Their motions 

were referred to a magistrate judge, whose Report and 

Recommendation ("R&R") the district court then adopted without 

substantive comment. In accordance with the recommendations of the 

magistrate judge, the district court ordered that (1) summary 

judgment be entered in favor of all defendants as to the 

Livingstones' claims of malicious prosecution, abuse of process, 

and invasion of privacy; and (2) summary judgment be entered in 

favor of Officer Moody as to the assault and battery claims. The 

district court denied summary judgment as to the Livingstones' 

constitutional claims, their claims of assault and battery against 

Officers Monack and Snyder, their claim of intentional infliction 

of emotional distress, and their conversion claim. App. at 326, 

352. 

 The Livingstones then filed a motion for partial summary 

judgment renewing two arguments that they had already 

unsuccessfully made to the district court in the first round of the 

litigation. These arguments were that the release-dismissal 

agreement was unenforceable because (a) the municipalities had not 

ratified it, as (assertedly) required by Pennsylvania law, and (b) 

the release-dismissal agreement had been concluded in a manner 

which violated "the Pennsylvania Rules of Criminal Procedure and 

public policy." App. at 355. The defendants responded with 

cross-motions for partial summary judgment that asserted that no 

ratification was necessary, because the Livingstones had failed to 

submit their medical bills to Washington Township for payment. The 

district court granted summary judgment in favor of the defendants 

on both the ratification question and the public-interest question. 

 The district court then conducted a jury trial limited to one 

question, whether the Livingstones voluntarily entered into the 

release-dismissal agreement. After several days of trial, 

including extended testimony by Thomas R. Ceraso (Mrs. 

Livingstone's lawyer at her criminal trial), the jury found that 

the Livingstones did indeed enter into the agreement voluntarily. 

Accordingly, the district court entered judgment in favor of the 

defendants and against the Livingstones. The Livingstones moved 

for a new trial, for judgment notwithstanding the verdict, and to 

amend the court's judgment to require Washington Township to pay 

household damages and medical bills to the Livingstones (apparently 

in order to enforce the terms of the release-dismissal agreement). 

These motions were denied, and this appeal followed. 

 On appeal, the Livingstones assert that the district court (1) 

erred in finding that the agreement was valid and enforceable even 

though the municipalities had not ratified it; (2) erred in ruling 
that the enforcement of the agreement was in the public interest as 

a matter of law; and (3) made a number of errors at the 

voluntariness proceeding. We will discuss these questions in that 

order. 

 As to the second and third of these arguments, the district 

court, appellants, and appellees all assume that identical legal 

standards govern the enforcement of the release-dismissal agreement 

as to the Livingstones' section 1983 claims and as to their statelaw claims. However, as we suggested in Livingstone I, see 12 F.3d 

at 1209 n.6, this is not necessarily the case. Federal common law 

governs the enforceability of the release-dismissal agreement as to 

the Livingstones' section 1983 claims, while we must look to 

Pennsylvania law to assess the enforceability of the agreement as 

to their state-law claims. Thus, the legal standards applicable to 

the Livingstones' state-law claims will be discussed separately. 

II. Jurisdiction and Standard of Review 

 We have appellate jurisdiction pursuant to 28 U.S.C.  1291. 

As to the municipal ratification and public-interest questions, on 

which the district court granted summary judgment, our review is 

plenary. See Erie Telecommunications Inc. v. City of Erie, 853 

F.2d 1084, 1093 (3d Cir. 1988). The appellants also assert that, 

at the voluntariness proceeding, the district court (1) gave an 

incorrect jury instruction, (2) erred in declining to give a 

requested jury instruction, and (3) made a number of incorrect 

evidentiary rulings. To the extent that appellants claim that a 

jury instruction failed to state the proper legal standard, our 

review is plenary. See Government of Virgin Islands v. Isaac, 50 

F.3d 1175, 1180 (3d Cir. 1995). To the extent that appellants 

contest the district court's refusal to give particular jury 

instructions, our review is for abuse of discretion. See id. The 

evidentiary rulings that the appellants challenge are all 

discretionary rulings of the type that we review for abuse of 

discretion. This includes rulings as to the relevance of evidence 

and as to its prejudicial effect, see In re Japanese Electronic 

Products, 723 F.2d 238, 257, 260 (3d Cir. 1983), rev'd on other 

grounds, sub nom. Matsushita Electrical Industrial Co. v. Zenith 

Radio Corp., 475 U.S. 574 (1986), and as to waiver of the attorneyclient privilege, see United States v. Bilzerian, 926 F.2d 1285, 

1293 (2d Cir. 1991). 

III. Municipal Ratification 

 The terms of the alleged release-dismissal agreement, as 

recited by Ceraso, were that: 

 there will be an agreement on the part of my client, Mrs. 

 Livingston[e], and also her husband, Joe Livingston[e], 

 who is present, that upon payment of reasonable medical 

 bills that w[e]re associated with the incident that 

 occurred, based on my forwarding those to Washington 

 Township with confirmation, together with bills 

 reflecting damage incurred at the household of Mr. and 

 Mrs. Livingston[e], that Washington Township will cause 

 the same to be paid. At the time of final payment of 

 those bills, there will be a full and complete release 
 signed with reference to any civil action on the part of 

 Mr. and Mrs. Livingston[e]. It's also my understanding 

 that at that time there will also be a release signed by 

 Washington Township, or any of its proper officials, or 

 any member of the police force necessary to release Mr. 

 and Mrs. Livingston[e] from any liability . . . . 

Appellees North Belle Vernon Borough and Officer Darhl Snyder's 

App. at 30. In short, the arrangement was apparently that, after 

the prosecution of Mrs. Livingstone was terminated, the 

Livingstones would submit bills for property damage and for medical 

costs to Washington Township. Once the Township paid these bills, 

the Livingstones, the municipalities, and the police officers would 

then sign full mutual releases of civil claims. 

 The Livingstones concede that they never submitted their bills 

to Washington Township, as apparently required by the terms of the 

agreement. The district court found that their failure to do so 

rendered it impossible for the municipal defendants to ratify the 

release-dismissal agreement, as "the public fisc cannot be 

allocated for an indefinite amount to a private party." App. at 

377-78. The district court did not, however, discuss an antecedent 

question: whether (and how) a contract was ever formed between the 

Livingstones and the municipalities. Conceptually, it would hardly 

be possible for the Livingstones to have rendered impossible the 

performance of a contract that was never formed. 

 Under Pennsylvania law, a township cannot enter into a binding 

contract except by a vote of the township's supervisors. SeeAbington 

Heights School District v. Township of South Abington, 456 

A.2d 722, 724 (Pa. Cmwlth. 1983). North Belle Vernon Borough and 

Fayette City Borough never conducted such a vote, and Washington 

Township only did so after the present suit was filed. On appeal, 

the Livingstones assert that the failure of the municipalities to 

ratify the release-dismissal agreement meant that no contract was 

ever formed between the Livingstones and the municipalities, and 

that the release-dismissal agreement is therefore unenforceable. 

 We will not address this question, however, because we find 

that it was not necessary for the municipalities to be parties to 

the release-dismissal agreement in order for it to be enforceable. 

It would suffice for the municipalities to have been third-party 

beneficiaries of an agreement concluded between the Livingstones 

and the Commonwealth of Pennsylvania; and, indeed, the colloquy 

before Judge Cicchetti suggests that this is what was intended 

(assuming, of course, that a valid agreement was formed at all). 

The principal parties negotiating the purported release-dismissal 

agreement were the Livingstones (through Mrs. Livingstone's 

attorney, Ceraso) and the Commonwealth (through Heneks, an 

assistant district attorney). The agreement's terms appear to have 

been that the Commonwealth would not oppose Mrs. Livingstone's 

motion for a judgment of acquittal. In exchange, the Livingstones 

would submit their medical and household damages bills to 

Washington Township, and, when those bills were paid, would sign a 

full release of civil liability with all of the municipalities and 

police officers involved, reciprocal releases of civil liability 

being signed by those police officers and municipalities with 
potential claims against the Livingstones. 

 Although the municipalities and police officers were clearly 

intended to benefit from this agreement, the agreement's success 

did not require them to be parties to it. The Livingstones were 

not harmed by the municipalities' lack of party status. If 

Washington Township did not pay the Livingstones' actual expenses, 

or if one of the municipalities or officers refused to sign (or to 

negotiate in good faith towards) a release, the Livingstones would 

have lost nothing. The criminal charges against Mrs. Livingstone 

could not have been reinstituted; moreover, the Livingstones would 

presumably have been free to file a civil action against any of the 

municipalities or police officers that failed to cooperate as 

anticipated. 

 An implicit term of this release-dismissal agreement is 

necessarily that the Livingstones could bring a civil suit against 

the municipalities or police officers only after the Livingstones 

had made a good-faith effort to negotiate towards reciprocal 

releases and those negotiations had failed. This term follows from 

the duty of good faith and fair dealing, Restatement (Second) of 

Contracts  205 (1981), and that duty's correlative obligation not 

to act so as to defeat an agreement's objective. The record 

indicates that the Livingstones did not make any effort to 

negotiate towards such reciprocal releases. Hence, assuming that 

the release-dismissal agreement is otherwise valid and enforceable 

Ä the question that we will address next Ä the Livingstones' 

failure to seek mutual releases would seem to bar their suit. 

 The Livingstones also question whether North Belle Vernon 

Borough and Fayette City Borough Ä which I will refer to, for 

brevity, as "the two boroughs" Ä had the same status under the 

release-dismissal agreement as did Washington Township. In the 

voluntariness proceeding in the district court, counsel for the 

Livingstones had requested that a specific question on the verdict 

form address the status of the two boroughs under the agreement. 

The district court declined to include such a question on the form, 

finding that Ceraso's statements in the colloquy before Judge 

Cicchetti included all three municipalities, and that all three 

therefore had the same status for purposes of the voluntariness 

question. In response to the objections of the Livingstones' 

counsel to this ruling, the district court permitted him to argue 

to the jury that the ambiguous nature of the agreement between the 

Livingstones and the two boroughs rendered the release-dismissal 

agreement involuntary as a whole. App. at 804-06. 

 Although the Livingstones' argument focuses on whether the 

release-dismissal agreement was voluntary as to the two boroughs, 

this issue cannot be completely disentangled from that of whether 

the agreement addressed the boroughs at all. The colloquy before 

Judge Cicchetti is far from a model of clarity on this question. 

During the colloquy, Ceraso stated that he had 

 no objection if those police departments or those 

 municipalities also wish to be included in the release, 

 and we would then have reciprocal releases from them, and 

 we would let that up to their individual counsel to make 

 that decision, but we certainly would have no objection 

 in doing that so it would be reciprocal on both sides. 
Appellees North Belle Vernon Borough and Officer Darhl Snyder's 

App. at 31. This statement can be construed either (1) as 

indicating that the Livingstones had undertaken to negotiate 

towards a civil release with the two boroughs (making the boroughs, 

with Washington Township, third-party beneficiaries of the releasedismissal agreement), or (2) as merely making an offer to those two 

municipalities. 

 The question of which of these readings of Ceraso's remarks is 

correct was not argued before the district court. On remand, the 

district court should permit the parties to brief this question. 

In resolving this issue, the district court may consult all of the 

sources to which courts usually refer in determining the meaning of 

ambiguous contractual language, including, for instance, the course 

of the negotiations between the parties. 

 

IV. The Public Interest 

 In Town of Newton v. Rumery, 480 U.S. 386 (1987), a fourJustice plurality found that, as a matter of federal common law, a 

release-dismissal agreement will operate to bar a section 1983 

claim unless "the interest in [the agreement's] enforcement is 

outweighed in the circumstances by a public policy harmed by the 

enforcement of the agreement." Id. at 392. Justice O'Connor, 

whose fifth vote was dispositive, noted in a concurring opinion 

that it is the burden of the defendants to demonstrate that "a 

particular release executed in exchange for the dismissal of 

criminal charges was voluntarily made, not the product of 

prosecutorial overreaching, and in the public interest." Rumery, 

480 U.S. at 401. 

 In Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993) (in banc), 

cert. denied, 114 S. Ct. 1303 (1994), this court addressed the 

circumstances in which enforcement of a release-dismissal agreement 

will be in the public interest. Cain made clear that the abovequoted passage from Justice O'Connor's Rumery concurrence should 

not be read to suggest that the "prosecutorial overreaching" and 

"public interest" questions are to be analyzed separately; rather, 

"the concept of prosecutorial misconduct is embedded in a larger 

inquiry into whether enforcing the release would advance the public 

interest." Id. at 380; see also Lynch v. City of Alhambra, 880 

F.2d 1122, 1126 n.6 (9th Cir. 1989) (arguing that there is only one 

inquiry); but compare Woods v. Rhodes, 994 F.2d 494, 500-01 (8th 

Cir. 1993) (apparently treating the analyses as distinct). 

 Cain found that a party seeking to demonstrate that the 

enforcement of a release-dismissal agreement is in the public 

interest must make two distinct showings, which we will call here 

Cain's "objective" and "subjective" elements. Cain's objective 

element requires both that "the facts known to the prosecutor when 

the agreement was reached" must have sufficed to support the 

prosecutor's proffered public interest reason for concluding the 

agreement, and that this public-interest reason be a legitimate 

one. 7 F.3d at 381. Relevant public interests include the 

interest, cited by the Court in Rumery, in avoiding the costs and 

disruptions associated with defending "marginal" or "frivolous" 

civil rights actions, Rumery, 480 U.S. at 395, and the 

countervailing interest, also cited by the Court, in detecting and 
deterring official misconduct. See Rumery, 480 U.S. at 394; id. at 

400 (O'Connor, J., concurring). 

 Cain's subjective element is its requirement that: 

 the public interest reason proffered by the prosecutor must be 

 the prosecutor's actual reason for seeking the release. . . . 

 Any alternative to the 'actual reason' requirement creates the 

 real danger that actions taken pursuant to an improper motive, 

 such as to protect public officials from a meritorious civil 

 rights lawsuit, may be legally excused because a court later 

 finds that some 'benefit' might have been incidentally 

 achieved. 

7 F.3d at 381 (emphasis in original). The party seeking to enforce 

the release-dismissal agreement bears the burden of proof on both 

of these elements. 

 In the present case, the district court denied a motion by the 

Livingstones that sought to establish as a matter of law that the 

enforcement of the release-dismissal agreement was contrary to the 

public interest, and instead entered summary judgment against the 

Livingstones on this question, finding that the enforcement of the 

agreement was in the public interest as a matter of law. On 

appeal, the Livingstones challenge both rulings. They argue, 

first, that the district court erred in denying their motion for 

summary judgment, and that it should have found the releasedismissal agreement unenforceable as a matter of law. In the 

alternative, they contend that the district court erred in granting 

the appellees' motion for summary judgment, because there was a 

genuine issue of material fact as to prosecutorial motive. 

 The Livingstones' two arguments are founded on distinct 

elements of the Cain analysis. Their argument that the district 

court erred in declining to find the release-dismissal agreement 

unenforceable as a matter of law is directed at Cain's objective 

element; it challenges the district court's conclusion that the 

facts known to the prosecutor at the time the release-dismissal 

agreement was concluded sufficed to establish that it was in the 

public interest to conclude such an agreement. Their argument that 

there is a genuine issue of material fact as to prosecutorial 

motivation is directed at Cain's subjective component, which 

requires that the prosecutor's stated reason for concluding a 

release-dismissal agreement "must be the prosecutor's actual reasonfor 

seeking the release." Cain, 7 F.3d at 381. We will consider 

these arguments in that order. 

A. Cain's Objective Element 

1. The District Court's Analysis 

 The district court concluded that the facts known to the 

prosecutor at the time the agreement was concluded justified 

finding that the enforcement of the release-dismissal agreement 

would be in the public interest. The court explained its 

conclusion as follows: 

 Here, Judge Cicchetti, who presided over the criminal trial 

 against Mrs. Livingstone and who supervised the execution of 

 the release-dismissal agreement, stated in the colloquy that 
 he was supportive of the agreement because he saw no benefit 

 to a criminal trial and that it was in everyone's best 

 interest to resolve the matter. Mr. Heneks, the assistant 

 district attorney who was assigned to the case stated that he 

 believed that the Commonwealth would be well-served by the 

 resolution as well. Later, in a sworn statement, Mr. Heneks 

 indicated that continuation of the criminal trial would have 

 created further conflict between the Livingstones and their 

 daughter who had reconciled their differences since the night 

 of the incident. In addition, he stated that the agreement 

 saved the Commonwealth from spending further resources to 

 prosecute. The reasons stated by Mr. Heneks are factors that 

 were known to him at the time the agreement was executed. In 

 the absence of evidence that the motivation was improper, we 

 may accept his explanation. In addition, each reason 

 constitutes an independent, legitimate reason which is 

 directly related to his prosecutorial responsibilities. SeeRumery, 

480 U.S. at 398. 

 

App. at 380-381. The court's analysis posits three public-interest 

rationales for upholding the release-dismissal agreement: the 

agreement's supervision by Judge Cicchetti, the desire of the 

Commonwealth to avoid further conflict between the Livingstones and 

their daughter, and the Commonwealth's wish to avoid expending more 

of the Commonwealth's resources to prosecute Mrs. Livingstone. We 

will consider these three rationales seriatim. 

 As to the first of the three rationales, it is of course true 

that (1) the Rumery plurality noted that judicial supervision of 

release-dismissal agreements can "help ensure that the agreements 

did not result from prosecutorial misconduct," 480 U.S. at 399 

n.10, and (2) Justice O'Connor observed that such supervision can 

"bear on whether a release was voluntary and not the product of 

overreaching," id. at 401-02. Judicial supervision can indeed be 

important in ensuring that an agreement was concluded voluntarily, 

and, to a lesser extent, that the prosecutor's stated reasons for 

seeking an agreement are genuine. Judicial supervision is less 

relevant to Cain's objective inquiry, however, which focuses on the 

information known to the prosecutor. At best, judicial supervision 

may help to reinforce a subsequent court's independent 

determination that a prosecutor had a sound public-interest reason 

for concluding a release-dismissal agreement. As will become 

clear, it seems unlikely that Judge Cicchetti's supervision of the 

dismissal of the charges against Mrs. Livingstone played that role 

here. 

 Nor does Heneks' asserted desire to avoid further stress to 

the Livingstone family serve a particularly strong public interest. 

It is, of course, commendable for prosecutors to give some thought 

to the welfare of the accused's family. In practice, however, the 

public would be rightly surprised were a prosecutor to place these 

considerations above, for instance, the public interest in 

punishing crime, or the public interest, expressed in section 1983, 

in exposing official abuse. We do not think that the public's 

interest in avoiding strain to a defendant's family can, standing 

alone, be a legitimate reason for concluding a release-dismissal 
agreement. 

 Nor, finally, does Heneks' wish to avoid the cost of further 

prosecution carry much weight. A desire to avoid the cost of 

prosecution (and of a related civil suit) may be an acceptable 

public-interest rationale for some release-dismissal agreements. 

As Justice O'Connor observed in Rumery: 

 [P]rosecutors may legitimately believe that, though the police 

 properly defused a volatile situation by arresting a minor 

 misdemeanant, the public interest in further litigation is 

 outweighed by the cost of litigation. Sparing the local 

 community the expense of litigation associated with some minor 

 crimes for which there is little or no public interest in 

 prosecution may be a legitimate objective of a release- 

 dismissal agreement. 

480 U.S. at 399-400. By definition, in any case in which a 

release-dismissal agreement has been concluded, the community will 

have avoided the cost of prosecution; thus, a prosecutor could 

assert that "the public interest in further litigation is 

outweighed by the cost of litigation" in any case. In order to 

ensure that such assertions do not act as a blanket exception to 

the public-interest element of Rumery, the courts must subject 

those assertions to close scrutiny. 

2. Marginal or Frivolous Nature of the Livingstones' Civil Rights 

Claims 

 The record does not indicate that Heneks considered whether 

the Livingstones' civil rights claims were marginal or frivolous 

before concluding the agreement. In Cain, we stated that a 

prosecutor must conduct an "individualized analysis" of a 

defendant's civil rights claims before concluding a releasedismissal agreement, 12 F.3d at 383, and that in order for a 

release-dismissal agreement to be enforceable "there must be a 

case-specific showing that the released civil rights claims 

appeared to be marginal or frivolous at the time the agreement was 

made and that the prosecutor was in fact motivated by this reason." 

Id. 

 The question whether the facts known to Heneks could have 

supported the conclusion that the Livingstones' civil rights claims 

were marginal or frivolous was not addressed in the district 

court. On this record, resolution of that question in the 

defendants' favor was a necessary predicate for a grant of summary 

judgment holding that the release-dismissal agreement was in the 

public interest. We will, therefore, vacate the district court's 

grant of summary judgment and remand the case so that the parties 

can address the question whether the Livingstones' civil rights 

claims were regarded Ä and, if so, whether they were properly 

regarded Ä by the prosecuting attorney as marginal or frivolous. 

 We think that, on remand, the parties will, at a minimum, wish 

to take account of the material in this record which suggests that, 

at the time Heneks agreed to the dismissal of the charges against 

Mrs. Livingstone, considerable information pointing in the 

direction of significant police misconduct had come to Heneks' 

attention. Of course, what is of record here cannot be deemed 
dispositive of the question whether Heneks could properly have 

concluded that the Livingstones' civil rights claims were marginal 

or frivolous, for the reason that the proceedings in the district 

court have not been focused on that issue. Further evidence may be 

adduced on remand that casts the relevant events in a very 

different light. But we think it may be helpful to relate the 

principally salient matter appearing in our current record in order 

to provide a point of departure for the proceedings on remand. 

 The most important item of evidence in this respect is the 

report of Dr. Noche, the emergency-room doctor who examined Mrs. 

Livingstone on the night of her encounter with the police. That 

report indicates that Mrs. Livingstone had first or second degree 

burns in her vaginal area. The substance of Dr. Noche's report 

was almost certainly known to Assistant District Attorney Heneks. 

The record does not contain any plausible explanation of how this 

burn came to appear on Mrs. Livingstone's genitalia Ä other than 

Mrs. Livingstone's own explanation, which was that it was the 

result of the police's deliberate misuse of a stun gun. Nor is 

there any indication in the record that Heneks was aware of other 

evidence that contradicted the emergency-room report. In short, 

it is difficult to escape the conclusion that Dr. Noche's report 

significantly corroborates Mrs. Livingstone's claim that the police 

deliberately applied a stun gun to her genitalia, an act that, if 

it did occur, would amount to an outrageous instance of police 

abuse. 

 It is possible that facts not in the present record would 

undermine some element of the foregoing analysis. On remand, the 

parties should address (1) whether Heneks made a determination that 

the Livingstones' civil rights claims were marginal or frivolous, 

and, if so, on what basis he did so; (2) whether Heneks knew or 

should have known of the foregoing evidence of police misconduct; 

and (3) if Heneks did know, or should have known, of that evidence, 

whether other facts available to Heneks in some way undercut it. 

We emphasize that it would not suffice for the defendant 

municipalities and police officers to demonstrate on remand that 

Heneks was aware of other evidence that merely contradicted the 

foregoing evidence of police misconduct, as this would only 

establish that there was substantial evidence on both sides of the 

misconduct question. Instead, defendants would have to 

demonstrate that Heneks was aware of other evidence that rendered 

the foregoing evidence of police misconduct fundamentally 

untrustworthy. 

 It is conceivable that the district court may conclude that 

Heneks was not aware, and had no reason to be aware, of some of the 

foregoing evidence of official misconduct, and that, not being 

apprised of this evidence, Heneks reasonably determined that the 

Livingstones' civil rights claims were marginal or frivolous. That 

would not, however, be the end of the district court's inquiry. 

The district court would then have to address the further question 

whether enforcement of a release-dismissal agreement in the face of 

substantial evidence of police misconduct would be compatible with 

Rumery and Cain, notwithstanding that the evidence of misconduct 

was not known, or reasonably knowable, by the prosecutor at the 

time the prosecutor entered into what might appear, in retrospect, 
to be an improvident agreement. 

B. Cain's Subjective Element: Prosecutorial Motivation 

 Cain's subjective element requires that the public-interest 

reasons cited by a party seeking to enforce a release be those that 

actually motivated the prosecutor to conclude the release. That 

is, under Cain, a court may not enforce a release if it finds that 

the release was concluded for some reason different from that 

presented as justifying enforcement, even if the court believes 

that "some 'benefit'" would be "incidentally achieved" by 

enforcement. Cain, 7 F.3d at 381. 

 The Livingstones challenge the district court's determination 

that there was not a genuine issue of material fact as to whether 

the prosecutor's stated reasons for concluding the releasedismissal agreement were his actual reasons for doing so. The 

district court based this determination on the following: (1) the 

charges against Mrs. Livingstone were filed the day after her 

encounter with the police; (2) the charges "correspond to the 

relevant conduct of Mrs. Livingstone according to the statement 

taken from Carrie Livingstone, and the affidavit which supports the 

complaint"; and (3) "discussions of settlement were initiated after 

nearly three days of testimony in the criminal trial." App. at 

379-80. 

 We do not quarrel with these three propositions. But they do 

not, in our judgment, constitute a sufficient predicate for the 

determination that there is no genuine issue of material fact with 

respect to whether the prosecutor's stated reasons were his real 

reasons. As we have noted, on the record before this court it 

appears not unlikely that the prosecutor was aware of substantial 

evidence of police misconduct in the present case. This lends 

credence to the inference that the prosecutor's decision to bring 

charges against Mrs. Livingstone, the manner in which he conducted 

the trial, and his decision to propose the conclusion of a releasedismissal agreement to the Livingstones may have been motivated by 

a desire to protect the relevant police officers and municipalities 

from liability. Such a motivation would render the agreement 

unenforceable. See Cain, 7 F.3d at 381. 

 None of the three propositions relied on by the district court 

eliminates the possibility that the prosecutor acted with an 

improper motive. As to the fact that the charges against Mrs. 

Livingstone were filed promptly, it is true that, had the charges 

against Mrs. Livingstone been brought well after the incident, or 

after the police learned that she intended to sue, this might have 

indicated prosecutorial misconduct. See Lynch v. City of Alhambra, 

880 F.2d 1122, 1128-29 (9th Cir. 1989). But the fact that the 

charges against her were brought promptly does not, conversely, 

demonstrate that no misconduct occurred. As to the fact that the 

charges against Mrs. Livingstone were supported by independent 

evidence, charges need not be fabricated in order for a releasedismissal agreement to be the product of an improper prosecutorial 

motive. The relevant question is instead whether the decision to 

pursue a prosecution, or the subsequent decision to conclude a 

release-dismissal agreement, was motivated by a desire to protect 

public officials from liability. Finally, the fact that the 
discussions of settlement were initiated "after nearly three days 

of testimony in the criminal trial" is subject to many 

interpretations. One interpretation which is at odds with summary 

judgment is that a purpose of the trial was to erode the 

Livingstones' resistance to signing a release. 

 We therefore find that there is a genuine issue of material 

fact as to whether the prosecutor's stated reasons for concluding 

the release-dismissal agreement at issue in the present case were 

his actual reasons. Thus, should the district court find that 

information known to the prosecutor could have sufficed to 

establish that there was a legitimate public-interest reason for 

concluding a release-dismissal agreement, it should then conduct a 

jury trial to determine whether the prosecutor's stated reasons for 

concluding an agreement were his actual reasons for doing so. 

V. Voluntariness 

A. Standard of Proof of Voluntariness 

 The district court instructed the jury that the defendant's 

burden of proof in establishing the voluntariness of the releasedismissal agreement was one of "preponderance of the evidence." 

The Livingstones challenge that instruction, arguing that the 

standard should have been one of "clear and convincing evidence." 

We agree. 

 In Rumery, the Supreme Court had no occasion to consider the 

appropriate standard of proof; the language used by the Court in 

finding the release-dismissal agreement at issue in that case 

enforceable was consistent with either a preponderance standard or 

a standard of clear and convincing evidence. Although we did not 

explicitly address the question of the appropriate standard of 

proof in Livingstone I, we did observe that oral release-dismissal 

agreements should be subjected to particularly exacting judicial 

scrutiny: 

 Ordinarily, the existence and terms of [a release-dismissal] 

 agreement can be resolved by reference to a written document. 

 While we do not hold that as a matter of law an oral agreement 

 to waive the right to sue in exchange for the dismissal of 

 criminal charges can never be valid, the absence of a written 

 release-dismissal agreement requires even more scrupulous 

 review by the courts than otherwise. No published opinion of 

 any of the courts of appeals after Rumery has even considered, 

 much less sustained, an oral release-dismissal agreement. 

 Indeed, the Rumery Court never mentioned the possibility of an 

 oral release-dismissal agreement. Justice Stevens, at least, 

 assumed that such agreements were written. See Rumery, 480 

 U.S. at 417 n.22, 107 S.Ct. at 1205 n.22 ("A court may enforce 

 such an agreement only after a careful inquiry into the 

 circumstances under which the plaintiff signed the agreementand into 

the legitimacy of the prosecutor's objective in 

 entering into [it]." (emphasis added)) (Stevens, J., 

 dissenting). 

12 F.3d at 1212. We then noted a number of advantages of written 

agreements. These included the fact that they "allow the parties 

more opportunity for deliberate reflection," id., and that a 
written document facilitates negotiation as to the agreement's 

terms, see id. at 1213. We also observed that a written releasedismissal agreement may provide a subsequent court with evidence as 

to "the parties' respective bargaining power." Id. For example, 

if the attorney for the party forgoing civil claims prepared the 

agreement, this may support the conclusion that the agreement was 

voluntary; if the prosecutor did so, and if he presented it in a 

manner that discouraged negotiation, this may support the 

conclusion that it was not. See id. 

 In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court 

set forth its methodology in assigning standards of proof: 

 The function of a standard of proof, as that concept is 

 embodied in the Due Process Clause and in the realm of 

 factfinding, is to 'instruct the factfinder concerning the 

 degree of confidence our society thinks he should have in the 

 correctness of factual conclusions for a particular type of 

 adjudication.' In re Winship, 397 U.S. 358, 370, 90 S.Ct. 

 1068, 1070, 25 L.Ed.2d. 368 (1970) (Harlan, J., concurring). 

 The standard serves to allocate the risk of error between the 

 litigants and to indicate the relative importance attached to 

 the ultimate decision. 

Id. at 423. The Court then placed the three standards of proof 

within this broad framework. The least demanding standard, that of 

a preponderance of the evidence, is appropriate to a "typical civil 

case involving a monetary dispute between private parties." Id. 

Society's concern with the outcome of such a case is "minimal"; 

thus, it is appropriate to adopt a standard that allocates the risk 

of error between the litigants "in roughly equal fashion." Id. 

The standard of proof beyond a reasonable doubt, by contrast, is 

reserved for criminal cases, in which society wishes to "exclude as 

nearly as possible the likelihood of an erroneous judgment." Id. 

 Intermediate between these two standards is the one applicable 

in cases in which "the interests at stake . . . are deemed to be 

more substantial than mere loss of money." Id. at 424. The 

standard has been known by a variety of names, but "usually employs 

some combination of the words 'clear,' 'cogent,' 'unequivocal,' and 

'convincing.'" Id. at 424. Examples of proceedings in which the 

Court has found a heightened standard of proof to be appropriate 

are proceedings to terminate parental rights, see Santosky v. 

Kramer, 455 U.S. 745 (1982); involuntary commitment proceedings, 

see Addington, 441 U.S. at 432; and deportation proceedings, seeWoodby v. 

INS, 385 U.S. 276, 285-86 (1966). 

 The Court has stated that, in civil actions between private 

litigants, a standard of proof greater than one of a preponderance 

of the evidence will only apply in cases in which "'particularly 

important individual interests or rights are at stake.'" Grogan v. 

Garner, 498 U.S. 279, 286 (1991) (quoting Herman & MacLean v. 

Huddleston, 459 U.S. 375, 389-90 (1983)). Thus, a preponderance 

standard suffices even in cases in which "severe civil sanctions" 

may ultimately be imposed, if those sanctions do not implicate 

particularly important interests or rights. See Huddleston, 459 

U.S. at 389. 
 We find that the enforcement of the oral release-dismissal 

agreement at issue in this case would indeed implicate "important 

individual interests or rights." Although the Livingstones' 

section 1983 claims are in form claims for money damages, 

underlying them is the Livingstones' interest in redressing a 

possible violation of their constitutional rights. Moreover, 

section 1983 actions, when successful, do more than compensate 

injured plaintiffs: they serve the important public purpose of 

exposing and deterring official misconduct, and thereby protecting 

the rights of the public at large. In Rumery, all nine Justices 

recognized the importance of ensuring that release-dismissal 

agreements do not encroach upon this purpose. See Rumery, 400 U.S. 

at 395; id. at 400 (O'Connor, J., concurring); id. at 419 (Stevens, 

J., dissenting). 

 A clear-and-convincing standard appropriately allocates more 

of the risk of error associated with oral release-dismissal 

agreements to those who seek to enforce them. As we noted in 

Livingstone I, oral release-dismissal agreements raise particularly 

significant questions of voluntariness, as the lack of a written 

document may inhibit negotiation as to an agreement's terms and 

render it difficult for prospective parties to reflect on those 

terms. We also observed in Livingstone I that an oral agreement 

ordinarily contains less evidence as to the course of the parties' 

negotiations than does a written agreement. As a result, there is 

a greater risk of error in a jury's evaluation of whether an oral 

release-dismissal agreement was concluded voluntarily. 

 We think that those seeking to enforce a release-dismissal 

agreement should bear this greater risk. Indeed, a "clear and 

convincing" standard will encourage prosecutors Ä who are likely to 

have comparatively frequent contact with release-dismissal 

agreements, and who have an interest in ensuring that those 

agreements are later found to be enforceable Ä to ensure that 

release-dismissal agreements are, whenever possible, written down. 

The standard will therefore have the salutary effect of reducing 

the overall risk of misunderstandings in the conclusion of releasedismissal agreements, and increasing the accuracy of juries' 

decisions as to whether a release-dismissal agreement was concluded 

voluntarily. 

 Since, when this case was first remanded, the parties 

challenging the enforceability of the Livingstones' oral releasedismissal agreement were only required to establish the 

voluntariness of the agreement under a preponderance-of-theevidence standard, the jury's finding of voluntariness will be 

vacated. If, on this remand, it again becomes necessary to address 

the issue of voluntariness, the more demanding clear-and-convincing 

standard will be utilized. 

B. Instruction on Existence of a Legitimate Criminal Justice 

Objective. 

 The Livingstones sought to have the district court instruct 

the jury that one of the factors for it to consider in determining 

whether they voluntarily entered into the release-dismissal 

agreement was "whether there is a l[e]gitimate criminal justice 

objective to support [the agreement's] validity." Livingstones' 
Proposed Jury Instruction 10, App. at 394. The district court 

declined to so instruct; the Livingstones contend that this was 

error. 

 Evidently the rationale for the proposed instruction was that 

the Livingstones sought to argue to the jury that elements of the 

public-interest analysis should enter into the jury's evaluation of 

whether the agreement was voluntary. We see no reason why the 

public-interest issue is pertinent to the jury's consideration of 

the voluntariness issue, and we therefore think the district court 

was correct in concluding that such an instruction would have been 

inappropriate. 

C. Admission of Ceraso's Testimony. 

 The district court found that, by challenging the releasedismissal agreement, the Livingstones had waived any claim of 

attorney-client privilege as to the testimony of Ceraso, Mrs. 

Livingstone's lawyer at her criminal proceeding. Accordingly, the 

district court permitted Ceraso to be deposed, and then allowed him 

to be called as a witness at the voluntariness proceeding. App. at 

101. On appeal, the Livingstones argue that this decision was 

erroneous. We disagree. 

 "The attorney-client privilege is waived for any relevant 

communication if the client asserts as a material issue in a 

proceeding that: (a) the client acted upon the advice of a lawyer 

or that the advice was otherwise relevant to the legal significance 

of the client's conduct." Restatement of the Law Governing Lawyers

130(1) (Final Draft No. 1, 1996); see also Rhone-Poulenc Rorer 

Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) ("[A] 

party can waive the attorney client privilege by asserting claims 

that put his or her attorney's advice in issue in the 

litigation."). The Livingstones' complaint states that Washington 

Township "may seek to assert as a possible defense a purported 

agreement not to sue and/or release," but that the Township "will 

not be able to sustain its burden that the same was entered into in 

a knowing and voluntary fashion." App. at 21. The complaint goes 

on to state that the agreement was not "knowing" because 

"[p]laintiffs, at the time, were unaware that the same could be 

interpreted as foregoing a damage claim. They specifically were 

unaware of the precise extent of any claimed waiver." App. at 22. 

The Livingstones made similar claims before the district court and 

on appeal. 

 Mrs. Livingstone was represented by counsel at her criminal 

trial; her attorney played a central role in the negotiation of the 

release-dismissal agreement. Under Rumery, the advice of counsel 

is an explicit, and important, element of the voluntariness 

analysis. See Rumery, 480 U.S. at 394; id. at 401 (O'Connor, J., 

concurring) (citing, as one of the factors bearing on the 

enforceability of a release-dismissal agreement, "importantly, 

whether the defendant was counseled"). Mrs. Livingstone's 

assertion that she did not appreciate the release-dismissal 

agreement's legal implications is tantamount to a claim that her 

attorney did not give her accurate legal advice. It would be 

unfair to allow her to make this claim without permitting the 

opposing parties to investigate her attorney's version of the 
relevant events. See United States v. Bilzerian, 926 F.2d 1285, 

1292 (2d Cir.), cert. denied, 502 U.S. 813 (1991) (holding that a 

party who asserts a claim that "in fairness requires examination of 

protected communications" thereby waives the attorney-client 

privilege as to those communications). In the terms of the draft 

Restatement, Mrs. Livingstone has effectively asserted that the 

advice provided to her by her attorney is "relevant to the legal 

significance of [her] conduct." Accordingly, we find no error in 

the district court's ruling that the attorney-client privilege had 

been waived. 

D. Exclusion of Expert Testimony. 

 The Livingstones challenge the district court's decision, at 

the voluntariness proceeding, to exclude the testimony of their 

expert, John Peters, who had prepared a report addressing the 

underlying liability of the police officers and of Washington 

Township. Mrs. Livingstone's attorney, Ceraso, had testified that 

he had advised Mrs. Livingstone to conclude a release-dismissal 

agreement because any damages that she would recover in a 

subsequent civil suit would have been largely, or completely, 

offset by the damages that the police officers would recover, 

assuming that they filed counterclaims. App. at 767. The 

plaintiffs sought to introduce Peters' testimony in order to 

demonstrate that Ceraso's advice had been inaccurate. The district 

court found that Peters' testimony was inadmissible under Rule 702, 

because it would not assist the trier of fact to understand the 

evidence, and under Rule 403, because of prejudice, confusion of 

the issues, misleading the jury, and waste of time. App. at 777. 

 We will address only the district court's application of Rule 

403, which we find was entirely appropriate. Peters' report was 

quite likely to be prejudicial; it asserted, in considerable 

detail, that Washington Township and the police-officer defendants 

had violated Mrs. Livingstone's civil rights. A jury presented 

with a substantial amount of information on the merits of an 

underlying civil rights action might well look to those merits in 

making its decision on the distinct Ä and distinctly different Ä 

issue of voluntariness, thus creating a significant risk of 

prejudice. 

 Rule 403 requires that a court balance the prejudicial effect 

of proposed evidence against its probative value. If evidence that 

a party to a release-dismissal agreement had received improper 

legal advice is of sufficient probative value, this analysis may 

well weigh in favor of admissibility. The probative value of 

Peters' testimony was not, however, high, as it did not engage 

Ceraso's testimony directly. Ceraso's advice to Mrs. Livingstone 

had addressed the net award of damages that she could expect from 

her potential civil suit against the police and their potential 

civil suit against her. Peters' report only barely touched on the 

merits of a possible civil suit by the police against Mrs. 

Livingstone, and did not discuss the likely award of damages in 

either suit. Thus, his testimony would not have greatly helped 

the jury to understand the correctness of Ceraso's advice. 

E. Exclusion of Trial Transcript. 
 At the trial of the voluntariness issue, counsel for the 

Livingstones sought to introduce into evidence an exchange between 

Heneks and Judge Cicchetti that occurred the day before the 

release-dismissal agreement purportedly was concluded. The 

district court found that this exchange was not relevant, and 

excluded it. The Livingstones appeal this ruling, asserting that 

Judge Cicchetti's comments in the exchange that they sought to 

introduce resembled his later remarks at the release-dismissal 

colloquy, and that the Livingstones might have been misled into 

believing that he was simply repeating his earlier comments. We 

agree with the district court's finding that this exchange is not 

relevant. Judge Cicchetti's comments in the portion of the 

exchange presented to the district court, App. at 790, bore little 

resemblance to his later comments at the release-dismissal 

proceeding, Appellees' App. at 32. 

VI. Application of Pennsylvania Law to the Livingstones' State-Law 

Claims. 

 As we noted in our discussion of the procedural history of 

this case, the district court dismissed a number of the 

Livingstones' state-law claims on grounds, such as the statute of 

limitations, unrelated to the release-dismissal agreement. The 

dismissal of those claims is not before us on appeal. The 

remaining state-law claims included claims of assault and battery 

against defendants Monack and Snyder; a claim of intentional 

infliction of emotional distress against defendants Monack, Snyder, 

and Moody; and a claim of conversion against all defendants. 

 Neither the parties nor the district court have discussed what 

standard applies to determine the enforceability of the releasedismissal agreement as to the state-law claims. Instead, they have 

apparently assumed that the standard applicable to these claims is 

no different from that applicable to section 1983 claims. This is 

not necessarily true; the question whether the Livingstones have 

waived their claims under state law is itself one of state law, 

see Livingstone I, 12 F.3d at 1210 n.6, and state law cannot be 

assumed to parallel federal law on this question. 

 In Livingstone I, we observed that the courts of Pennsylvania 

"frequently follow the principles set forth in the Restatement [of 

Contracts]," id., and suggested that the Pennsylvania Supreme 

Court might be likely to do as the United States Supreme Court did 

in Rumery, and look to the public-interest analysis in the 

Restatement of Contracts to determine when it is appropriate to 

enforce a release-dismissal agreement. See id. However, we did 

not then have occasion to decide precisely what standard 

Pennsylvania would apply to the enforcement of a release-dismissal 

agreement. That question is now before us. Indeed, that question 

subsumes two distinct questions: (1) What standard would 

Pennsylvania courts be likely to apply to determine whether the 

enforcement of a release-dismissal agreement is in the public 

interest? (2) What standard would Pennsylvania courts be likely to 

apply to determine the voluntariness of a release-dismissal 

agreement? 

A. Public Interest 
 We have discovered no reported Pennsylvania cases addressing 

the question of when, if ever, it is in the public interest to 

enforce a release-dismissal agreement. Our analysis of the caselaw 

and policies of the Commonwealth of Pennsylvania has persuaded us, 

however, that the Supreme Court of Pennsylvania would apply a 

public-interest standard resembling that applied under federal law. 

 The courts of Pennsylvania have long declined to enforce 

contracts that are contrary to public policy. See, e.g., Kuhn v. 

Buhl, 96 A. 977 (Pa. 1916) (finding unenforceable as against public 

policy an agreement between bidders for public lands under which 

one of them would, in exchange for a fee, withdraw its bid). After 

Kuhn, the Supreme Court of Pennsylvania accepted the standard set 

forth in section 320(1) of Tentative Draft No. 12 of the 

Restatement (Second) of Contracts (March 1, 1977) as its standard 

for the nonenforcement of contracts as against public policy. SeeCentral 

Dauphin School District v. American Casualty Co., 426 A.2d 

94, 96 (Pa. 1981). Section 320(1) of the Tentative Draft was to 

emerge (with one minor stylistic alteration not relevant here) as 

Section 178(1) of the Restatement (Second) as finally adopted. It 

provides that "[a] promise or other term of an agreement is 

unenforceable on grounds of public policy if legislation provides 

that it is unenforceable or the interest in its enforcement is 

clearly outweighed in the circumstances by a public policy against 

the enforcement of such terms." Restatement (Second) of Contracts 178(1) 

(1981). We may reasonably conclude Ä as the Pennsylvania 

Superior Court has already concluded, see Donegal Mutual Insurance 

Co. v. Long, 564 A.2d 937, 942 (Pa. Super. 1989) Ä that the 

Pennsylvania Supreme Court, having accepted tentative section 

320(1) in Central Dauphin, would now accept permanent section 

178(1). 

 In Rumery, the Supreme Court drew upon section 178(1) to 

fashion its federal common-law rule that a release-dismissal 

agreement will be unenforceable "if the interest in its enforcement 

is outweighed in the circumstances by a public policy harmed by 

enforcement of the agreement." Rumery, 480 U.S. at 392 & n.2. We 

think that the Pennsylvania Supreme Court would not only draw on 

section 178(1) in considering the enforceability of a releasedismissal agreement but, in construing that section's open 

language, would look to Rumery and its progeny in the courts of 

appeals as persuasive authority. The Pennsylvania Supreme Court 

would, of course, also consider the policies of the Commonwealth of 

Pennsylvania, as expressed in the Commonwealth's statutes and 

common law. The Pennsylvania Supreme Court has treated 

Pennsylvania's common law as an important instrument for curbing 

official misconduct, paralleling at the level of state law the 

United States Supreme Court's view of the policies underlying 

section 1983. See, e.g. Supervisors of Lewis Township v. Employers 

Mutual Casualty Co., 523 A.2d 719, 722 (Pa. 1987) (finding that 

permitting insurance coverage of willful or fraudulent conduct on 

the part of a public official is contrary to Pennsylvania law and 

public policy, as personal financial liability is intended to deter 

official misconduct). We therefore conclude that the Pennsylvania 

Supreme Court would subject agreements that purport to waive tort 

liability to at least as careful scrutiny as the United States 
Supreme Court has applied to agreements purporting to waive 

liability under section 1983. 

 The Livingstones argue that the law of the Commonwealth of 

Pennsylvania strictly limits the private resolution of criminal 

charges. In support of this claim, they cite Pennsylvania Rule of 

Criminal Procedure 314, a rule permitting a form of courtsupervised settlement in certain types of criminal cases. That 

rule provides: 

 When a defendant is charged with an offense which is not 

 alleged to have been committed by force or violence or threat 

 thereof, the court may order the case to be dismissed upon 

 motion and a showing that: 

 (a) the public interest will not be adversely 

 affected; 

 (b) the attorney for the Commonwealth consents to 

 the dismissal; 

 (c) satisfaction has been made to the aggrieved 

 person or there is an agreement that satisfaction 

 will be made to the aggrieved person; 

 (d) there is an agreement as to who shall pay the 

 costs. 

Pa. R. Crim. P. 314. The Livingstones assert that the fact that 

this rule does not permit settlements in the case of offenses 

"alleged to have been committed by force or violence or threat 

thereof" implies that such settlements are disfavored, or perhaps 

prohibited, under Pennsylvania law. 

 We are not persuaded that Rule 314 demonstrates that 

Pennsylvania would not permit release-dismissal agreements in other 

situations. A prosecutor who has sound public-interest reasons for 

declining to go forward with a prosecution, or for terminating a 

prosecution after it has begun, must have the authority to do so. 

As a corollary of this authority, a prosecutor presumably also has 

the authority to condition a dismissal on some undertaking by the 

defendant. 

 We find, however, that Rule 314 demonstrates that the courts 

of Pennsylvania would be likely to subject release-dismissal 

agreements to close scrutiny. Further, the fact that Rule 314(a) 

requires that a judge determine that "the public interest will not 

be adversely affected" by a dismissal demonstrates the 

Commonwealth's commitment to reviewing release-dismissal agreements 

for their impact on the public interest. The Pennsylvania courts 

have also read Rule 314's limitations on the circumstances in which 

criminal prosecutions may be dismissed to indicate that "the law 

does not favor out-of-court compromise over prosecution." 

Commonwealth v. Pettinato, 520 A.2d 437, 439 (Pa. Super. 1987) 

(concluding that an offer from a criminal defendant to pay a 

complainant a fee in exchange for her agreement not to testify was 

admissible into evidence in the defendant's criminal trial; because 

Rule 314 strictly limits consensual dismissals in criminal cases, 

the civil rule of evidence barring the admission of offers of 

settlement into evidence did not apply). 

 In summary, then, we find that Pennsylvania would be likely to 
permit release-dismissal agreements to be enforced in some cases, 

but would monitor them closely to ensure that their enforcement is 

in the public interest. The federal rule, which places the burden 

of proving that a release-dismissal agreement is in the public 

interest on those seeking to enforce the agreement, has the same 

goals. Pennsylvania would therefore be likely to apply a very 

similar rule. 

B. Voluntariness 

 The Court observed in Rumery that private citizens are 

permitted to waive their constitutional rights in many 

circumstances. For instance, criminal defendants may waive 

constitutional rights through plea bargaining, and the resulting 

agreements are ordinarily enforced if they are voluntary. 

Voluntary release-dismissal agreements, Rumery reasoned, should 

therefore also be permitted. See 480 U.S. at 393-94. 

 Pennsylvania, too, permits plea bargaining, see, e.g., 

Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993), and will 

uphold a guilty plea if it is knowing and voluntary, seeCommonwealth v. 

Alston, 373 A.2d 741, 743 (Pa. 1977). We believe 

that the Pennsylvania Supreme Court would be likely to follow a 

line of logic similar to that of the Court in Rumery, and permit 

release-dismissal agreements upon a showing of voluntariness. 

 However, we anticipate that the Pennsylvania Supreme Court 

would be very attentive to how the voluntariness of a releasedismissal agreement is established. Such judicial attentiveness 

would be called for both because of the danger that such agreements 

will be concluded in improper circumstances, and because 

Pennsylvania has a policy of declining to enforce contracts 

concluded under duress or threat of prosecution. See, e.g., 

Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super. 

1985) (applying a rule that threats of criminal prosecution 

constitute duress rendering a contract voidable, and stating: "It 

is an affront to our judicial sensibilities that one person's 

ability to seek another's prosecution can be bartered and sold the 

same as commodities in the market place. It is even more repugnant 

when the foul stench of oppression pervades the transaction."). 

For reasons we have already discussed, the voluntariness of oral 

release-dismissal agreements is especially likely to be 

problematic, and Ä precisely because such agreements are not 

evidenced by a writing Ä determinations of the voluntariness of 

such agreements are particularly likely to be unreliable. Seesupra at 35 

- 42. Accordingly, we predict that the Pennsylvania 

Supreme Court, when faced with the question, will subject the 

voluntariness of oral release-dismissal agreements to a heightened 

standard of proof, and we therefore conclude that the voluntariness 

of the release-dismissal agreement now before us must be 

demonstrated by clear and convincing evidence. 

 

VII. Conclusion. 

 For the reasons set forth above, we will vacate the judgment 

of the district court and remand for further proceedings in 

accordance with this opinion. 
------------------------------------------------