IN THE COURT OF COMMON PLEAS OF NORTHAMPTON … · d. Nicholas Sabatine Complaint Beginning in...
Transcript of IN THE COURT OF COMMON PLEAS OF NORTHAMPTON … · d. Nicholas Sabatine Complaint Beginning in...
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY COMMONWEALTH OF PENNSYLVANIA
CIVIL DIVISION – LAW
ESTHER R. SMITH, Plaintiff, v.
WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants. HOWARD FOGEL, SHELBA FOGEL, GEORGE KIEFER, JR., TERRY KIEFER, DORIS KIEFER, Plaintiffs, v. WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants.
No. C0048CV2011-1478 No. C0048CV2011-4473
JOSEPH A. TAVIANINI, JR., Plaintiff, v. WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendants.
No. C0048CV2011-2069
DAVID S. FUSACCHIA and DEBORAH A. FUSACCHIA, Plaintiffs, v.
WPL PARTNERS, INC., Defendant, And BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Additional Defendant. ROY H. HUFFMAN and CYNTHIA J. HUFFMAN, Plaintiffs, v. WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT CONPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-13767 No. C0048CV2011-1214
RICHARD R. HERD and AMELIA L. HERD, Plaintiffs, v.
WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendant.
No. C0048CV2011-3574
JOHN DEBOER and JOAN DEBOER, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant And WALTER P. LAMBERT, Additional Defendant.
No. C0048CV2011-1461
NICHOLAS R. SABATINE, III, P.C. PROFIT SHARING PLAN, Plaintiff, v. BLUE MOUNTAIN COMSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, JR., Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-5066
NICHOLAS R. SABATINE, III, P.C. Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants. NICHOLAS R. SABATINE, III and SUSAN SABATINE, Individually and Jointly, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-5067 No. C0048CV2011-5068
CONNIE SABATINE, as Executrix of the Estate of NICHOLAS SABATINE, JR., Deceased, and CONNIE SABATINE, Individually and Jointly, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. COO48CV2011-5069
WILLIAM S. WIERSMA and TRACY A. WIERSMA Plaintiffs, v.
WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-5136
CATHERINE V. FRITTS, Plaintiff, v. WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-4112
WILLIAM E. SHAW, JR., and VICTORIA L. SHAW, husband and wife, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, MD, and ELEANOR CINELLI, husband and wife, CINELLI FAMILY LIMITED PARTNERSHIP, CAROL L. KING and JANE CINELLI, Defendants.
No. C0048CV2011-8694
GEORGENE LERCH, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT Defendants.
No. C0048CV2011-5426
JAMES A. CORVINO, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-11056
SOVEREIGN BANK, N.A., Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, and WALTER LAMBERT, a/k/a WALTER P. LAMBERT Defendants.
No. C0048CV2012-1749
YMKJE EMMA BRANDT, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant. HOLLI DEBOER JONES, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant.
No. C0048CV2012-1204 No. C0048CV2012-3558
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Plaintiff, v. W P L PARTNERS INC., Defendant.
No.C0048CV2011-10970
PHILLIP SABATINE, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants. CAROLYN DELL ALBA, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants.
No. C0048CV2011-8678
No. C0048CV2011-8679
OPINION OF THE COURT
Plaintiffs Howard Fogel, Shelba Fogel, Doris Kiefer, Terry Kiefer,
George Kiefer, Jr., Esther Smith, Connie Sabatine, Nicholas R. Sabatine, III,
Susan Sabatine, Nicholas R. Sabatine, III, P.C., and Nicholas R. Sabatine,
III, P.C., Profit Sharing Plan (the “Movants”) present this court with a
“Motion to Enforce Release and Settlement Agreement” (“Motion to Enforce
JOSEPH A. TAVIANINI, JR., Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant, WALTER P. LAMBERT, Additional Defendant.
No. C0048CV2011-10562
NED N. GARIS and SHARON L. GARIS, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, M.D. and ELEANOR CINELLI, husband and wife, CINELLI FAMILY LIMITED PARTNERSHIP, CAROL L. KING and JANE CINELLI, Defendant.
No. C0048CV2011-3540
Settlement”). For the reasons set forth below, we must deny the motion
and remand the case for a trial on the merits.
I. Factual and Procedural Background
a. Fogel and Keifer Complaint
In April of 2004, Defendant Walter P. Lambert (“Lambert”), Chief
Executive Officer of Blue Mountain Consumer Discount Company (“Blue
Mountain”), solicited Plaintiffs Howard Fogel, Shelba Fogel (collectively the
“Fogels”), George Kiefer, Jr., and Terry and Doris Kiefer (collectively the
“Kiefers”) to loan money to Blue Mountain. See Amended Complaint at ¶
14, Fogel, et al. v. Lambert, et al., C-48-CV-2011-4473 (C.P. Northampton
Co. Dec. 5, 2011) (“Fogel Complaint”). The loans were payable on demand
and required Blue Mountain to pay an annual interest rate of 10%. See
Fogel Complaint at ¶ 14. Through his solicitations, Lambert represented that
the loans were safe “investments.” See Fogel Complaint at ¶ 15(a).
Lambert also represented that in the past he never lost money with similar
investments. See Fogel Complaint at ¶ 15(a)-(c). Following Lambert’s
solicitations, Blue Mountain received loans from Howard and Shelba Fogel
($171,655), George Kiefer, Jr. ($85,501.41), and Terry and Doris Kiefer
($77,501.41). See Fogel Complaint at ¶¶ 18-20. Attached to the Complaint
are Notes from Blue Mountain evidencing the alleged debts to Howard and
Shelba Fogel, and George Kiefer, Jr. See Fogel Complaint at Ex. A-C. Terry
and Doris Kiefer aver that their original Note was misplaced but that
Defendants are in possession of a copy of the original Note. See Fogel
Complaint at ¶ 20.
Pursuant to the terms of the loans, the Fogels and Kiefers received
monthly interest payments from Blue Mountain through January 2010.
Subsequent to January 2010, Blue Mountain’s interest payments were
untimely, and all payments ceased after September 2010. See Fogel
Complaint at ¶¶ 24, 27. The Fogels and Kiefers contend that Defendants
owe them the principle, unpaid interest, punitive damages, attorneys’ fees,
and costs. See generally Fogel Compliant.
The Fogels and Kiefers aver that Francis J. Cinelli, M.D. (“Dr. Cinelli”)
and Eleanor Cinelli (collectively the “Cinellis”) are liable for the debts of Blue
Mountain because Dr. Cinelli exerted legal and factual control over Blue
Mountain, and the Cinellis owned a majority of the assets, and had a right of
control over Blue Mountain through the Cinelli Family Limited Partnership.
See Fogel Complaint at ¶ 6-8. The Fogels and Kiefers brought claims
against the Cinellis for: (1) alter ego liability - piercing of corporate veil
(“alter ego”); (2) fraud; (3) unjust enrichment; (4) conversion; (5) Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”); (6) gross
negligence/breach of fiduciary duty; (7) Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”); and (8) Concerted Tortious Action
pursuant to the Restatement (Second) of Torts § 876 (“concerted action”).
See generally Fogel Complaint.
b. Smith Complaint
On June 28, 2006, Lambert solicited Plaintiff Esther Smith (“Smith”) to
loan $75,000.00 to Blue Mountain. See Second Amended Complaint at ¶¶ 9,
11, Smith v. Lambert, et al., C-48-CV-2011-1478 (C.P. Northampton Co.
Dec. 5, 2011) (“Smith Complaint”). The loan was payable on demand and
required Blue Mountain to pay Smith a 9% monthly interest rate. See Smith
Complaint at ¶ 11. Lambert knew that Smith recently liquidated assets by
selling her home, and that Smith would rely on the income from the loan to
support her retirement. See Smith Complaint at ¶ 12. In exchange for the
loan, Lambert, on behalf of Blue Mountain, executed a Note evidencing Blue
Mountain’s obligation to repay the loan. See Smith Complaint at ¶ 13, Ex. A.
Pursuant to the terms of the loan, Smith received regular monthly
interest payments of $573.19 from Blue Mountain until January 2010. See
Smith Complaint at ¶ 18. Beginning January 2010, Blue Mountain’s interest
payments were untimely, and all payments ceased after September 2010.
See Smith Complaint at ¶¶ 19, 20. Smith contends that Defendants owe her
the principle, unpaid interest, punitive damages, attorneys’ fees, and costs.
See generally Smith Complaint.
Smith avers that the Cinellis are liable for the debts of Blue Mountain
because Dr. Cinelli exerted legal and factual control over Blue Mountain, and
the Cinellis owned a majority of the assets and had a right of control over
Blue Mountain through the Cinelli Family Limited Partnership. See Smith
Complaint at ¶ 6-8. Smith brought claims against the Cinellis for: (1) gross
negligence/breach of fiduciary duty; (2) alter ego; (3) fraud; (4) unjust
enrichment; (5) conversion; (6) a violation of the UTPCPL; and (7) concerted
action. See generally Smith Complaint.
c. Sabatine P.C. Complaint
Between 1998 and 2011, Plaintiff Nicholas R. Sabatine, III, P.C. Profit
Sharing Plan (“Sabatine P.C.”) made a series of loans to Blue Mountain
totaling $639,949.77 as of February 28, 2011. See Fourth Amended
Complaint at ¶ 10, Nicholas R. Sabatine, III, P.C. Profit Sharing Plan v. Blue
Mountain Consumer Discount Co., et al., C-48-CV-2011-5066 (C.P.
Northampton Co. July 2, 2012) (“Sabatine P.C. Complaint”). Pursuant to the
terms of the loans, Blue Mountain, through Lambert, agreed to pay Sabatine
P.C. 10% interest per annum, compounded monthly, payable on demand.
See Sabatine P.C. Complaint at ¶ 12. Blue Mountain ceased payments under
the terms of the loan. See Sabatine P.C. Complaint at ¶ 17. As a result,
Sabatine P.C. contends that Blue Mountain owes it $639,949.77 in principle
plus accrued interest from February 28, 2011 at the rate of 10%
compounded monthly. See Sabatine P.C. Complaint at ¶ 13.
Sabatine P.C. avers that the Cinellis are liable for the debts of Blue
Mountain because Dr. Cinelli and Eleanor Cinelli owned a majority of the
assets of Blue Mountain through the Cinelli Family Limited Partnership, and
exerted legal and factual control over the operations of Blue Mountain. See
Sabatine P.C. Complaint at ¶ 6-8. Through its complaint, Sabatine P.C.
brought claims against the Cinellis for (1) fraud in the inception and
misrepresentation; (2) fraud and conversion; (3) alter ego; and
(4) concerted action. See generally Sabatine P.C. Complaint.
d. Nicholas Sabatine Complaint
Beginning in 2001, Lambert solicited Plaintiffs Nicholas R. Sabatine,
III, and Susan Sabatine to loan money to Blue Mountain. See Fourth
Amended Complaint at ¶ 12, Sabatine, et. al. v. Lambert, et. al., C-48-CV-
2011-5068 (C.P. Northampton Co. July 2, 2012) (“Nicholas Sabatine
Complaint”). Nicholas R. Sabatine, III, and Susan Sabatine made a series of
loans to Blue Mountain, pursuant to which Blue Mountain, through Lambert,
agreed to pay 10% interest. See Nicholas Sabatine Complaint at ¶ 12.
Attached to the Complaint is a Note from Blue Mountain evidencing one of
the alleged debts. See Nicholas Sabatine Complaint at Ex. A. However,
Nicholas R. Sabatine, III, and Susan Sabatine aver that they never received
the Notes for the additional loans and believe they are in the possession of
Defendants. See Nicholas Sabatine Complaint at ¶ 11. Blue Mountain paid
interest on these loans through 2008, but ceased making full interest
payments thereafter. See Nicholas Sabatine Complaint. As a result,
Nicholas R. Sabatine, III, contends that Blue Mountain owes him
$1,040,540.73 while Susan Sabatine contends that Blue Mountain owes her
$320,364.39 for a total return on principle and interest, plus accrued
interest from February 28, 2011, punitive damage, attorneys’ fees and
costs. See Nicholas Sabatine Complaint at ¶¶ 13-14.
Nicholas R. Sabatine, III, and Susan Sabatine aver that the Cinellis are
liable for the debts of Blue Mountain because Dr. Cinelli and Eleanor Cinelli
owned a majority of the assets of Blue Mountain through the Cinelli Family
Limited Partnership, and exerted legal and factual control at all times over
the operations of Blue Mountain. See Nicholas Sabatine Complaint at ¶ 6-8.
Nicholas R. Sabatine, III, and Susan Sabatine brought claims against the
Cinellis for: (1) fraud in the inception and misrepresentation; (2) fraud and
conversion; (4) alter ego; and (5) concerted action. See generally Nicholas
Sabatine Complaint.
e. Connie Sabatine Complaint
On April 2, 2008, Plaintiffs Connie Sabatine and Nicholas R. Sabatine,
Jr., loaned $500,000 to Blue Mountain. See Fourth Amended Complaint at
¶ 11, Sabatine et. al. v. Blue Mountain Consumer Discount Co. et. al., C-48-
CV-2011-5069 (C.P. Northampton Co. July 2, 2012) (“Connie Sabatine
Complaint”). The loan required Blue Mountain to pay an annual interest rate
of 10% on the loan. See Connie Sabatine Complaint at ¶ 13. Attached to
Complaint is a Note from Blue Mountain evidencing the alleged debt to
Connie Sabatine and Nicholas R. Sabatine, Jr. See Connie Sabatine
Complaint at Ex. A. On May 1, 2009, Lambert, on behalf of Blue Mountain,
paid $ 2,300 in return on principle, leaving the unpaid loan balance at
$ 497,700. See Connie Sabatine Complaint at ¶ 12. Blue Mountain did not
make any subsequent payments on either the loan principal or interest. See
Connie Sabatine Complaint at ¶ 14. Connie Sabatine, individually and as
executrix of the estate of Nicholas R. Sabatine, Jr., contends that
Defendants owe the remaining principal on the loan, unpaid interest,
punitive damages, attorneys’ fees, and costs. See generally Connie
Sabatine Complaint.
Connie Sabatine avers that the Cinellis are liable for the debts of Blue
Mountain because Dr. Cinelli and Eleanor Cinelli owned a majority of the
assets of Blue Mountain through the Cinelli Family Limited Partnership, and
exerted legal and factual control over the operations of Blue Mountain. See
Connie Sabatine Complaint at ¶ 7-9. Connie Sabatine brought claims
against the Cinellis for: (1) fraud in the inception and misrepresentation;
(2) fraud and conversion; (4) alter ego; and (5) concerted action. See
generally Connie Sabatine Complaint.
f. Motion to Enforce Settlement Agreement
Following a stay of proceedings against Blue Mountain on December
10, 2012, the Cinellis began to engage in settlement negotiations with
Movants and Additional Plaintiffs in the consolidated action. See Motion to
Enforce Release and Settlement Agreement and the Request for Sealing of
the Record at ¶ 6, Smith et. al v. Lambert et. al., C-48-CV-2011-1478 (C.P.
Northampton Co. May 30, 2014) (“Motion to Enforce Settlement”). The first
attempt at global settlement took place on September 23, 2013 in the form
of Alternative Dispute Resolution. See Motion to Enforce Settlement at ¶ 6;
Defendants, Dr. Francis J. Cinelli and Eleanor Cinellis’ Answer and New
Matter to Motion to Enforce Settlement Agreement at ¶ 6, Smith et. al v.
Lambert et. al., C-48-CV-2011-1478 (C.P. Northampton Co. Jun. 26, 2014)
(“Defendants’ Answer”). While the parties were not able to reach a global
settlement agreement, attorneys for the Cinellis and Movants continued to
explore the possibility of settlement on behalf of their respective clients.
See Motion to Enforce Settlement at ¶ 6-7; Defendants’ Answer at ¶ 6-7.
i. Settlement Discussions
Movants and the Cinellis began settlement negotiations with a meeting
between the parties on October 9, 2013. See Motion to Enforce at ¶ 9;
Defendants’ Answer at ¶ 9. Subsequent meetings followed on January 31,
2014 and February 7, 2014. See Motion to Enforce at ¶¶ 12-13;
Defendants’ Answer at ¶ 12-13. At the February 7, 2014 meeting, the
parties reached a “settlement in principle” by agreeing to a settlement
amount of $1.2 million. See Motion to Enforce Settlement at ¶ 14;
Defendants’ Answer at ¶ 14. However, Dr. Cinelli and his counsel, Steven
Hoffman, Esquire (“Attorney Hoffman”) and Morris Bauer, Esquire (“Attorney
Bauer”), testified that they did not believe that an enforceable settlement
agreement was reached at the February 7, 2014 meeting. See Plaintiff’s
Supplemental Factual Record and Brief in Support of Motion to Enforce
Release and Settlement Agreement, Ex. IV, “Videotape Deposition of Francis
J. Cinelli” dated July 17, 2014 at 40, Smith et. al v. Lambert et. al., C-48-
CV-2011-1478 (C.P. Northampton Co. Sept. 17, 2014) (“Dr. Cinelli
Deposition”); Plaintiff’s Supplemental Factual Record and Brief in Support of
Motion to Enforce Release and Settlement Agreement, Ex. VII, “Deposition of
Morris Bauer, Esquire” dated July 29, 2014 at 89, Smith et. al v. Lambert et.
al., C-48-CV-2011-1478 (C.P. Northampton Co. Sept. 17, 2014) (“Attorney
Bauer Deposition”); Plaintiff’s Supplemental Factual Record and Brief in
Support of Motion to Enforce Release and Settlement Agreement, Ex. VIII,
“Deposition of Steven E. Hoffman, Esquire” dated Aug. 4, 2014 at 28-30,
Smith et. al v. Lambert et. al., C-48-CV-2011-1478 (C.P. Northampton Co.
Sept. 17, 2014) (“Attorney Hoffman Deposition”). Further, Dr. Cinelli
testified that following the February 7, 2014 settlement discussions he
advised his attorneys that he would not agree to the settlement under the
terms that Movants had set forth. See Dr. Cinelli Deposition at 23-24, 46,
51; Attorney Hoffman Deposition at 130-31.
On February 25, 2014, Attorney Hoffman forwarded to Movants’
counsel, John Vivian, Esquire (“Attorney Vivian”) and Ralph Bellafatto,
Esquire (“Attorney Bellafatto”), a draft of the settlement terms that Attorney
Bauer understood to have been agreed upon by all parties at the February 7,
2014 meeting. See Defendants, Dr. Francis J. Cinelli and Eleanor Cinellis’
Supplemental Brief in Opposition to Motion to Enforce Settlement
Agreement, Ex. A, “Settlement Stipulation” dated Feb. 25, 2014, Smith et.
al. v. Lambert et. al., C-48-CV-2011-1478 (C.P Northampton Co. June 26,
2014) (“First Draft Settlement Agreement”); see also Motion to Enforce
Settlement at ¶ 15; Defendants’ Answer at ¶ 15; Attorney Bauer Deposition
at 88. Included in Attorney Bauer’s draft was a term material to the Cinellis,
which provided that the Cinellis’ sons, Phillip Cinelli and Francis J. Cinelli, Jr.
(a.k.a. “Mooch”), and their granddaughter, Caitlyn Cinelli, would receive a
release from liability if they contributed to the $1.2 million settlement figure.
See First Draft Settlement Agreement at ¶ 8. Attorney Hoffman testified
that this was a term material to the Cinellis:
Attorney Vivian: In terms of this release and settlement agreement - - and not even in terms of that, can you
explain to me what terms you considered material as opposed to nonmaterial in this settlement agreement?
Attorney Hoffman: What I considered material? Attorney Vivian: Yes. Let’s start with the obvious one. Did you
consider the settlement amount of $1.2 million to be material?
Attorney Hoffman: Yes. Attorney Vivian: What else did you consider to be material?
. . .
Attorney Hoffman: The release of family members.
Attorney Hoffman Deposition at 44-45. Further, Attorney Bauer testified
that he believed the parties had agreed that Phillip Cinelli, Francis J. Cinelli,
Jr., and Caitlyn Cinelli would receive a release from the Movants if they
contributed to the $1.2 million settlement figure. See Attorney Bauer
Deposition at 83, 87, 89, 90-91, 100, 106-107, 146-49.
Attorney Vivian responded to this draft via e-mail, stating that he did
not agree that the terms drafted by Attorney Bauer were the terms agreed
upon by the parties, and expressing doubt that $1.2 million was the proper
figure for settlement purposes. See Motion to Enforce Settlement, Ex. B, E-
mail dated February 27, 2014 at 12:22 p.m., Smith et. al v. Lambert et. al.,
C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014). In response,
Attorney Bauer emailed Attorney Bellafatto and Attorney Vivian with his
perception of the terms decided upon at the settlement discussion on
February 7, 2014, including the provision that the parties had agreed that
Phillip, Francis, Jr., and Caitlyn Cinelli would obtain a release if they
contributed to the settlement figure. See Motion to Enforce Settlement, Ex.
B, E-mail dated February 27, 2014 at 2:32 p.m., Smith et. al v. Lambert et.
al., C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014).
As a result of these e-mails, on February 28, 2014, counsel for
Movants and the Cinellis engaged in a conference call in an attempt to
salvage settlement discussions. See Motion to Enforce Settlement at ¶ 18;
Defendants’ Answer at ¶ 18. Counsel for Movants argue that all major
issues, including the release from liability of Phillip, Francis, Jr., and Caitlyn
Cinelli, were resolved during this telephone call and that a final settlement
was reached. See Motion to Enforce Settlement at ¶ 18. However, the
Cinellis deny this assertion, and counsel for the Cinellis testified that the
issue of the release of Phillip, Francis, Jr., and Caitlyn Cinelli elevated the
conversation into a verbal altercation, which caused the conference call to
end before the issue of release could be resolved. See Defendants’ Answer
at ¶ 18; see also Attorney Bauer Deposition at 90, 94, 99; Attorney Hoffman
Deposition at 103-106.
On April 1, 2014, Attorney Vivian initiated a series of e-mails between
counsel for the parties concerning the language of the proposed release, and
the need for Attorney Bellafatto to obtain approval from his clients for the
proposed settlement. See Motion to Enforce Settlement, Ex. C, E-mails
dated April 1, 2014, Smith et. al v. Lambert et. al., C-48-CV-2011-1478
(C.P. Northampton Co. May 30, 2014) (“April 1, 2014 E-mails”); see also
Motion to Enforce Settlement at ¶ 20. In response to Attorney Vivian,
Attorney Hoffman stated that he would need to obtain consent from the
Cinellis regarding the language in the proposed release. See April 1, 2014
E-mails. Following these e-mails, a second conference call regarding
settlement discussions was held between Attorney Hoffman, Attorney Vivian,
and Attorney Bellafatto on behalf of their respective clients. See Motion to
Enforce Settlement at ¶ 23; Defendants’ Answer at ¶ 23. The Movants
argue that this conference call resolved all remaining details of the
settlement agreement. See Motion to Enforce at ¶ 23. However, the Cinellis
specifically deny that a final settlement agreement was reached during this
conference call. See Defendants’ Answer at ¶ 23. Moreover, Attorney
Hoffman testified that during this conference call he conveyed that Dr. Cinelli
was opposed to a settlement agreement without a release for Phillip, Francis,
Jr., and Caitlyn Cinelli. See Attorney Hoffman Deposition at 48-49, 106-08,
128. Further, Attorney Hoffman testified that once Attorney Vivian denied
his request to release Phillip, Francis, Jr., and Caitlyn Cinelli from liability,
counsel for all parties agreed that Attorney Hoffman would prepare the
subsequent draft of the proposed settlement agreement consistent with
terms that Movants desired in order for Attorney Hoffman to attempt to
convince the Cinellis to agree to the Movants’ position about the release for
Phillip, Francis, Jr. and Caitlyn Cinelli. See Attorney Hoffman Deposition at
107-108, 137.
Attorney Hoffman sent out a new draft of the settlement agreement to
counsel for the Movants on May 1, 2014. See Motion to Enforce Settlement,
Ex. A, “Release and Settlement Agreement,” Smith et. al v. Lambert et. al.,
C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014); Motion to
Enforce Settlement, Ex. D, E-mails dated May 1, 2014, Smith et. al v.
Lambert et. al., C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014).
Attorney Hoffman testified that at the time he sent out the written proposed
settlement agreement on May 1, 2014, he had permission of his clients to
work towards a final settlement agreement but it was understood by all
counsel that he had not received the Cinellis’ final approval of the proposed
settlement agreement. See Attorney Hoffman Deposition at 32-33.
Following the distribution of the May 1, 2014 draft settlement
agreement, counsel for the Movants attempted to contact Attorney Hoffman
to determine the status of the Cinellis’ signatures on the draft settlement
agreement. See Motion to Enforce Settlement, Ex. E, E-mail dated May 6,
2014, See Motion to Enforce Settlement, Ex. A, “Release and Settlement
Agreement,” Smith et. al v. Lambert et. al., C-48-CV-2011-1478 (C.P.
Northampton Co. May 30, 2014); see also Motion to Enforce Settlement, Ex.
F, E-mail dated May 14, 2014, Smith et. al v. Lambert et. al., C-48-CV-
2011-1478 (C.P. Northampton Co. May 30, 2014). Although Attorney
Hoffman testified that he attempted to persuade Dr. Cinelli to accept the
most recent draft of the settlement agreement, he concluded that Dr. Cinelli
would not agree and contacted counsel for the Movants to schedule a
meeting. See Attorney Hoffman Deposition at 133-34, 139; see also Motion
to Enforce Settlement, Ex. G, E-mails dated May 15-16, 2014, Smith et. al v.
Lambert et. al., C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014).
On May 16, 2014, Attorney Hoffman and Attorney Bauer met with counsel
for Movants and informed them that Dr. Cinelli would not sign the most
recent draft of the settlement agreement without a release for Phillip,
Francis, Jr., and Caitlyn Cinelli. See Motion to Enforce Settlement at ¶ 32-
33; Defendants’ Answer at 32-33.
ii. Motion to Enforce Settlement
On May 30, 2014, Movants filed the Motion to Enforce Settlement
alleging that the Cinellis and Movants had reached a settlement agreement
that the Cinellis refused to honor. See Motion to Enforce Settlement; see
also Plaintiff’s Brief in Support of Motion to Enforce Release and Settlement
Agreement and Request for Sealing of the Record, Smith et. al. v. Lambert
et. al., C-48-CV-2011-1478 (C.P. Northampton Co. May 30, 2014). The
Cinellis filed an answer with a new matter and a brief in opposition to the
Movant’s Motion to Enforce Settlement on June 30, 2014. See Defendants’
Answer; Defendants, Dr. Francis J. Cinelli and Eleanor Cinellis’ Brief in
Opposition to Motion to Enforce Settlement Agreement, Smith et. al. v.
Lambert et. al., C-48-CV-2011-1478 (C.P Northampton Co. June 26,
2014)(“Defendants’ First Brief”).
The Cinellis aver that the Motion to Enforce Settlement should be
denied because: (1) there was never a meeting of the minds on all material
terms, and thus no enforceable settlement agreement; (2) the settlement
agreement cannot be enforced because Eleanor Cinelli did not expressly
consent to the settlement agreement; and (3) Dr. Cinelli’s bankruptcy filing
and his brother Albert Cinelli’s withdrawal of financial support rendered the
Cinellis’ ability to perform under the terms of the alleged agreement
impossible. See generally Defendants’ Answer; Defendants’ First Brief. The
Cinellis also attached an “Affidavit of Eleanor Cinelli” as an exhibit to their
answer, averring that she never expressly consented to the settlement
agreement. See Defendants’ Answer, Ex. A, “Affidavit of Eleanor Cinelli”
dated June 14, 2014, Smith et. al. v. Lambert et. al., C-48-CV-2011-1478
(C.P Northampton Co. June 26, 2014).
Movants engaged in discovery with respect to the allegations in the
Motion to Enforce Settlement, and both parties submitted supplemental
factual records for decision of the Motion to Enforce Settlement on
September 16-17, 2014. See Plaintiff’s Supplemental Factual Record and
Factual Brief in Support of Motion to Enforce Release and Settlement
Agreement, Smith et. al. v. Lambert et. al., C-48-CV-2011-1478 (C.P
Northampton Co. Sept. 17, 2014) (“Movants’ Factual Record”); Record in
Support of Opposition to Motion to Enforce Settlement Agreement, Smith et.
al. v. Lambert et. al., C-48-CV-2011-1478 (C.P Northampton Co. Sept. 16,
2014) (“Defendants’ Factual Record”). The parties also submitted
supplemental briefs, supporting their arguments from their previous briefs
with cites to the factual record. See Movants’ Factual Record; Defendants,
Dr. Francis J. Cinelli and Eleanor Cinellis’ Supplemental Brief in Opposition to
Motion to Enforce Settlement Agreement, Smith et. al. v. Lambert et. al., C-
48-CV-2011-1478 (C.P Northampton Co. Sept. 16, 2014) (“Defendants’
Second Brief”). The Cinellis’ supplemental brief also raised a new argument,
i.e., that the settlement agreement should be rescinded because the
Movants have materially breached the terms of the alleged settlement
agreement by participating in Dr. Cinelli’s bankruptcy proceedings. See
generally Defendants’ Second Brief.
Pursuant to these submissions, the factual record for the court’s
decision of the Motion to Enforce consists of: (1) the videotaped deposition
of Defendant Eleanor Cinelli; (2) the videotaped deposition of Defendant
Francis J. Cinelli, M.D.; (3) the deposition of Attorney Steven Hoffman;
(4) the deposition of Attorney Morris Bauer; (5) Exhibit A to the Motion to
Enforce Settlement – Release and Settlement Agreement; (6) Exhibit B to
the Motion to Enforce Settlement Agreement- a series of emails between the
parties’ attorneys; (7) Exhibit C to the Motion to Enforce Settlement – April
1, 2014 email from Attorney Steven Hoffman; (8) Exhibit D to the Motion to
Enforce Settlement – May 1, 2014 email from Attorney Steven Hoffman;
(9) Exhibit F to the Motion to Enforce Settlement – May 6, 2014 e-mail from
Attorney Bellafatto; (10) Exhibit F to the Motion to Enforce Settlement – May
14, 2014 e-mail from Attorney Ralph Bellafatto; (10) Exhibit G to the Motion
to Enforce Settlement– e-mails of May 14-16, 2014; (11) Exhibit A to
Defendants’ Answer and New Matter – Affidavit of Eleanor Cinelli;
(11) Exhibit 1 to Defendants’ Second Brief – Settlement Stipulation;
(12) Exhibit 2 to Defendants’ Second Brief – Complaint Objecting to
Discharge of Debtor; (13) Exhibit 3 to Defendants’ Second Brief – Order
Approving Stipulation; (14) Exhibit 4 to Defendants’ Second Brief – e-mail of
July 15, 2014 from Attorney Vivian; (15) Plaintiff’s Motion to Enforce Release
and Settlement Agreement; (16) Defendants’ Answer and New Matter; and
(17) Plaintiffs Answer to Defendants’ New Matter.1 See Movants Factual
Record; Defendants’ Factual Record; Defendants’ Second Brief; Motion to
Enforce Settlement; Defendants’ Answer; Sabatine Parties Answer to Motion
to Enforce Settlement Agreement of Defendant Francis J. Cinelli and Eleanor
Cinelli – Answer to New Matter, Smith et. al v. Lambert et. al., C-48-CV-
2011-1478 (C.P. Northampton Co. Aug. 18, 2014). The record related to
the Motion to Enforce Release and Settlement Agreement was sealed on May
30, 2014, but the sealing order was vacated on July 22, 2014. See Order of
Court dated May 30, 2014, Smith et. al v. Lambert et. al., C-48-CV-2011-
1478 (C.P. Northampton Co. May 30, 2014); Order of Court dated July 22,
2014, Smith et. al v. Lambert et. al., C-48-CV-2011-1478 (C.P.
Northampton Co. July 22, 2014).
iii. Petition to Intervene
Shortly after the order sealing the record was vacated, additional
Plaintiffs Ned Garis, Sharon Garis, Roy H. Huffman, Cynthia J. Huffman,
Richard R. Herd, Amelia L. Herd, William S. Wiersma, Tracy A. Wiersma,
Victoria L. Shaw, Phillip Sabatine, and Carolyn Dell Alba (collectively the
“Intervenors”) filed a Petition to Intervene in the Movants Motion to Enforce
1 Upon submission of the supplemental record, Movants also attempted to incorporate, by reference, the statement of facts in Plaintiff’s Brief in Support of Motion to Enforce Release and Settlement Agreement into the record. However, case law clearly provides that briefs are not part of the factual record upon which a decision can be based. See generally Scopel v. Donegal Mutual Ins. Co., 698 A.2d 602 (Pa. Super. 1997). Therefore, we did not consider the statement of facts set forth in Plaintiff’s Brief in rendering our decision.
Release and Settlement Agreement. See Petition to Intervene of Ned and
Sharon Garis et. al., Smith et. al. v. Lambert et. al., C-48-CV-2011-1478
(C.P. Northampton Co. Oct. 10, 2014). Argument on the Petition to
Intervene was heard on November 14, 2014, and the Petition to Intervene
was ultimately granted on December 16, 2014. See Order of Court dated
December 16, 2014, Smith et. al. v. Lambert et. al., C-48-CV-2011-1478
(C.P. Northampton Co. Dec. 16, 2014). Following the granting of the
Petition to Intervene, the Intervenors filed briefs arguing that the Movants’
Motion to Enforce Settlement should not be granted because a clause in the
agreement relating to after-discovered unreported assets violates the
bankruptcy code, which “requires that such property belongs to the estate in
perpetuity.” See Brief of Ned and Sharon Garis in Opposition to Motion to
Enforce Settlement Agreement at 5, Smith et. al. v. Lambert et. al., C-48-
CV-2011-1478 (C.P. Northampton Co. Jan. 10, 2015). Subsequently, the
Cinellis filed a brief agreeing with the Intervenors, while the Movants filed
two briefs in opposition to the Intervenors and the Cinellis. See Defendants,
Dr. Francis J. Cinelli and Eleanor Cinelli’s Reply Brief in Opposition to Motion
to Enforce Settlement Agreement, Smith et. al. v. Lambert et. al., C-48-CV-
2011-1478 (C.P. Northampton Co. Jan. 23, 2015); Sabatine Parties Brief in
Opposition to Briefs Filed by all Intervening Parties and Defendants’ Francis
and Eleanor Cinelli, Smith et. al. v. Lambert et. al., C-48-CV-2011-1478
(C.P. Northampton Co. Jan. 27, 2015); Plaintiffs’, Esther Smith, Howard
Fogel, Shelba Fogel, George Kiefer, Jr., Terry Kiefer, & Doris Kiefer
Supplemental Brief in Support of Motion to Enforce Settlement, Smith et. al.
v. Lambert et. al., C-48-CV-2011-1478 (C.P. Northampton Co. Jan. 29,
2015).
II. Discussion
It is well settled that the enforceability of settlement agreements in
Pennsylvania is governed by the principles of contract law. See McDonnell v.
Ford Motor Co., 643 A.2d 1102, 1105 (Pa. Super. 1994) (citations omitted).
In accordance with these principles, a settlement agreement must contain all
of the elements of a valid contract in order to be enforceable. See Gogel v.
Blazofsky, 142 A.2d 313, 315 (Pa. Super. 1958)(citations omitted). “As with
any contract, it is essential to the enforceability of a settlement agreement
that ‘the minds of the parties should meet upon all terms, as well as the
subject-matter, of the [agreement].’” Mazella v. Koken, 739 A.2d 531, 536
(Pa. 1999) (quoting Onyx Oils & Resins, Inc. v. Moss, 80 A.2d 815, 817 (Pa.
1951)). If parties reach an oral agreement, and intend to formalize the
agreement in writing, the fact that they cannot do so does not preclude a
finding that the oral agreement is enforceable. See Woodbridge v. Hall, 76
A.2d 205, 206 (Pa. 1950). Where undetermined matters render a
settlement agreement impossible to understand and enforce, the trial court
must set the agreement aside and remand the matter for a trial on the
merits. See Greentree Cinemas v. Hakim, 432 A.2d 1039, 1041 (Pa. Super.
1981) (citations omitted).
After a review of the record before the court, we do not find sufficient
evidence to prove that there was a meeting of the minds on all terms of the
settlement agreement between Movants and the Cinellis. In particular, the
record is devoid of any evidence that the parties agreed on the issue of a
release for the Cinellis’ sons and granddaughter, which all parties recognized
was an important and material term in the settlement agreement.
Following the first two settlement negotiations, it is clear from the
deposition testimony that Dr. Cinelli and his counsel believed that Phillip
Cinelli, Francis J. Cinelli, Jr., and Caitlyn Cinelli would obtain a release from
Movants if they contributed to the settlement amount of $1.2 million. This
belief is confirmed by the term Attorney Bauer included in the first draft of
the settlement agreement sent to all parties on February 25, 2014.
While counsel for the Movants argue that the issue of the release of
Phillip Cinelli, Francis J. Cinelli, Jr., and Caitlyn Cinelli was resolved during
the February 28, 2014 conference call, the Cinellis deny this allegation.
Additionally, both Attorney Hoffman and Attorney Bauer testified that the
parties could not agree during this conference call as to whether the Cinellis’
sons and granddaughter would be released from liability upon contribution,
and in fact this issue led to an argument and ultimately to the end of the
conference call. Notably, counsel for Movants were not deposed. Further,
Movants did not produce any evidence of record to contradict the statement
of facts by Attorney Hoffman and Attorney Bauer. Therefore, based on the
evidence of record, we cannot find that there was an agreement as to the
release of Phillip Cinelli, Francis J. Cinelli, Jr. and Caitlyn Cinelli following the
February 28, 2014 conference call.
Following this conference call, the factual record shows that there were
additional e-mails between counsel for the parties. However, none of these
e-mails addressed the issue of the release of the Cinellis’ sons and
granddaughter, and there is no evidence of record that this issue was
resolved in this e-mail exchange. A second conference call took place on
April 23, 2014, during which Attorney Hoffman testified that he again
advocated for the release of the Cinellis’ sons and granddaughter. When
Attorney Vivian refused to consider the release, Attorney Hoffman testified
that he agreed to remove the release of Phillip Cinelli, Francis J. Cinelli, and
Caitlyn Cinelli from the agreement and attempt to convince the Cinellis to
sign the agreement without the release for their sons and granddaughter.
The record before us is devoid of any evidence that either the Cinellis or
counsel for the Cinellis ever agreed that Phillip, Francis, Jr., and Caitlyn
Cinelli would not be released from liability.
It is clear that all parties recognized that the release of Phillip, Francis,
Jr., and Caitlyn Cinelli was a term important and material to the settlement
agreement.2 As we do not find that the “minds of the parties [met] upon all
terms,” we cannot find that the parties reached an enforceable settlement
agreement. Mazella, 739 A.2d at 536. Therefore, we must decline to
enforce the alleged settlement agreement, and remand this matter for a trial
on the merits. Further, because we determined that there is not an
enforceable settlement agreement between the Movants and the Cinellis, we
did not need to reach Defendants’ additional arguments in opposition to
Movants’ motion, or the arguments of Plaintiff Intervenors in opposition to
the Movants’ motion.
WHEREFORE, we enter the following:
2 “Attorney Vivian: What else did you consider to be material? . . . Attorney
Hoffman: The release of family members.” Attorney Hoffman Deposition at 44-45.
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA CIVIL DIVISION – LAW
ESTHER R. SMITH, Plaintiff, v.
WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants. HOWARD FOGEL, SHELBA FOGEL, GEORGE KIEFER, JR., TERRY KIEFER, DORIS KIEFER, Plaintiffs, v. WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants.
No. C0048CV2011-1478 No. C0048CV2011-4473
JOSEPH A. TAVIANINI, JR., Plaintiff, v. WALTER P. LAMBERT and BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendants.
No. C0048CV2011-2069
DAVID S. FUSACCHIA and DEBORAH A. FUSACCHIA, Plaintiffs, v.
WPL PARTNERS, INC., Defendant, And BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Additional Defendant. ROY H. HUFFMAN and CYNTHIA J. HUFFMAN, Plaintiffs, v. WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT CONPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-13767 No. C0048CV2011-1214
RICHARD R. HERD and AMELIA L. HERD, Plaintiffs, v.
WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendant.
No. C0048CV2011-3574
JOHN DEBOER and JOAN DEBOER, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant And WALTER P. LAMBERT, Additional Defendant.
No. C0048CV2011-1461
NICHOLAS R. SABATINE, III, P.C. PROFIT SHARING PLAN, Plaintiff, v. BLUE MOUNTAIN COMSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, JR., Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-5066
NICHOLAS R. SABATINE, III, P.C. Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants. NICHOLAS R. SABATINE, III and SUSAN SABATINE, Individually and Jointly, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-5067 No. C0048CV2011-5068
CONNIE SABATINE, as Executrix of the Estate of NICHOLAS SABATINE, JR., Deceased, and CONNIE SABATINE, Individually and Jointly, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. COO48CV2011-5069
WILLIAM S. WIERSMA and TRACY A. WIERSMA Plaintiffs, v.
WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-5136
CATHERINE V. FRITTS, Plaintiff, v. WALTER P. LAMBERT, BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, and ELEANOR CINELLI, Defendants.
No. C0048CV2011-4112
WILLIAM E. SHAW, JR., and VICTORIA L. SHAW, husband and wife, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, MD, and ELEANOR CINELLI, husband and wife, CINELLI FAMILY LIMITED PARTNERSHIP, CAROL L. KING and JANE CINELLI, Defendants.
No. C0048CV2011-8694
GEORGENE LERCH, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT Defendants.
No. C0048CV2011-5426
JAMES A. CORVINO, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, First Defendant, CAROL L. KING, Second Defendant, JANE CINELLI, Third Defendant, WALTER P. LAMBERT, Fourth Defendant, FRANCIS J. CINELLI, Fifth Defendant, CINELLI FAMILY LIMITED PARTNERSHIP, Sixth Defendant, and ELEANOR CINELLI, Seventh Defendant, Defendants.
No. C0048CV2011-11056
SOVEREIGN BANK, N.A., Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, and WALTER LAMBERT, a/k/a WALTER P. LAMBERT Defendants.
No. C0048CV2012-1749
YMKJE EMMA BRANDT, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant. HOLLI DEBOER JONES, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant.
No. C0048CV2012-1204 No. C0048CV2012-3558
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Plaintiff, v. W P L PARTNERS INC., Defendant.
No.C0048CV2011-10970
PHILLIP SABATINE, Plaintiff, v.
BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants. CAROLYN DELL ALBA, Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, CAROL L. KING, JANE CINELLI, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, CINELLI FAMILY LIMITED PARTNERSHIP, ELEANOR CINELLI, Defendants.
No. C0048CV2011-8678
No. C0048CV2011-8679
ORDER OF COURT
AND NOW, this 21st day of May, 2015, upon consideration of the
Motion to Enforce Release and Settlement Agreement by Plaintiffs Howard
Fogel, Shelba Fogel, Doris Kiefer, Terry Kiefer, George Kiefer, Jr., Esther
Smith, Connie Sabatine, Nicholas R. Sabatine, III, Susan Sabatine, Nicholas
R. Sabatine, III, P.C., and Nicholas R. Sabatine, III, P.C., Profit Sharing Plan
JOSEPH A. TAVIANINI, JR., Plaintiff, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, Defendant, WALTER P. LAMBERT, Additional Defendant.
No. C0048CV2011-10562
NED N. GARIS and SHARON L. GARIS, Plaintiffs, v. BLUE MOUNTAIN CONSUMER DISCOUNT COMPANY, WALTER P. LAMBERT, JR., FRANCIS J. CINELLI, M.D. and ELEANOR CINELLI, husband and wife, CINELLI FAMILY LIMITED PARTNERSHIP, CAROL L. KING and JANE CINELLI, Defendant.
No. C0048CV2011-3540
(the “Movants”), the response thereto of Defendants Francis J. Cinelli and
Eleanor Cinelli (the “Defendants”), and the arguments and briefs presented
thereon, it is hereby ORDERED that the Movants’ Motion is DENIED.
It is further ORDERED that this matter is remanded for a trial on the
merits.
BY THE COURT:
/s/ Michael J. Koury, Jr.
_________________________ MICHAEL J. KOURY, JR., J.