hwm? ?bu-v.

Ky
Copies: Bruce E. Rende, Esq.; John M. Smith, Esq.; Kendra Smith, Esq.; Kimberly A. Brown,
Esq.
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, 

CIVIL COURT DIVISION

STACEY HANEY, et a1,

Plaintiffs,

No. 2012-3534 
VS.

RANGE RESOURCES APPALACHIA, LLC.,
et al





Defendants.

Vd 

L013 Nd l8 9m 9193

MEMORANDUM ORDER

Before the Court are two Motions to Enforce Settlement Agreement presented by the
Plaintiffs and by the Defendant Range Resources Appalachia, LLC.1 The Defendant?s Motion
was joined by the following Defendants: Highland Environmental, LLC, Solmax International,
Inc., Red Oak Water Transfer NE, LLC, Microbac Laboratories, Inc., EAP Industries, Inc.,
Terra?x Environmental Technology, Inc., PBR, Inc. d/b/a SKAPS Industries, Engineering
Products, Inc., New Dominion Construction, Inc., and Multi-Chem Group, LLC.

After years of contentious litigation, including appeals ?led by both Defendants and
Plaintiffs, the parties engaged in mediation and a global, comprehensive settlement was reached

on January 19, 2018. All of the parties executed a document entitled ?Mediation Settlement

 

I The motions and briefs in support thereof were presented to the Court but not ?led as the documents contained
details of a settlement agreement which is to remain con?dential. With this Order, all motions and submissions
related to the Motions to Enforce Settlement will be ?led with the Prothonotary under seal.

1

 

 

General Terms;? this document is hereinafter referred to as the Term Sheet. The introductory
paragraph of the Term Sheet states:

?The following general terms were agreed upon by the parties, to resolve the disputes
listed below. The parties further agree to draft, ?nalize and execute a mutually acceptable
release and settlement agreement that is consistent with the terms below. The general terms of
the release and settlement are outlined below.?

Not surprisingly, the parties, after seven (7) months, have not been able to agree to the
language to be in the Release and Settlement Agreement that was contemplated in the Term
Sheet. For that reason, both sides have ?led a Motion to Enforce Settlement Agreement.

The threshold question the Court must address is whether an enforceable agreement
exists. The Court ?nds unequivocally an agreement does exist and the terms of the agreement
are contained in the Term Sheet. All of the parties agree that the Term Sheet is an enforceable
settlement agreement. The Court must also determine whether the agreement is conditional upon
the execution of a ?Mutually acceptable release and settlement agreement.? The Court ?nds that
it was not. While a written comprehensive release and settlement agreement was contemplated,
the failure of the parties to execute one does not vitiate the enforceability of the agreement itself
as represented in the Term Sheet. Therefore, the Term Sheet is the agreement between the
parties.

When a dispute arises between parties concerning a contract, it is the duty of the Court to
interpret the contract. The basic rule in contract interpretation is to ascertain the intent of the
contracting parties and when the terms of a contract are clear and unambiguous, the intent of the
parties is to be ascertained from the writing. Insurance Adjustment Bureau, Inc. v. Allstate Ins.

Q, 905 A.2d 462, 588 Pa. 470 (2006). The parties have the right to make their own contract

 

 

and it is not the province of the Court to rewrite or alter the contract. Steuart v. McChesney, 444

 

A.2d 659, 496 Pa. 45 (1982). ?The Court may not rewrite the contract for the purposes of
accomplishing that which, in its opinion, may appear proper, or, on general principles of
abstracts justice. . .make for (the parties) a better contract that they chose, or saw to make for
themselves, or remake a contract, under the guise of construction because it later appears that a
different agreement should have been consummated in the first 

662, 51 quoting the C.J.S. Contracts ?296(3).

In consideration of these motions this Court must analyze the contract in order to enforce
it. The Court will consider each of the nine delineated terms and if germane to the enforcement
of the settlement, set forth an appropriate Order.

1.) Total settlement amount: $3,000,000 broken down as follows:

(The Term Sheet also contains a recitation of the contributions between the
Defendants.)

The Court ?nds that term is clear and unambiguous and not in dispute.
2.) Broad Release of ALL Claims against Defendants:

?Any and all claims for liability, actions, causes of actions, and damages arising
out of or related to past, current, and/or future claims for past, current, and/or
future activities related to Defendants? operations, products, services, and/or any
and all related activities, including a release of future claims related to Defendants 
operations and inconvenience or nuisance of future operations. (?Released
Claims?).

?The settlement and release includes consideration provided by Defendants for
Plaintiff? future claims, injuries, damages, and causes of action related to future
operations at the Yeager Site and nearby sites. Plaintiffs enter into this settlement
and release in recognition of and with full knowledge that Range intends to
continue to expand natural gas operations at the Yeager Site and other nearby sites
in the future. 

Final settlement and release will include a mutual release.

 

 

 

 

The Court ?nds that this is a broad mutual release in which ALL parties are releasing

each other.

3.) Broad Covenant Not to Sue for any of the Released Claims, indemnity for breach
of Covenant Not to Sue with recovery of attorney fees; No assignment of claims.

The Court ?nds that this is clear and unambiguous.

4.) Plaintiffs agreement to Non-Disparagement of Defendants.

The Court ?nds that this is clear and unambiguous.

5.) Right of First Refusal for Range to purchase Voyles and Haney properties, except
in the event that Stacey Haney wishes to sell 1049 McAdams Road to Ashley Voyles
or the Voyles wish to sell or transfer 1085 McAdams Road to their children.

The Court ?nds that this is clear and unambiguous.

6.) Medicaid (sic) Secondary Payer Act Release and Set Aside provision.

It is this term over which the parties strongly disagree. The Plaintiffs propose that the
Defendants execute two separate releases for each Plaintiff, one indicating a settlement of $500
for any personal injury claim and the balance of the settlement for property damage. Counsel for
Plaintiffs have indicated that four of the eight Plaintiffs have received bene?ts or are receiving
bene?ts that trigger reporting requirements pursuant to the Act, (provided that the threshold
settlement of $750 is met). Plaintiffs? counsel also represented that the settlement proceeds were
to be distributed in thirds but did not indicate the speci?c allocation between all eight Plaintiffs.

The Defendants contend that Term 6 requires the Defendants to report the entire
settlement to Medicare/Medicaid for each Plaintiff and that the Plaintiffs have a duty to hold the
Defendants harmless from any liability under the Medicare Secondary Payer Act.

Neither position is correct. The Term is not descriptive; duties are not allocated, details
are not set forth. The clear and unequivocal intent of the parties is to comply with this federal

act. Neither side can force the other in the manner they desire. The Plaintiffs? structure was not

 

 

discussed prior to the settlement and clearly the Defendants did not agree to their proposed two-
tier structure. What the parties did agree to was compliance with the Medicare Secondary Payer
Act and a Release and Set Aside provision.

The Medicare Secondary Payer Act (MSP) provides that when a person is injured by a
third party and Medicare pays for the medical treatment of that injury, Medicare can recoup all
payments from the party responsible for the injury. The Medicare program is administrated by
the Centers for Medicare and Medicaid Services (CMS). The MSP gives CMS the right to
recover proceeds for payments it made on behalf of its covered individuals from settlement
proceeds that individual received for certain personal injury compensation. The MSP and the
Medicare, Medicaid and SCHIP Extension Act (MMSEA) Section 111 contains reporting
requirements which require a primary payer to submit a report to CMS and/or Pa. Department of
Health Services once a claim is resolved through a settlement judgment or award. The primary
payers in this case are the Defendants. Substantial penalties may be imposed on primary payers
for failure to timely report payments. The bene?ciary also has a duty to report and may be
subjected to penalties and ?nes for failing to comply with the reporting requirements. When
CMS is not noti?ed of a claim until after a settlement, Department of Health Services
will conduct a search of health care claims and then issue a Conditional Payment Notice
identifying the medical costs believed to be related to this injury. The parties then provide
further information and bene?ciaries and payers have administrative remedies available to
challenge determinations. Settlements with speci?c allocation between personal injury
and non-reporting claims are not binding upon CMS/Medicare.

The Court ?nds that to effectuate Term to comply with the as

intended by the parties, Plaintiffs? counsel must provide to the Defendants the speci?c amount or

- .

 

 

 

 

proportion that each Plaintiff will receive and the social security numbers of each Plaintiff.
Counsel must also provide to the Defendants which four Plaintiffs have not received any
Medicare qualifying bene?ts and veri?ed as no reporting will be necessary as to those Plaintiffs.
The parties shall cooperate with each other not only as between the parties but in assistance with
any party in resolution of any dispute with CMS.

7.) Dismissal of all actions, including but not limited to:

- Haney, et al v. Range Resources ?Appalachia, LLC, et al (Washington County
Court of Common Pleas); including any and all related appeals.

Voyles matter (Commonwealth Court)
The Court ?nds that this is clear and unambiguous.

8. Certi?cation from Plaintiffs and Plaintiffs? Counsel of Compliance related to
return or destruction of discovery.

In light of the letter the parties received from the Attorney General?s
Of?ce, this provision is presently moot. Should the Attorney General end the
investigation, this provision is clear and unambiguous.

9.) Settlement to be con?dential at the option of each defendant.

The Court ?nds that this is clear and unambiguous.

THEREFORE, it is hereby ORDERED and DECREED that, because a ?nal Release and
Settlement Agreement has not been executed, the Mediation Settlement General Terms (Term
Sheet) shall constitute the settlement contract among the parties and all parties shall take such
action as required by the Settlement, including that Plaintiffs? counsel shall provide the
information directed in Paragraph 6 above and shall dismiss all actions pursuant to Paragraph 7

and Defendants shall tender the payment as required in Paragraph 1 with said monies being held

 

 

in escrow by Plaintiffs? counsel, if appropriate, pending compliance with Paragraph 6 as to each

Plaintiff.

BY THE COURT:



KXIHERINE B. EMERY, JUDGE

 

DATE

34,