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.