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decided: December 13, 1971.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1969, No. 1347, in case of Richard L. Limmer, Jr. v. Country Belle Cooperative Farmers and Carl Bayer.


C. Donald Gates, Jr., with him Brandt, McManus, Brandt & Malone, for appellants.

Theodore M. Tracy, with him Stokes, Lurie and Tracy, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 220 Pa. Super. Page 172]

This is an appeal from the lower court's entry of judgment against defendants in the amount of $25,000, the lower court stating such was the amount of an offer of settlement made by defendants and accepted by plaintiff.

Defendants have appealed from said judgment, contending that they made no such offer of settlement. They contend further that even if such offer of settlement had been made shortly after the March 25, 1971 pretrial, as stated by the lower court, plaintiff's acceptance thereof after the choosing of a jury on April 7 was not within a reasonable time, the offer at that time having lapsed by virtue of its nonacceptance within a reasonable time or by virtue of plaintiff's rejection by reason of his proceeding with the selection of a jury thereafter.

Unfortunately, we cannot decide the issues thus presented to us on this appeal as no record was made in the court below on the factual issues involved. No evidentiary hearing was held in the matter by the court below wherein the facts relied upon by both sides were placed in evidence by testimony of the parties and their witnesses. The lower court's order, though revealing personal knowledge of the defendants' offer, contains no specific findings as to the date on which the offer was made to plaintiff, the exact content of the offer, the manner in which it was presented to plaintiff, and the circumstances surrounding the presentation. Though the order also reveals the lower court's personal knowledge of plaintiff's acceptance, the order

[ 220 Pa. Super. Page 173]

    merely states that counsel for plaintiff "subsequently advised" he had accepted "said offer of settlement and prescribed the apportionment hereinafter set forth." No reference, however, is made to the time, manner of, or circumstances surrounding that acceptance by plaintiff. The court in its order merely makes passing reference to the defendant's refutation of the offer of settlement with the statement ". . . defense counsel advised that the insurance carrier has taken the position that it made no offer of settlement, it is hereby ordered that the settlement is specifically enforced . . .". No record was made by the court below as to the statements and actions of counsel relevant to the matter of offer and acceptance of compromise. Though the lower court stated in its order that the offer of settlement had been transmitted by defendants to him, yet in view of the defendants' denial thereof and their contention that the acceptance came too late, a hearing into the matter should have been held to establish of record the facts and circumstances concerning the alleged offer and acceptance. As much as this court, as well as the court below, favors the settlement of pending litigation, we must nevertheless be careful that in our efforts to clear the court calendar we do not omit the appropriate judicial procedures which not only safeguard the rights and interests of all the parties involved but which protect the court below and prepare the case for intelligent review by the appellate court.

That an evidentiary hearing into the existence and binding effect of the settlement agreement is the appropriate procedure to be followed in matters of contested settlement agreements has been clearly established by the courts. One of the most recent cases in which we reversed and remanded because of failure to follow such procedure was that of Carter v. Carter, 212 Pa. Superior Ct. 238 (1968), in which we stated that

[ 220 Pa. Super. Page 174]

    the court below had entered an order which in its opinion was "entered by agreement of the parties. The appellant, however, denies that such an agreement was ever concluded." We stated that, "If, in fact, there was such an agreement and appellant's counsel approved it, then the agreement is enforceable", but we noted that, "No hearing was ever held to determine whether or not this order represents the agreement of the parties, and was apparently entered without notice to the appellant." We, therefore, reversed and remanded the case to the lower court for a hearing into the ...

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