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HOUSTON-STARR COMPANY v. VIRGINIA MANOR APARTMENTS (01/22/82)

filed: January 22, 1982.

HOUSTON-STARR COMPANY, A CORPORATION, APPELLANT,
v.
VIRGINIA MANOR APARTMENTS, INC., A CORPORATION, ELIAS J. HAKIM, JR., AN INDIVIDUAL, LEONARD MAGEE, JR., AN INDIVIDUAL, LENDOLL CORPORATION, A CORPORATION, BERG CONSTRUCTION, A CORPORATION, MARIDOL CORPORATION, A CORPORATION, THE WESTERN PENNSYLVANIA NATIONAL BANK, A CORPORATION, AND THE METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION



COUNSEL

John A. Metz, Pittsburgh, for appellant.

Benjamin Wechsler, Pittsburgh, for appellees.

Popovich, Montgomery and Hoffman, JJ.

Author: Per Curiam

[ 294 Pa. Super. Page 572]

Appellant contends that the lower court erred in vacating a judgment of settlement without an evidentiary hearing

[ 294 Pa. Super. Page 573]

    and findings of fact. We agree and, accordingly, vacate the order of the court below and remand for proceedings consistent with this opinion.

On February 15, 1972, appellant filed a complaint in assumpsit against appellee Virginia Manor Apartments, Inc. (hereinafter appellee) and several others alleging that it had not been paid for approximately $70,000 worth of building materials. Following lengthy pre-trial proceedings, the case was called for jury trial in early May, 1978. The case was not tried to completion, however, because the parties negotiated a settlement which the lower court entered as a $37,000 judgment for appellant against appellee. Appellee promptly paid appellant $5,000 as the first installment under the purported settlement agreement. A dispute subsequently arose between the parties concerning the payment terms of the agreement. On August 15, 1979, appellant filed a petition to enforce the agreement alleging its version of the payment terms. The lower court subsequently conducted a conference, where appellee apparently denied that it had agreed to the terms alleged in appellant's petition.*fn1 The lower court then circulated to counsel, and later filed, the following order:

WHEREAS, the above captioned matter came on for trial and after taking some testimony the case was settled for $38,000.00, $37,000.00 to be paid by [appellee], and $1,000.00 to be paid by the other defendants, and,

WHEREAS, the parties understood that [appellee] was not able to pay the agreed settlement except on terms, and

WHEREAS, the parties were to enter into an agreement providing for the terms of payment of the $37,000.00, and

WHEREAS, judgment was entered of record against [appellee] and in favor of [appellant] in the ...


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