Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil No. 2634, November Term, 1978, September 20, 1984.
Allen L. Feingold, Philadelphia, for appellant.
James M. Marsh, Philadelphia, for appellee.
Del Sole, Montemuro and Beck, JJ.
[ 348 Pa. Super. Page 253]
This is an appeal from an Order granting Appellee's Petition to Enforce a Settlement and award of reasonable counsel fees for vexatious or arbitrary behavior towards the other party under 42 Pa.C.S.A. § 2503(9). The record indicates that at a conference on July 1, 1985, the parties met and discussed a settlement for plaintiff's claim for medical expenses incurred in an auto accident under a No-Fault insurance policy with Allstate Insurance Company. Numerous letters were sent by Allstate to Appellant's counsel to have his client sign a release and a request to issue an Order to Settle, Discontinue and End the claim pursuant to a settlement Allstate claimed took place at that meeting. Appellant's counsel, on February 3, 1982, refuted the settlement by informing the defense that he did not "do business with LaBrum and Doak". At an arbitration hearing on July 14, 1982, a second settlement was purported by Allstate to have been reached. Four letters requesting an executed release were ignored by Appellant. Allstate petitioned to have the settlement agreement enforced. Appellant filed an Answer in which the existence of a settlement was denied. The court granted that petition and awarded counsel fees on July 14, 1982.
Appellant raises two issues:
1. Whether the trial court erred in law in granting Appellee's Motion to Enforce a Settlement, where the trial court failed to hold an evidentiary hearing and enter findings of fact on the issue of whether a settlement had occurred?
[ 348 Pa. Super. Page 2542]
. Whether the trial court erred at law and abused its discretion in granting Appellee's Motion to Enforce Settlement where Appellee demanded that Appellant execute a general release, releasing Appellee from any and all claims whatsoever?
Appellant has not alleged fraud in the settlement. Instead, he claims that a settlement never took place, only an offer by Allstate which was not accepted by him. Appellant urges that the trial court erred in not conducting an evidentiary hearing on the matter of the disputed settlement. Citing Limmer v. County Belle Cooperative Farmers, 220 Pa. Super. 171, 286 A.2d 669 (1971) and Houston-Starr Co. v. Virginia Manor Apartments, 294 Pa. Super. 571, 440 A.2d 613 (1982), Appellant argues that a trial court cannot grant a Petition to Enforce a Settlement Agreement without an evidentiary hearing on the matter. Appellee maintains that, based on Dilliplaine v. Lehigh Valley Trust, 457 Pa. 255, 322 A.2d 114 (1974), Appellant has waived this issue since it was not raised in the court below and because the doctrine of basic and fundamental error has found disfavor with appellate courts. See also, Tagnani v. Lews, 493 Pa. 371, 426 A.2d 595 (1981); Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa. Super. 14, 23 n. 5, 473 A.2d 584, 588 n. 5 (1984). However, as stated in Limmer, it is for the trial court to hold a hearing on the existence of the settlement as a matter of judicial procedure to resolve disputed issues and not at the request of one of the parties. This Court found:
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 ...