dissenting:
I agree with much of the law as stated in the Majority Opinion. However, based upon the unique facts that are presented in this case, I cannot concur in the determination that the trial court properly granted summary judgment in favor of the attorney defendants. I would vacate the judgment and remand this action for trial. I therefore cannot join the Majority Opinion.
First, I cannot agree that the Honorable Bernard J. Goodheart was presented with any “new facts” such that a revisiting of the summary judgment question was appropriate. The Honorable Joseph D. O’Keefe denied the defendants’ summary judgment motion on December 2, 1994. The Majority emphasizes that a copy of the May 1991 settlement agreement was not included in the record before Judge O’Keefe, and therefore concludes that this agreement is “new evidence.” However, although the actual agreement was not an exhibit to the motion for summary judgment, the Stipulation and Order relating to the agreement was made a part of the record. This stipulation provides:
It is hereby stipulated that the claims of plaintiffs in this action are dismissed with prejudice as against defendants Motorola Inc., William P. Horrigan, Michael W. Ka-talinic, and Robert Lewis. This dismissal does not affect in any manner plaintiffs’ claims as to remaining defendants Raymond T. Cullen, Ronald B. Hauben, and Joseph Wolfson, which claims are specifically reserved.
Stipulation and Order of Dismissal, Filed May 6,1991, attached as Exhibit A to Defendants’ Motion for Summary Judgment, filed September 30,1994.
Further, the plaintiffs admitted to Judge O’Keefe that the litigation with Motorola had been resolved by a settlement. Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment, dated November 15, 1994, at 3, 15. All parties were aware that, after the District Court had granted summary judgment in Elsco’s favor, Elsco had ended the litigation with Motorola via a settlement agreement. All parties also knew of the clause in the. agreement that reserved the right to continue the claim against the attorney defendants. Any assertion by the attorney defendants to the contrary is, in my view, disingenuous. I simply cannot agree that the settlement agreement entered into in May 1991, could possibly be a “new fact” in 1997.
I would not reach the merits of this issue, however, because Elsco had failed to preserve the issue for appellate review. The record reflects that the following transpired on November 18, 1996, when Judge Goodh-eart conducted a pre-trial hearing regarding several motions in limine filed by the parties. Judge Goodheart opined that, “as surely as night follows day,” thé attorney defendants would present a motion for a compulsory nonsuit following the plaintiff’s case, and he therefore suggested to the parties that his considering the matter before trial would save judicial resources as well as the parties’ time and money. N.T., November 18, 1996, at 33-34, 38-40, 80.
Specifically, the following transpired:
THE COURT: Just so I understand your position, notwithstanding the fact that you recognize that at the conclusion of your case, after you try your ease, there would be a defense motion for compulsory non-*313suit where I will be required to revisit this issue—and I have suggested that you allow this issue to be visited at this point—and I’m suggesting we do it this way to save time and money on your part, your client’s part, as well as tying up the Court for two weeks or so, as I envision this case could be if all the issues that I anticipate and all the witnesses I anticipate will testify—that you would prefer to proceed to trial and not allow me to decide this issue at this point in time. Because I can’t do it once the motion judge has made the decision, I can’t take a second crack at it until you rest. I will give you your choice.
(Discussion off the record.)
MR. THOMAS: [Elsco’s attorney] I don’t have to be hit over the head was [sic] a sledgehammer.
N.T., November 18, 1996, at 38-39. Mr. Thomas then asked if they could argue the motions in limine so that all parties would be prepared for trial. Id at 39. The court responded:
THE COURT: Do you want to do that? You can do that. Look, I’m not predicting you are going to lose on the issue raised by [defense counsel], but if you do, why have the motion in limine?
MR. THOMAS: All right. I have confidence that we aren’t going to lose; that’s why I would rather not waste this time, and it would assist in preparation knowing what the issues are going to be.
Id at 39-40. At the conclusion of this hearing, Judge Goodheart told the parties, “I can decide the issue that was already been [sic] decided by Judge O’Keefe. I can revisit it at this point.” Id. at 80.
In order to preserve an issue for appellate review, a party must make a timely and specific objection to the trial court at the appropriate stage in the proceedings. Boyle v. Steiman, 429 Pa.Super. 1, 631 A.2d 1025, 1030 (1993). “Where a thorough review of the record discloses no basis to conclude that an appellant preserved an issue raised in his motion for a new trial by a timely or specific objection at trial, such an issue is waived for the purposes of appellate review.” Id.
Nowhere in the transcript does Elsco lodge an objection to the court’s revisiting the summary judgment motion. Nor does Elsco instruct the court to note its exception to the court’s actions. Moreover, even if the objection was noted during the above discussion that took place off the record, this will not serve to preserve the issue, as what is not of record does not exist for purposes of review. See McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51 (1972). Elsco’s failure to object is therefore fatal to our reviewing the matter on appeal. Boyle v. Steiman, supra. See also Bannar v. Miller, 701 A.2d 242, 250 (Pa.Super.1997) (holding that where neither a specific nor a general objection to the court’s charge to the jury was raised at trial, the issue was waived on appeal). Although Elsco failed to preserve this issue, I agree that this Court may reach the merits of the remaining issues on appeal.
I also agree with the Majority’s conclusion that the trial court erred in holding that this cause of action could not be instituted against the attorney defendants because of the agent/principal relationship between Motorola and the attorney defendants. However, I disagree with the Majority’s resolution of the ultimate issue of this case: Did the action below terminate in Elsco’s favor such that an action under the Dragonetti Act can be supported? The Majority holds that the Drago-netti claim against the attorney defendants is barred by the settlement agreement. While I agree with the general proposition that an out-of-court settlement of a claim is not a “termination in favor of a party” for our purposes, see slip op. at 309-311, I cannot agree that this well-established principle controls the outcome of this ease. Specifically, I cannot countenance the Majority’s decision to ignore the clear language of the settlement agreement that reserves the cause of action against the attorney defendants. In my view, this language should not be dismissed out of hand. Like the Majority, I note that both applicable case law and the Restatement encourage us to consider the circumstances surrounding the settlement of the underlying action when deciding if proceedings are terminated in favor of a litigant. See Restatement (Second) op ToRts § 674 emt j; Georgiana v. UMW, 392 Pa.Super. 58, *314572 A.2d 232, 235 (1990)(When determining that wife’s settlement of a claim with UMW did not bar husband’s action for wrongful use of civil proceedings from going forward, this Court stated that; “we are convinced that the question [of] whether one defendant’s settlement of an action should bind another defendant must depend on the particular circumstances surrounding that settlement[.]”). I therefore believe that resolution of this issue requires us to carefully examine the history of this case.
The basis for Elsco’s Dragonetti Act claim is the ex parte seizure order filed by the attorney defendants in the District Court on Motorola’s behalf on March 23, 1988. Elseo maintains that the application for the seizure filed by the attorney defendants -contained statements that the attorney defendants knew to be serious misstatements of fact and law. Elsco asserts that the attorney defendants knew, or were grossly negligent in not knowing, that the application contained these misstatements. This seizure action was undertaken one day after Motorola, through the attorney defendants, had filed its complaint in District Court. See Civil Docket Sheet, Motorola v. Elsco, docket number 88-2452, entries 1 and 3; R.R. at 361a.
Almost three years after the complaint was filed against Elsco, the District Court granted Elsco’s motion for summary judgment in Motorola’s action and dismissed all claims against Elsco. Order, Hutton, J., dated January 10, 1991. Three months later, Elsco and Motorola entered into a settlement agreement whereby Motorola agreed to pay Elseo $259,206 in damages and also agreed not to appeal the entry of summary judgment against it in the action docketed at No. 88-2452. Elsco agreed to dismiss the counter suit against Motorola docketed at No. 88-4494 with the following limitation:
It is the intention of the parties that the remaining defendants in Civil No. 88-4494 (E.D.Pa.) (namely defendants Cullen, Hau-ben and Wolfson) shall not be dismissed, but shall remain as defendants. Nothing contained in this settlement agreement is intended to diminish or extinguish the claims of Snyderman and ELSCO against defendants Cullen, Hauben and Wolfson.
Final Settlement Agreement, April 30, 1991, at 3; R.R. at 267a. Elsco and Motorola filed stipulations with the District Court reflecting the terms of the settlement agreement in May 1991. The action then continued against the attorney defendants under several theories of recovery, which included both federal claims and state law claims. Subsequently, Elseo requested that the District Court reinstate the Dragonetti Act claim against the attorney defendants. In response, the attorney defendants filed a motion for summary judgment, claiming that Elsco had not stated a claim for which relief could be granted.
The District Court handled this turn of events by entering two orders on December 30, 1991. The first order reinstated Elsco’s Dragonetti Act claim against the attorney defendants. Order, Hutton, J., December 30, 1991; R.R. at 330a. The second order granted the attorney defendants’ request for summary'judgment and dismissed with prejudice the federal claims that had been asserted against the attorney defendants. Order, Hutton, J., December 30,1991; R.R. at 344a. This order also dismissed Elsco’s state law claims without prejudice, and permitted El-sco to transfer the matter to the Pennsylvania Court of Common Pleas. Id.
Considering the circumstances surrounding Elsco’s settlement with Motorola, especially Elsco’s careful reservation of its cause of action against the attorney defendants in both the settlement agreement and the stipulations filed with the District Court, I conclude that Elsco’s settlement of the underlying claims with Motorola should not prevent this action from proceeding against the attorney defendants. Rather, I believe that a final termination of Motorola’s claims against Elsco occurred for our purposes on January 10, 1991, when the District Court granted Elsco’s Motion for Summary Judgment. This grant of summary judgment resolved, in Elsco’s favor, all claims concerning the attorney defendants’ actions in obtaining the ex parte seizure order. Motorola’s agreement not to pursue an appeal of the summary judgment decision does not change the fact that the District Court had concluded that the actions taken against Elsco had no merit. *315I give great weight to the above-quoted language in the settlement agreement specifically preserving the claims against the attorney defendants. Although the Majority does not consider this passage to be determinative, I cannot accept the conclusion that this language is without effect.
Because I would conclude that the claim was terminated in Elsco’s favor by the District Court’s grant of summary judgment, I would find that the Dragonetti Act claim remains viable, and would therefore remand this matter for trial. Hence this dissent.