Santander Bank v. Kapner, P.C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANTANDER BANK, N.A., F/K/A/ : IN THE SUPERIOR COURT OF
SOVEREIGN BANK, N.A. : PENNSYLVANIA
:
v. :
:
LAW OFFICES OF KENNETH M. KAPNER, :
P.C. AND KENNETH KAPNER, :
: No. 1752 EDA 2014
Appellants :
Appeal from the Order April 22, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: January Term, 2014 No. 00672
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 28, 2015
Appellants, the law offices of Kenneth M. Kapner, P.C., and Kenneth
Kapner, Esquire, appeal from the order entered in the Philadelphia County
Court of Common Pleas denying the petition to open or strike a confessed
judgment against Appellant by Appellee, Santander Bank, N.A., formerly
known as, Sovereign Bank, N.A. Appellants contend (1) the complaint was
defective because the modification agreement (“MA”) was not signed by
both the Kapner Firm and Kapner; (2) the warrant of attorney was nullified
by the MA; (3) Appellee Santander lacked the capacity to institute suit; (4)
the confession of judgment in the promissory note and guaranty was not
conspicuous; and (5) the complaint includes an improper claim for attorney’s
*
Former Justice specially assigned to the Superior Court.
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fees rendering it defective on its face. We affirm the confessed judgment in
all respects other than that pertaining to the confessed judgment of
attorney’s fees.
The trial court summarized the facts and procedural history of this
case as follows:
[Appellee] Santander Bank (Santander) confessed
judgment against [Appellants] on a business line of credit
[“LOC”] of $60,000, plus interest and fees. The Kapner
Firm executed a Promissory Note [“PN”] for the line of
credit on October 14, 2010. Kapner executed a
Commercial Guaranty on the same day. Both the [PN] and
the Guaranty contain Confession of Judgment provisions.
Santander is the successor in interest to Sovereign Bank,
which originated the loan.
On or about May 13, 2013,[1 Santander offered Kapner
a written modification [“MA”] of the loan. This offer
contained the statement: “Please acknowledge your
acceptance of the Deferred Repayment Option by signing
below where indicated and returning this letter to me at
the following address. . . . Failure to do so by
6/03/2013 will leave us with no alternative but to
demand payment in full under the note.” (bold in
original.)
Kapner executed the [MA] on June 13, 2013, ten days
after the expiration date.
Santander confessed judgment against [Appellants] on
January 14, 2014.
[Appellants] filed a Motion to Strike or Open Judgment on
February 12, 2014. . . .
* * *
1
We note the MA was dated May 16, 2013.
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The [c]ourt denied the petition on April 17, 2014, after oral
argument.
Trial Ct. Op., 8/14/14, at 1-2. On April 22, 2014, the order denying the
petition was entered and Pa.R.C.P. 236(b) notice was given. This timely
appeal followed. Appellants were not ordered to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. On June 16, 2014, Appellants
filed a motion to strike and/or set aside the writ of execution. On July 11,
2014, the court entered an order which provided that the writ of execution
was stricken. The trial court filed a Pa.R.A.P. 1925(a) opinion on August
14th.
Appellants raise the following issue on appeal: “Did the lower court err
in denying Appellants’ Petition to Strike or in the alternative Open the
Judgment of Confession, to Stay all Proceedings,[2] and for Attorney’s
Fees[?]” Appellants’ Brief at 3.
Initially, we address Appellants’ claim that Appellee lacks the capacity
to bring suit. Appellants’ Brief at 17. Appellants aver that as a foreign
corporation doing business in Pennsylvania, Santander was required to
register with the Commonwealth of Pennsylvania, Department of
2
We note the court’s order of July 11, 2014 renders this issue moot. See
Order, 7/11/14.
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Corporations, in order to bring the instant action, citing 15 Pa.C.S. § 4141.3
Id. at 22. We disagree.
Pursuant to statute,
(b) Domestic Federal financial institution exclusion.─
Except as permitted by act of Congress, this article shall
not apply to:
(1) Any of the following institutions or similar federally
chartered institutions engaged in this Commonwealth in
activities similar to those conducted by banking
institutions, saving associations or credit unions:
(i) National banking associations organized under The
National Bank Act (13 Stat. 99, 12 U.S.C. § 1 et
seq.).
15 Pa.C.S. § 4101(b). Pursuant to this provision, Appellee has the capacity
to bring suit as it is a bank chartered under the National Bank Act.
3
Section 4141 provides:
(a) Right to bring actions or proceedings
suspended.─A nonqualified foreign business corporation
doing business in this Commonwealth within the meaning
of Subchapter B (relating to qualification) shall not be
permitted to maintain any action or proceeding in any
court of this Commonwealth until the corporation has
obtained a certificate of authority. Nor, except as provided
in subsection (b), shall any action or proceeding be
maintained in any court of this Commonwealth by any
successor or assignee of the corporation on any right,
claim or demand arising out of the doing of business by
the corporation in this Commonwealth until a certificate of
authority has been obtained by the corporation or by a
corporation that has acquired all or substantially all of its
assets.
15 Pa.C.S. § 4141(a). We note this section has been repealed, effective July
1, 2015.
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First, Appellants claim that Appellees’ complaint is defective because
the MA, relied upon to form the basis to confess judgment, was not signed
by both Kapner and the Kapner Law Firm. Appellants’ Brief at 12-13.
Appellants contend that Appellee did not raise the issue that Appellants
failed to accept the MA until they filed the petition to strike or open the
confessed judgment. Id. at 13. Appellants aver “[i]f this Court accepts that
there was no MA then the Complaint is defective on its face because
[Appellee] in the Complaint aver[s] there was a MA, which gives them the
right to confess judgment.” Id. at 14. Appellants claim the MA changed the
terms of the initial agreement and therefore had to be signed by both
Kapner and the Kapner Law Firm. Id. at 15.
As a prefatory matter, we consider whether Appellants have waived
this claim. Appellants have presented no legal authority whatsoever in
support of its argument. Appellants Brief at 12-15. Appellant, for example,
does not explain why the MA had to be signed by both Kapner and the
Kapner Law Firm. “It is the appellant who has the burden of establishing his
entitlement to relief by showing that the ruling of the trial court is erroneous
under the evidence or the law. Where the appellant has filed to cite any
authority in support of a contention, the claim is waived.” Bunt v. Pension
Mort. Assocs., Inc., 666 A.2d 1091, 1095 (Pa. Super. 1995) (citations
omitted); accord Korn v. Epstein, 727 A.2d 1130, 1135 (Pa. Super. 1999).
Because Appellants have cited no legal authority, this claim is waived on
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appeal. See J.J. Deluca Co. v. Toll Naval Assocs., 56 A.3d 402, 412 (Pa.
Super. 2012).
Next, Appellants contend the warrant of attorney in the promissory
note and guaranty were nullified by the MA because it did not “clearly and
expressly incorporate the Confessions of Judgment contained in the [PN],
the Guaranty or the separately executed Disclosure.” Appellants’ Brief at 16.
Appellants argue that the loan terms were changed by the MA, thus the
Confession of Judgment in the Promissory Note, Guaranty and Disclosure
were nullified because of the general reference to the warrant of attorney in
the MA. Id. at 17. Appellants aver this is a fatal defect on the record and
the confession of judgment should be stricken. Id. We find no relief is due.
Our review is governed by the following principles:
A confessed judgment will be stricken only if a fatal
defect or irregularity appears on the face of the
record. Graystone Bank v. Grove Estates, LP, 58 A.3d
1277 (Pa. Super. 2012). A judgment by confession will be
opened if the petitioner acts promptly, alleges a
meritorious defense, and presents sufficient evidence in
support of the defense to require the submission of the
issues to a jury. In adjudicating the petition to strike
and/or open the confessed judgment, the trial court is
charged with determining whether the petitioner presented
sufficient evidence of a meritorious defense to require
submission of that issue to a jury. A meritorious
defense is one upon which relief could be afforded if
proven at trial.
In examining the denial of a petition to strike or open a
confessed judgment, we review the order for an abuse of
discretion or error of law.
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In considering the merits of a petition to strike, the
court will be limited to a review of only the record as
filed by the party in whose favor the warrant is
given, i.e., the complaint and the documents which
contain confession of judgment clauses. Matters
dehors the record filed by the party in whose favor
the warrant is given will not be considered. If the
record is self-sustaining, the judgment will not be
stricken. However, if the truth of the factual
averments contained in such record are disputed,
then the remedy is by a proceeding to open the
judgment and not to strike. An order of the court
striking a judgment annuls the original judgment and
the parties are left as if no judgment had been
entered.
. . . When determining a petition to open a
judgment, matters dehors the record filed by the
party in whose favor the warrant is given, i.e.,
testimony, depositions, admissions, and other
evidence, may be considered by the court. An order
of the court opening a judgment does not impair the
lien of the judgment or any execution issued on it.
Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa. Super. 2011).
Ferrick v. Bianchini, 69 A.3d 642, 647-48 (Pa. Super. 2013) (some
citations and quotation marks omitted) (emphases added).
In Graystone Bank, this Court opined:
To validate a warrant of attorney appearing in a
promissory note, the signature of the executor must
“directly relate” to the warrant. How this relationship
manifests may be understood by a review of precedent:
We have noted the need for strict adherence to rules
governing confessed judgments.[ ] As a matter of public
policy, Pennsylvania applies a similar strict standard to
establish the validity of a cognovit clause. This is so
because “a warrant of attorney to confess judgment
confers such plenary power on the donee in respect of the
adjudication of his own claims that certain specific
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formalities are to be observed in order to effectuate the
granting of such a power.” Frantz Tractor Co. v.
Wyoming Valley Nursery, [ ] 120 A.2d 303, 305 ([Pa.]
1956). Accordingly, “[a] Pennsylvania warrant of attorney
must be signed. And it will be construed strictly against
the party to be benefited by it, rather than against the
party having drafted it.” Egyptian Sands Real Estate,
Inc. v. Polony, [ ] 294 A.2d 799, 803 ([Pa. Super.] 1972)
(citations omitted). “A warrant of attorney to confess
judgment must be self-sustaining and to be self-sustaining
the warrant must be in writing and signed by the person to
be bound by it. The requisite signature must bear a
direct relation to the warrant of attorney and may
not be implied.” L.B. Foster Co. v. Tri–W Const. Co., [
] 186 A.2d 18, 20 ([Pa.] 1962) . . . .
A general reference in the body of an executed lease
to terms and conditions to be found is insufficient to
bind the lessee to a warrant of attorney not
contained in the body of the lease unless the
lessee signs the warrant where it does appear.
In short, a warrant of attorney to confess judgment
is not to be foisted upon anyone by implication or by
general and nonspecific reference.
Frantz Tractor Co., supra at 305 [ ]; accord Egyptian
Sands Real Estate, Inc., supra at 804 (stating, “a
warrant of attorney on the second page of a document will
not be conclusive against the signer of the first page”),
Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d
1250, 1274-1275 (3d Cir. 1994) (same).
Graystone Bank, 58 A.3d at 1282-83 (emphases added).
The trial court opined: “[T]he lack of a recital of the warrant of
attorney provisions would not necessarily be a fatal defect. The [MA]
incorporates all other provisions, including the warrants of attorney for
confession of judgment.” Trial Ct. Op. at 2-3. We agree.
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Instantly, Appellant signed the PN and Guaranty. The PN and
Guaranty each contained a confession of judgment clause. The confession of
judgment clause in the PN provided as follows.
Confession of Judgment. Borrower hereby irrevocably
authorizes and empowers any attorney or the Prothonotary
or clerk of any court in the Commonwealth of
Pennsylvania, or elsewhere, to appear at any time for
borrower after a default under this note and with or
without complaint filed, confess or enter judgment against
borrower for the entire principal balance of this note and
all accrued interest, late charges and any and all amounts
expended or advanced by lender relating to any collateral
securing this note, together with costs of suit, and an
attorney’s commission of ten percent (10%) of the unpaid
principal balance and accrued interest for collection, but in
any event not less than five hundred dollars($500) on
which judgment or judgments one or more executions may
issue immediately; and for so doing, this note or a copy of
this note verified by affidavit shall be sufficient warrant. . .
. Borrower hereby waives any right borrower may have to
notice or to a hearing in connection with any such
confession of judgment and states that either a
representative of lender specifically called the confession of
judgment provision to borrower’s attention or borrower
has been represented by independent legal counsel.
Appellants’ Pet. to Strike or in the Alternative Open Confession of J.,
2/12/14, Ex. “A”.4 The Guaranty contained a virtually identical confession of
judgment clause. See id.5
4
This appeared in the reproduced record at 64a.
5
R.R. at 68a.
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In addition, the PN contained a Disclosure for Confession of Judgment
which was signed by Appellant Kapner, President of Law Officers of Kenneth
M. Kapner, P.C. Id.6 This disclosure provided, inter alia, as follows:
The undersigned is executing on behalf of declarant, this
14th day of October, 2010, a [PN] for $60,000.00
obligating the declarant to repay that amount.
A. The undersigned understands that the [PN] contains a
confession of judgment provision that would permit lender
to enter judgment against declarant in court, after a
default on the note, without advance notice to declarant
and without offering declarant an opportunity to defend
against the entry of judgment. . . . [T]he undersigned
expressly agrees and consents to lenders entering
judgment against declarant by confession as provided for
in the confession of judgment provision.
B. The undersigned further understand that in addition to
giving lenders the right to enter judgment against
declarant without advance notice or a hearing, the
confession of judgment provision in the [PN] also contains
language that would permit lender, after entry of
judgment, again without either advance notice or a
hearing, to execute on the judgment . . . . The
undersigned expressly agrees and consents to lenders
immediately executing on the judgment in any manner
permitted by applicable state and federal law, without
giving declarant any advance notice.
C. After having read and determined which of the following
statements are applicable, by initialing each statement
that applies, the undersigned represents that:
1. Declarant was represented by declarant’s own
independent legal counsel in connection with the [PN].
6
R.R. 69a.
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2. A representative of lender specifically called the
confession of judgment provision in the [PN] to declarant’s
attention.
Appellants’ Pet. to Strike or in the Alternative Open Confession of J.,
2/12/14, Ex. “A”.7 Appellant Kapner initialed sections A., B., C1 and C2.
The Guaranty contains a virtually identical Disclosure for Confession of
Judgment initialed by Appellant Kapner. See id.8
The MA provided, inter alia, as follows:
Re: [PN] . . . dated 10/14/2010, in the principal amount
of $60,000 (the “Loan”). . .
Please be advised that effective immediately, the Bank is
hereby exercising its right to discontinue any further
borrowing requests made upon the above referenced Loan
obligation. The Loan is payable on demand and as a
result, the Bank has the right to require you to
immediately repay the entire Loan indebtedness, including
principal, accrued interest and any fees. The Bank will
offer to you an option of repaying the outstanding Loan
balance over 60 months beginning 10/14/2013 (the
“Deferred Repayment Option”) . . . .
Please acknowledge your acceptance of the Deferred
Repayment Option by signing below where indicated . . . .
Failure to do so by 6/03/2013 will leave us with no
alternative but to demand payment in full under the [PN].
Please note that all other Loan provisions remain the
same during the Deferred Repayment Option term,
including those effecting interest rates and those
concerning the Bank’s right to require payment in
7
R.R. at 69a.
8
R.R. at 70a.
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full at any time. If any Deferred Repayment Option
payment is not paid when due, or if any other default
occurs as referenced in the original Loan documents, then
your Deferred Repayment Option will automatically end
and the Bank will require the immediate Loan repayment
in full.
Id.9 (emphases added).
Appellant Kapner’s signature appeared on the same page as the
confession of judgment clause in the PN and Guaranty. Appellant’s
signature bears a direct relation to the warrant of attorney in the confession
of judgment in the PN and Guaranty. See Graystone Bank, 58 A.3d at
1282-83. Therefore, the general reference to the terms of the loan and the
warrant of attorney in the MA is sufficient to bind Appellants. See id.
Next, we address Appellants claim that the Confessions of Judgment in
the PN and Guaranty were not conspicuous, pursuant to 13 Pa.C.S. § 1201.
Appellants’ Brief at 22. Appellants aver “[t]he Confessions of Judgment
clauses contained in the [PN] and Guaranty are only capitalized and not
in a different font then the rest of the printed language on the respective
pages containing said Confessions of Judgment to make them
distinguishable.” Id. at 23 (emphasis added). Appellants contend “the
Confessions of Judgment clauses do not contain a cognovits clause in a
conspicuous manner that the undersigned is knowingly, voluntarily and
9
R.R. at 71a.
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intelligently waiving the right to notice and opportunity to be heard.” Id. at
24.
Our review is governed by the following principle: “Statutory
interpretation presents a question of law and, as such, our standard of
review is de novo, while our scope of review is plenary.” Stoloff v. Neiman
Marcus Group, Inc., 24 A.3d 366, 369 (Pa. Super. 2011). Conspicuous is
statutorily defines as follows:
“Conspicuous.” With reference to a term, means so
written, displayed or presented that a reasonable person
against which it is to operate ought to have noticed it.
Whether a term is “conspicuous” or not is a decision for
the court. Conspicuous terms include the following:
(i) A heading in capitals equal to or greater in size than
the surrounding text, or in contrasting type, font or
color to the surrounding text of the same or lesser size.
(ii) Language in the body of a record or display in larger
type than the surrounding text, in contrasting type, font
or color to the surrounding text of the same size, or set
off from surrounding text of the same size by symbols
or other marks that call attention to the language.
13 Pa.C.S. § 1201(1)(i)-(ii) (emphases added). “‘[O]r’ is disjunctive. It
means one or the other of two or more alternatives.” In re Paulmier, 937
A.2d 364, 373 (Pa. 2007).
“When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
“Words and phrases shall be construed according to the
rules of grammar and according to their common and
approved usage. . . .” Id., § 1903(a). “The object of all
interpretation and construction of statutes is to ascertain
and effectuate the intention of the General Assembly.”
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Id., § 1921(a). “When the words of a statute are clear
and free from all ambiguity, they are presumed to be the
best indication of legislative intent.”
Stoloff, 24 A.3d at 369 (some citations omitted).
In Graystone Bank, this Court opined:
Here, the warrant of attorney appeared
conspicuously in all caps on the very bottom of the
penultimate page of the agreement and immediately
preceded where the executor (Mr. Pasch) signed at the top
of the following, final page. Evidence of this location of a
conspicuous cognovit contained within the body of
the agreement sufficed to establish that Mr. Pasch
effectively signed his name to the warrant of attorney.
Graystone Bank, 58 A.3d at 1283 (emphases added).
Instantly, the confession of judgment clauses in both the PN and
Guaranty are in all capital letters. See id. Additionally, there are separate
disclosures for confession of judgment for both the PN and Guaranty, in all
capital letters. We find the confession of judgment clauses to be
conspicuous. See 13 Pa.C.S. § 1201(1)(i-ii); Graystone Bank, 58 A.3d at
1283; In re Paulmier, 937 A.2d at 373.
Next, Appellants contend the complaint contains an improper
attorney’s fees claim thus rendering the complaint defective on its face.
Appellant’s Brief at 24. Appellants concede “the Confession of Judgment
clauses contained in the [PN] and Guaranty state in pertinent part: . . . and
an attorney’s commission in the amount of ten percent (10%) of the
unpaid principal balance and the accrued interest for collection . . . .”
Id. at 26 (emphasis in original). Appellants aver the fees claimed in the
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Complaint for six thousand fifty two dollars and thirty two cents are
excessive based upon “[t]he amount of legal work to produce, what is a
cookie cutter assortment of documents, is not in balance with what actual
‘reasonable attorney’s fees’ would be to compile and file said Complaint.”
Id. at 27. Appellants argue that “[a]ny sums owed by the Kapner Firm
and/or Kapner should be limited to reasonable fees as specifically set forth in
the [PN] and Guaranty and not as set forth as averred in the Complaint.”
Id. In the alternative, Appellants aver the judgment should be opened due
to the unreasonableness of the attorney’s fees. Id. at 28. We address
these claims together.
In Graystone, the appellants raised a similar argument. This court
declined to strike the confessed judgment, but remanded for the court to
address the issue of the reasonableness of the attorney’s fees. This Court
opined:
Unreasonable attorney’s fees also warranted striking
the confessed judgment, [the a]ppellants argue. Pursuant
to the warrant of attorney’s fee-shifting clause, Appellees
included in their confessed judgment attorney’s fees in the
amount of 10% of outstanding principal . . . . [The
a]ppellants argue that this figure, though reflecting the
percentage stipulated to in the parties’ contract, far
exceeds a reasonable fee for filing four “boilerplate”
confessions of judgment upon each of the [a]ppellees. We
agree that the record fails to demonstrate whether
the court conducted a reasonableness inquiry into
the fees that resulted from operation of the 10%
provision.
Our jurisprudence is clear that even where a contract
authorizes fee-shifting in a particular amount, that amount
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must be reasonable under the circumstances. McMullen
v. Kutz, [ ] 985 A.2d 769 ([Pa.] 2009) (collecting cases
from majority of states, including decisions applying to
loan documents authorizing lender to recover legal
expenses); Dollar Bank [Fed. Sav. Bank v. Northwood
Cheese Co., 637 A.2d 309, 314 (Pa. Super. 1994)],
(holding court will modify judgment and cause proper
judgment to be entered where confessed judgment was
entered according to contract but in excessive in amount).
It is unclear, however, whether the lower court
recognized that the fee-shifting provision within the
warrant of attorney was subject to a reasonableness
standard. Indeed, the court states that the provision
elsewhere in the agreement requiring a reasonable
attorney fee for collecting on the loan was distinct, and,
thus, did not “preclude the provision allowing the award of
10% of the principal in attorney’s fees in the confession of
judgment and render it obsolete.”
* * *
The record gives no indication if the court
reviewed whether the 10% attorney’s fee provision
worked a reasonable result under the circumstances.
We therefore must remand this matter for the court to
conduct such review of the resultant attorney’s fees and, if
necessary, open and modify the confessed judgment to
make the fee amount reasonable.
Graystone, 58 A.3d 1283-84 (emphases added).
In the case sub judice, at the hearing on the petition to strike or in the
alternative open the confessed judgment, counsel for Appellants raised the
issue of the reasonableness of the attorney’s fee award. See N.T., 3/19/14,
at 7-8. At the conclusion of the hearing, the trial court indicated that it
would take the matter under advisement. Id. at 16. In its opinion the trial
court states that Appellants argue the judgment should be opened because
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“the attorney’s fees claimed are excessive and unreasonable.” Trial Ct. Op.
at 2. However, the court did not address the merits of the issue in its
opinion. See id. at 1-4.
We have no indication if the court reviewed whether the 10%
attorney’s fee resulted in a reasonable result. Therefore, we remand this
matter for the court to review the reasonableness of the attorney’s fees and,
“if necessary, open and modify the confessed judgment to make the fee
amount reasonable.” See Graystone, 58 A.3d 1283-84.
Lastly, Appellants’ claim the trial court erred in denying the petition to
open the judgment by confession because “Kapner and the Kapner Firm did
not knowingly, voluntarily and intelligently consent to waive of his right to a
trial by jury and/or hearing before the entry of judgment especially in light
of the fact that the Kapner Guaranty and the Kapner Firm [PN] and Guaranty
Confessions of Judgment were nullified by the [MA] as it pertains to the
Confession of Judgment.”10 Appellants’ Brief at 28. Given our resolution of
this issue in relation to Appellants’ argument in support of his claim that the
10
This averment and the claim that “[h]ere, the attorney’s fees claimed due
in the Complaint are excessive and ureasonable and are in contravention to
applicable law[,]” constitutes Appellants’ one paragraph argument in support
of its claim of trial court error. See Appellants’ Brief at 28.
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trial court erred in denying his petition to strike the confessed judgment, we
need not revisit it.11 See supra.
We affirm order in all respects other than that pertaining to the
confessed judgment of attorney's fees, which the lower court shall review in
a manner consistent with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
11
We note Appellants have not “allege[d] a meritorious defense, and
present[ed] sufficient evidence in support of the defense to require the
submission of the issues to a jury,” in support of the claim that the court
erred in denying the petition to open the confessed judgment. See Ferrick,
69 A.3d at 647.
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