Pops Pce TT, LP v. R&R Rest. Grp., LLC. , 208 A.3d 79 ( 2019 )


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  • J-A26037-18
    
    2019 PA Super 113
    POPS PCE TT, LP                                   IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    R&R RESTAURANT GROUP, LLC., F/K/A
    BREWSTONE PITTSBURGH, LLC,
    Appellant                  No. 644 WDA 2018
    Appeal from the Order Entered April 9, 2018
    In the Court of Common Pleas of Allegheny County
    Civil Division at No(s): GD 15-11052
    BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
    OPINION BY BENDER, P.J.E.:                              FILED APRIL 11, 2019
    Following this Court’s November 18, 2016 remand of this case to the
    trial court,1 R&R Restaurant Group, LLC, f/k/a Brewstone Pittsburgh, LLC
    (“Appellant”) appeals from the April 9, 2018 order denying its petition to open
    the confessed judgment in favor of Pops PCE TT, LP (“Pops”). After careful
    review, we reverse and remand to the trial court for further proceedings
    consistent with this opinion.
    This case arises from a commercial lease executed between Appellant
    and Pops for premises located in Pittsburgh, Pennsylvania, for a 10-year term
    commencing on December 22, 2013, and ending on November 30, 2023
    ____________________________________________
    1See Pops PCE TT, LP v. R&R Restaurant Group, LLC, No. 1944 WDA
    2015, unpublished memorandum (Pa. Super. filed Nov. 18, 2016) (“Pops I”).
    J-A26037-18
    (“Lease”). Pursuant to the terms of the Lease, Appellant was to pay Pops a
    total of $21,028.41 per month for the period of December 22, 2013 through
    December 21, 2018, and $22,421.08 per month during the period of
    December 22, 2018 through November 30, 2023, while remaining responsible
    for certain additional charges actually incurred. See Complaint in Confession
    of Judgment, 6/30/15, Exhibit A (Lease) at 2. In the event of a default by
    Appellant, the Lease contained a provision for the acceleration of rent, see 
    id.
    at 28-30 ¶23, and further provided that Pops may confess judgment for all
    sums due under the Lease. 
    Id.
     at 42 ¶45.
    Appellant leased the premises with the intention of operating a
    restaurant and bar and, thus, avers its obligations under the Lease, in whole
    or in part, were contingent upon its ability to obtain a liquor license.
    Appellant’s Petition to Open and/or Strike Judgment Entered by Confession
    (“Petition to Open”), 7/22/15, ¶¶21-22. The Lease instructs Appellant to “take
    whatever reasonable actions” to acquire the liquor license – referred to by the
    parties as the Landlord Liquor License (“LLL”) – that was owned by a former
    tenant of the property.    See Lease at 44 ¶49(A)(ii).      In the event that
    Appellant is unsuccessful, the Lease provides Appellant with the option of
    attempting to obtain a Tenant Liquor License (“TLL”). 
    Id.
     at 46-47 ¶49(A)(xi).
    If Appellant is unable to secure a TLL within a prescribed period of time (“TLL
    Transfer Period”), then Appellant is permitted to extend the TLL Transfer
    Period and, ultimately, to terminate the Lease by undertaking specified action:
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    J-A26037-18
    If, notwithstanding [Appellant’s] best efforts, [Appellant] is unable
    to obtain approval to transfer the [TLL] to the Premises within [the
    TLL Transfer Period], then [Appellant] shall have the right to
    extend the [TLL] Transfer Period by up to sixty (60) days by
    delivery of written notice thereof to [Pops]. If, following such
    extension, [Appellant] is unable to obtain the necessary
    governmental approvals to sell alcoholic beverages at the
    [p]remises during all hours of operation, [Appellant] may elect to
    terminate the Lease by providing notice of its intent to terminate
    this Lease by: (i) delivering to [Pops], within two (2) business
    days following the expiration of the [TLL] Transfer Period, with
    written notice of its inability to obtain the [TLL] prior to expiration
    of the [TLL] Transfer Period and exercising its right to terminate
    this Lease; and (ii) including with such notice all documentary
    evidence of [Appellant’s] efforts to obtain the [TLL] on or before
    expiration of the [TLL] Transfer Period. If [Appellant] elects to so
    terminate this Lease and satisfied all of the conditions stated in
    the preceding sentence with respect thereto, then this Lease shall
    terminate[.]
    Lease at 48 ¶49(B)(iv). Paragraph 49 further states that for any period that
    Appellant is unable to sell alcohol “as a result of [a] pending application” for a
    liquor license, all minimum rent “shall be abated and shall not be due and
    payable until” the license is secured. 
    Id.
     at 43 ¶49.
    On May 31, 2014, Appellant notified Pops via e-mail that it had
    exhausted its efforts to transfer the LLL, was electing to obtain a TLL, and was
    in discussions to purchase a liquor license from a potential seller. Petition to
    Open, Exhibit B. On July 1, 2014, Appellant informed Pops by letter that it
    “intends, pursuant to [paragraph] 49(B)(iv) to elect its right to terminate the
    [L]ease … if it is unable to obtain approval to transfer a [TLL] to the Premises
    within the [TLL] Transfer Period.” 
    Id.,
     Exhibit D (“July 1, 2014 letter”). The
    July 1, 2014 letter further stated that the TLL Transfer Period would expire on
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    J-A26037-18
    August 28, 2014.2 As of November of 2014, Appellant continued to undertake
    efforts to secure a TLL to be used at the premises leased from Pops. See
    Affidavit in Support of Petition to Open (“Affidavit”), 10/13/15, at 4 ¶27
    (unpaginated). Ultimately, however, Appellant did not obtain a liquor license
    and failed to pay rent beginning in January of 2015. Complaint in Confession
    of Judgment at 5 ¶22.
    On January 20, 2015, Pops filed a landlord-tenant complaint before a
    Magisterial District Judge (“MDJ”), seeking possession of the leased premises
    only. On January 29, 2015, the MDJ entered a notice of judgment, finding,
    inter alia, that Appellant was in default of the Lease and granting possession
    of the premises to Pops. No monetary damages were awarded. Appellant did
    not appeal the MDJ’s decision.           Subsequently, Pops filed a complaint in
    confession of judgment for money damages against Appellant.           Confessed
    judgment in the amount of $2,334,608.87, plus post-judgment interest and
    costs of suit, was entered against Appellant on June 30, 2015.         This sum
    included accelerated rent due under the Lease through November 2023.
    On July 22, 2015, Appellant filed a petition to open and/or strike the
    confessed judgment, raising, inter alia, the following defenses: (1) it had not
    breached the Lease; (2) its July 1, 2014 letter to Pops properly terminated
    the Lease; and (3) Pops was precluded from entering the confessed judgment
    ____________________________________________
    2 The parties are in agreement regarding the expiration date of the TLL
    Transfer Period.
    -4-
    J-A26037-18
    pursuant to Paragraph 45 of the Lease, as Pops had already obtained
    possession of the leased premises. Petition to Open at 5 ¶20. On August 25,
    2015, the trial court denied Appellant’s request to strike the confessed
    judgment, but issued a rule to show cause on Pops as to why Appellant’s
    petition to open should not be granted. In response, Pops filed an answer and
    new matter accompanied by a brief in which it argued generally that all of
    Appellant’s defenses were barred by res judicata and collateral estoppel
    because they had already been litigated and decided by the MDJ. Appellant
    then filed a brief, a reply to Pops’ new matter, and an affidavit prepared by
    Louis Caputo, Esquire, who was retained by Appellant to assist it in obtaining
    a liquor license.3
    After conducting oral argument, the trial court concluded that
    Appellant’s defenses to the confessed judgment were barred by res judicata
    and collateral estoppel and, on November 13, 2015, the court denied
    Appellant’s petition to open. Appellant appealed to this Court, which issued a
    memorandum decision on November 18, 2016. See Pops I, supra. We held
    that Appellant’s defenses to the entry of confessed judgment were not barred
    by res judicata or collateral estoppel. Accordingly, we vacated the trial court’s
    November 13, 2015 order and remanded for further proceedings for the court
    to consider the defenses raised in Appellant’s petition to open. Id. at *9.
    ____________________________________________
    3The affidavit summarized Appellant’s efforts to obtain the LLL or a TLL. See
    TCO at 2; Affidavit at 1-5.
    -5-
    J-A26037-18
    On January 31, 2018, the trial court heard argument on the merits of
    Appellant’s petition to open. At the hearing, Appellant maintained that this
    case presented questions of fact for a jury, including whether Appellant
    undertook reasonable steps to secure a liquor license and whether its July 1,
    2014 letter properly terminated the Lease. N.T. Hearing, 1/13/18, at 6-9.
    Appellant also appealed to the equitable powers of the court by arguing that
    the confessed judgment was “extremely inequitable.” Id. at 10. Pops replied
    that Appellant did not dispute Pops’ claim of unpaid rents and, furthermore,
    argued that Appellant failed to properly terminate the Lease. Id. at 15, 22.
    Pops extensively argued that Paragraph 49 of the Lease prescribed a
    specific procedure and timeline for termination: Appellant was to notify Pops
    of termination within two days following the expiration of the TLL Transfer
    Period. Pops interpreted this provision to mean, when the TLL Transfer Period
    expired on August 28, 2014, that Appellant was required to notify Pops
    between August 29 and 31, 2014.         Id. at 33, 51.    Pops contended that
    Appellant’s July 1, 2014 letter could not have terminated the Lease because
    not only did the letter predate the expiration of the TLL Transfer Period, but
    Appellant also continued to pay rent and attempted to obtain a liquor license
    after the letter was sent. Id. at 32, 38, 44-45, 51. Pops reasoned that there
    was no dispute regarding any question of fact in terms of what Appellant did,
    but Pops argued, rather, that the issue was “what Paragraph 49 means,” and
    that the interpretation of a contract is a question of law for the court, not the
    jury. Id. at 27, 52. Appellant responded, without further explanation, that
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    J-A26037-18
    its July 1, 2014 notification to Pops was timely “[b]ased on [its] calculation of
    what [it] understood the [L]ease to be,” and reiterated “this is a factual issue
    as to whether [the July 1, 2014 letter] was appropriate under the [L]ease.”
    Id. at 51-52.4
    On April 9, 2018, the trial court denied Appellant’s petition to open. It
    found that Appellant’s July 1, 2014 letter could give rise to a jury question as
    to whether [Appellant] properly terminated the Lease. Trial Court Opinion
    (“TCO”), 4/9/18, at 4. However, the court determined that the letter failed to
    include any documentary evidence of Appellant’s efforts to obtain a TLL, as
    required by Paragraph 49(B)(iv) of the Lease. As further explained by the
    trial court:
    To effectively terminate the Lease, [Appellant] was required to:
    1) deliver to [Pops] written notice of [Appellant’s] intention to
    terminate the Lease within two days following the expiration of
    the [TLL] Transfer Period (August 28, 2014); and 2) include with
    the notice all documentary evidence of [Appellant’s] best efforts
    to obtain the [TLL] on or before the expiration of the [TLL]
    Transfer Period.      [Appellant] has set forth evidence which
    establishes the existence of such documentary evidence, [5] but
    fails to set forth evidence that any of that documentary evidence
    was included with [Appellant’s] supposed notice of termination.
    ____________________________________________
    4 Following the hearing, but on the same day, Appellant filed a supplemental
    brief, in which it expanded on its argument that issues of material fact for the
    jury exist. See Appellant’s Supplemental Brief, 1/31/18, at 5-6. On February
    13, 2018, the trial court ordered Pops to file a responsive supplemental brief.
    In compliance, Pops filed a supplemental brief on March 15, 2018, and
    reiterated its argument that Appellant’s July 1, 2014 letter did not comply with
    Paragraph 49(B)(iv)’s requirement for termination. See Pops’ Supplemental
    Brief, 3/15/18, at 3-11.
    5   See id.; Affidavit at 2-4 ¶¶15, 19-21, 24.
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    J-A26037-18
    TCO at 5.     Accordingly, the court found that Appellant failed to present
    “sufficient evidence to give rise to a jury question as to whether it properly
    terminated the Lease through the delivery of the July 1, 2014 letter to [Pops]”
    and, thus, it concluded that opening of the confessed judgment was not
    warranted. Id. at 5-6.
    On May 4, 2018, Appellant filed a timely notice of appeal. Appellant
    now presents the following issues for our review:
    A. Whether [Pops] waived its ability to challenge the sufficiency
    of [Appellant’s] July 1, 2014 notice of termination[?]
    B. Whether the trial court abused its discretion and/or committed
    an error of law by weighing the sufficiency of the July 1, 2014
    termination letter[?]
    C. Whether the trial court abused its discretion and/or committed
    an error of law by failing to properly consider principals of
    equity when denying [Appellant’s] petition to open [confessed]
    judgment[?]
    D. Whether the trial court abused its discretion and/or committed
    an error of law by refusing to open the judgment when [Pops]
    had possession at the time it filed its complaint in confession
    of judgment – money damages[?]
    E. Whether the trial court abused its discretion or committed an
    error of law by denying [Appellant] the ability to conduct
    discovery or depositions[?]
    i.    Whether the issues contained herein are ripe for appeal
    as the trial court only deferred its decision on
    [Appellant’s] request for depositions and discovery[?]
    Appellant’s Brief at 4 (unnecessary capitalization omitted).
    We address Appellant’s issues out of order, for ease of disposition, and
    remain mindful of the following:
    -8-
    J-A26037-18
    We review the order denying [an] [a]ppellant’s petition to
    open the confessed judgment for an abuse of discretion.
    Judicial discretion requires action in conformity with law on
    facts and circumstances before the trial court after hearing
    and consideration. Consequently, the court abuses its
    discretion if, in resolving the issue for decision, it misapplies
    the law or exercises its discretion in a manner lacking
    reason.
    The trial court may open a confessed judgment “if the petitioner
    (1) acts promptly, (2) alleges a meritorious defense, and (3) can
    produce sufficient evidence to require submission of the case to a
    jury.” Generally, the court will dispose of the rule on petition and
    answer, along with other discovery and admissions.
    ***
    A meritorious defense is one upon which relief could be afforded
    if proven at trial.
    Pa.R.Civ.P. 2959(e) sets forth the standard by which a court
    determines whether a moving party has properly averred a
    meritorious defense. If evidence is produced which in a jury
    trial would require the issues to be submitted to the jury the
    court shall open the judgment. Furthermore, the court must
    view the evidence presented in the light most favorable to
    the moving party, while rejecting contrary evidence of the
    non-moving party.        The petitioner need not produce
    evidence proving that if the judgment is opened, the
    petitioner will prevail. Moreover, we must accept as true
    the petitioner’s evidence and all reasonable and proper
    inferences flowing therefrom.
    In other words, a judgment of confession will be opened if a
    petitioner seeking relief therefrom produces evidence which in a
    jury trial would require issues to be submitted to a jury. The
    standard of sufficiency here is similar to the standard for a
    directed verdict, in that we must view the facts most favorably to
    the moving party, we must accept as true all the evidence and
    proper inferences in support of the defense raised, and we must
    reject all adverse allegations. The trial court can make this
    decision as a matter of law when the defense presented is without
    adequate substance, because contract construction and
    interpretation is generally a question of law for the court to decide.
    -9-
    J-A26037-18
    …. In the context of a petition to open a confessed judgment, [t]he
    function of our [C]ourt is not to [w]eigh the evidence in support
    of the defense, but merely to determine whether there was
    sufficient evidence to go to the jury.
    Neducsin v. Caplan, 
    121 A.3d 498
    , 506-07 (Pa. Super. 2015) (internal
    quotation marks, emphasis, and citations omitted).
    Instantly, Appellant avers that Pops failed to argue, prior to the 2016
    appeal in this case, that the July 1, 2014 letter was insufficient to terminate
    the Lease and, therefore, Pops is precluded from raising this argument after
    remand by this Court. Appellant’s Brief at 17-19. In support, Appellant relies
    on Pa.R.C.P. 2959(c), which states: “[A] party waives all defenses and
    objections which are not included in the petition or answer.” 
    Id.
     at 18 (citing
    Pa.R.C.P. 2959(c)).
    Contrary to Appellant’s assertions, however, Pops stated in its answer
    and new matter that all the meritorious defenses set forth in Appellant’s
    petition to open “fail[ed] as a matter of law under the terms of the Lease[,]”
    and averred that the MDJ had rejected Appellant’s defense that it had
    previously terminated the Lease. Answer and New Matter, 9/14/15, at 5 ¶20.
    Moreover, at the post-remand January 31, 2018 hearing, Pops extensively
    argued that Appellant’s July 1, 2014 letter did not terminate the Lease. See
    N.T. Hearing at 21-23, 25-29, 31-33, 49-54.           Despite having ample
    opportunity to respond, Appellant failed to raise any argument – either at the
    hearing or in its subsequently filed supplemental brief – that Pops’ contention
    was waived under Pa.R.C.P. 2959(c). Rather, Appellant merely stated that it
    believed its July 1, 2014 letter to be a timely notice of termination based on
    - 10 -
    J-A26037-18
    its interpretation of the Lease. Id. at 51-52. Based on the foregoing, we
    conclude that Appellant’s first issue is waived due to Appellant’s failure to raise
    it before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
    court are waived and cannot be raised for the first time on appeal.”). See
    also Dollar Bank v. Swartz, 
    657 A.2d 1242
    , 1245 (Pa. 1995) (stating that
    “[a]n appellate court does not sit to review questions that were neither raised,
    tried, nor considered in the trial court….      It is a fundamental principle of
    appellate review that we will not reverse a judgment or decree on a theory
    that was not presented to the trial court.”).
    In its second issue, Appellant asserts that the trial court erred in
    “weighing the sufficiency” of its July 1, 2014 “termination letter.” Appellant’s
    Brief at 19. Appellant acknowledges that the interpretation of a contract is a
    question of law, but states that “[t]he terms of the Lease are not at issue
    herein.”   Id. at 20-21.     Instead, Appellant contends that “[t]he factual
    question that remains for the jury is whether [Pops] had sufficient notice of
    [Appellant’s] termination of the Lease.” Id. at 21. We disagree.
    The record clearly reflects that there is no disagreement regarding the
    fact that Appellant sent a letter to Pops on July 1, 2014, which stated: (1)
    that Appellant “intends, pursuant to [Paragraph] 49B(iv) to elect its right to
    terminate the lease … if it is unable to obtain approval to transfer a [TLL] to
    the Premises within the [TLL] Transfer Period;” and (2) that the TLL Transfer
    Period would expire at a future date, August 28, 2014.           The crux of the
    dispute, rather, is whether Appellant’s letter complied with Paragraph
    - 11 -
    J-A26037-18
    49(B)(iv)’s requirements for termination of the Lease. This issue presents a
    question of contract interpretation for the trial court, not an issue of fact to be
    submitted to a jury. See Neducsin, 121 A.3d at 507.
    It is well-established that:
    [C]ontract construction and interpretation is generally a question
    of law for the court to decide.
    A contract’s language is unambiguous if it can be determined
    without any other guide than knowledge of the simple facts on
    which its meaning depends. When the contract is clear and
    unambiguous, the meaning of the contract is ascertained from the
    writing alone….
    “Whether a judge has correctly interpreted a writing and
    properly determined the legal duties which arise therefrom
    is a question of law for the appellate court.” The legal effect
    or enforceability of a contact provision presents a question
    of law accorded full appellate review and is not limited to an
    abuse of discretion standard.
    Id. (internal citations omitted).    “Absent fraud or unconscionability, courts
    should not set aside terms on which sophisticated parties agreed.” John B.
    Conomos, Inc. v. Sun Co., 
    831 A.2d 696
    , 708 (Pa. Super. 2003).
    In the instant matter, Paragraph 49(B)(iv) of the Lease expressly
    provides, in pertinent part:
    [Appellant] may elect to terminate the Lease by providing notice
    of its intent to terminate this Lease by: (i) delivering to [Pops],
    within two (2) business days following the expiration of the [TLL]
    Transfer Period, with written notice of its inability to obtain the
    [TLL] prior to expiration of [TLL] Transfer Period and exercising its
    right to terminate this Lease; and (ii) including with such notice
    all documentary evidence of [Appellant’s] efforts to obtain the
    [TLL].
    - 12 -
    J-A26037-18
    Lease at 48.6 The trial court interpreted this provision as follows:
    [T]o effectively terminate the Lease, [Appellant] was required to:
    1) deliver to [Pops] written notice of [Appellant’s] intention to
    terminate the Lease within two days following the expiration of
    the [TLL] Transfer Period (i.e., within two days of August 28,
    2014; accordingly, by August 30, 2014); [7] and 2) include with
    the notice all documentary evidence of [Appellant’s] best efforts
    to obtain the [TLL] on or before the expiration of the [TLL]
    Transfer Period, August 28, 2014.
    TCO at 3 (emphasis added). The July 1, 2014 letter was presented to Pops
    well prior to the expiration date of the TLL Transfer Period and merely stated
    that Appellant would terminate the lease at a future date if it could not obtain
    a liquor license.     Moreover, as reflected in the record, the letter failed to
    include the requisite documentary evidence of its efforts to obtain a TLL.
    Accordingly, we discern no error or abuse of discretion in the trial court’s
    finding that the July 1, 2014 letter was insufficient to terminate the Lease.
    ____________________________________________
    6 We note that neither party fully addressed whether Appellant was required
    to first seek an extension of the TLL Transfer Period before it could terminate
    the Lease. See Lease at 48 ¶49(B)(iv) (providing in the event that Appellant
    is unable to obtain a TLL, “[Appellant] shall have the right to extend the [TLL]
    Transfer Period by up to sixty (60) days…. If, following such extension,
    [Appellant] is unable to obtain [a TLL, Appellant] may elect to terminate the
    Lease….”). Nevertheless, we may resolve Appellant’s claim on appeal without
    reaching this issue, where the parties agree – regardless of whether Appellant
    sought or received an extension of time – that the TLL Transfer Period expired
    on August 28, 2014, and the termination letter at issue was dated and sent
    prior to that date.
    7 The clear and unambiguous phrase “within two (2) business days following
    the expiration of the [TLL] Transfer Period” means within two days after the
    expiration of the TLL Transfer Period, which the parties agree was August 28,
    2014. See Webster’s Ninth New Collegiate Dictionary at 479 (1987) (defining
    “following” to mean “subsequent to”).
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    J-A26037-18
    In its fourth issue, Appellant argues that the trial court erred in refusing
    to open the judgment by which it granted Pops accelerated rent, as Pops had
    already been granted possession of the leased premises.8 Appellant asserts
    that Pops is not legally permitted to obtain a judgment for accelerated rent
    through the end of the Lease, in addition to a judgment for possession of the
    leased premises.      It is true that under Pennsylvania law, “a landlord ‘can
    confess a judgment for future rent accruing under the acceleration clause, or
    a judgment in ejectment, but not both.’”           Homart Development Co. v.
    Sgrenci, 
    662 A.2d 1092
    , 1101 (Pa. Super. 1995) (quoting Matovich v.
    Gradich, 
    187 A. 65
    , 69 (Pa. Super. 1936) (emphasis supplied)). See also
    Greco v. Woodlawn Furniture Co., 
    1930 WL 3618
     (Pa. Super. January 1,
    ____________________________________________
    8 Contrary to the Dissent’s contention that this issue has been waived, we
    determine that Appellant properly preserved this claim in its Petition to Open,
    wherein it averred: “[Pops] has received possession of the Lease[d] Premises
    and, thus, is precluded from entering the Confessed Judgment pursuant to
    Paragraph 45 of the Lease[.]” Appellant’s Petition to Open at ¶¶14(D), 20(D).
    The Dissent attempts to distinguish the defense asserted in the Petition to
    Open from the issue raised on appeal, see Concurring & Dissenting Opinion
    at 3, whereas, we deem the claims to be essentially the same. Moreover, we
    disagree with the Dissent’s implication that Appellant relied on Paragraph 45
    as “the authority” for its defense asserted in paragraphs 14(D) and 20(D) of
    its Petition to Open. 
    Id.
     Rather, we view the averments contained in these
    paragraphs as a claim that Pops is legally precluded from obtaining a
    confessed judgment on the ground that Pops already received possession of
    the leased premises, and we interpret the reference to Paragraph 45 as a mere
    citation to the relevant section of the Lease which governs confessed
    judgments. To the extent that the Dissent suggests Appellant makes no
    mention of accelerated rent in its petition, we note that Appellant’s Petition to
    Open incorporates Paragraph 45 of the Lease, which grants Pops the remedy
    of judgment by confession for “unpaid rentals … by acceleration….” Lease at
    42 § 45(i).
    - 14 -
    J-A26037-18
    1930) (holding a petition to open judgement confessed upon a commercial
    lease containing an acceleration clause for calculation of damages was
    properly granted where the landlord had also confessed judgment for
    possession of the leased premises).
    As we further explained in Homart:
    The landlord may cumulate remedies provided in the lease, but he
    may not avail himself of double remedies insofar as they are
    conflicting or antagonistic. He can eject the tenant and at the
    same time enter judgment for the rent accrued when the tenant
    was evicted; but he cannot recover both the possession and the
    rent for the balance of the term.
    Id. at 1100.   Our decision in Homart was based on the following long-
    standing principles:
    A landlord must elect whether to confess judgment for possession
    and for all monies then due, or to confess judgment for all monies
    due for the entire term. When the judgment is entered for
    possession, the landlord is, of course, entitled to recover, as
    damages in a civil action, those losses which he suffers in
    attempting to re[-]let the premises for the term of the lease….
    The landlord, however, cannot … enter judgment for possession
    and for all moneys which would otherwise be due as rents through
    the end of the term.
    Id. at 1101 (emphasis added).
    Here, the record indicates that Pops obtained a judgment for possession
    of the leased premises on January 29, 2015, and remained in possession of
    the premises at the time it filed its complaint in confession of judgment in
    June of 2015, in which it sought monetary damages including accelerated rent
    through October of 2023. Under Pennsylvania law, however, Pops was limited
    to seeking actual monetary damages as of the date it took possession, and it
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    J-A26037-18
    was legally precluded from seeking accelerated damages against Appellant.
    See id.   See also Ferrick v. Bianchini, 
    69 A.3d 642
     (Pa. Super. 2013)
    (acknowledging the basic principle that a landlord must choose between taking
    possession of property and collecting future rents). Based on the foregoing,
    we deem the trial court’s refusal to open the confessed judgment to be a clear
    error of law.
    Finally, in its third issue, Appellant appeals to our equitable powers. “It
    is a basic tenet of our system of civil justice that a plaintiff may not obtain a
    double recovery for a single wrong,” Homart, 
    662 A.2d at 1100
    , and, yet,
    that is precisely what Pops has done via the two judgments granted in its favor
    in the present case. Failure to open the confessed judgment results in the
    unjust enrichment of Pops and is clearly inequitable. “Where a judgment is
    entered for items … authorized by the judgment note, but excessive in
    amount, the court will modify the judgment and cause a proper judgment to
    be entered.” 
    Id. at 1101
    . A judgment in excess of $2.3 million, which includes
    more than eight years of accelerated rent, is certainly excessive and should
    have been modified by the trial court. See 
    id. at 1102
     (holding confessed
    judgment should have been opened to resolve amount of money judgment
    where the appellee had also confessed judgment for possession).
    Moreover, there is an implication in the record that, since obtaining
    possession of the leased premises, Pops redeveloped the property and began
    leasing to another tenant.    Just as Pops should not be entitled to double
    recovery in the form of possession and accelerated rent, equity dictates that
    - 16 -
    J-A26037-18
    it should also not be permitted to collect accelerated rent from Appellant for
    months in which Pops has received rent from a new tenant. See H.A. Steen
    Industries, Inc. v. Richer Communications, Inc., 
    314 A.2d 319
    , 321 (Pa.
    Super. 1973) (holding that despite the strict limitations placed on the opening
    of a confessed judgment, the judgment must be opened, for in refusing to
    require the appellee to mitigate damages, the trial court committed clear error
    of law).
    Accordingly, we reverse the April 9, 2018 order refusing to open the
    judgment and remand this matter to the trial court so that evidence may be
    offered to ascertain the actual damages suffered by Pops.9
    Order reversed. Case remanded. Jurisdiction relinquished.
    Judge Shogan joins this opinion.
    Judge Murray files a concurring and dissenting opinion.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/11/2019
    ____________________________________________
    9 In light of our disposition, Appellant’s final claim regarding whether it was
    precluded by the trial court from conducting discovery post-remand is deemed
    moot; thus, we need not address the merits of this issue.
    - 17 -
    

Document Info

Docket Number: 644 WDA 2018

Citation Numbers: 208 A.3d 79

Judges: Bender, Shogan, Murray

Filed Date: 4/11/2019

Precedential Status: Precedential

Modified Date: 10/19/2024