Dime Bank v. Andrews, P. , 2015 Pa. Super. 114 ( 2015 )

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2015 PA Super 114THE DIME BANK IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PETER ANDREWS
Appellant No. 1129 EDA 2014
Appeal from the Order Entered on March 6, 2014
In the Court of Common Pleas of Monroe County
Civil Division at No.: 8939 CIVIL 2012
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
OPINION BY WECHT, J.: FILED MAY 08, 2015
Peter Andrews appeals the trial court’s March 6, 2014 order denying
his petition to strike a confessed judgment in favor of The Dime Bank
(“Dime”) and allowing Dime to file a second amended complaint in
confession of judgment. The question presented concerns infirmities in
Dime’s first and first amended complaints in confession of judgment, which
infirmities Andrews contends the trial court should have deemed fatal to the
judgment. We reverse and remand for further proceedings.
On or about August 19, 2011, in tandem with obtaining a loan from
Dime in the amount of $915,942, Samfivedom, LLC, and Thoren, Inc.
(“Borrowers”), executed a note (“Note”) in favor of Dime that was secured
by a guarantee and surety agreement that Andrews executed in his capacity
as one of three personal guarantors. On or about March 2, 2012, the parties
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to the Note entered into a note modification agreement that did not affect
Andrews’ guarantee.
The Guarantee and Suretyship Agreement (the “Guarantee”) at issue
in this appeal contained a notice obligation on the part of Dime as follows:
“The BANK hereby acknowledges and agrees that upon an event of default
by the BORROWER under any of the LOAN DOCUMENTS, the BANK shall
provide the GUARANTOR with written notice of said default at least ten (10)
days prior to the commencement of any collection proceedings hereunder.”
Guarantee and Suretyship Agreement at 2. It further contained the
following provision regarding confession of judgment:
The GUARANTOR hereby irrevocably authorizes and empowers
any attorney of record or the prothonotary or clerk of any court
in the Commonwealth of Pennsylvania or elsewhere, to appear
for the GUARANTOR at any time after the occurrence of an event
of default under any of the LOAN DOCUMENTS in any such court
in any action brought against the GUARANTOR by the BANK with
respect to the GUARANTOR’s obligations under the GUARANTEE
or under the LOAN DOCUMENTS and therein to confess or enter
judgment against the GUARANTOR for all sums payable by the
GUARANTOR to the BANK under this GUARANTEE or under the
LOAN DOCUMENTS, as evidenced by an affidavit signed by a
duly authorized designee of the BANK setting forth such amount
then due from the GUARANTOR to the BANK, plus reasonable
attorney’s fees and costs. In addition, the GUARANTOR hereby
expressly authorizes any attorney of record on behalf of the
BANK to commence execution immediately upon the entry upon
[sic] the confession of judgment . . . .
****
In support of the confession of judgment, it shall not be
necessary to file the original debt instrument as a warrant of
attorney. The GUARANTOR waives the right to any stay of
execution and the benefit of any exemption laws now or
hereafter in effect. No single exercise of the foregoing warrant
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empowered [sic] to bring an action or to confess judgment shall
be deemed to exhaust the power, but the power shall continue
undiminished and may be exercised from time to time as often
as the BANK shall elect until all amounts payable to the bank
under the LOAN DOCUMENTS shall have been paid in full.
Id. at 4-5 (capitalization modified; emphasis removed).
After Borrowers defaulted under the Note, on October 19, 2012, Dime
filed a complaint in confession of judgment. Therein, Dime alleged that “[a]
default occurred under the [N]ote in that the Borrowers failed to pay the
money due and owing the Bank pursuant to the Note, whereupon the Bank
demanded the entire balance of the Note immediately due and payable.”
Complaint in Confession of Judgment (“First Complaint”), 10/19/2012, at 2
¶ 6. To this complaint, Dime affixed several affidavits of no import to the
instant appeal as well as copies of the Note, note modification, and
Guarantee.
On November 8, 2012, Andrews filed a petition to strike the confessed
of judgment. On November 14, 2012, the trial court issued a rule to show
cause why the petition should not be granted. On December 5, 2012, the
parties entered into a stipulation. Therein, the parties agreed that Dime
would be allowed to file an amended complaint in confession of judgment.
As well, the parties agreed that Andrews would retain the prerogative to file
a new petition to strike as though the amended complaint commenced a new
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action.1 The parties also agreed in the stipulation that it rendered moot
Andrews’ earlier petition to strike.
On December 19, 2012, Dime filed an amended complaint in
confession of judgment (“First Amended Complaint”) that was materially
identical to Dime’s First Complaint. On January 2, 2013, Andrews filed a
petition to strike the First Amended Complaint. Therein, Andrews identified
the following alleged deficiencies in Dime’s pleading:
7. Pursuant to Pennsylvania Rule[] of Civil
Procedure [2952](b)(6) a complaint [in confession of judgment]
shall contain the following: “[I]f [the] judgment may be entered
only after default or the occurrence of [a] condition precedent,
an averment of the default or [of the] occurrence of the
condition precedent.”
[Quoting the Guarantee]: “(b) the BANK hereby acknowledges
and agrees that upon an event of default by the BORROWER
under any of the LOAN DOCUMENTS, the BANK shall provide the
GUARANTOR with written notice of said default at least ten (10)
days prior to the commencement of any collection proceedings
hereunder.”
8. The requirement of giving notice ten (10) days before
commencing an action to collect on [a] debt is a condition
precedent and [Dime] has failed to aver [in] its [First Amended]
Complaint with [sic] condition precedent required by
Pennsylvania Rule[] of Civil Procedure 2952(b)(6).
Petition to Strike First Amended Complaint at 2 (unnumbered).
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1
Presumably, this stipulation was entered to enable Dime to cure one or
more of the strictly technical errors in Dime’s First Complaint that were
identified by Andrews in his petition to strike confession of judgment.
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On January 3, 2013, the trial court issued a rule to show cause why
Andrews’ petition should not be granted. On January 22, 2013, Dime filed
its answer to Andrews’ petition to strike. In relevant part, Dime responded
to Andrews’ averments as follows:
7. Denied. The averments set forth in paragraph 7 are
conclusions of law to which no response is necessary. To the
extent a response is necessary, the Guarant[ee] is a writing
[that] speaks for itself.
8. Denied. The averments set forth in paragraph 8 are
conclusions of law to which no response is necessary. To the
extent a response is necessary, on or about September 22,
2012, [Dime] demanded payment in full from the borrower and
the guarantors. Additionally, in paragraph 6 of [Dime’s] [First
A]mended [C]omplaint . . ., a default occurred and [Dime]
averred as follows: “A default occurred under the Note in that
[Borrowers] failed to pay the money due and owing [Dime]
pursuant to the Note, whereupon [Dime] demanded the entire
balance of the Note due and payable.”
Dime’s Answer to Andrews’ Petition to Strike Confession of Judgment Based
on Amended Complaint in Confession of Judgment at 1-2 (unnumbered).
Andrews and Dime filed briefs in support of their petitions on November 15
and November 27, 2013, respectively.2
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2
The record includes an October 30, 2013 praecipe directing the
prothonotary to schedule this matter for oral argument on December 2,
2013, or on the next available date. The record contains no evidence that
such an argument occurred. However, Andrews indicates in his brief that
oral argument occurred. Any uncertainty in this regard has no bearing upon
our review, because we find the trial court pleadings, the trial court opinion,
and the briefs now before us adequate to illuminate fully this case’s factual
and legal context.
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On March 6, 2014, the trial court entered an opinion and order
denying Andrews’ petition. Therein, it explained as follows:
[T]he [First] Amended Complaint attaches the Guarantee . . .
entered into between [Dime] and [Andrews], accordingly it is
part of the record. The [First] Amended Complaint alleges a
default, however, it fails to aver that written notice of the default
was provided to [Andrews] at least 10 days prior to the
commencement of any collection proceedings as set forth in
III(b) of the [Guarantee]. Since the warrant of attorney must be
strictly construed, and the record indicates that written notice of
the default is to be provided to [Andrews] at least 10 days prior
to the commencement of any collection proceedings [sic]; we
find this to be a fatal defect or irregularity appearing on the face
of the record.
In its brief, [Dime] argues that Atlantic National Trust, LLC v.
Stivala Investments, Inc., 922 A.2d 919 (Pa. Super. 2007),
allows it to remedy the defect by amendment of record. In
Stivala, after confessed judgment was entered and opened by
the [c]ourt, the creditor filed a second complaint in confession of
judgment. Thereafter, Stivala filed a . . . petition to strike or
open the confessed judgment. Stivala argued that judgment
was impermissibly confessed twice on the same warrant of
attorney and that the second complaint in confession of
judgment contain[ed] a fatal defect or irregularity since it [did]
not contain the information required by Pa.R.C.P. 2952(a)(5).1
In denying the petition to strike the confessed judgment, the
Stivala [c]ourt held that if “the defect is one that can be
remedied by an amendment of the record or other action,” then
a motion to strike may not be granted. Id. at 923. However,
the [c]ourt must determine if an error is technical or prejudicial.
Id.__________________________
1
Pa.R.C.P. 2952(a)(5) requires the complaint to contain
either a statement that judgment has not been entered on
the instrument in any jurisdiction or if it has been entered
an identification of the proceedings.
Instantly, [Dime] was required to aver and provide [Andrews]
with written notice of default at least 10 days prior to the
commencement of any collection proceeding. [Dime] contends
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that the cause of action has not changed and that the sending of
a 10[-]day notice of default can easily be added to the [a]ffidavit
of [Dime]. [Andrews] simply argues that the [First] Amended
Complaint does not aver that 10[-]day notice of default was
given to him and, therefore, [Dime] failed to comply with the
condition precedent contained in the [Guarantee]. Although we
agree with [Andrews] that [Dime] failed to aver that written
notice of default was provided 10 days prior to the
commencement of any collection proceeding, [Andrews] has
failed to allege any prejudice.
****
[W]e believe that [Dime’s] error can be corrected by amendment
as the cause of action has not changed, the ends of justice
require the allowance of such amendment, and the substantive
right[s] of [Andrews] will not be prejudiced. It is difficult to
foresee [Andrews] alleging that he is prejudiced when he was
aware on October 19, 2012, that [Dime] sought a judgment
against him under the [Guarantee]. There is no doubt that
[Andrews] was aware of the previously filed confession of
judgment since he stipulated to allowing [Dime] to file [a First
Amended Complaint]. Since there has been no averment of
prejudice, we will allow [Dime] to file a Second Amended
Complaint in Confession of Judgment to correct the defect in the
[First] Amended Complaint . . . .
Trial Court Opinion (“T.C.O.”), 3/6/2014, at 2-4 (citations modified).
On March 27, 2014, Dime filed a Second Amended Complaint in
Confession of Judgment (“Second Amended Complaint”). In relevant part,
Dime pleaded that “[a] default occurred under the Note in that the
Borrowers failed to pay the money due and owing the bank pursuant to the
Note.” Second Amended Complaint at 2 ¶ 6. With respect to the provision
of notice, Dime pleaded as follows: “By way of letter dated March 11, 2014,
[Dime] provided [Andrews] with written notice of [Borrowers’] aforesaid
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default . . . .” Id. at 2 ¶ 13. Dime attached a copy of that letter to its
Second Amended Complaint.
On April 4, 2014, Andrews timely filed a notice of appeal of the trial
court’s order denying his petition and permitting Dime to file its Second
Amended Complaint. On April 11, 2014, the trial court entered an order
directing Andrews to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On April 16, 2014, Andrews filed a
petition to strike Dime’s Second Amended Complaint. On April 28, 2014,
Andrews filed his Rule 1925(b) statement. On April 29, 2014, the trial court
entered an order holding in abeyance Andrews’ petition to strike Dime’s
Second Amended Complaint until receiving our disposition of Andrews’
pending appeal. On May 14, 2014, the trial court filed a brief Rule 1925(a)
opinion that, in essence, reiterated the reasoning offered in the trial court’s
earlier opinion and order. The matter is now ripe for our review.3
____________________________________________
3
We note that this case arguably presents a question regarding our
subject matter jurisdiction over this appeal. While it is true that the
appealed trial court order is one declining to strike a judgment, which
ordinarily is appealable under Pa.R.A.P. 311(a)(1), see Haggerty v.
Fetner, 481 A.2d 641, 644 (Pa. Super. 1984), the trial court in the same
order acknowledged that Dime’s First Amended Complaint was, on its face,
fatally defective and granted Dime leave to file a Second Amended
Complaint in support of the confessed judgment. By its plain terms, Rule
311(a)(1) appears to authorize the instant appeal. However, as a practical
matter, the trial court’s order permitting Dime to file an amended complaint
in confession of judgment seems sub silentio to open or strike the earlier
judgment. We have found no precedent squarely addressing this
circumstance. Consequently, based upon the language of Rule 311(a)(1),
and in an abundance of caution, we will assume without deciding that we
(Footnote Continued Next Page)
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Andrews raises the following issues:
1. Whether the trial court erred by not finding Dime’s failure
to comply with a condition precedent clearly stated in the . . .
Agreement requiring Dime to give ten (10) days’ written notice
of a default to Andrews before commencing its collection action
was a fatal defect of record which requires the confession of
judgment to be stricken without [Andrews] averring prejudice?
See A. B. & F. Contr. Corp. v. Matthews Coal Co., 166 A.2d
317 (Pa. Super. 1966) (hereinafter “ABF”).
2. Whether the trial court erred in stating that Andrews’
knowledge of the filing of the original complaint in confession of
judgment met the required condition precedent of giving ten
(10) days’ written notice of default before commencing a
collection action since commencement of this action occurred on
October 19, 2012, not December 12, 2012, when the First
Amended Complaint was filed?
Brief for Andrews at 3-4 (modified for clarity).
We begin by reviewing the legal standards governing the underlying
proceedings and our review thereof:
A petition to strike a judgment is a common[-]law proceeding
[that] operates as a demurrer to the record. A petition to strike
a judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record. . . . An order of the court
striking a judgment annuls the original judgment and the parties
are left as if no judgment had been entered.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 917
(Pa. 1997) (quoting Resolution Trust Corp. v. Copley Qu-Wayne
Assocs., 683 A.2d 269, 273 (Pa. 1996)). In assessing whether “there are
_______________________
(Footnote Continued)
have subject matter jurisdiction and address the merits of the issues
Andrews presents.
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fatal defects on the face of the record . . ., a court may only look at what
was in the record when the judgment was entered.” Id. Moreover, if any
defect disclosed by the record “is one that can be remedied by an
amendment of the record or other action, nunc pro tunc, the judgment
should not be stricken off.” George H. Althof, Inc., v. Spartan Inns of
Amer., Inc., 441 A.2d 1236, 1237 (Pa. Super. 1982). We will reverse a
trial court’s denial of a petition to strike a judgment only if there is a
manifest abuse of discretion or an error of law. Stivala, 922 A.2d at 922.
“When a proceeding to confess judgment is instituted by complaint,
the complaint and confession of judgment clause must be read together to
determine whether there are defects on the face of the record.” Manor
Bldg. Corp. v. Manor Complex Assocs., Ltd., 645 A.2d 843, 846
(Pa. Super. 1994).
It is a firmly established rule of construction in the case of
warrants of attorney to confess judgments that the authority
thus given must be clear, explicit and strictly construed, that if
doubt exists it must be resolved against the party in whose favor
the warrant is given, and that all proceedings thereunder must
be within the strict letter of the warrant. If the authority to
enter judgment by confession on a warrant of attorney is not
strictly followed, the judgment will be stricken.
ABF, 166 A.2d at 319 (internal quotation marks and citations omitted)
(hereinafter “ABF”). Notably, we have observed that the rule of “strict
construction may be constitutionally mandated in light of . . . due process
attacks on cognovit clauses.” Solebury Nat’l Bank of New Hope v.
Cairns, 380 A.2d 1273, 1275 (Pa. Super. 1977).
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It has always been held that formal defects, mistakes and
omissions in confessions of judgment may be corrected by
amendment where the cause of the action is not changed, where
the ends of justice require the allowance of such amendment,
and where the substantive rights of defendant or of any third
persons will not be prejudiced thereby.
West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86
(Pa. 1951) (emphasis added); see id. (citing cases).
It is immediately clear to us that the proceedings below have muddied
the waters relative to the standards governing our review of the trial court’s
denial of a motion to strike. First, by the law’s letter, in reviewing the
underlying confessed judgment in this matter, we may consider only the
First Complaint, which was the complaint upon which judgment was entered.
However, we find that the First Amended Complaint governs our review
because the parties’ stipulation appears to reflect their agreement that Dime
would substitute its First Amended Complaint for the First Complaint as
though the former had been filed in the first instance. However, we may
reach no farther forward in time. In particular, we may not consider the
timing, nature, or the contents of—or attachments to—the Second Amended
Complaint. Although the Second Amended Complaint is part of the certified
record before us, the trial court was, and we are, bound to evaluate the
validity of the confessed judgment in light of the record at the time of its
entry—here, by virtue of the stipulation, that which is contained in the First
Amended Complaint and the attachments thereto. See Cintas Corp., 700
A.2d at 917.
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The parties do not dispute that the Guarantee required ten days’
notice in advance of any exercise of the confession of judgment authority
bestowed upon Dime. The parties also do not dispute that Dime did not aver
that such notice had been given in its First Amended Complaint, which did
not even touch upon the topic beyond alluding to a default followed by a
demand for payment. Moreover, nowhere in its responses to Andrews’
motions to strike did Dime aver that it had provided such notice.
Rather than review the parties’ arguments at length, we note that they
hinge entirely upon a handful of prior precedents, from which we must
derive whether the fatal defect found by the trial court may be remedied by
amendment so as to preserve the previously entered judgment. If, as
Andrews argues, we find that the defect may not be cured by amendment,
we must reverse the trial court’s refusal to strike the confessed judgment.
See ABF, supra. For its part, Dime maintains that, despite the materially
undisputed facial defect on the record, under the circumstances of this case
the judgment may be struck only if Andrews establishes that the defect had
a prejudicial effect. See West Penn, supra.
Rule of Civil Procedure 2952 provides, in relevant part, that a
complaint in confession of judgment based upon an agreement that subjects
confession of judgment proceedings to a condition precedent must include
“an averment of the default or of the occurrence of the condition precedent.”
Pa.R.C.P. 2952(a)(6). At a minimum, our case law suggests strongly that a
failure to aver the occurrence of a condition precedent, when, as here, the
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agreement under which judgment is confessed establishes such a condition,
is an irremediable defect, obviating any obligation of the party against whom
judgment has been entered to establish prejudice. See ABF, 166 A.2d at
317 (affirming striking of confessed judgment where a warrant of attorney
required, as a condition precedent to its exercise, the provision of ten days’
notice and the complaint did not aver that such notice was provided); cf.
Grady v. Schiffer, 121 A.2d 71, 73-74 (Pa. 1956) (holding that a lack of
authority to confess judgment, as opposed to “mere irregularities” in the
record, precludes enforcement of clause waiving the right to appeal
confession of judgment); Triangle Bldg. Supplies & Lumber Co. v.
Zerman, 363 A.2d 1287, 1290 (Pa. Super. 1976) (citing Kolf v.
Lieberman, 128 A. 122 (Pa. 1925)) (noting in dicta that, if a warrant of
attorney precludes the confession of judgment until default has occurred, “a
judgment entered prior to default or without an averment of default is
invalid”). In ABF, we explained that “the giving of . . . notice . . . is a
condition precedent to the exercise of the warrant of attorney. It is a
separate and independent requirement which it is necessary for
[plaintiff/creditor] to perform following the default, and before it could
invoke the use of the warrant of attorney.” 166 A.2d at 319. Thus, as in
Grady, the provision of notice was a condition precedent to the authority of
the party seeking a confession of judgment to do so.
Dime rests its arguments upon cases that at least arguably have
liberalized the allowance of amendment of defective pleadings in confession
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of judgment to an extent justifying a departure under the circumstances of
this case. In West Penn Sand, for example, the debtor sought to strike a
confession of judgment on the bases, inter alia, that the creditor, i.e., the
plaintiff in confession of judgment, failed to attach to the complaint an
affidavit of default averring any breach by the debtor of the relevant
covenants, and that the affidavit of default was not made by an authorized
party under the relevant rule of civil procedure. The creditor, in turn,
petitioned the trial court for a rule allowing it to amend or supplement its
pleading nunc pro tunc with a conforming affidavit and a proper copy of the
notice served upon the debtor. See 80 A.2d at 86.
We disposed of the issue as follows:
It is, of course, true that where authority to enter a judgment by
confession is dependent upon some default of the defendant
there must be an averment of such default before a valid
judgment can be entered. Here the affidavit of default
incorporated by reference the written notice served upon
defendant of the breaches of its covenants in the lease but failed
to attach a copy of such notice to the affidavit of default itself.
This could scarcely be said to have constituted an important
omission in view of the fact that defendant had been thoroughly
informed by that notice of the defaults of which it was alleged to
have been guilty. It has always been held that formal defects,
mistakes and omissions in confessions of judgment may be
corrected by amendment where the cause of the action is not
changed, where the ends of justice require the allowance of such
amendment, and where the substantive rights of defendant or of
any third persons will not be prejudiced thereby. Moreover, the
lease in this case contained, as previously stated, a release of
errors in the entry of judgment, and, while such release does not
cure the defect of a lack of authority to confess the judgment, it
does waive the right to attack mere irregularities in the
proceeding apparent in the record.
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****
It may not be amiss in this connection to say that courts should
not be astute in enforcing technicalities to defeat apparently
meritorious claims; if defendant has any real or substantive
defense to the confessed judgment the way lies open to it to
present it.
Id. (emphasis added; extensive historical citations omitted).
Notably, this Court in ABF explained in detail why we found the facts
and circumstances in West Penn Sand distinguishable from ABF:
Appellant . . . takes the position that, even assuming that the
failure to specifically aver in the affidavit of default that the
notice was given constitutes a defect on the face of the record, it
is not a fatal defect, but one [that] could have been corrected by
amendment. Appellant quotes from West Penn as follows: “It
has always been held that formal defects, mistakes and
omissions in confessions of judgment may be corrected by
amendment where the cause of action is not changed, where the
ends of justice require the allowance of such amendment, and
where the substantive rights of the defendant or of any third
persons will not be prejudiced thereby.” 80 A.2d at 86. With
this proposition we are in full accord. An examination of the
West Penn case discloses that, as in the instant case, notice of
the default was required prior to exercise of the warrant of
attorney. However, when judgment in that case was confessed,
“the affidavit of default incorporated by reference the written
notice served upon defendant of the breaches of its covenants in
the lease.” It was held that failure to attach a copy of such
notice to the affidavit of default was an amendable defect. The
obvious distinction between the West Penn case and the
instant one is the fact that, in West Penn, the giving of
notice was disclosed in the affidavit of default. Certainly,
the failure to attach a copy of the notice itself was merely
a formal defect. We do not so regard the complete failure
to allege the giving of notice. The present record is devoid of
one of the essential elements upon which lawful exercise
of the warrant of attorney was predicated. Cf. Harwood v.
Bruhn, 170 A. 144 (Pa. 1934).
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ABF, 166 A.2d at 319-20 (emphasis added; citations modified).
Dime’s well-reasoned and written brief is not unpersuasive, but its
argument can prevail only if we adhere to one of two unstated premises:
Either (1) that the failure of notice in this case somehow differs materially
from that in ABF or (2) that subsequent cases have abrogated or otherwise
confined ABF in such a way as to free us from adhering to its plain holding.
Dime fails on both counts.
We find that ABF carries the day.4 It would be incredible not to
interpret ABF as determining that precisely the defect at issue in this case is
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4
Notably, the learned dissent is silent with regard to ABF’s close
similarity to this case, or the clear import of the distinction it drew between
matters going to a party’s authority to confess judgment, i.e., “the
essential elements upon which lawful exercise of the warrant of attorney [is]
predicated,” and merely “formal defects.” 166 A.2d at 320. The dissent also
pays no regard to the fact that, in ABF, this Court identified the averment
that proper notice had been rendered as one of those “essential elements
upon which lawful exercise the warrant of attorney is predicated,”
and held in the clearest terms that the failure to aver such notice in a
complaint in confession of judgment required that the confession of
judgment be struck. Id. (emphasis added); see Citizens Nat’l Bank of
Evans City v. Rose Hill Cemetery Ass’n of Butler, 281 A.2d 73, 75
(Pa. Super. 1971) (identifying compliance with the confession authority’s
notice requirement as unwaivable and fatal to a confessed judgment). As
set forth herein, there is not one Pennsylvania case that rebuts this holding
relative to the circumstances presented in this case, and none of the few
cases cited by the dissent is more clearly on-point with the case sub judice
than ABF. Implicitly, the dissent would depart from ABF in this case solely
because the creditor “demanded the entire balance of the Note
immediately.” Dissenting Op. at 4 (quoting Amended Complaint in
Confession of Judgment, 12/19/12, at 2). However, to give Dime Bank the
benefit of the doubt as to the adequacy of this at best ambiguous averment
relative to the issue of notice is patently at odds with the broad and time-
(Footnote Continued Next Page)
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not a “formal defect, mistake, or admission,” but rather involves an
“essential element upon which lawful exercise of the warrant of attorney was
predicated.” AFB, 166 A.2d at 19-20. ABF plainly is the most on-point case
cited by either party, and our research discloses none that is more so.
The first premise is unsound because it is plainly the case that the
issue in ABF was materially the same as it is in this case. There, as in this
case, authority to exercise the warrant of attorney hinged by the terms of
the instrument upon the provision of ten days’ notice by the party seeking to
exercise the warrant. Dime offers no effective argument to the contrary.
The second premise, too, is unsound. While Dime makes much of our
allowance-of-amendment caselaw, none of the cases are as on-point as
ABF. See Brief of Dime at 11-13; Atl. Nat’l Trust, 922 A.2d at 921, 923(affirming trial court’s refusal to strike judgment based upon creditor’s
failure to aver in complaint that it had previously sought to enforce warrant
of authority where prior stipulation attested to debtor’s knowledge of prior
confession of judgment action); Courtney v. Ryan Homes, 497 A.2d 938,
941 (Pa. Super. 1985) (affirming trial court refusal to strike or open
judgment on the basis that the complaint and confession of judgment were
_______________________
(Footnote Continued)
honored principle that warrants to confess judgment must be “strictly
construed” in favor of the debtor, that “if doubt exists it must be resolved
against the party in whose favor the warrant is given,” and that a failure to
“strictly follow” the letter of the warrant will require the judgment to be
stricken.” ABF, 166 A.2d at 319.
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combined in one document rather than entered separately, and noting that
due notice had been provided under the terms of the confession clause);
George Althof Inc., 441 A.2d at 1238 (reversing trial court order striking
judgment and allowing amendment to cure improper verification of
complaint). None of these cases so much as hints that ABF has been
abrogated in any way material to this case.
Reinforcing the durability of ABF’s cautionary tone, in 1971, we made
the following observations:
The Pennsylvania Supreme Court has observed that ‘(a) warrant
of attorney authorizing judgment is perhaps the most powerful
and drastic document known to civil law. The signer deprives
himself of every defense and every delay of execution, he waives
exemption of personal property from levy and sale under the
exemption laws, he places his cause in the hands of a hostile
defender.’ Cutler Corp. v. Latshaw, 97 A.2d 234, 236
(Pa. 1953). The use of this ‘most powerful and drastic
document’ has been eliminated or severely restricted in the vast
majority of jurisdictions in the United States. See 16 Vill.
L. Rev. 571, 573 n. 9 (1971) and accompanying text. The
Pennsylvania Rules of Civil Procedure pertaining to confessions
of judgment were written to give a debtor additional protection
by prescribing requirements such as the detailed sworn
complaint, the notice procedure, and improvements in the
procedure for relief from confessed judgments. 3 Goodrich-
Amram 331 (Supp. 1970) (Commentary to Rules 2950-2962 of
the Pennsylvania Rules of Civil Procedure). We can see no
reason in law or policy for permitting a court to abrogate
these protections by waiving the mandatory provisions of
the Rules and allowing a plaintiff to file a complaint nunc
pro tunc.
Citizens Nat’l Bank of Evans City v. Rose Hill Cemetery Ass’n of
Butler, 281 A.2d 73, 75 (Pa. Super. 1971) (footnote omitted; emphasis
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added); see First Union Nat’l Bank v. Portside Refrigerated Sys., Inc.,
827 A.2d 1224, 1231 (Pa. Super. 2003) (“The validity of a confession of
judgment requires strict compliance with the Rules of Civil Procedure as well
as rigid adherence to the provisions of the warrant of attorney. Absence
such compliance, a confession of judgment cannot stand.” (citation and
internal quotation marks omitted)).
For the foregoing reasons, our case law compels us to reverse the trial
court’s order to the extent it refused to strike the judgment in this case.
However, our discussion does not end there. As noted, supra, in this case,
Dime’s Second Amended Complaint remains pending, and is not directly
affected by this case. Moreover, because the trial court held it in abeyance
pending the disposition of this appeal, we need not, nor should we, address
its validity in the wake of this ruling, especially because Andrews has not
directly contested the Second Amended Complaint’s validity in this appeal.
Ameliorating the practical effect of ABF in this case, however, is that
the warrant of authority in this case purports to authorize Dime to confess
judgment as many times as is necessary to fully satisfy Andrews’ and the
Borrowers’ concurrent obligations under the Note and Guarantee and
Suretyship Agreements. See Guarantee at 5 (“No single exercise of the
foregoing warrant empowered [sic] to bring an action or to confess
judgment shall be deemed to exhaust the power, but the power shall
continue undiminished and may be exercised from time to time as often as
[Dime] shall elect until all amounts payable to [Dime] under the LOAN
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DOCUMENTS shall have been paid in full.” (capitalization modified)). Absent
a contrary agreement, Pennsylvania law precludes repeated exercises of a
warrant of authority to confess judgment. See TCPF Ltd. P’ship v.
Skatell, 976 A.2d 571, 576 (Pa. Super. 2009) (quoting Continental Bank
v. Tuteur, 450 A.2d 32, 35 (Pa. Super. 1982)) (“[O]nce a judgment has
been entered under a warrant of attorney, the authority to use the warrant
vanishes and the warrant cannot again be exercised.”). However, under
certain circumstances, and to certain extents, parties to a note may waive
this rule, allowing for multiple exercises of a warrant of authority to confess
judgment. See Atl. Nat’l Trust, 922 A.2d at 924 (“A warrant of attorney is
a contractual agreement between the parties and the parties are free to
determine the manner in which the warrant may be exercised.”).
Accordingly, while the judgment before us presently must be stricken
under controlling case law, our ruling is without prejudice to any remaining
avenues for relief that Dime may have. Whether the Second Amended
Complaint remains valid and sufficient to enable Dime to confess judgment
anew, whether an entirely new proceeding may and must be commenced, or
whether there is any reason under the law that Dime may not twice exercise
its warrant of authority as specified in the Guarantee,5 is a matter for the
trial court to determine upon remand.6
____________________________________________
5
See, e.g., TCPF, 976 A.2d at 576 (noting that Pa.R.C.P. 2953 allows
for successive exercises of a single warrant of authority where the
(Footnote Continued Next Page)
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Order reversed. Case remanded. Jurisdiction relinquished.
Judge Jenkins joins the opinion.
President Judge Gantman files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
_______________________
(Footnote Continued)
underlying agreement so provides for several portions of a debt as they
come due, but distinguishing separate sums with a similar exercise for the
“same sum” of money); Ferrick v. Bianchini, 69 A.3d 642, 653-54
(Pa. Super. 2013) (upholding successive exercises by agreement where
lease provided that landlord could do so to collect “separate and distinct
debts”). We need not decide at this time whether Rule 2953 or any other
provision precludes enforcement of the instant Guarantee as written.
6
Because striking the standing judgment in this case does not clearly
preclude Dime from proceeding anew, the dissent’s willingness to cloud or
diminish, albeit sub silentio, the nearly fifty-year-old holding in ABF seems
quite unnecessary.
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