B&S Associates v. Emstar

J-A27011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
B & S ASSOCIATES IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EMSTAR AMBULANCE SERVICES A/K/A
PCA EMSTAR HOLDINGS A/K/A EMSTAR
Appellant No. 2729 EDA 2015
Appeal from the Order July 20, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2014, No. 00872
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 02, 2017
Appellant, Emstar Ambulance Services a/k/a PCA Emstar Holdings
a/k/a Emstar, appeals from the order entered in the Philadelphia County
Court of Common Pleas, following denial of Appellant’s petitions to strike
and/or open and stay a confessed judgment in favor of Appellee, B & S
Associates. After careful review, we affirm.
The relevant facts and procedural history are as follows. Appellee and
Appellant entered into a commercial lease agreement on December 29,
2011, (the “Lease”) and Addendums A & B dated February 1, 2012, whereby
Appellant leased office space (the “Leased Premises”) from Appellee.
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
Former Justice specially assigned to the Superior Court.
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The Lease identified Appellant by four different name variants, EmStar
Ambulance Services, EM-Star Ambulance Service, EMStar, and Emstar.
Appellant’s executive director, Daniel Herman, initialed pages two through
ten of the Lease and signed his full name immediately below “Emstar,” which
was handwritten on page ten of the Lease. The Lease contained a warrant of
attorney authorizing entry of judgment against Appellant in the event of
Appellant’s default on the terms of the Lease.
On March 7, 2014, Appellee filed a complaint in confession of
judgment for monetary damages against Emstar Ambulance Services.
Through their complaint, Appellee averred that Appellant failed to pay rent
on February 1, 2014, resulting in a default on the terms of the Lease. By
virtue of the warrant of attorney in the Lease, Appellee confessed a
judgment against Emstar Ambulance Services on March 7, 2014 for
$191,643.50.
On April 1, 2015, Appellee filed a motion to amend caption to include
Appellant’s legal names, PCA EMStar Holdings, L.P., and EmStar, as
alternate names for defendant. Appellant opposed Appellee’s motion, stating
that it was not a party to the Lease and did not occupy the Leased Premises
pursuant to the terms of the Lease. Further, Appellant alleged that the
granting of the motion to amend would add a new party to the action, and
result in the liability of Appellant for the confession of judgment under the
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terms of the Lease. The trial court rejected Appellant’s arguments, and
entered an order granting Appellee’s motion to amend on May 13, 2014.1
Thereafter, on May 15, 2015, Appellee filed a praecipe to amend the caption
to identify defendant as “Emstar Ambulance Services a/k/a PCA EMStar
Holdings, L.P. a/k/a EmStar,” and an amended complaint in confession of
judgment. The amended complaint was granted on May 22, 2015, and a
judgment of $191,643.50 was confessed against Appellant.
On June 24, 2015, Appellant filed a petition to strike confessed
judgment or, in the alternative, petition to open confessed judgment and an
emergency petition to stay. Through its petition, Appellant averred, again,
that it was not a party to the Lease, that it exited the Leased Premises on
February 9, 2014, and that Appellee changed the locks to the Leased
Premises in March 2014, thereby evicting Appellant and eliminating its
obligation to pay accelerated rent under the warrant of attorney in the
Lease. In order to support these allegations, Appellant appended an affidavit
containing these claims signed by Joseph Zupnik. Appellee subsequently
responded to this petition, denying Appellant’s allegation that it changed the
locks to the Leased Premises.
On July 17, 2015, the trial court entered orders staying execution and
granting a rule upon Appellee to show cause why relief from execution
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1
We note that the order granting the motion to amend is dated May 13,
2015, but is docketed May 14, 2015.
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should not be granted. However, on July 20, the trial court vacated these
orders and denied both of Appellant’s petitions. This timely appeal followed.
Through its brief, Appellant purports to raise thirteen issues on appeal.
See Appellant’s Brief at 4-7. However, Appellant only separates its
arguments into four sections in the argument portion of its brief. See
Pa.R.A.P. 2119 (stating that “[t]he argument shall be divided into as many
parts as there are questions to be argued; and shall have at the head of
each part….”). While we can overlook this technical violation in certain
situations, we will find waiver where an appellant fails to raise or develop an
issue properly. See, e.g., Butler v. Illes, 747 A.2d 943, 944-945 (Pa.
Super. 2000) (holding appellant waived claim where she failed to set forth
adequate argument concerning her claim on appeal; argument lacked
meaningful substance and consisted of mere conclusory statements;
appellant failed to explain cogently or even tenuously assert how trial court
abused its discretion or made error of law).
Here, Appellant clearly failed to raise or develop all of its issues
because although some of the thirteen issues raised are discussed within by
the four sections of the argument portion of its brief, Appellant fails to offer
any argument on several issues it purportedly raises on appeal. Thus, we
will restrict our review to the questions raised at the beginning of the four
sections of the argument portion of Appellant’s brief, and find all other
issues not contained within these sections waived. See id.
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Prior to addressing Appellant’s issues on the merits, we must examine
whether Appellant has properly preserved its issues for our review. Appellee
contends that Appellant has waived its first claim, that the confession of
judgment was invalid on its face as “no instrument exists which contains a
warrant of attorney for [Appellee] to confess judgment against Appellant.”
See Appellee’s Brief, at 31; Appellant’s Brief, at 26-31. Appellant’s argument
rests upon its contention that it was not a party to the Lease because its
legal name was not contained within the Lease. See Appellant’s Brief, at 29.
Appellee argues that this particular issue had previously been addressed in
an order granting Appellee’s motion to amend caption. See Appellee’s Brief,
at 31. Because Appellant failed to challenge the order granting Appellee’s
motion to amend caption in the instant appeal, Appellee argues that
Appellant has waived this issue. See id. We agree.
Under Pa.R.C.P. 1033, “[a] party, either by filed consent of the
adverse party or by leave of court” may at any time change the form of
action, add a person as a party, correct the name of a party, or otherwise
amend the pleading.” A correction of the name of a corporation is allowable
under Pa.R.C.P. 1033, as long as such a change does not substitute a
different party. See Jacob’s Air Conditioning & Heating v. Associated
Heating & Air Conditioning, 531 A.2d 494, 496 (Pa. Super. 1987).
Thus, the order of May 13, 2014, allowing amendment of the caption,
effectively determined that Emstar Ambulance Services was the same party
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as PCA EMstar Holdings, L.P. for the purposes of this suit. Appellant failed to
include a challenge to the May 13, 2014 order in its Rule 1925(b) statement
for the instant appeal. Therefore, Appellant has waived the claim that it was
not a party to the lease containing the warrant of attorney. See
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues
not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.”)
In its next two issues, Appellant contends that the trial court erred by
failing to strike the confessed judgment. We review an order denying a
petition to strike for manifest abuse of discretion or error of law. See
Atlantic National Trust, LLC v. Stivala Investments, Inc., 922 A.2d
919, 922 (Pa. Super. 2007).
“A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record. [It] may be granted only for a fatal
defect or irregularity appearing on the face of the record.” Knickerbocker
Russell Co., Inc. v. Crawford, 936 A.2d 1145, 1146-1147 (Pa. Super.
2007) (citations omitted). In assessing whether “there are fatal defects on
the face of the record . . . , a court may only look at what was in the record
when the judgment was 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)). Therefore, the
original record that is subject to review in a petition to strike a confessed
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judgment consists only of the complaint in confession of judgment and the
attached exhibits. See id.
First, Appellant alleges that the trial court erred in failing to strike the
confessed judgment because Appellee was not entitled to the entire amount
of the confessed judgment. See Appellant’s Brief, at 31. Appellant claims
that the judgment should have been stricken because it offered evidence in
the form of an affidavit, attached to Appellant’s petition to strike/open, that
Appellee changed the locks and effectively evicted Appellant from the Leased
Premises. See id. Therefore, Appellant contends that Appellee was not
entitled to accelerated rent for the period after Appellee changed the locks.
See id.
However, Appellant’s argument fails to recognize that the affidavit was
not a document the trial court was entitled to review in considering the
merits of its petition to strike. Appellant’s affidavit was filed after the
confession of judgment was entered. A petition to strike only looks for fatal
defects on the face of the record at the time the confession of judgment was
entered. See Cintas, 700 A.2d at 917. The record reveals that at the time
the confessed judgment was entered, there was no evidence of an
irregularity in the calculation of damages on the face of the record. Thus,
Appellant was not entitled to have the confessed judgment stricken on this
basis.
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Second, Appellant contends that the trial court should have stricken
the judgment because the warrant of attorney was not self-sustaining,
voluntarily accepted, or consciously assumed. See Appellant’s Brief, at 35-
36.
Because a warrant of attorney to confess judgment confers such
plenary powers on the party benefited by it, as a matter of public policy, we
apply a strict standard to establish the validity of a warrant of attorney. See
Frantz Tractor Co. v. Wyoming Valley Nursery, 120 A.2d 303, 305 (Pa.
1956). Accordingly, a warrant of attorney to confess judgment must be self-
sustaining. See L.B. Foster Co. v. Tri-W Const. Co., 186 A.2d 18, 20 (Pa.
1962). In order to be self-sustaining, the warrant must be in writing, signed
by the person to be bound by it, and the signature must bear a direct
relation to the warrant of attorney and may not be implied. See id. “There
should be no doubt that the lessee signed the warrant and that he was
conscious of the fact that he was conferring a warrant upon the lessor to
confess judgment in the event of a lease.” Ferrick v. Bianchini, 69 A.3d
642, 651 (Pa. Super. 2013).
Appellant’s sole basis for contending that the warrant of attorney is not
self-sustaining is that it was written in the same small print as the rest of
the Lease. See Appellant’s Brief, at 36. Appellant contends that this made
the warrant of attorney as inconspicuous as the rest of the Lease and
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prevented Appellant from consciously assuming and voluntarily accepting the
clause. See id.
Appellant’s argument fails. In Germantown Sav. Bank v. Talacki,
657 A.2d 1285 (Pa. Super. 1995), we denied relief to a defendant posing the
exact same argument.
The warrant of attorney in this case appeared as a separately
numbered paragraph within the body of the Guaranty; it was
paragraph six out of 18, on page three of nine pages. It was
printed in the same size type as the rest of the text. It was not a
finely printed clause on the unsigned reverse of the document. It
is clear that a party’s signature to a contract is designed to
evidence his or her intention to be bound thereby. Where, as
here, the debtor has not alleged fraud, and has produced no
evidence to show a lack of capacity to understand the document
signed, or that he or she had asked for an explanation of the
contract language, the debtor must be held to the contract
terms.
Id. at 1289-1290 (citations omitted).
We are bound by Germantown. Herman’s initials appear on the page
of the Lease containing the warrant of attorney clause, and his signature
appears at the end of the Lease. Herman was the executor director of
Appellant and Appellant does not challenge Herman’s power to bind
Appellant to contracts. Appellant has produced no evidence of fraud or
shown a lack of capacity to understand the warrant of attorney clause. Thus,
the warrant of attorney clause in the Lease clearly complies with the
requirements set forth in case law. Appellant’s third issue on appeal merits
no relief.
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Finally, Appellant argues that the trial court erred by failing to open
the confessed judgment. See Appellant’s Brief, at 37-43. Appellant contends
that it provided a meritorious defense to the confessed judgment by claiming
that Appellee is not entitled to accelerated rent as part of the confessed
judgment. See id. Appellant claims that it submitted sufficient evidence of
this defense in the form of an affidavit in which Zupnik contends that
Appellee evicted Appellant by changing the locks to the Leased Premises in
March of 2014. See id. Appellee disputes Appellant’s claims that it changed
the locks to the Premises. See Appellee’s Brief, at 14
We review an order refusing to open a confessed judgment for an
abuse of discretion. See PNC Bank, Nat. Ass’n v. Bluestream
Technology, Inc., 14 A.3d 831, 835 (Pa. Super. 2010). In situations where
a party files both a petition to open and a petition to strike, “[i]f the truth of
the factual averments contained in [the complaint in confession of judgment
and attached exhibits] are disputed, then the remedy is by proceeding to
open the judgment, not strike it.” Neducsin v. Caplan, 121 A.3d 498, 504-
505 (Pa. Super. 2015).
In order to succeed on a petition to open a judgment, a petitioner
must “(1) act[] promptly, (2) allege[] a meritorious defense, and (3)
produce sufficient evidence to require submission of the case to a jury.” PNC
Bank, 14 A.3d at 835. (internal citations and quotations omitted).
[A] court should open a confessed judgment if the petitioner
promptly presents evidence on a petition to open which in a jury
trial would require that the issues be submitted to the jury. A
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petitioner must offer clear, direct, precise and believable
evidence of a meritorious defense, sufficient to raise a jury
question. In determining whether sufficient evidence has been
presented, we employ the same standard as in a directed
verdict: we view all the evidence in the light most favorable to
the petitioner and accept as true all evidence and proper
inferences supporting the defense while we reject adverse
allegations of the party obtaining judgment.
Stahl Oil Co. v. Helsel, 860 A.2d 508, 512 (Pa. Super. 2004) (internal
citations omitted). Further,
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 produced 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.
Neducsin, 121 A.3d at 506-507 (internal quotations and citations omitted).
Here, our review of the record confirms the trial court’s observation
that while Appellant did offer evidence in support of its defense that Appellee
was not entitled to confess judgment for accelerated rent, we cannot find
that the defense is meritorious. Appellant claims that its affidavit puts into
dispute whether there was an abandonment of the Premises before Appellee
changed the locks, and the resolution of that question determines whether
Appellee was entitled to confess judgment for accelerated rent. See
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Appellant’s Brief, at 39. However, the content of Appellant’s own affidavit
resolves this dispute. The affidavit states:
5. From on or about February 1, 2012 to on or about February 9
2014 [Appellant] occupied the [Leased Premises].
*****
10. In March 2014, [Appellee] changed the locks to the Premises
thereby preventing [Appellant] from occupying the Premises.
Appellant’s Petition to Open/Strike, Affidavit of Zupnik, at ¶¶ 5, 10.
When a tenant voluntarily abandons a leased premises, a landlord has
the right to immediate repossession of the premises. See Turnway
Corporation v. Soffer, 336 A.2d 871, 877 (Pa. 1975). Typically, in order to
prove abandonment, the landlord bears the burden of demonstrating (1) the
tenant’s intention to abandon; and (2) conduct by which the intention is
carried into effect. See id. However, here, Appellant admits that it
abandoned the Premises, more than two weeks before it claims to have been
evicted by Appellee. Based upon this admission, it is immaterial whether
Appellee actually changed the locks to the Premises; after Appellant
abandoned the Premises on February 9, 2014, Appellee was entitled to re-
enter the Premises and confess judgment for accelerated rent. See Ferrick
69 A.3d at 657. Thus, Appellant’s argument does not provide it “with a
meritorious defense to the validity of the confessed judgment for accelerated
rent.” Id.
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Therefore, even viewing the evidence in the light most favorable to
Appellant and accepting as true all evidence and proper inferences drawn
therefrom, we find that the trial court correctly found that Appellant failed to
provide “clear, direct, precise, and believable evidence[,]” in support of a
meritorious defense. See Stahl Oil Co., 860 A.2d at 512. Thus, the trial
court did not abuse its discretion in denying Appellant’s petition to open the
confessed judgment. Appellant’s final issue on all merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/2/2017
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