Independence Ave. v. Tradavo, Inc.

J-A22037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
INDEPENDENCE AVENUE : IN THE SUPERIOR COURT OF
INVESTMENTS, LLC. : PENNSYLVANIA
:
Appellant :
:
v. :
:
TRADAVO, INC. :
:
Appellee : No. 1573 MDA 2020
Appeal from the Order Entered November 23, 2020
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 2018-08120
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 10, 2023
Appellant, Independence Avenue Investments, LLC, appeals from the
order entered in the Cumberland County Court of Common Pleas, which
revised the second confession of judgment on behalf of Appellee, Tradavo,
Inc., in favor of Appellant. We affirm in part, reverse in part, and remand for
further proceedings.
The factual and procedural history of this case are as follows. Appellant
and Appellee entered into an Office/Warehouse Lease Agreement (“Lease”),
dated February 29, 2016, whereby Appellee leased part of Appellant’s
premises for use as an office, storage, and food distribution facility. The Lease
provided that Appellee was to take possession of the premises on June 1,
2016, and pay rent of $4,322.40 per month through November 30, 2016.
Thereafter, the monthly installment increased to $7,544.27 through June 30,
J-A22037-21
2017. The base annual charge then increased by 2.54% per year in each
successive term. The initial term of the Lease was sixty-six months. The
Lease was “triple net” in that Appellee was “responsible for all operating
expenses including all utilities, pro-rated common area maintenance and pro-
rated taxes” as well as the base annual charge. Appellant performed build out
of special improvements to the premises as requested by Appellee.
The Lease explained that an event of default of the Lease would include,
inter alia, failure to pay rent timely and failure to take occupancy of the
premises. (Lease at § 21.01). If an event of default occurred and continued
for 60 days after notice from Appellant, Appellant was authorized to do one or
more of the following without additional notice:
a. Terminate this Lease by giving written notice of the
termination to the Tenant, in which event Tenant shall
immediately surrender the Premises to Landlord. If Tenant
fails to do so, Landlord may, without notice…enter upon and
take possession of the Premises…; and Tenant shall be
liable to Landlord for all loss and damage which
Landlord may suffer by reason of such termination,
whether through inability to re-let the Premises or
otherwise, including any loss of Rent for the
remainder of the Term. Any such loss of Rent shall be
offset by any Rent received by Landlord as a result of re-
letting the Premises during the remainder of the Term.
b. Terminate this Lease, in which event Tenant’s event of
default shall be considered a total breach of Tenant’s
obligations under this Lease and Tenant immediately shall
become liable for such damages for such breach amount,
equal to the total of:
1) the costs of recovering the Premises;
2) the unpaid Rent and Additional Rent, if any, due from
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the date of the Event of Default to the date of
termination, together with pre- and post-judgment
interest thereon at a rate per .83% per month.
3) the Rent and Additional Rent, if any, and other
benefits (i.e., operating expenses and common area
maintenance costs) which Landlord would have
received under the Lease from the date of termination
to the end of the remainder of the Term, at the rates
set forth herein, together with all other expenses
incurred by Landlord in connection with Tenant’s
default together with pre- and post-judgment interest
thereon at a rate of .83% per month.
4) all other sums of money and damages owing by
Tenant and Landlord as set forth in Paragraph 21.01
[of this Lease].
5) the interest rate of .83% per month shall survive any
judgment being entered on the damages set forth in
this subparagraph.
c. Enter upon and take possession of the Premises as Tenant’s
agent without terminating this Lease and without being
liable to prosecution or any claim for damages therefore.
Landlord may re-let the Premises as Tenant’s agent and
receive the Rent therefore, in which event Tenant shall pay
to Landlord on demand any and all other amounts in
addition to the lost rent necessary to compensate Landlord
for all the damages proximately caused by the Tenant’s
failure to perform its obligations under this Lease or which
in the ordinary course of things would be likely to result
therefrom including, but not limited to: additional broker’s
commissions, advertising costs, maintenance costs, utility
costs, insurance costs, rent concessions, renovating
expenses, the balance of the unamortized costs, as of the
date of the Event of Default, incurred by the Landlord in the
building out special improvements to the Premise for
Tenant’s use of the Premises, repair expenses, refitting
expenses, any deficiency in rent that may arise by reason
of re-letting, such re-letting should not affect Tenant’s
liability for Rent or for damages, and all other expenses
related to re-letting the Premises. The interest rate of one
percent (1%) per month shall survive any judgment being
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entered.
Landlord shall be required to use reasonable efforts to re-
let the Premises on such terms and conditions as Landlord
in its commercially reasonable discretion may determine
(including without limitation, a term different than the Term
of this Lease, rental concessions, alterations and repairs of
the Premises, providing a tenant finish allowance, paying
moving expenses or providing tenant inducements)…
* * *
Should Landlord re-let Tenant’s Premise after Tenant
defaults then Landlord shall credit any rent received from
the new Tenant against that which this Tenant would
otherwise be obligated to pay to Landlord pursuant to this
Lease.
d. Upon the occurrence of any Event of Default which is not
cured by the Tenant within the period of time provided
herein,… the Tenant hereby empowers any Prothonotary or
any attorney of any court of record within the United States
or elsewhere to appear for the Tenant with declaration filed,
and confess judgment against the Tenant in favor of the
Landlord, its successors or assigns, as of any term, for any
Rent amount(s) to which the Landlord would be entitled
from the date of the Event of the Default to the date of the
filing of the judgment together with six (6) months
accelerated rent as damages under the provisions hereof;
and shall have successive rights every six (6) months to
continue to file judgments for an amount equal to the rent
accelerated for the next six (6) months and continue to
confess judgment for six (6) months accelerated unpaid rent
in the same fashion until the end of the term or upon the
Premises being re-letted, including also attorney fees equal
to ten percent (10%) of the total amount of such damages
for collection of the same of the total amount of such
damages, together with costs of suit, and the Tenant hereby
waives all errors, defects and imperfections in entering said
judgment or in any writ, or process, or proceeding thereon
or thereto or in anyway touching or concerning the same;
and for the confession and entry of such judgment, this
Lease or a true and correct copy thereof shall be sufficient
warrant and authority. The authority and power contained
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herein shall not be exhausted by one exercise thereof, but
judgment may be confessed as aforesaid from time to time
and as often as there is an occurrence of any Event of
Default which is not cured by the Tenant as provided herein,
or in the event of an Event of Default, and furthermore such
authority and power may be exercised during the original
and any extension or renewal thereof, or after the expiration
or earlier termination of the term hereof. The interest rate
of one percent per month (1% per month) shall survive the
entering of judgment.
Tenant shall have a right to file a motion to open or strike
the judgment challenging the entry of the judgment on both
the basis of the alleged Event of Default or the amount of
the monetary judgment within thirty (30) days of the date
of the entry of the judgment in accordance with the
Pennsylvania Rule of Civil Procedure No. 2951.
(Lease at § 21.02) (emphasis added).
Appellee did not take possession of the premises and, on August 19,
2016, Appellant confessed judgment on behalf of Appellee pursuant to the
warrant of attorney in the Lease. The amount of the initial judgment was
itemized as follows:
a. Unpaid Security Deposit: $4,322.00
b. Unpaid Monthly Installments of
Base Rent and Common Area
Maintenance Expenses:
i. June 15-30, 2016: $3,353.33
ii. July 1-31, 2016: $6,497.40
iii. August 1-31, 2016: $6,497.40
c. Late Fees: $750.00
d. Monthly Installments of Base
Rent and Common Area
Maintenance Charges: $48,650.01
e. Attorneys’ Fees: $7,007.01
f. Costs: $46.00
g. Interest from 07/01/2016: $202.42
Total: $77,325.57
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(Complaint for Confession of Judgment, 8/19/16). Appellee did not contest
this judgment.
On August 21, 2018, Appellant again confessed judgment pursuant to
the warrant of attorney in the Lease in the amount of $159,852.05, which was
itemized as follows:
a. Unpaid Monthly Installments of Rent:
i. March 1-31, 2017: $7,544.27
ii. April 1-30, 2017: $7,544.27
iii. May 1-31, 2017: $7,544.27
iv. June 1-30, 2017: $7,544.27
v. July 1-31, 2017: $7,737.40
vi. August 1-31, 2017: $7,737.40
Total Rent $45,651.88
b. Unpaid Common Area Expenses
i. March 1-31, 2017: $2,175.00
ii. April 1-30, 2017: $2,175.00
iii. May 1-31, 2017: $2,175.00
iv. June 1-30, 2017: $2,175.00
v. July 1-31, 2017: $2,175.00
vi. August 1-31, 2017: $2,175.00
Total Common Area Expenses: $13,050.00
c. Late Fees: $1,750.00
Total Late Fees: $1,750.00
d. Un-amortized Costs of Build Out
of Tenant Improvements: $76,562.00
Total Un-amortized Cost of
Build Out of Tenant
Improvements: $76,562.00
e. Attorneys’ Fees (10%): $13,701.39
Total Attorneys’ Fees: $13,701.39
f. Costs: $46.00
Total Costs: $46.00
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g. Pre-Judgment Interest from
03/01/2017 to 08/31/2017: $9,090.78
Pre-Judgment Total Interest
(03/01/17-8/31/17) $9,090.78
Gross Total: $159,852.05
(Complaint for Confession of Judgment, 8/21/18, at 10-11).1
Following the filing of the second complaint for confession of judgment,
Appellee filed a petition to strike or open the judgment. Appellee, with
permission of the court, filed an amended petition to strike or open the
judgment on May 2, 2019, which alleged, inter alia:
8. [Appellant] is unable to confess judgment against [Appellee]
because it failed to use reasonable efforts to re-let the
Premises, despite the alleged ongoing default occurring for
more than Two (2) years.
9. In the alternative, the amount of the judgment should be
reduced by the period of time that [Appellant] failed to use
reasonable efforts to re-let the Premises.
10. Further, [Appellant] confessed judgment for the total
amount of $159,852.05,…
11. [Appellant] has re-let the Premises for a monthly amount
of at least $9,958.44, which amount exceeds the monthly
rent that was to be charged to [Appellee] for the same time
period.
12. Section 21.02(c) of the Lease between the parties provides
as follows: “Should Landlord re-let Tenant’s Premise[s] after
Tenant defaults then Landlord shall credit any rent received
from the new Tenant against that which this Tenant would
otherwise be obligated to pay to Landlord pursuant to this
____________________________________________
1 For better clarity, we have made some minor formatting changes to this
section of the complaint.
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Lease…”
13. [Appellant] is receiving rent during the remainder of the
term of the lease with [Appellee] that exceeds the amount
of the rent that [Appellant] would have received from
[Appellee] had [Appellee] not allegedly defaulted under the
lease.
14. [Appellee] should receive a credit for the amount of rent
received by [Appellant] in excess of the rent [Appellant]
would have received from [Appellee] for the remainder of
the lease period.
15. Further, included in the monthly rent charged to the new
tenant, as referenced in Paragraph 11 above, is a partial
payment for the [un-]amortized costs representing the
improvements for tenant build out in the amount of
$76,562.00.
16. [Appellant] is receiving payment from the new tenant for
costs that [Appellant] has also confessed judgment against
[Appellee].
17. Therefore, the amount of the judgment should be reduced
by
a. the amount of the rent received from the new Tenant
that exceeds the amount of the rent that [Appellee]
was otherwise obligated to pay to [Appellant]
pursuant to the Lease.
b. the amount of un-amortized costs of build out of
tenant improvements.
(Petition to Strike or Open Judgment, 5/02/19, at 2-4).
On September 3, 2019, Appellant filed a motion to amend requesting
that the court amend the judgment as follows:
11. One item of damage not included in the confessed
judgment was the costs [Appellant] incurred to “build out”
the leased premise to suit [Appellee’s] particular needs in
its business…. The cost incurred to “build” out the leased
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premises for [Appellee’s] needs equaled $25,917.62.
12. The confessed judgment also did not include all of the
costs to “build out” the leased premises for the new tenant
who eventually took over [Appellee’s] space…. The total cost
of “build out” for the new tenant equaled $97,537.37
instead of $76,562.00.
13. A final set of damages incurred by [Appellant] as a result
of [Appellee’s] breach of the Lease was the cost of the
Broker’s Commission for securing [Appellee] as a tenant
which equaled $35,924.26. [Appellant] also incurred a
Broker’s Commission for securing the new tenant to occupy
the space that would have been occupied by [Appellee]
which equaled $85,678.78, all of which is authorized to be
collected against [Appellee] by the terms of the Lease
Agreement. (See [Lease at §] 21.02(c))[.]
14. As a result of the increases in the damages, the attorney
fees should equal $30,550.98 instead of $13,701.39 and
pre-judgment interest for the period of March 1, 2017 to
August 31, 2018 should equal $27,424.67 instead of
$9,090.78.
(Motion to Amend, 9/03/19, at 2-3). The motion to amend concluded that the
total judgment that should have been confessed against Appellee by Appellant
equals $374,450.03.
On September 20, 2019, Appellee filed an answer and new matter to
Appellant’s motion, claiming:
22. [Appellant] is precluded from amending its judgment
against [Appellee] despite a reservation in the Lease
permitting judgment to be confessed as often as there is an
occurrence of default.
23. [Appellant] previously confessed judgment, through the
warrant of attorney, for the same damages it is now seeking
to amend.
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24. As a matter of law, [Appellant] has exhausted the
warrant of attorney.
(Answer and New Matter, 9/20/19, at 3).
On August 13, 2020, the court denied Appellant’s motion to amend to
the extent that it attempted to amend the amount of build out expenses
claimed, and granted it in all other respects.
On August 25, 2020, the parties entered into a stipulation which
provided as follows:
1. [Appellant] experienced losses and damages for unpaid
rent, common area maintenance expenses and late fees
during the period March 1, 2017 through September 30,
2017 consisting of the following:
i. Unpaid Rent: $45,651.88
ii. Common Area Maintenance Expenses: $13,050.00
iii. Late Fees: $1,750.00
TOTAL: $60,451.88
[Appellant] reserves the right to argue the Petition to
Amend included an additional $7,737.40 in rent for
September, 2017.
2. [Appellant] paid a real estate commission for [Appellee’s]
Lease on or about June 1, 2016 in the amount of
$35,924.26.
3. [Appellant] paid the costs of the build-out for the MedCare
Lease (Replacement Tenant) on or about October 1, 2017 in
the amount of $76,562.00.
4. [Appellant] paid a real estate commission for the MedCare
Lease (Replacement Tenant) on or about October 1, 2017 in
the amount of $85,678.78.
5. [Appellee] never took possession of the premises and the
term of the Lease ends on [December] 31, 2021.
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6. The parties stipulate the [c]ourt may find, without further
evidence, [Appellant] used reasonable commercial efforts to
re-let the premises.
7. The parties stipulate the [c]ourt may find, without further
evidence, [Appellant] incurred the following costs in
securing a replacement tenant:
i. Unamortized Costs of Build-Out for Replacement
Tenant equaling $76,562.00; and
ii. Realtor Commission to secure a replacement tenant
equaling $85,678.78. [Appellant] claims [Appellee],
pursuant to the terms of the Lease, is responsible for the
cost of securing a replacement tenant. [Appellee], however,
questions the legality of assessing the costs to [Appellee]
and leaving the issue of [Appellee’s] liability for the costs
open for argument.
8. [Appellant] re-let the premises to MedCare Susquehanna
Valley, LLC. Under the terms of the Lease with MedCare,
the Rent Commencement Date was October 1, 2017 and the
Expiration Date was August 31, 2027. For Year 1 through
Year 5 of the Lease, MedCare’s monthly rent was $9,958.44.
9. The parties stipulate that the rent received from the
replacement tenant from October 1, 2017 through
November 30, 2021 would equal $497,922.00 while the rent
received from [Appellee] from October 1, 2017 through
November 30, 2021 would have been $405,253.85 or a
difference of $92,667.89. The parties agree if the
replacement tenant pays the rent through November 20,
2021 there would be a difference of $92,667.89.
[Appellant] reserves the right to argue that the excess
difference in the rents cannot be used as an offset by
[Appellee,] is speculative and is contrary to the terms of the
Lease and the case law. [Appellee] reserves the right to
argue it is an offset against any damages pursuant to the
terms of the Lease.
(Stipulation, 8/25/20).
On August 25, 2020, the court conducted a hearing on the petition to
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open or strike. At the hearing:
[Appellant’s] exhibits admitted into evidence at the hearing,
in addition to the stipulation, consisted of the lease between
[Appellant] and [Appellee], Basic Lease Information
pertaining to the lease between [Appellant] and the
replacement tenant, an itemization of build out expenses
incurred by [Appellant] to accommodate the replacement
tenant (totaling $97,537.37), a brokerage commission bill
pertaining to [Appellee’s] lease paid by [Appellant] around
June 1, 2016 ($35,924.26), a brokerage commission bill
pertaining to the replacement tenant’s lease paid by
[Appellant]…($85,678.78), an itemization of legal services
rendered by [Appellant’s] counsel in connection with the
present matter, and [Appellant’s] “Summary of Unpaid
Rent, Common Area Maintenance Expenses and Late Fees,
Unamortized Build-out Costs, Realtor Commissions and
Counsel Fees.”
The latter exhibit postulated a total of unpaid Monthly
Installments of Rent (including rent for September, 2017)
in the amount of $53,389.28, a total of Unpaid Common
Area Expenses in the amount of $13,050.00, Late Fees in
the amount of $1,750.00, Unamortized Cost of Build-Out for
[Appellee] in the amount of $25,917.62, Unamortized Cost
of Build-Out for the replacement tenant in the amount of
$76,562.00, Realtor Commission related to [Appellee’s]
tenancy in the amount of $35,924.26, Realtor Commission
related to the replacement tenant’s tenancy in the amount
of $85,678.78, and Counsel Fees in the amount of
$29,227.19, for a total of $321,499.13. No [Appellee’s]
exhibits were introduced at the hearing.
The testimony of the only witness at the hearing was
provided by John Ortenzio, who was called on behalf of
[Appellant], and may be summarized as follows: Mr.
Ortenzio was one of three owners of [Appellant], a limited
liability company, and was an employee of the property
management company that managed the subject property
owned by [Appellant]. Notwithstanding the lease between
[Appellant] and [Appellee], [Appellee] never took
possession of the leased premises, his attempts to contact
[Appellee] concerning the matter were unsuccessful, the
replacement tenant began its occupancy on October 1,
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2017, the replacement tenant’s rental payments were
greater than [Appellee’s], and the term of its lease was
longer than [Appellee’s], and the exhibits admitted on
behalf of [Appellant] at the hearing were factually correct.
With specific reference to build out costs, [Appellant] had
incurred expenses related to [Appellee’s] tenancy in the
amount of $25,927.62 and expenses related to the
replacement tenancy in the (corrected) amount of
$97,537.37. Build out expenses were expected to be
recaptured through a tenant’s rental payments.
With specific reference to realtors’ commissions, they were
similarly expected to be recaptured through a tenant’s
rental payments. Typically, a commission payment was due
at the time of execution of a lease and the payment to the
owner’s broker was then shared with the tenant’s broker.
In the case of [Appellee’s] lease, the broker for [Appellant]
shared the fee, which varied percentage-wise over the term
of the lease, with the broker for [Appellee], and in the case
of the replacement tenant’s lease, the broker for [Appellant]
similarly shared the fee, which remained constant
percentage-wise over the term of the lease, with the broker
for the replacement tenant.
(Trial Court Opinion, 11/23/20, at 12-14). At the conclusion of the hearing,
the trial court set a briefing schedule for the parties.2
On November 23, 2020, the court ruled on the pending motion to open
or strike. Specifically, it revised the judgment and (1) omitted build out
expenses related to Appellee’s tenancy; (2) omitted brokerage commissions
related to Appellee’s tenancy; (3) omitted build out expenses related to the
____________________________________________
2 After receiving the parties’ briefs, the court noted that it was apparent from
Appellant’s brief that Appellant no longer sought to increase its claim for build
out expenses related to the replacement tenant’s tenancy beyond the initially
claimed $76,562.00. It explained that Appellant continued to request build
out expenses for Appellee’s tenancy in the amount of $25,917.62.
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replacement tenant’s tenancy; (4) omitted brokerage commissions pertaining
to the replacement tenant’s tenancy; and (5) omitted rent for September
2017. The court rejected Appellee’s argument that it should be entitled to a
credit for excess rent anticipated from the replacement tenant.3
Appellant timely filed a notice of appeal on December 22, 2020. That
same day, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
on December 31, 2020.
Appellant raises the following issues for our review:
Whether the [t]rial [c]ourt erred as a matter of law, raising
sua sponte, that the warrant of attorney contained in the
confession of judgment in the Lease limited [Appellant’s]
right to recovery solely to rent, attorney fees and costs and
did not include other types of damage and, as a result,
foreclosed [Appellant] from reducing to judgment other
types of damages by use of the warrant of attorney
contained in the confession of judgment.
Whether the [t]rial [c]ourt erred, as a matter of law, in
raising issues not raised by [Appellee] in its pleadings or at
trial and in finding that [Appellant], as a result of its
exhaustion of the warrant of attorney, was foreclosed from
amending the Complaint for Confession of Judgment to
include: (1) the $25,917.62 for improvement build-out costs
for [Appellee]’s benefit; (2) the additional $20,975.37 in
improvement build-out costs to secure the replacement
tenant; (3) the broker’s commission of $35,924.26 for
____________________________________________
3Ultimately, the court revised the confession of judgment to provide solely for
unpaid monthly installments of rent in the amount of $45,651.88, unpaid
common area expenses in the amount of $13,050.00, late fees in the amount
of $1,750.00, attorney fees in the amount of $6,045.19, costs in the amount
of $46.00, and prejudgment interest at the rate of .83% per month from
March 1, 2017, to August 31, 2017.
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securing [Appellee]’s lease; and (4) the broker’s
commission of $85,678.79 for securing the replacement
tenant on the basis that while they were not the same
damages, they were all “a type of damage” that had been
previously listed in the Complaint for Confession of
Judgment filed on August 21, 2018.
Whether the [t]rial [c]ourt erred as a matter of law or
committed an abuse of discretion where it concluded that
the broker’s commission of $35,924.26, related to
[Appellee’s] lease was prohibited as an amendment to the
Complaint for Confession of Judgment as the commission
was not owed by [Appellant] because [Appellee] never took
possession of the leased premises and as a result the debt
was never legally owed by [Appellant] and thus could never
be recouped by [Appellant] from [Appellee].
Whether the [t]rial [c]ourt erred as a matter of law in finding
that the improvement build-out costs and the broker’s
commission incurred by [Appellant] to secure both
[Appellee] and the replacement tenant, were damages that
could not be assessed against [Appellee] as these costs, in
part, were both being recouped by [Appellant] with each
rent payment it received from the replacement tenant and
to enter judgment would represent a double recovery.
Whether the [t]rial [c]ourt erred as a matter of law in
refusing to allow [Appellant]’s Amendment of the Complaint
to include the rent owed for September, 2017 as the warrant
of attorney contained in the confession of judgment limited
the confession of rent to six (6) month increments and the
Complaint filed on August 21, 2018 had already sought rent
for the months March, 2017 through August, 2017, a period
of six (6) months.
(Appellant’s Brief at 4-5).
We review an order ruling on a petition to open or strike a confessed
judgment for an abuse of discretion or error of law. Ferrick v. Bianchini, 69
A.3d 642, 647 (Pa.Super. 2013). Our scope of review on appeal is “very
narrow” and we will overturn the trial court’s decision only if the court abused
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its discretion or committed manifest error. Atlantic Nat’l Trust, LLC v.
Stivala Invs., Inc., 922 A.2d 919, 925 (Pa.Super. 2007) (citation omitted).
However,
“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.” Riccio v.
American Republic Ins. Co., 550 Pa. 254, 263, 705 A.2d
422, 426 (1997). The legal effect or enforceability of a
contract provision presents a question of law accorded full
appellate review and is not limited to an abuse of discretion
standard. Id. See also Patriot Commercial Leasing Co.,
Inc. v. Kremer Restaurant, 915 A.2d 647 (Pa.Super.
2006), appeal denied, 597 Pa. 720, 951 A.2d 1166 (2008).
“A cornerstone principle of contract interpretation provides
that where the words of the document are clear and
unambiguous, we must ‘give effect’ to the language.”
Tindall v. Friedman, 970 A.2d 1159, 1165 (Pa.Super.
2009). Likewise, if the matter under review involves the
interpretation of the Pennsylvania Rules of Civil Procedure,
we have before us a question of law, where our standard of
review is de novo and our scope of review is plenary.
Boatin v. Miller, 955 A.2d 424, 427 (Pa.Super. 2008).
Midwest Financial Acceptance Corp. v. Lopez, 78 A.3d 614, 624
(Pa.Super. 2013).
“[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.” Neducsin v. Caplan, 121 A.3d 498, 505 (Pa.Super. 2015),
appeal denied, 635 Pa. 726, 131 A.3d 492 (2016) (citation omitted).
Judgment entered by confession “must be ‘made in rigid adherence to the
provisions of the warrant of attorney; otherwise, such judgment will be
stricken.’” Id. (quoting Dollar Bank, Federal Sav. Bank v. Northwood
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Cheese Co., Inc., 637 A.2d 309, 311-12 (Pa.Super. 1994), appeal denied,
539 Pa. 692, 653 A.2d 1231 (1994)). “A warrant to confess judgment must
be explicit and will be strictly construed, with any ambiguities resolved against
the party in whose favor the warrant is given.” Neducsin, supra (citation
omitted).
In its first issue, Appellant argues the trial court improperly found sua
sponte that the broker’s commissions related to securing Appellee and the
replacement tenant, and the build out expenses for Appellee and the
replacement tenant, were beyond the scope of the warrant of attorney.
Appellant asserts the court erroneously concluded that the warrant of attorney
did not encompass confession of judgment damages beyond rent, attorney
fees, and costs. Appellant claims Appellee did not raise this issue in its
pleadings. Appellant maintains the court’s actions deprived it of an
opportunity to address a defense that Appellee had not raised or argued.
Essentially, Appellant contends the court improperly acted as an advocate for
Appellee by raising a defense on its behalf. Appellant emphasizes that “the
parties had filed various pleadings, a set of Stipulations, Pre-Trial and Post-
Trial Briefs together with a hearing on issues which they could not reach a
stipulation all of which were intended to narrow the issue[s] and none of which
raised [a]n issue as to the scope of the damages included in the warrant of
attorney.” (Appellant’s Brief at 21). Appellant concludes the court erred by
precluding it from recovering damages beyond rent, costs, and attorney’s
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fees, and this Court must reverse. We agree.4
“[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.” Stahl Oil Co., Inc. v. Helsel, 860 A.2d
508, 512 (Pa.Super. 2004), appeal denied, 584 Pa. 709, 885 A.2d 43 (2005).
“A petitioner must offer clear, direct, precise and believable evidence of a
meritorious defense, sufficient to raise a jury question.” Id.Pennsylvania Rule of Civil Procedure 2959(a) states, in
pertinent part that “all grounds for relief whether to strike
off the judgment or to open it must be asserted in a single
petition.” Furthermore, Pa.R.Civ.P. 2959(c) states that “[a]
party waives all defenses and objections which are not
included in the petition or answer.”
Stahl Oil Co., Inc., supra at 515. See also Davis v. Woxall Hotel, Inc.,
577 A.2d 636, 639 (Pa.Super. 1990) (explaining that defenses to confessed
judgment not contained in petition to open or strike judgment are waived).
Furthermore, it is well established that “[a]bsent fraud or
unconscionability, courts should not set aside terms on which sophisticated
parties agreed.” Pops PCE TT, LP v. R & R Rest. Grp., LLC., 208 A.3d 79,
87 (Pa.Super. 2019) (citing John B. Conomos, Inc. v. Sun Co., 831 A.2d
696, 708 (Pa.Super. 2003)).
____________________________________________
4 In its brief, Appellant also asserts that the court improperly raised the
defense of “double recovery” sua sponte, where Appellee did not raise that
defense in its pleadings. Appellant, however, did not include this argument in
its 1925(b) statement, so it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating:
“Issues not included in the statement…are waived”).
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Here, the record reflects that Appellee filed a petition to strike or open,
in accordance with Rule 2959, which Appellee later amended, raising various
grounds for relief. Significantly, Appellee did not raise a defense or objection
concerning whether the scope of the warrant of attorney encompassed the
ability to confess judgment for build out expenses or brokerage fees. Thus,
Appellee waived this argument, and the court should not have struck the
judgment on the basis that the claimed build out expenses and brokerage fees
were beyond the scope of the warrant of attorney clause. See Neducsin,
supra; Stahl Oil Co., Inc., supra.
Moreover, even if not waived, the language of the Lease confirms that
the scope of the warrant of attorney encompassed damages beyond just rent
and associated costs.
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.
Pops PCE TT, LP, supra at 87 (quotation marks and citation omitted).
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Here, the Lease executed by the parties provides that upon default
Appellee would be liable for “the rent and additional rent…together with all
other expenses incurred by [Appellant] in connection with [Appellee’s]
default…” (Lease at § 21.02(b)) (emphasis added). This provision clearly and
unambiguously sets forth that the warrant of attorney encompasses more
than simply rent and costs, but rather, may be used to collect damages for
“all other expenses incurred...in connection with [Appellee’s] default.” (Id.)
Appellant and Appellee, both sophisticated parties, agreed upon the language
when they entered into the lease. See Pops PCE TT, LP, supra. Therefore,
we hold that the trial court erred when it sua sponte raised a concern about
the scope of the warrant of attorney and found that it did not include damages
in excess of rent and costs.
In its second issue, Appellant challenges the trial court’s denial of its
motion to amend the judgment to include damages related to the build out
expenses incurred with respect to Appellee’s lease.5 Appellant claims Appellee
did not object to these damages and the court erred by denying them sua
sponte. Appellant asserts that it did not seek damages related to the build
____________________________________________
5 The question presented in Appellant’s second issue states that the court
improperly denied its amendment of the complaint to include 1) build out
expenses related to Appellee’s lease, 2) build out expenses related to the
replacement tenant’s lease, 3) broker’s commission for securing Appellee’s
lease, and 4) the broker’s commission for securing the replacement tenant
lease. However, in the argument portion of its brief, Appellant discusses only
the alleged error in denying Appellant’s amendment to include build out
expenses for Appellee’s lease. Therefore, we limit our discussion to the same.
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out expenses associated with Appellee’s lease prior to its motion to amend the
complaint for confession of judgment. Appellant contends the court
erroneously concluded that because Appellant previously sought damages
related to the replacement tenant’s build out expenses, Appellant was
precluded from seeking “similar” damages related to the build out expenses
associated with Appellee’s lease in the amendment to the complaint.
Appellant insists that the debt set out in Appellant’s motion to amend the
judgment with respect to Appellee’s build out expenses is different and distinct
than the debt set out in the complaint for confession of judgment against
which the previous judgment had been filed.
Appellant further maintains that the warrant of attorney specifically
provides that it is not exhausted by “one or more exercises thereof and where
the debt attempted to be collected by each action is different and distinct from
debt previously confessed, the [c]ourt’s rationale that the warrant of attorney
has been exhausted, fails.” (Appellant’s Brief at 27). Appellant avers the
parties specifically negotiated the warrant of attorney to confess judgment to
be exercisable on multiple occasions. Appellant claims the plain language of
the lease empowered Appellant to exercise the warrant of attorney to confess
judgment whenever there was an occurrence of an event of default. Appellant
concludes the court erred by precluding it from obtaining damages for build
out expenses related to Appellee’s lease, and this Court must reverse. We
agree.
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We review a trial court’s revision of a confessed judgment for an abuse
of discretion or an error of law. Ferrick, supra; Atlantic Nat’l Trust, LLC
v. Stivala Invs., Inc., supra. Further, “[t]he decision of the trial [c]ourt to
deny a motion to amend a complaint is within the sound discretion of the trial
court, and the trial court’s determination will not be disturbed absent an abuse
of that discretion.” Ferraro v. McCarthy–Pascuzzo, 777 A.2d 1128, 1132
(Pa.Super. 2001) (citations omitted).
Pennsylvania Rule of Civil Procedure 1033 sets forth the rules
concerning amendment of pleadings. It states, inter alia, “a party, either by
filed consent of the adverse party or by leave of court, may at any time change
the form of the action, correct the name of a party or amend his pleading.”
Pa.R.C.P. 1033(a).
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.
Dime Bank v. Andrews, 115 A.3d 358, 365 (Pa.Super. 2015) (quoting West
Penn Sand & Gravel Co. v. Shippingport Sand Co., 367 Pa. 218, 80 A.2d
84, 86 (1951)) (emphasis in original). An amendment to a complaint is not
permitted where it is against an affirmative rule of law. TCPF Ltd. P'ship v.
Skatell, 976 A.2d 571, 575 (Pa.Super. 2009).
This Court has considered the issue of amending a complaint for
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confession of judgment concerning same or similar damages in TCPF Ltd.
P’ship, supra. There, we explained:
It is clear that, under the law of Pennsylvania, a warrant of
attorney to confess judgment may not be exercised twice
for the same debt. B. Lipsitz Co. v. Walker, 522 A.2d 562,
566 (Pa.Super. 1987), appeal granted, 515 Pa. 617, 531
A.2d 426 (1987) (“severable portions of a debt can be
sought to be collected with the use of a single warrant of
attorney as each become due; provided, of course, the
instrument is not used to collect the same portion of the
debt already confessed.”); American Bowling Club, Inc.
v. Kanefsky, 370 Pa. 136, 140, 87 A.2d 646, 648 (1952)
(“where a power of attorney authorizes a confession of
judgment and the power is once exercised, the power is
thereby exhausted.”).
Id. at 575 (footnote and emphasis omitted; citation formatting provided). In
TCPF Ltd. P’ship, however, this Court limited its holding to the use of a
warrant of attorney several times to collect the same portion of the debt
already confessed. Id. at 575–76.
Instantly, the trial court denied Appellant’s motion to amend the second
confessed judgment for the following reasons:
First, build out expenses as a type of damage for the period
in question had been included in the judgment as initially
filed and could not be revised by way of amendment.
Second these particular build out expenses were not a
consequence of [Appellee’s] breach, and their recovery in
addition to rent for the period in question would under the
circumstances represent a double recovery for the same
debt. Third, the warrant of attorney in the lease authorized
a confession of judgment for “rent,” costs and attorney fees;
it is unclear that it was intended to encompass special
damages other than costs and attorney fees, such as build
out expenses.
(Trial Court Opinion at 19).
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Here, Appellant’s second complaint for confession of judgment included
an item labeled “Un-amortized Costs of Build Out of Tenant Improvements”
which “referred to expenses that were allegedly incurred by [Appellant] in
making improvements to the premises to accommodate a replacement
tenant.” (Trial Court Opinion at 8) (footnote omitted). In Appellant’s petition
to amend the complaint, Appellant sought to add an item of damages
concerning build out expenses incurred to accommodate Appellee. (Id. at 9)
(citing Motion to Amend Judgment, 9/03/19).
We conclude that these two items represent two distinct debts, one for
build out expenses incurred as a result of Appellant improving the premises
for Appellee’s anticipated tenancy, and the second for build out expenses
incurred as a result of Appellant improving the premises for the replacement
tenant’s tenancy. Therefore, this Court’s holding in TCPF Ltd. P’ship,
supra, that a warrant of attorney may not be exercised twice for the same
debt, does not bar amendment of the complaint for confession of judgment to
include debt incurred for Appellee’s build out expenses. See TCPF Ltd.
P’ship, supra at 575.
In addition, the trial court erred in denying Appellant’s motion to amend
the second complaint for confession of judgment based on its analysis that
the scope of the warrant of attorney does not include such damages. As
discussed above, Pennsylvania Rule of Civil Procedure 2959 requires that all
grounds for relief be asserted in a single petition. See Pa.R.C.P. 2959(a)(1).
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It further explains that “[a] party waives all defenses and objections which
are not included in the petition or answer.” Pa.R.C.P. 2959(c). See also
Pa.R.C.P. 2960 (limiting scope of proceedings upon opening of judgment).
Because Appellee did not raise an objection to Appellant’s amendment based
on the scope of the warrant of attorney, the trial court erred in considering
whether the scope of the warrant of attorney included damages for build out
costs for Appellee.6
In its third issue, Appellant argues the trial court erred by sua sponte
concluding that Appellant was not responsible for the broker’s commission
related to the procurement of Appellee’s lease. Appellant asserts the trial
court decided that Appellant’s payment of the broker’s commission was
subject to a condition precedent of the occupancy of the premises by the
tenant, which did not occur. Appellant contends the court erroneously
concluded that Appellant had no legal obligation to pay the broker’s
commission where Appellee never took occupancy. Appellant emphasizes that
the parties stipulated that Appellant paid the commission for the broker who
secured Appellee as a tenant in the amount of $35,924.20. Appellant submits
the court improperly held that recovery of the broker’s commission from
Appellee would constitute a double recovery as the broker’s commission was
____________________________________________
6 We consider the court’s conclusion regarding whether damages for Appellee’s
build out expenses constitutes double recovery in our analysis of Appellant’s
fourth issue.
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built into the rent payments owed by Appellee and would be recouped from
the rent owed by Appellee.7 Appellant also challenges the court’s finding that
the warrant of attorney does not encompass special damages beyond rent,
costs, and attorney fees. Appellant complains that Appellee did not raise any
of the grounds on which the court based its decision in its pleadings. Appellant
insists that “none of the facts upon which the [t]rial [c]ourt based its holding
are found in the [r]ecord or in the pleadings.” (Appellant’s Brief at 31).
Appellant stresses that no evidence offered at the hearing related to or
questioned the terms of the contract between Appellant and its broker.
Specifically, Appellant states “[a]t no time did the [t]rial [c]ourt or [Appellee]
raise an issue of whether the terms of the contract provided that [Appellee]
had to occupy the leased premises prior to the commission being earned.”
(Id. at 34). Appellant concludes the court improperly precluded damages
related to the broker’s commission for Appellee’s tenancy, and this Court must
reverse. We disagree.
A condition precedent is a condition which must occur before a duty to
perform under a contract arises. Davis v. Gov't Employees Ins. Co., 775
A.2d 871, 874 (Pa.Super. 2001), appeal denied, 571 Pa. 706, 812 A.2d 1230(2002). The parties do not need to utilize any particular words to create a
condition precedent; however, an act or event designated in a contract will be
____________________________________________
7We address this specific contention in our analysis of Appellant’s fourth issue,
which also raises this claim of error.
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construed as a condition precedent only where it clearly appears to be the
parties’ intention. Id. See also Acme Markets, Inc. v. Fed. Armored
Exp., Inc., 648 A.2d 1218, 1220 n.3 (Pa.Super. 1994) (rejecting argument
that parties were required to use express language such as “state that
performance will only come due ‘if’ a certain event occurs; or ‘on condition
that’ a certain event occurs; or ‘provided’ that a certain event occurs” to set
forth condition precedent).
We look to the language of the contract itself to discern whether it
clearly appears that the parties intended to create a condition precedent:
When interpreting the language of a contract, the intention
of the parties is a paramount consideration. In determining
the intent of the parties to a written agreement, the court
looks to what they have clearly expressed, for the law does
not assume that the language of the contract was chosen
carelessly. When interpreting agreements containing clear
and unambiguous terms, we need only examine the writing
itself to give effect to the parties’ intent.
Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (quoting Profit
Wize Mktg. v. Wiest, 812 A.2d 1270, 1274 (Pa.Super. 2002)).
Instantly, the trial court found that Appellant was not entitled to
damages related to the broker’s commission for Appellee’s tenancy because
occupancy of the premises was a condition precedent to Appellant’s duty to
pay such commission. The court explained:
[Appellant’s] responsibility for assumption of this debt was
subject under the lease to a condition precedent of
occupancy by the tenant, which did not occur; and as to
payment of the commission of [Appellant’s] broker, in the
absence of the listing agreement between [Appellant] and
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its agent it is difficult to conclude that [Appellant’s] payment
was not also made on the basis of a moral as opposed to
legal obligation.
(Trial Court Opinion at 20).
At the outset, we agree with the trial court that Appellant’s failure to
include a copy of the listing agreement between Appellant and its agent has
significantly limited Appellant’s claim that it had a duty to pay the brokerage
commission upon lease signing. Without such agreement in the record, our
review is limited to the language of the Lease between the parties as it
pertains to Appellant’s payment of the brokerage commission. The Lease
contains the following provision:
[Appellant] agrees that it recognizes Colliers International
as [Appellee’s] sole representative and a full brokerage
commission shall be due and payable upon
occupancy. [Appellant] shall pay Colliers International a
fee equal to six percent (6%) of the first year and five
percent (5%) of the second year, four percent (4%) of the
third year and three percent (3%) of all remaining years
thereafter. In the event [Appellee] leases additional space
or exercised its renewal options, the commission calculation
shall be restarted from the date of occupancy. Said
commission shall be payable when option/expansion is
executed. The commission calculation shall be based on the
total of the net rental amount.
(Lease at 4 ¶ 24.20) (emphasis added).
Considering the express language of the Lease, we agree with the trial
court that the parties demonstrated that their intent was for payment of the
brokerage commission to become due only upon the occupancy of the
premises. See Melton, supra at 653–54. Not only does the Lease clearly
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state that the brokerage commission shall be “due and payable upon
occupancy,” but the Lease later refers to occupancy of the premises again as
the starting point for calculation of any further commission, should Appellee
lease additional space or renew the lease. (See Lease at 4 ¶ 24.20) (emphasis
added).
At the hearing, Appellant did not introduce evidence related to the
contract between itself and the broker to refute condition precedent of “upon
occupancy” stated in the Lease. Therefore, we agree with the trial court that
Appellant was only required to pay the brokerage commission upon Appellee’s
occupancy of the premises. Because Appellee defaulted on the Lease prior to
occupying the premises, the brokerage commission related to Appellee’s
tenancy never became due. Accordingly, Appellee’s default did not cause
Appellant to incur damages related to the brokerage commission because,
based on the terms of the Lease, Appellant was not obligated to pay the
commission where Appellee never took occupancy of the premises. As such,
the trial court did not err when it barred Appellant from seeking separate
damages for the brokerage commission related to Appellee’s tenancy. See
Ferrick, supra; Atlantic Nat'l Trust, LLC, supra.
In its fourth issue, Appellant argues the court erroneously concluded
that the broker commissions related to Appellee and the replacement tenant’s
tenancies, and the improvement build-out expenses related to each lease,
were already being recouped by the rent payments owed from Appellee and
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the rent being paid from the replacement tenant, because the commissions
and build-out expenses were built into the rent payments for the respective
leases. Specifically, Appellant contends that the trial court’s revised judgment
should have included (1) build out expenses for Appellee’s lease in the amount
of $25,917.62, (2) brokerage fees for the replacement tenant in the amount
of $85,678.78, and (3) build out expenses for the replacement tenant in the
amount of $97,537.37. (Appellant’s Brief at 34-35).8
Appellant posits that the trial court’s presumption that Appellant is
recouping the loss through rent payments “is built upon a set of assumed
premises which are not present in this case.” (Id. at 35). The premises are
either: (1) Appellee paid the entire amount of unpaid rent owed under the
Lease equaling $486,708.08 for the period March 1, 2017 through November
30, 2021, from which Appellant recouped the entirety of its costs for brokers’
commissions and improvement build out costs, which Appellee did not do; or
(2) Appellant confessed the judgment of the acceleration of the rent to the
end of the term of Appellee’s lease from which it would recoup the brokers’
commission and improvement build out costs, which is also something
Appellant did not do. (Id. at 35). Appellant emphasizes that a double
____________________________________________
8 Although Appellant additionally seeks brokerage commission damages for
Appellee’s lease in the amount of $35,924.26, as discussed above, Appellant
is not entitled to these damages because the condition precedent to their
being owed was not met. Accordingly, we do not consider whether recovery
of this fee would constitute double recovery.
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recovery would only occur if it had received payment of all the rent under the
Lease or had confessed judgment to recover the rent due together with the
balance of the term of the rent due from Appellee, from which it would then
recoup its cost from broker commission and build out expenses.
Appellant contends the court’s rationale is incorrect where Appellant
never received any rent from Appellee, and Appellant is not seeking a
judgment against Appellee for rent for the balance of the entire term of the
Lease from which to recoup these costs. Appellant emphasizes the language
in the Lease stating that upon default, Appellee would be responsible for “all
other amounts in addition to los[t] rent and all the damages proximately
caused by [Appellee’s] failure to perform its obligations under the Lease or
which in the ordinary course of things, would be likely to result.” (Id. at 37-
38) (quoting Lease at § 21.02(c)). Appellant insists it is Appellee who
breached the contract and caused Appellant to incur immediate out-of-pocket
expenses, but it is Appellant who, as a result of the court’s ruling, is left
without a remedy against Appellee. Appellant concludes the court erred by
finding that Appellant sought damages that would constitute a double
recovery, and this Court must reverse. We agree in part and disagree in part.
“It is a basic tenet of our system of civil justice that a plaintiff may not
obtain a double recovery for a single wrong.” Pops PCE TT, LP, supra at 89
(citing Homart Dev. Co. v. Sgrenci, 662 A.2d 1092, 1100 (Pa.Super. 1995)).
As our Supreme Court has recognized, the doctrine of election of remedies
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provides that “a claimant cannot simultaneously recover damages based on
two different liability findings if the injury is the same for both claims, thus
creating a double recovery.” Gamesa Energy USA, LLC v. Ten Penn Ctr.
Associates, L.P., 655 Pa. 351, 364, 217 A.3d 1227, 1235 (2019) (citation
omitted).
Here, the trial court explained that it denied Appellant’s motion to
amend the second confessed judgment to add build out expenses for
Appellee’s tenancy. Specifically, the court noted that “these particular build
out expenses were not a consequence of [Appellee’s] breach, and their
recovery in addition to rent for the period in question would under the
circumstances represent a double recovery for the same debt.” (Trial Court
Opinion at 19).
Our review of the record reveals that, Appellant paid build out expenses
related to Appellee’s tenancy in the amount of $25,917.37. At the hearing,
Appellant’s witness explained that the costs of Appellee’s build out would have
been recovered through the rent payments. (N.T. at 19, 22-23). Hence, if
Appellee had not defaulted and had instead finished the Lease and paid as
scheduled, Appellant would have recaptured the entirety of the expense.
Here, however, several months of Appellee’s rent are included in the
confessed judgment. Therefore, recovery of the entire amount of build out
expenses would amount to a partial double recovery. Accordingly, to ensure
that there is no double recovery, the portion of the build out expenses covered
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by the monthly rental payments in the first and second confession of
judgments must be subtracted from the total build out expenses.9
Concerning build out expenses related to the replacement tenant’s
tenancy, the trial court held that “as of the filing of the second confessed
judgment this debt was being collected through the replacement tenant’s rent
and until such time as that circumstance ceased[,] collection of the obligation
from [Appellee] would constitute a double recovery.” (Trial Court Opinion at
20). We agree with the trial court’s reasoning.
We acknowledge the trial court’s finding that “whether the
[replacement] tenant will fulfill its obligations under its 10-year lease is…highly
speculative,” and observe that it is likewise highly speculative whether the
replacement tenant will default on its obligations on its lease. (Trial Court
Opinion at 20). Thus, the trial court correctly found that recovery of damages
that would otherwise be paid in the replacement tenant’s lease would
constitute a double recovery if included in the judgment without the
replacement tenant having defaulted on its lease.
In its final issue, Appellant argues the court erred by denying Appellant
damages for rent owed by Appellee for September 2017 where the warrant of
attorney limited the confession of judgment to six-month increments, and the
complaint filed on August 21, 2018 had already sought rent for the six-month
____________________________________________
9Appellee’s build out expenses, $25,917.37 split equally over the 66-month
Lease, equates to $392.69 per month.
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period from March 2017 through August 2017. Appellant claims that under
the warrant of attorney, it could not include unpaid rent for September 2017
in the August 21, 2018 complaint. Appellant emphasizes that the warrant of
attorney permits judgment to be confessed “from time-to-time and as often
as there is an occurrence of an Event of Default which was not cured by
[Appellee].” (Appellant’s Brief at 43) (citation omitted). Appellant concludes
the court’s refusal to allow it to recover unpaid rent for September 2017 was
error, and this Court must reverse. We disagree.
Preliminarily, appellate briefs must conform in all material respects to
the briefing requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101. Regarding the argument section of an appellate
brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule.—The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part—in distinctive type or in type
distinctively displayed—the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a). It is the duty of an appellant to present argument in its
brief which “contain[s] such discussion and citation of authorities as are
deemed pertinent.” 9795 Perry Highway Mgmt., LLC v. Bernard, 273
A.3d 1098, 1103 (Pa.Super. 2022) (citation omitted). “This Court will not act
as counsel and will not develop arguments on behalf of an appellant.” Id.(citations omitted). “When deficiencies in a brief hinder our ability to conduct
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meaningful appellate review, we can dismiss the appeal entirely or find certain
issues to be waived.” Id. (citations omitted).
Here, Appellant failed to support this argument with citation to and
discussion of pertinent authority. Specifically, Appellant claimed it was
entitled to amend the amount claimed in the unpaid monthly rent category of
its complaint to include rent for September 2017, but Appellant did not cite
any pertinent authority to support its attempt to correct the amount pled.10
Nor did Appellant address whether amending the confession of judgment
would serve “the ends of justice” or whether such amendment would affect
the substantive rights of the parties. See Dime Bank, supra at 365(explaining formal defects, mistakes and omissions in confession of judgment
may be corrected by amendment where cause of action is not changed, where
____________________________________________
10 In its reply brief, Appellant distinguished the instant case from TCPF
Limited Partnership, supra, arguing that in TCPF, the plaintiff sought
judgment for the entire term and was precluded from amending the complaint
to correct its error in pleading the incorrect amount for accelerated rent.
(Appellant’s Reply Brief at 21-22). Appellant asserts that it was not correcting
the amount of rent pled, but rather was seeking to add an additional month
of rent to the complaint; hence, it was not barred by the court’s holding in
TCPF, because it had not exhausted the warrant of attorney by seeking
accelerated rent for the entire period. (Id. at 22).
The trial court, however, noted that Appellant was, in fact, correcting the
amount of rent pled for unpaid monthly installments, and denied Appellant
leave to amend the complaint. In neither its initial appellate brief, nor its reply
brief did Appellant address whether this denial of leave to amend was an abuse
of the court’s discretion. Therefore, even considering the arguments set forth
in Appellant’s reply brief, it has still not developed with citation to relevant
authority its essential argument that the court erred or abused its discretion.
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ends of justice require allowance of such amendment, and where substantive
rights of defendant or of any third persons will not be prejudiced thereby). In
other words, Appellant failed to explain why the trial court’s denial of leave to
amend rose to the level of an abuse of discretion, rendering this issue waived.
See Ferraro v. McCarthy–Pascuzzo, 777 A.2d 1128, 1132 (Pa.Super.
2001) (stating: “The decision of the trial [c]ourt to deny a motion to amend a
complaint is within the sound discretion of the trial court, and the trial court’s
determination will not be disturbed absent an abuse of that discretion”). See
also 9795 Perry Highway Mgmt., LLC, supra.
In sum, the trial court should have permitted Appellant to amend the
complaint to include damages for build out costs related to Appellee’s lease;
however, the damages claimed must be modified to deduct that portion of
build out expenses covered by monthly rental payments for which Appellee
has confessed judgment. The trial court did not err in revising the judgment
to omit the brokerage commission for Appellee’s lease, or the build out
expenses and brokerage commission related to the replacement tenant’s
lease. Appellant waived its issue concerning the court’s denial of the
September 2017 unpaid rent. Finally, because the amount of the judgment
will change, the attorney fees and pre-judgment interest awarded must be
altered to reflect the changed judgment. Based on the foregoing, we affirm
in part, reverse in part, and remand for further proceedings.
Order affirmed in part and reversed in part. Case remanded for further
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J-A22037-21
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judge Olson concurs in the result.
Judge Bowes files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/10/2023
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