J-A20016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RYAN D. SHARBONNO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THE INGROS FAMILY, LLC AND :
JEFFREY S. INGROS :
: No. 8 WDA 2020
Appellants :
Appeal from the Order Entered December 19, 2019
In the Court of Common Pleas of Beaver County Civil Division at No(s):
No. 31137-2018
RYAN D. SHARBONNO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THE INGROS FAMILY, LLC AND :
JEFFREY S. INGROS :
: No. 9 WDA 2020
Appellants :
Appeal from the Order Entered December 19, 2019
In the Court of Common Pleas of Beaver County Civil Division at No(s):
No. 33331-2018
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 09, 2020
Appellants, The Ingros Family, LLC and Jeffrey S. Ingros, appeal from
the orders entered on December 19, 2019, dismissing, as untimely, their
petitions to strike and/or open two confessed judgments. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
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[] Ryan D. Sharbonno [(Sharbonno)] is an adult individual
domiciled [in] Aliquippa, Beaver County[,] Pennsylvania[,] 15001.
[Appellants operate] a business located [in] Beaver County,
Beaver, Pennsylvania, 15009. On May 3, 2018, [Sharbonno] filed
a complaint in confession of judgment against [Appellants] at case
number 31137-2018 in the amount of $60,000[.00]. On
November 20, 2018, [Sharbonno] filed a second complaint in
confession of judgment against [Appellants] at case number
33331-2018 in the amount of $460,000[.00]. Both complaints
and confessions of judgment are based on a promissory note that
[Sharbonno] and [Appelllants] entered into on April 16, 2018.[1]
In accordance with Pa.R.Civ.P. 2958.1, counsel for [Sharbonno]
served notices of intention to execute on the judgments upon
[Appellants] on May 2, 2019, which required the filing of a petition
to strike or open the judgment[s] within 30 days of service in
order to potentially avoid execution.
The attorneys [for both parties] agreed to an extension for
[Appellants] to respond to the confessed judgments until June 14,
2019. On or about June 14, 2019[,] counsel for [Appellants]
mailed petitions to strike and/or open the judgments in each of
the cases [(one for each confessed judgment)] to the
Prothonotary of Beaver County. The Prothonotary did not receive
and file/docket the petitions until June 17, 2019. Thereafter,
[Sharbonno] filed motions to strike the petitions as untimely filed.
[The trial court] held argument on these issues on November 13,
2019.
Trial Court Opinion, 12/19/2019, at 1-2.
In a single order and opinion entered on December 19, 2019, the trial
court granted Sharbonno’s motions to strike the petitions to open and/or strike
the confessed judgments. In addition, the court denied Appellants’ petitions
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1 In April 2018, Sharbonno loaned Appellants $400,000.00. In return,
Appellants executed a promissory note that contained a clause permitting
Sharbonno to confess judgment on Appellants’ behalf for all sums that had
become due but remained unpaid, including principal, interest, and attorneys’
fees, if the loan were not repaid in a timely manner.
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to strike and/or open the judgments. These timely appeals resulted.2 On
appeal, Appellants present the following issues for our review:
1. Did the [trial c]ourt err in holding that the [p]etitions [to strike
and/or open judgment] were not timely filed?
2. Did the [trial c]ourt err in holding that the [p]etitions [to strike
and/or open judgment] were required to be presented to the
judge within 30 days?
3. Did the [trial c]ourt overlook the case law holding that a void
judgment may be stricken at any time?
4. Was the second confessed judgment void because the warrant
of attorney had been “exhausted” by the first confession?
5. Did the petition to open set forth prima facie grounds for relief?
Appellants’ Brief at 4 (unnecessary capitalization omitted).
Initially, we note “[a] petition to strike a confessed judgment and a
petition to open a confessed judgment are distinct remedies; they are not
interchangeable.” Neducsin v. Caplan, 121 A.3d 498, 504 (Pa. Super.
2015). Accordingly, we adhere to the following principles:
A confessed judgment will be stricken only if a fatal defect or
irregularity appears on the face of the record. A judgment by
confession will be opened if the petitioner acts promptly,
____________________________________________
2 On January 2, 2020, Appellants filed timely, separate notices of appeal in
each case. On January 7, 2020, the trial court ordered Appellants to file
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied timely on January 16, 2020. On January 17,
2020, pursuant to Pa.R.A.P. 1925(a), the trial court entered an order relying
upon its earlier decision issued on December 19, 20199 as its rationale for
denying Appellants relief. On March 31, 2020, Appellants applied to this Court
to consolidate the appeals. By per curiam order filed on April 3, 2020, we
granted the application to consolidate the appeals and allowed Appellants to
brief and argue a single appeal.
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alleges a meritorious defense, and presents sufficient evidence in
support of the defense to require the submission of the issues to
a jury. In adjudicating the petition to strike and/or open the
confessed judgment, the trial court is charged with determining
whether the petitioner presented sufficient evidence of a
meritorious defense to require submission of that issue to a jury.
A meritorious defense is one upon which relief could be afforded
if proven at trial.
In examining the denial of a petition to strike or open a confessed
judgment, we review the order for an abuse of discretion or error
of law.
In considering the merits of a petition to strike, the court will be
limited to a review of only the record as filed by the party in whose
favor the warrant is given, i.e., the complaint and the documents
which contain confession of judgment clauses. Matters dehors the
record filed by the party in whose favor the warrant is given will
not be considered. If the record is self-sustaining, the judgment
will not be stricken. However, if the truth of the factual averments
contained in such record are disputed, then the remedy is by a
proceeding to open the judgment and not to strike. An order of
the court striking a judgment annuls the original judgment and
the parties are left as if no judgment had been entered.
When determining a petition to open a judgment, matters dehors
the record filed by the party in whose favor the warrant is given,
i.e., testimony, depositions, admissions, and other evidence, may
be considered by the court.
Ferrick v. Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013) (internal citations
and ellipsis omitted) (emphasis added).
In developing their first claim, Appellants point out that, when a
judgment creditor serves written notice of entry of a confessed judgment, a
petition to strike and/or open must be filed within 30 days under Pa.R.Civ.P.
2959(a)(3). Appellants maintain that this provision is inapplicable here
because “the parties agreed to extend the time for [Appellants] to file
petitions.” Appellants’ Brief, at 11, citing Pa.R.Civ.P. 2959. More specifically,
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Appellants assert “[t]he parties ultimately agreed to extend the time to
respond to the confessed judgments until June 14, 2019 [3]” and the agreement
was “confirmed by e-mail exchange.” Id. at 7. As such, Appellants contend
“Sharbonno waived the issue of timeliness by his agreement to extend the
time for filing petitions.” Id. at 10. Appellants acknowledge that “the
[p]etitions [to open/strike the judgments] were not received by the
Prothonotary until June 17, 2019, one business day later” than the agreed
upon date. Id. Nevertheless, Appellants argue that “[f]ollowing [] waiver [by
prior agreement], it was an abuse of discretion [for the trial court] to dismiss
the petitions on the grounds that they were received by the Prothonotary one
[business] day after the agreed upon extension.” Id. Appellants contend that
“[b]ased upon the [agreed upon] extension, the terms of Rule 2959(a)(3) do
not literally apply.” Id. at 11. Moreover, Appellants argue that “[c]ounsel for
Sharbonno actually received [Appellants’ p]etitions by the due date” and
“[t]he fact that the [p]etitions were received by the Prothonotary one business
day later should not permit [] default[.]” Id. Appellants argue that the trial
court should have ignored their insubstantial non-compliance with procedural
deadlines under principles of equity and a liberal construction of the procedural
rules. Id. at 11-13.
Pennsylvania Rule of Civil Procedure 2959 provides, in pertinent part:
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3 June 14, 2019 was a Friday.
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Rule 2959. Striking Off or Opening Judgment; Pleadings;
Procedure
(a)(1) Relief from a judgment by confession shall be sought by
petition. […A]ll grounds for relief whether to strike off the
judgment or to open it must be asserted in a single petition.
* * *
(3) If written notice is served upon the petitioner pursuant to Rule
2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within
thirty days after such service. Unless the defendant can
demonstrate that there were compelling reasons for the delay, a
petition not timely filed shall be denied.
Pa.R.C.P. 2959.
In interpreting timeliness under Rule 2959, an en banc panel of this
Court has stated:
The thirty-day deadline in Pa.R.C.P. 2959(a)(3) applies whether
the petition seeks to strike or open a confessed judgment.
Pa.R.C.P. 2959(a)(3). The Rule is explicitly mandatory, stating
that a petition “shall be filed within thirty days” and that, absent
compelling reasons, an untimely petition “shall be denied.”
Driscoll v. Arena, 213 A.3d 253, 258 (Pa. Super. 2019) (en banc). The
Driscoll Court recognized that “the term ‘shall’ is mandatory for purposes of
statutory construction when a statute is unambiguous.” Id. at 258 n.6
(citation omitted).
In this case, the trial court determined:
[…C]ounsel [for Appellants] did not file [their] petition[s] to strike
off or open the judgments within [30] days of the date of service
of the notice to execute on the judgments. It is clear from the
record at argument that the parties to this action agreed to extend
the deadline, but that additional deadline was also not complied
with in addition to the original [30]-day requirement under Rule
2959. […]Additionally, [Appellants] have not presented any
compelling reason for the delay. Even if [the trial c]ourt
recognized the additional time to file that counsel agreed to,
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[Appellants] still failed to file within that deadline and failed to
meet the requirements of the civil rules. Therefore, [Appellants’]
petitions to open [and/or strike] were not timely filed.
Trial Court Opinion, 12/19/2019, at 4.
Upon review, we agree with the trial court’s assessment. Here, there
is no dispute the parties agreed to a specific, extended date by which
Appellants needed to file their petitions to strike and/or open the confessed
judgments. Thus, the first provision of Rule 2959(a)(3), stating that a petition
must be filed within 30 days of written notice pursuant to Rule 2956.1(c)(2)
or Rule 2973.1(c), was inapplicable herein, as Appellants point out.
Notwithstanding, Appellants admit that their petitions to strike and/or open
the judgments in this matter were filed three days, or one business day, after
the agreed upon extension date. As such, Appellants’ petitions to strike
and/or open judgment were patently untimely.
Furthermore, the second provision of Rule 2959(a)(3) states that unless
there is a demonstration of compelling reasons for the delay, a petition not
timely filed shall be denied. See Pa.R.C.P. 2959(a)(3). This Court has
excused non-compliance with procedural deadlines, but only for compelling
reasons. Appellants have not offered any reason for their delay in filing the
petitions outside the extended deadline. Quite simply, Appellants failed to
abide by the terms of their own filing agreement without offering a compelling
reason for the delay. See Landis v. Richmond, 378 A.2d 365, 366 (Pa.
Super. 1977) (en banc) (“No explanation was averred in the petition to open.
Whether or not a meritorious defense was set forth is thus irrelevant. The
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lower court abused its discretion in granting relief to a petitioner who failed to
act with reasonable promptness.”). Based upon this record, applicable case
law, and our standard of review, we discern no trial court abuse of discretion
or error of law in dismissing Appellants’ petitions as untimely. Accordingly,
Appellants’ first issue lacks merit.
In support of their second issue presented, Appellants aver, in sum:
The [trial] court [] held that [Appellants were] required to
“present” [the] petitions to strike and/or open the judgments
within 30 days. However, there is no court rule or other authority
which sets a time limit for presentation of a petition to strike or
open judgment. Under Pa.R.Civ.P. 2959(a)(3), the petition must
be filed within 30 days. There is no requirement for presentation
within 30 days.
Appellants’ Brief at 13 (record citations omitted; emphasis in original).
Here, the trial court determined that under the notice of judgment and
execution requirements pursuant to Pa.R.Civ.P. 2964:
[] Pa.R.Civ.P. 2958.1, Notice Served Prior to Execution, states
"[a] written notice substantially in the form prescribed by Rule
2964 shall be served on the defendant at least thirty days prior to
the filing of the praecipe for a writ of execution." The Court in
Thomas Assocs. Investigative & Consulting Servs., Inc. v.
GPI LTD., Inc., 711 A.2d 506, 509 (Pa. Super. 1998) addressed
the prescribed form of notice which states in part, "YOU MUST
FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY
LOSE YOUR RIGHTS." Pa.R.Civ.P. 2964.
Trial Court Opinion, 12/19/2019, at 3.
Upon review, we observe the following. The 30-day period for filing a
petition to strike and/or open a confessed judgment, as set forth in Pa.R.C.P.
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2959, is triggered, inter alia, by service of a written notice under Pa.R.C.P.
2956.1(c)(2). Rule 2956.1(c)(2), in turn, conditions execution upon a
confessed judgment on the service of notice prescribed by Pa.R.C.P. 2958.1.
Rule 2958.1 incorporates a notice form prescribed by Pa.R.C.P. 2964. The
form prescribed in Rule 2964 directs a judgment debtor who seeks relief to
file a petition for relief and to present the petition to a judge within 30
days. Pa.R.C.P. 2964 (emphasis added). Contrary to Appellants’ contention,
our rules of civil procedure provide authority and set a time limit for the
presentation to a judge of a petition to strike and/or open a judgment.4
Therefore, we conclude that the trial court did not err in determining that
“presentation” did not occur in a timely manner.
Appellants’ third and fourth issues are somewhat related and both
pertain to the petitions to strike, so we will examine them together.
Appellants claim that the judgments were facially void and that, even if the
“petitions were not timely, the law is clear that a void judgment can be
stricken at any time.” Appellants’ Brief at 13. More specifically, Appellants
claim that the second confessed judgment in this case “is based upon the
same Note (and warranty of attorney) employed to confess the first judgment”
and “Pennsylvania law is clear that the first confession ‘exhausted’ the warrant
of attorney.” Id. at 16. Therefore, Appellants argue “the second confessed
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4 It is through this mechanism that the debtor “presents” the petition to the
court and secures a rule to show cause. In this case, the trial court was not
presented with the petitions, so it did not err in failing to issue a rule to show
cause.
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judgment is void and should have been stricken.” Id. Appellants argue that
because the judgments are facially void, the untimeliness of their petitions to
strike does not preclude relief because void judgments may be stricken at any
time. To resolve this issue, we must ascertain whether the confessed
judgments were void or merely voidable.
A court must deny an untimely petition to strike unless the defendant
shows: (1) a compelling reason for his failure to timely seek relief, or; (2)
that the confessed judgment is void. Driscoll, 213 A.3d at 257-258; see
also Ferrick, 69 A.3d at 647 (a confessed judgment is subject to an order to
strike only if a fatal defect or irregularity appears on the face of the record).
This Court has recently discussed the difference between void and
voidable judgments:
[A] void judgment, such as a judgment entered where the court
lacks subject matter jurisdiction, cannot be made valid by the
passage of time.
* * *
A void judgment is one that is of no effect, potency or value, and
irretrievably and incurably lost. Where the judgment is voidable,
the defendant must act, or the judgment will stand on the record
as valid.
Driscoll, 213 A.3d at 257. Here, the trial court determined that the judgments
at issue were not void upon their face. Trial Court Opinion, 12/19/2019, at 5.
Upon review, we agree.
We have stated:
A warrant of attorney “constitutes a grant of authority by one
contracting party to the other, upon the happening of a certain
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event, i.e., a breach of the terms of the agreement wherein the
warrant is contained, to enter that which results ordinarily only
after a trial of the issue between the parties, i.e., a judgment.”
TCPF Ltd. P'ship [v. Skatell], 976 A.2d [571,] 575, n.5 [(Pa.
Super. 2009)]. The general rule in Pennsylvania is that “a warrant
of attorney to confess judgment may not be exercised twice for
the same debt.” Id. at 575 (citations omitted).
However, we recognized in Dime Bank [v. Andrews, 115 A.3d
358, 369 (Pa. Super. 2015)], that “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.” Andrews, 115 A.3d at 369 (citations omitted). This
is because a warrant of attorney is a contractual agreement and
the parties to the contract are free to determine the extent of the
power the warrant confers, including the number of times the
holder of the warrant may exercise it. Id.[;] See also Dominic's
Inc. [v. Tony’s Famous Tomato Pie Bar & Restaurant, Inc.],
214 A.3d [259,] 274 [(Pa. Super. 2019)] (finding that although
appellee did not properly aver notice of nonpayment and cure
period, note allowed appellee “to confess judgment as many times
as necessary until payment in full of all amounts due; so,
[a]ppellee did not exhaust the warrant of attorney in this flawed
attempt to confess judgment”).
SDO Fund II D32, LLC v. Donahue, 234 A.3d 738, 743 (Pa. Super. 2020).
Upon our review of the record (and similar to the facts set forth in SDO
Fund II D32), the plain language of the warrant of attorney clause in the
parties’ promissory note empowered Sharbonno to confess judgment as many
times as necessary until he received payment in full. Although Appellants
claim the first judgment barred the second, this contention is without merit as
contractual parties may waive the general rule barring successive exercise of
a warrant of attorney clause for the same debt, as the parties have done here.
Id. at 744, citing Dime Bank, 115 A.3d at 369. Appellants do not dispute
this. Based upon all of the foregoing, the trial court properly determined that
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the judgments were not facially void. The record herein is self-sustaining and,
thus, based upon our standard of review and applicable law, the trial court
properly denied Appellants’ petitions to strike. SDO Fund II D32, 234 A.3d
at 744. As such, Appellants’ third and fourth issues lack merit.
Finally, Appellants claim they presented meritorious defenses, which
required the trial court to open the judgments. Id. at 18. Appellants claim
their petitions raised the following prima facie grounds for relief: (1) the
amount owed is in dispute; (2) the second judgment was barred by the prior
pending action;5 (3) the two judgment amounts are inconsistent, so both
judgments must be set aside. Id. at 19-21.
As previously mentioned, a confessed judgment will be opened only if
the petitioner acts promptly, alleges a meritorious defense, and presents
sufficient evidence in support of the defense to require the submission of the
issues to a jury. Ferrick, 69 A.3d at 647. Here, the trial court determined
that Appellants did not act promptly when they filed their petitions to open
after a specific, agreed upon date, without any reason for the delay. We agree
that Appellants have failed to show that they acted promptly. In addition,
Appellants were permitted to submit evidence dehors the record, i.e.,
testimony, depositions, and/or admissions, to support their petitions to open.
____________________________________________
5 We already examined this claim in relation to the petitions to strike.
Appellants’ exhaustion argument goes to whether the judgments were facially
void/voidable because whether the first exercise of the warrant of attorney
bars a second exercise of that power turns on whether the terms of the Note
permits successive uses of the power. As such, as discussed above, timeliness
was essential on this claim.
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Id. However, upon review, Appellants did not provide any additional evidence
to support their alleged defenses. Appellants baldly alleged the amount due
is in dispute without any supporting documentation or testimony. Moreover,
as explained above, the parties agreed to permit Sharbonno to exercise the
warrant of attorney clause as many times as needed to receive payment in
full. Thus, Sharbonno retained the authority to file two separate confessed
judgments under the parties’ agreement. While Appellants claim the two
judgments are inconsistent, Appellants have not provided evidence that the
total amount of the two confessed judgments exceed the amount due under
the promissory note, including, inter alia, the principal and unpaid interest still
owed on the promissory note, as well as the contractual costs and fees
associated with default. As such, we conclude Appellants failed to act
promptly in filing their petitions to open and to provide evidence that
supported their proffered defenses. Hence, the trial court properly dismissed
Appellants’ petitions to open and Appellants’ final claim is without merit.
Accordingly, for all of the foregoing reasons, Appellants are not entitled
to relief.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2020
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