J-A20023-23
2023 PA Super 179
SAMUEL A. AND SUSAN J. : IN THE SUPERIOR COURT OF
STOLTZFUS, H/W : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1323 MDA 2022
GREEN LINE LABS, LLC :
Appeal from the Order Entered August 22, 2022
In the Court of Common Pleas of Lancaster County
Civil Division at CI-21-05354
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED SEPTEMBER 25, 2023
Samuel A. and Susan J. Stoltzfus, husband and wife (Appellants), appeal
from the order striking the confessed judgment against their tenant, Green
Line Labs, LLC (GLL). We affirm.
On June 1, 2020, GLL leased from Appellants a 10,000 square-foot
space, known as “The Greenhouse,” and four parking spaces (with one space
at the loading dock) (the Property).1 Lease, 6/1/20, Preamble, ¶ 1. Under
the Lease, GLL agreed to pay Appellants $55,000 per year, with monthly
payments of $4,583.33. Id. ¶ 2. GLL leased the Property for use as a “hemp
genetics cultivation facility.” Id. ¶ 5.
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* Former Justice specially assigned to the Superior Court.
1 The Property is located at 5541 Old Philadelphia Pike, Gap, Pennsylvania.
Lease, 6/1/20.
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The trial court explained what next transpired:
This case commenced on August 6, 2021, when Appellants
filed [a] Complaint for Confession of Judgment for Money and in
Ejectment for Possession of Real Property (“Complaint”) against
[GLL] …. See Complaint. Therein, Appellants assert[ed] the
following: failure to pay rent when due, using leased premises
beyond the uses permitted in the lease, altering the leased
premises without approval, unauthorized storage, engaging in
activities not permitted in the lease, and failure to provide proof
of liability insurance. Complaint[, 8/6/21,] at 2.
Trial Court Opinion, 11/15/22, at 2. Appellants claimed past rent, accelerated
rent, and counsel fees totaling $110,766.17. Complaint, 8/6/21, at 2.
At the same time, Appellants confessed judgment for past-due rent,
accelerated rent, and possession of the Property. Confession and Ejectment,
8/6/21, at 1. Appellants additionally filed Pa.R.C.P. 2958.1 Notice of
Judgment and Execution Thereon. On October 12, 2021,
Appellants filed [a] Praecipe for Writ of Possession Upon a
Confessed Judgment, declaring that notice required under
Pa.R.C.P. 2973.3 was served more than thirty days prior; a Writ
of Possession was filed in tandem with the praecipe. On November
11 , 2021, [GLL] contacted [c]ounsel for Appellants [(Counsel)] in
an attempt to settle the matter. [GLL] asserts that Counsel
responded on November 16, 2021, with the following conditions:
[GLL] must pay all past due rent and rent through the end of the
year totaling $23,291.65[;] [GLL] must pay legal fees and costs
totaling $10,750.00[;] all storage must by cleaned up and
removed[;] and [Appellants] provided a “less than 24-hour
deadline” to do so. [GLL] states [it] was unable to secure the
amount of money requested on such short notice and offered to
pay $10,000.00 the following day in good faith, with the remaining
funds to be tendered to Appellants on November 24, 2021[.]
Counsel for Appellants refused the counteroffer.
Trial Court Opinion, 11/15/22, at 3-4 (citations omitted).
On November 17, 2021, Appellants ejected GLL from the Property:
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Appellants filed [a] Praecipe for Writ of Execution. On November
23, 2021, and December 16, 2021, [GLL] contacted Counsel for
Appellants to request access to the [Property] so [GLL] could
remove rented equipment which needed to be returned to its
owner, Plant Productions. [GLL] state[d] both requests were
denied, and as a result, Plant Productions filed criminal charges
for theft. On March 23, 2022, Appellants brought [GLL’s] goods,
inventory, equipment, fixtures, and other assets to public auction,
where, according to [GLL], neither the auction company nor
Appellants verified ownership of the assets.
Id. at 4-5 (citations omitted).
Relevant to this appeal,
[o]n June 17, 2022, [GLL] filed [a] Petition to Strike and/or Open
Judgment Entered by Confession[,] alleging the record in this
matter is fatally flawed and has irregularities on its face[;] the
docket does not reflect proper service[;] there is no relation
between the cognovit clause in the Lease and [GLL’s] signature[;]
and Appellants are attempting double recovery for a single wrong.
In response, Appellants countered, inter alia, that a revised
Sheriffs Notice of Service, attached to their answer, showed all
documents were served on [GLL] as required[;] [GLL’s] Petition
was time[-]barred and did not provide any explanation for the
delay[;] and [GLL] admitted to default in their Petition and action
was taken pursuant to the Lease.
Thereafter, [GLL] filed a reply alleging the Sheriff’s Notice of
Service from filed [sic] September 10, 2021, and the Sheriff’s
Notice of Service provided by Appellants in the Answer/New
Matter[,] significantly differ, and that the matter of effective
service is unclear. Moreover, [GLL] assert[ed] Appellants
improperly entered judgment for possession and accelerated rent
simultaneously, and failed to address this issue in the Answer/New
Matter, beyond [stating the issue is] a conclusion of law. As a
result, [GLL] contends, Appellants have waived [] any possible
defense or objection pursuant to Pa.R.C.P. 2959(c).
Id. at 5-6 (emphasis added, citations omitted). In its reply, GLL requested
only that the court grant its petition to strike. GLL’s Sur Reply to Appellants’
Answer in Opposition, 8/2/22, at 3 (unnumbered).
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On August 22, 2022, the trial court granted GLL’s petition to strike the
confessed judgment. Order, 8/22/22. Thereafter, Appellants filed the instant
timely appeal. Appellants and the trial court have complied with Pa.R.A.P.
1925.
Before we consider Appellants’ substantive issues, we address whether
this appeal is properly before us. “The appealability of an order directly
implicates the jurisdiction of the court asked to review the order.” Estate of
Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa. Super.
2009). “[T]his Court has the power to inquire at any time, sua sponte,
whether an order is appealable.”2 Id.
Under Pa.R.A.P. 341, a final order disposes of all parties and all claims,
is expressly defined as a final order by statute, or is entered as a final order
pursuant to the trial court’s determination under Rule 341(c). Pa.R.A.P.
341(b)(1)-(3).
[W]here an order is issued that grants a motion to strike a
judgment, such an order is generally not appealable, i.e., it is not
an interlocutory order from which an appeal as of right may lie.
Such an order anticipates further litigation because the parties are
placed back in the position they were in prior to the entry of the
judgment. … [However, when] the order striking the
judgment ends the litigation as to all parties and all
claims[, it is] a final order as defined in Pa.R.A.P. 341(b)
and an appeal may be taken as of right.
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2 On October 21, 2022, this Court issued a rule to show cause why the appeal
should not be quashed for lack of jurisdiction. Rule, 10/21/22. Appellants
filed a response to the rule on November 2, 2022. This Court discharged the
rule, but advised Appellants the issue might be revisited by the merits panel.
Order, 12/27/22.
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United Parcel Serv. v. Hohider, 954 A.2d 13, 16 (Pa. Super. 2008)
(emphasis added). Thus, we consider whether the trial court’s order striking
the confessed judgment ends all litigation between Appellants and GLL. See
id.
Our review discloses that Appellants’ Complaint sought the following
relief:
Judgment in ejectment in [Appellants’] favor and against [GLL] for
property located at 5541 Old Philadelphia Pike, Gap,
Pennsylvania[,] 17527; and Judgment for $110,766.17.
Complaint, 8/6/21, at 3. Appellants confessed judgment against GLL for
$110,766.17 and “ejectment in favor of [Appellants] for [the Property].”
Confession and Ejectment, 8/6/21.
On August 22, 2022, the trial court entered the order granting GLL’s
petition to strike, stating, “The judgment previously entered in this matter on
behalf of [Appellants] is stricken.” Order, 8/22/22. Thus, the trial court’s
order struck the confessed judgment in its entirety. See id. Although the
trial court’s order is not marked as “final,” it neither directs nor suggests
further proceedings. Our review discloses no pending action before the trial
court. No further proceedings are scheduled. Under these circumstances, we
conclude the order is final and therefore appealable. See id.
Appellants present the following issues:
A. If it is determined that Appellants are not entitled to judgments
for both possession and accelerated rent, did the trial court
commit an error of law and/or abuse its discretion in striking
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both judgments, as [Appellants] are entitled to some remedy
where [GLL] admitted to defaulting under the lease between
the parties?
B. Whether the trial court committed an error of law and/or
abused its discretion in not denying [GLL’s] Petition to Strike
Judgment, which was untimely filed, and where [GLL] gave no
compelling reason for its delay?
C. Whether the trial court committed an error of law and/or
abused its discretion in ruling that it lacked personal
jurisdiction over [GLL] to enter confessed judgments for
possession and money damages, where [GLL] submitted to the
trial court’s jurisdiction to enter such judgments in the lease
between the parties?
D. Whether the warrant of attorney to confess judgment is
sufficient where it is in writing in bold, capital letters in the
lease between the parties, signed by the person bound by it,
and such signature bears a direct relation to the warrant?
Appellants’ Brief at 3-4 (issues reordered, punctuation modified).
We review a trial court’s ruling on a petition to strike a confessed
judgment for an abuse of discretion or error of law. Ferrick v. Bianchini, 69
A.3d 642, 647 (Pa. Super. 2013).
Appellants first challenge the trial court’s order striking both the
confessed judgment for money damages and for possession of the property.
Appellants’ Brief at 22. Appellants claim they “should have been permitted to
pursue at least a judgment of possession with a judgment for rent and other
sums due to date or a judgment for accelerated rent.” Id. Quoting this
Court’s decision in Homart Dev. Co. v. Sgrenci, 662 A.2d 1092 (Pa. Super.
1995), Appellants assert, “When the judgment is entered for possession, the
landlord is … entitled to recover … those losses which he suffers in attempting
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to relet the premises for the term of the lease.” Appellants’ Brief at 22-23
(quoting Homart, 662 A.2d at 1101). Appellants claim,
[t]o the extent it is determined [Appellants] could not obtain both
a confessed judgment for possession and accelerated rent, [they]
should be permitted judgment for possession and for money
damages for past-due rent and for other damages resulting from
[GLL’s] breach. Striking both judgments deprived [Appellants] of
all their remedies.
Id. at 23 (footnote omitted).
Appellants additionally rely on our decision in Pops PCE TT, LP. V. R &
R Rest. Group, LLC, 208 A.3d 79, 89 (Pa. Super. 2019). Appellants claim
that in Pops, this Court concluded the trial court had erred in opening a
confessed judgment. Appellants’ Brief at 23. According to Appellants, the
landlord in Pops confessed judgment for accelerated rent and possession, and
the lease allowed judgment for both. Id. (citing Pops, 208 A.3d at 89, 90
n.1). Appellants assert,
if this Court determines that [Appellants] could not confess
judgment for both possession and accelerated rent, … the
judgment for possession should be maintained and the judgment
for accelerated rent should be opened to determine the
appropriate amount due to [Appellants] for [GLL’s] breach.
Id. at 24.
In addressing Appellants’ issue, we are cognizant of the following:
A petition to strike a judgment is a common[-]law
proceeding [that] operates as a demurrer to the record. A
petition to strike a judgment may be granted only for a
fatal defect or irregularity appearing on the face of the
record. … An order of the court striking a judgment annuls
the original judgment and the parties are left as if no
judgment had been entered.
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Cintas Corp. v. Lee’s Cleaning Servs., Inc., 549 Pa. 84, 700
A.2d 915, 917 (Pa. 1997) (quoting Resolution Trust Corp. v.
Copley Qu-Wayne Assocs., 546 Pa. 98, 683 A.2d 269, 273 (Pa.
1996)). 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.” Id. Moreover, if any defect
disclosed by the record “is one that can be remedied by an
amendment of the record or other action, nunc pro tunc, the
judgment should not be stricken off.” George H. Althof, Inc., v.
Spartan Inns of Amer., Inc., … 441 A.2d 1236, 1237 (Pa.
Super. 1982). …
Dime Bank v. Andrews, 115 A.3d 358, 364 (Pa. Super. 2015).
In contrast, “[a] judgment by confession will be opened 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.”
9795 Perry Highway Mgmt., LLC v. Bernard, 273 A.3d 1098, 1102 (Pa.
Super. 2022). Thus,
the petition to strike a confessed judgment must focus on any
defects or irregularities appearing on the face of the record, as
filed by the party in whose favor the warrant was given, which
affect the validity of the judgment and entitle the petitioner to
relief as a matter of law. [T]he record must be sufficient to sustain
the judgment. The original record that is subject to review in a
motion to strike a confessed judgment consists of the complaint
in confession of judgment and the attached exhibits.
In contrast, if the truth of the factual averments contained in [the
complaint in confession of judgment and attached exhibits] is
disputed, then the remedy is by proceeding to open the judgment,
not to strike it. A petition to strike a confessed judgment
and a petition to open a confessed judgment are distinct
remedies; they are not interchangeable.
Id. (citations and quotation marks omitted, emphasis added).
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Upon review, we conclude that Appellants’ reliance on our decisions in
Homart and Pops is misplaced. In Homart, the landlord confessed judgment
against the appellant/tenant for past-due rent, accelerated rent, and
possession of the property. Homart, 662 A.2d at 1096-97. The
appellant/tenant petitioned to open the judgments, arguing that he had not
breached the lease, “but rather that [landlord] had breached the lease and
rendered [tenant’s] performance impossible ….” Id. at 1097. The trial court
denied the petition to open, finding that landlord had not breached the lease.
Id.
On appeal, this Court reversed and remanded. Id. First, we observed
that the tenant had presented an equitable defense, which should be resolved
by the factfinder. Id. at 1100. We further found an independent basis for
opening the judgment:
A landlord must elect whether to confess judgment for possession
and for all monies then due, or to confess judgment for all monies
due for the entire term. When the judgment is entered for
possession, the landlord is, of course, entitled to recover, as
damages in a civil action, those losses which he suffers in
attempting to re[-]let the premises for the term of the lease....
The landlord, however, cannot ... enter judgment for
possession and for all moneys which would otherwise be
due as rents through the end of the term.
Id. at 1101 (emphasis added). This Court concluded that
the money judgment, which included accelerated rent and
possession, was “entered for an amount which was grossly
excessive”, in light of the entry of the judgment for possession[]
and is subject to a motion to strike. [The tenant,] however, did
not file a motion to strike and, thus, has waived his right to
this relief. See[] Pa.R.Civ.P. 2959. The judgment should,
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however, have been opened, in response to the petition to open
filed by [the tenant], so as to resolve the issue of the amount of
the money judgment, where [the landlord] had also confessed
judgment for possession, even if the trial court believed that there
was not sufficient evidence of a breach of the lease by appellee to
warrant submission of that issue to a jury.
Id. at 1101-02.
Similarly, in Pops, the landlord filed a landlord-tenant complaint against
the tenant, seeking only possession of the leased premises. Pops, 208 A.3d
at 83. The Magisterial District Judge (MDJ) entered judgment finding tenant
in default of the lease and granting possession to landlord. Id. No damages
were awarded, and tenant did not appeal the MDJ’s decision. Id.
Subsequently, the landlord confessed judgment for money damages against
tenant, including accelerated rent due under the lease. Id. The tenant filed
a petition to strike/open the confessed judgment. Id. The tenant alleged that
(a) it did not breach the lease; (b) it had properly terminated the lease by
letter; and (c) the landlord was not entitled to accelerated rent, as it had
possession of the leased premises. Id. The trial court denied the requests to
strike and open the confessed judgment. Id. at 84.
On appeal, the tenant challenged only the trial court’s refusal to open
the confessed judgment. Id. at 85. This Court reversed the denial of the
petition to open:
[T]he record indicates [the landlord] obtained a judgment for
possession of the leased premises on January 29, 2015, and
remained in possession of the premises at the time it filed its
complaint in confession of judgment in June of 2015, in which it
sought monetary damages including accelerated rent through
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October of 2023. Under Pennsylvania law, however, [the
landlord] was limited to seeking actual monetary damages
as of the date it took possession, and it was legally
precluded from seeking accelerated damages against [the
tenant]. Based on the foregoing, we deem the trial court’s
refusal to open the confessed judgment to be a clear error of law.
Id. at 89 (citations omitted, emphasis added).
In both Homart and Pops, this Court recognized the impropriety of
confessing judgment for both accelerated rent and possession. Homart, 662
A.2d at 1101; Pops, 208 A.3d at 89. We concluded in both cases that opening
the judgment was appropriate, where that was the only remedy sought.
Homart, 662 A.2d at 1101-02; Pops, 208 A.3d at 85, 89. Neither Homart
nor Pops require a trial court to open a confessed judgment, where a petition
to strike was filed.
This Court has long held that “where the lessor terminates the lease and
enters into possession[,] he may not have possession of the premises and
also judgment for rent for the unexpired period of the lease.” H. A. Steen
Indus., Inc. v. Richer Commc’n, Inc., 314 A.2d 319, 322 (Pa. Super.
1973). As this Court recognized in both Homart and Pops, a landlord “cannot
... enter judgment for possession and for all moneys which would otherwise
be due as rents through the end of the term.” Pops, 208 A.2d at 89 (quoting
Homart, 662 A.2d at 1100).
Here, Appellants confessed judgment for both accelerated rent and
possession, and GLL filed a petition to strike. Under these circumstances, the
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trial court did not err in striking, rather than opening, the confessed
judgment.3 Appellants’ claim merits no relief.
Appellants next argue the trial court erred in granting the petition to
strike, because it was untimely filed with no compelling reason for the delay.
Appellants’ Brief at 18. According to Appellants,
[p]ursuant to Rule 2959 of the Pennsylvania Rules of Civil
Procedure, if written notice is served on a petitioner pursuant to
Rule 2956.1(c)(2) (which provides for serving notice under Rule
2958.1) or Rule 2973.1(c) (which provides for serving notice
under Rule 2973.2), a petition to strike off or open judgment shall
be filed within thirty days of such service. Pa.R.C.P. No.
2959(a)(3); 2956.1(c)(2); 2973.1(c). A petition to open or strike
a confessed judgment not timely filed shall be denied unless the
defendant can demonstrate compelling reasons for the delay.
Pa.R.C.P. No. 2959(a)(3).
Appellants’ Brief at 19. Appellants claim GLL was served with Notice of the
judgment and execution under Rule 2958.1, and provided notice of the
judgment and execution on September 8, 2021, in accordance with Rule
2973.2. Id. Appellants assert GLL had no compelling reason for its eight-
month delay in filing the petition to strike. Id. at 20.
As this Court explained,
[a] petition to strike is aimed at defects that affect the validity of
the judgment and that entitle the petitioner, as a matter of law,
to relief. A fatal defect on the face of the record denies the
prothonotary the authority to enter judgment. When a
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3 The trial court explained it granted the petition to strike
because “written
notice of execution has not been served upon [GLL].” Trial Court Opinion,
11/15/22, at 11. We are not bound by the rationale of the trial court and may
affirm on any basis. In Re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011);
accord Perelman v. Perelman, 259 A.3d 1000, 1010 n.4 (Pa. Super. 2021).
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prothonotary enters judgment without authority, that judgment
is void ab initio….
Grady v. Nelson, 286 A.3d 259, 264 (Pa. Super. 2022). A void judgment
cannot be made valid by the passage of time. M & P Mgmt., L.P. v.
Williams, 937 A.2d 398, 401 (Pa. 2007).
Here, a landlord “cannot ... enter judgment for possession and for all
moneys which would otherwise be due as rents through the end of the term.”
Pops, 208 A.2d at 89 (quoting Homart, 662 A.2d at 1100). Recovery for
both accelerated rent and possession is prohibited. H. A. Steen Indus., 314
A.2d at 322. Consequently, Appellants’ confessed judgment, for both
accelerated rent and possession, is defective on its face and void, not voidable.
See id.; see also Pops, 208 A.2d at 89; Homart, 662 A.2d at 1100.
Appellants’ issue merits no relief.
In light of our disposition, we need not address Appellants’ remaining
issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/25/2023
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