J-A31031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K & S JOINT VENTURES,                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OPC MINING COMPANY AND DANIEL W.
STEES, INDIVIDUALLY AND AS
PRESIDENT OF OPC MINING COMPANY,

                            Appellants                No. 313 MDA 2015


                Appeal from the Order Entered February 9, 2015
                 in the Court of Common Pleas of York County
                     Civil Division at No.: 2011-SU-4459-40


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 08, 2016

        Appellants, OPC Mining Co. and Daniel W. Stees, appeal from the trial

court’s order denying their petition to strike or open the confessed judgment

filed against them by Appellee, K & S Joint Ventures. We affirm on the basis

of the trial court’s opinion.

        We take the following facts from our independent review of the record

and the trial court’s March 25, 2015 opinion.         Appellant Stees is the

president of Appellant OPC. On September 18, 2000, Appellee and Appellant

OPC entered into a commercial lease agreement. The same day, Appellee

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31031-15


and Appellant Stees entered into a guaranty agreement.           The guaranty

provides, in pertinent part, that Appellant Stees is liable to Appellee for “any

amounts unpaid . . . as a result of loss (reasonalbe [sic] wear and tear

excepted)[,] damages[,] or unlawful taking of any equipment [and] any

unpaid obligations of [OPC] as a result of alterations, improvements[,] or

additions to the premises . . . .”    (Guaranty, 9/18/2000, at unnumbered

page 1 ¶ 1). On October 14, 2011, Appellee filed a complaint in confession

of judgment against Appellants on the bases that Appellant OPC failed to

maintain and repair equipment, failed to leave replaced equipment on the

premises after the termination of the lease, and removed a fixture from the

property. (See Complaint in Confession of Judgment, 10/14/11, at 2-3 ¶ 9).

The complaint confessed judgment in the amount of $95,694.20, which

included principal, interest, and attorney’s fees. (See id. at 4 ¶ 11).

      On November 15, 2011, Appellants filed a petition to strike or open the

confessed judgment alleging that judgment was entered on a defective

basis. They specifically claimed that the guaranty does not contain Appellant

Stees’ signature, and that, even if it did, that the damages alleged in the

complaint exceed those actually sustained by Appellee.            They further

asserted that the guaranty does not cover amounts that were paid by third

parties.




                                     -2-
J-A31031-15


       On February 9, 2015, after argument, the submission of briefs, and

the completion of discovery, the court denied the petition to strike or open

the judgment. Appellants timely appealed.1

       Appellants raise two questions for our review:

       I.    Did the trial court err in failing to strike the confessed
       judgment for fatal defects or irregularities appearing on the
       record?

       II.   Did the trial court err in failing to open the confessed
       judgment where the petition was timely filed and set forth
       allegations of a meritorious defense?

(Appellants’ Brief, at 4) (unnecessary capitalization omitted).

       Appellants’ issues challenge the trial court’s denial of their petition to

open or strike the confession of judgment.             Our standard review of this

matter is well-settled.

              We review a trial court’s order denying a petition to strike
       a confessed judgment to determine whether the record is
       sufficient to sustain the judgment.       A petition to strike a
       judgment may be granted only if a fatal defect or irregularity
       appears on the face of the record. Similarly, we review [an]
       order denying [an] [a]ppellant’s petition to open [a] confessed
       judgment for an abuse of discretion.

                                       *       *   *

              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.
____________________________________________


1
  Appellants filed a timely statement of errors complained of on appeal on
March 2, 2015 pursuant to the court’s order. See Pa.R.A.P. 1925(b). The
court filed an opinion on March 25, 2015. See Pa.R.A.P. 1925(a).



                                           -3-
J-A31031-15


       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.

Graystone Bank v. Grove Estates, L.P., 58 A.3d 1277, 1281-82 (Pa.

Super. 2012), affirmed, 81 A.3d 880 (Pa. 2013) (citation omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Appellants have raised on appeal. The

trial court opinion properly disposes of the questions presented. (See Trial

Court Opinion, 3/25/15, at unnumbered pages 4-19) (finding: (1) petition

to   strike   properly   denied   where   guaranty   and   warranty   speak   for

themselves, appear on their face to be signed by Appellant Stees, and all

items claimed in judgment amount authorized by warrant of attorney; (2)

petition to open properly denied where Appellants failed to produce evidence

to establish Appellant Stees did not sign the guaranty, that the property was

left with only normal wear and tear, that they did not remove equipment and

the canopy from the property, or that the judgment amount was excessive;

(3) the award of attorney’s fees in the amount of $4,310.55 is reasonable

where the principal balance was $86,210.99; and (4) pre-judgment interest

                                      -4-
J-A31031-15


in the amount of 6% is authorized legal rate in Pennsylvania). Accordingly,

we affirm on the basis of the trial court’s opinion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2016




                                      -5-
                                                                                           Circulated 12/15/2015 03:15 PM




                       IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA

                       K&S JOINT VENTURES,                        : No. 2011-SU-4459-40
                                  Plaintiff

                                      vs.
                                                                  : CIVIL ACTION - LAW
                      OPC MINING COMPANY AND
                      DANIEL W. STEES, INDIVIDUALLY                                                                                 I~·
                                                                                                                                    --q
                      AND AS PRESIDENT OF OPC                                                                         r--..:i
                                                                                                                      c.·;1         -;1
                                                                                                        c.,                         c ··.
                      MINING COMPANY,                                                                   r,·=1         c.1,
                                                                                                                                    r ,.,
                                 Defendants                                                                           =-=~
                                                                                                                      :7:_.., ..    c:·,
                                                                                              -< n
                                                                                              C• -·
                                                                                                                      :::o
                                                                                                        "'!.-,                      -:, ...
                                                                                              ;-....:,...... ,.                     :.::J
                                                                                              _ ..   -. r·-           u         I


                  :   APPEARANCES:
                                                                                              -:;.:".    c;
                                                                                                         --'."1       -a            -
                                                                                                                                      .
                                                                                                                                    ::c
          I       J                         DOUGLAS P. FRANCE, Esquire
                                                                                              _._
                                                                                                         ..:.:!
                                                                                                          ·--!
                                                                                                                      =.::
                                                                                                                           -.
                                                                                                                                    :.=i
                                                                                                                                    - ... .

          //                                For the Plalntff
                                                                                                         I   -.-,
                                                                                                         .,. . .._:    ['-..)
                                                                                                                                    ...
                                                                                                                                    J>
                                                                                                                                          .
                                                                                                                       w            :>.J

         ;;                                 L.C. HEIM, Esquire
         I                                  For the Defendant

         i
         Ji
              i           Pa.R.A.P. 1925(a) MEMORANDUM OPlNJQtJ IN SUPPORT OF ORDER
     j!
                              Defendants have ar ·3aled t'···:3 01.ie, . of the Court dated February 6, 2015
     I
     I
    J                 and docketed February 9, 2015.      Notice of the appeal was filed and received by

    /[ this Court on February 18, 2015.

    !1                        Pursuant to Appellate Procedure,   this Court ordered the Defendants to file

                      a Concise Statement of Matters Ccr .. lalned      Of by its Order of February 25,

                      2015.

                              Defendants filed a Statement of 1\/1?-tters Complained Of on March 2, 2015.

                              After review of the record the Court is surprised to find that it's Opinion

                      Denying Defendants' Motion to Strike or Open Confessed Judgment was not




I
                                                                             Circulated 12/15/2015 03:15 PM




              docketed simultaneously with the Order that is currently on appeal. That Opinion

              addresses the issues raised in this appeal and is provided below.




                  OPINION DENYING DEFENDANT'S PETITION TO STRIKE OR OPEN
                                   CONFESSED JUDGMENT

                    Defendant OPC Mining Company and Daniel W. Stees, individually and as

              President of OPC Mining Company, ("OPC" or "Stees") filed a Petition to Strike or

             Open Confessed Judgment on November 15, 2011. Following the completion of

             discovery in this matter, the Court heard oral argument on December 13, 2012.

             Upon consideration of the pleadings filed· in this case, the factual record as _

             established through discovery, and oral arguments, the Court has determined
        11
        r    that the requirements for striking or opening judgment have not been met. The

             Petition to Strike or Open Confessed Judgment is therefore DENIED.


•
                                      Facts and Procedural History

                   On October 14, 2011, Plaintiff K&S Joint Ventures filed a Complaint in

             Confession of Judgment against Defendant. Judgment was entered pursuant to

             the Personal Guaranty Mr. Stees allegedly entered into with George Karandrikas

             and Louis Skeparnias t/d/b/a K&S Joint Ventures. In that document, Mr. Stees

             guaranteed the obligations incurred by OPC pursuant to the Commercial Lease


    I                                                                                                    /a
                                                                                Circulated 12/15/2015 03:15 PM




        Agreement with K&S Joint Ventures dated September 18, 2000.1                   Paragraph 26

        of the Lease Agreement and Paragraph 5 of the Guaranty contain warrants of

        attorney authorizing the entry of confessed judgment upon default. There is no

        dispute over the Lease Agreement, the issues in this case concern the Guaranty.

               On October 14, 2011, Defendant filed a Petition to Strike or Open

        Confessed Judgment.       It is alleged in the Petition that the Guaranty does not

        contain.Mr. Stees' signature, and, even if it did, that the damages alleged exceed

        the actual damages sustained by Plaintiff and/or that the Guaranty does not

        cover amounts paid by third parties, and that the judgment was entered on faulty

        bases further set forth in Defendant's Answer to the Complaint.             Defendant's

        Answer more fully addresses the argument that Mr. Stees did not sign the

        Guaranty and the allegation that Plaintiff did not incur the expenses claimed

        because the property was not damaged beyond normal wear and tear.

              This Court determined that the Petition stated prima facie grounds for

        relief and a rule to show cause was issued. Pa. R. Civ. P. No. 2959(b); Ohio Pure

    Foods, Inc. v. Barbe, 548 Pa. 373, 376, 697 A.2d 252, 254 (1997). The Rule

    ordered the completion of depositions by March 30, 2012 and provided that

    argument would be held upon motion of any Party following the completion of

    depositions.     Plaintiff filed an Answer to the Petition and written discovery was

    exchanged.      George Karadrikas, Attorney Paul Lutz, and Gail Navaroli were each


    1
      There is an Addendum to the Lease Agreement dated July 31, 2010 that does not effect the
    issues in this case. The Guaranty provides that the guarantor will guarantee the lease, even if it
    is modified. (Guaranty ~2). If the Guaranty can be enforced against Mr. Stees, then Mr. Stees is
    responsible for the lease terms and any amendment thereof.
I
                                                                     Circulated 12/15/2015 03:15 PM




     deposed on May 31, 2012. Plaintiff filed a Petition to Schedule Argument on

     October 9, 2012. Oral argument was held on December 13, 2012.

            Prior to the commencement of argument there was some confusion as to

     whether the Court was hearing testimony or argument. The Court reiterated, as

     was clear from Plaintiff's Petition to Schedule Argument and the Court's Order of

     November 15, 2012 scheduling the argument, that argument, and not testimony,

     was to be presented. Further,. the  initial RTSC issued by the Court clearly
                                     ··-    .,.



     indicated that depositions were to occur and that argument alone wouid be held

     upon the completion of discovery. Following argument, the Court entered an

    Order Taking the Matter under Advisement that required Counsel to provide the

    Court with a copy of the discovery conducted in this case and permitted the

    Parties to file memorandum if they liked. The Court received copies of the

    discovery on January 8, 2013 and Plaintiff filed a Memorandum of Law in

    Opposition to Defendant's Petition on January 9, 2013.

                                    Issues Presented

           (1) Whether there is a fatal defect or irregularity on the face of the record

              requiring the Court to strike the confession of judgment.

           (2) Whether Defendant has alleged a meritorious defense requiring the

              Court to open the confession of judgment.

                                        Discussion

           Pennsylvania law allows one contracting party to confess judgment

    against the other pursuant to a warrant of attorney, strictly complied with, upon a

I                                                                                                uj
                                                               Circulated 12/15/2015 03:15 PM




 breach of the terms of the agreement containing the warrant of attorney.      A party

 who enters into an agreement containing a warrant of attorney has granted the

 other contracting party the authority, upon the occurrence of a specified event,

 "to enter that which results ordinarily only after a trial of the issue between the

 parties, i.e., a judgment." Scott Factors, Inc. v. Hartley, 425 Pa. 290, 293, 228

 A.2d 887, 888 (1967). Cognizant of the risk of abuse inherent in such a grant of

. power to an attorney, the Supreme Court has noted that the courts must strictly

 review these judgments when determining their validity. Scott Factors, 228 A.2d

at 888. The party against whom judgment is confessed can seek to have the

judgment opened and/or stricken pursuant to Pennsylvania Rule of Civil

Procedure No. 2959. All grounds for relief opening and/or striking judgment must

be filed in a single Petition and all defenses and objections not included in the

Petition are waived. Pa. R. Civ. P. No. 2959(a)(1) & (b). A Petition to Strike may

be granted only for a fatal defect or irregularity appearing on the record. Franklin

Interiors v. Wall of Fame Management Company, Inc., 510 Pa. 597, 601, 511

A.2d 761, 763 (1986); see also Parliament Industries, Inc. v. William H. Vaughan

&   Co., Inc., 501 Pa. 1, 459 A.2d 720 (1983). A Petition to Open may be granted

only when the movant "acts promptly, alleges a meritorious defense and presents

sufficient evidence of that defense to require submission of the issues to the

jury." First Seneca Bank v. Laurel Mt. Development Corp., 506 Pa. 439, 443, 485

A.2d 1086, 1088 (1984).
                                                                      Circulated 12/15/2015 03:15 PM




 I.     Petition to Strike the Confession of Judgment

        A valid warrant of attorney must be self-sustaining; it "must be in writing

 and must be signed by the person to be bound." L.B. Foster, 409 Pa. 318,

 322, 186 A.2d 18, 20 (1962). In addition, the Supreme Court has required that

 the signature of the party to be bound must directly relate to the warrant of

 attorney. Frantz Tractor Co. v. Wyoming Valley Nursery, 384 Pa. 213, 216, 120

 A.2d 303, 305 (1956). Further, ."[i]f a confessed judgment includes an item not

 authorized by warrant, the judgment is void in its entirety and must be

 stricken ... However, if the judgment as entered is for items clearly within the

judgment note, but excessive in amount, the court will modify the judgment and

cause a proper judgment to be entered." Dollar Bank, Fed. Sav. Bank v.

Northwood Cheese Co., 431 Pa. Super 541, 551-552, 637 A.2d 309, 314 (1994).



       In the present case, on the face of the Guaranty there is a warrant of

attorney permitting the confession of judgment upon default of the terms of the

Lease Agreement and providing that the judgment will reflect any amount of

damages to which the Lessor (Plaintiff) is entitled to under the Guaranty and the

Lease Agreement, including attorney's fees. (Guaranty ,I5). A signature that

appears to be Mr. Stees' is on the face of the Guaranty, at the end of the

contract, subsequent to the clause containing the warrant or attorney. The claim

that Mr. Stees did not sign the contract is a defense to this action and not a fatal

defect. The only defect or irregularity on the record that has been identified by


                                                                                             lo I
                                                                       Circulated 12/15/2015 03:15 PM




     Defendant is that the judgment amount includes damages that Plaintiff did not

     incur and reflects amounts paid by third parties.

            Defendant specifically argues that the expenses Plaintiff claims to have

     incurred were in fact improvements and changes to the property that Plaintiff or a

     third party chose to make, not expenses Plaintiff had to incur as a result of

     abnormal damage done to the· property by Defendant.       Further, Defendant

     argues that all the documents purporting to establish the amounts claimed due in

    fact reflect amounts paid by a third party, not Plaintiff, and that Defendant is not

    responsible under the Guaranty for those amounts.       Plaintiff claims that the

    amount of damages awarded by the Confessed Judgment fall "squarely within"

    the language of the Guaranty. The Court can only strike the confession of

    judgment if it contains an item not authorized by the warrant of attorney.       ..



           Paragraph 1 of the Guaranty provides that the Guarantor "irrevocably

    guarantees to Lessor ... the payment of any amounts unpaid by Tenant as a result

    of any loss (reasonalbe [sic.] wear and tear excepted) damages or unlawful

    taking of any equipment. .. [and] any unpaid obligations of Tenant as a result of

    alterations, improvements or additions to the premises."    In the Complaint in·

    Confession of Judgment, Plaintiff identifies as the breach that Defendant failed to

    maintain and repair equipment subject to the Lease Agreement, failed to leave

    replaced equipment on the premises after termination of the lease, and removed

    a fixture (a canopy) from the premises.   Plaintiff also identifies the expenses it


I
                                                                    Circulated 12/15/2015 03:15 PM




 incurred to repair property damage and/or replace property damaged as a result

 of Defendant's failure to return the property to its original condition.   The

 Guaranty permits Plaintiff to seek damages on these grounds.         Therefore,

 judgment was entered only for items permitted by the agreement and the

judgment cannot be stricken.



        Defendant c1_rgues that he in fact left the property with only normal wear

and tear and that Plaintiff incurred no damages on that basis and that the

damages claimed were in fact incurred by a third party. First, whether the

property was in good condition and whether the expenses incurred were

necessary because the property was not left with only normal wear and tear are

not appropriate grounds for striking judgment.- The Court can modify the

judgment if it is excessive without striking the judgment.    Also, that the property

was in good condition is a meritorious defense in this action and more properly

addressed with regard to the request that the Court open the judgment.         Second,

the Defendant has failed to identify any provision of either the lease or guarantee

that would prevent Plaintiff from including expenses incurred by third parties for

the benefit of the property in the judgment amount. The Court has also been

unable to locate any such provision.    The judgment cannot therefore be stricken

because it includes only items permitted by the note.
                                                                             Circulated 12/15/2015 03:15 PM




                  Plaintiff also states in the Complaint that the judgment amount reflects a

            6% interest rate and attorney's fees in the amount of 5% of the principal balance.

           The six percent interest rate is the legal rate of interest in Pennsylvania, 41 P.S.

           § 202, and no provision of the Lease Agreement or the Guaranty mandates any

           different interest rate. The award of attorney's fees in the amount of 5% of the

           judgment is permitted by the warrant of attorney.



                  In conclusion, the Petition to Strike is denied because there are no facial

           defects or irregularities on the face of the record. Specifically, the Guaranty, and

          warrant of attorney contained therein, speak for themselves and appear on their

          face to be signed by Mr. Stees. In addition, the items claimed in the judgment

          amount confessed are authorized by the warrant of attorney. Whether those

          items accurately reflect the damages incurred is a meritorious defense raised by

          Defendant in his request that the Court open the judgment. Also, whether the

          judgment should be modified because the award is excessive or attorney's fees

          unreasonable will be discussed at the close of this opinion.



          II.    Petition to Open the Confession of Judgment

                 Three requirements must be met in order for the Court to open judgment.
J-.




          First, the Petitioner must act promptly. Plaintiff concedes that Defendant acted

          promptly and the Court agrees. Second, the Petitioner must allege a meritorious

          defense. Defendant identifies three allegedly meritorious defenses: (1) that Mr.


      I
                                                                   Circulated 12/15/2015 03:15 PM




     Stees did not sign the Guaranty; (2) that, if the Guaranty does contain Mr. Stees'

     signature, the Guaranty only covers actual damages sustained by Plaintiff, of

     which there are none; and (3) that, if the Guaranty does contain Mr. Stees'

     signature, the Guaranty does not permit the award of damages representing

     amounts paid by third Parties.

           The third requirement provides that the Petitioner must "'present evidence

     of that defense. to require submission to a jury."' Germantown Mfg. Co. v.

     Rawlinson, 341 Pa. Super. 42, 46, 491 A.2d 138, 140 (1985) (quoting Weitzman

     v. Ulan, 304 Pa. Super. 204, 209, 450 A.2d 173, 176 (1982)); see also Pa. R.

    Civ. Pro. No. 2959(e). Under Pennsylvania law, the standard of sufficiency for a

    Petition to Open Judgment by Confession is the same as that required for a

    directed verdict: "viewing all the evidence in the light most favorable to the

    petitioner and accepting as true all evidence and proper inferences therefrom

    supporting the defense while rejecting adverse allegations of the party obtaining

    judgment." Germantown Mfg., 341 Pa. Super at 46-47 (quoting Weitzman, 304

    Pa. Super. at 209). In ruling on a Petition to Open Judgment the Court shall not

    speculate as to whether the jury would be persuaded by Defendant's

    presentation. 7 Goodrich Amram 2d § 2959(e):1. In light of the requirement that

    the Court consider the evidence in the light most favorable to Defendant,

    testimony elicited by Plaintiff in contradiction to the testimony elicited by

    Defendant has not been considered by the Court in its determination.




I                                                                                          \'
                                                                                            i '-·
                                                                        Circulated 12/15/2015 03:15 PM




              To begin, the allegation that Mr. Stees did not sign the Guaranty has only

     been presented in the Petition to Open or Strike Confessed Judgment, in the

     Answer and Counterclaim,      both filed on November 15, 2011,         and in the oral

     argument presented by Defense Counsel.         The Petition and Answer were not

     verified by Mr. Stees (they contained an attorney verification).    Mr. Stees was not

     deposed in this matter nor was Mr. Stees served with written discovery to which

     he provided verified answers.     Therefore, the record contains no testimony or

     verified statements made by Mr. Stees stating that he did not sign the Guaranty.

    The Court has also reviewed the transcripts of the depositions conducted in this

    matter.    Looking at the deposition testimony in the light most favorable to the

    Defendant, the Court has determined that there is not sufficient evidence that
                     ..   ..-
    Defendant did not sign the Guaranty to require submission of the question to a .

    jury.



            Attorney Paul Lutz represented K&S in this transaction and prepared both

    the Lease Agreement and the Guaranty. (Lutz Depa. at 8, line 25 & 9, lines 6-

    18). Attorney Lutz testified that he did not believe that he was present when the

    documents were executed, nor was he aware. whether the documents were

    executed at the same time. (Lutz Depa. at 10, lines 8-18). In addition, Attorney

    Lutz testified that he did not have a signed copy of the Guaranty in his files and

    that he received, he believes, a copy of the executed Guaranty from Plaintiff.

    (Lutz Depa. at 12, lines 17-20 & 13, lines 1-7). Gail Navaroli, Attorney Lutz's


I                                                                                                i\
                                                                          Circulated 12/15/2015 03:15 PM




     legal assistant, was also deposed.       Ms. Navaroli testified that a year or two ago

     she was asked to find the original signed Guaranty and that she was unable at

     that time to find either the original or a signed copy. (Navaroli Depo. at 14, lines

     24-25 & 15, lines 1-3). Ms. Navaroli could not recall who asked her originally to

     find the Guaranty but she believes Mr. Skeparnias, one of the signatories to the

     Lease Agreement and Guaranty on behalf of K&S, and Attorney Lutz each asked

     her for it at one time or another.    Ms. Navaroli also testified that Mr. Skeparnias

     dropped off a copy of the signed Guaranty at Law Offices, although Ms. Navaroli

     did not ask him why he was dropping the contract off and she assumed it was

     because Law Offices did not have a copy. (Navaroli Depo. at 15, lines-15-25 &

     16, lines 1-14).      Mr. Karandrikas testified that he believed Attorney Lutz was

    present at the signing of the lease and guarantee, that he probably received a

    copy of the executed documents after the fact, that he did not know if anyone

    else received copies of the executed documents, and that he does not recall

    seeing an original Guaranty executed by Mr. Stees. (Karandrikas Depo. at 17,

    line 25 & 18).

               Written discovery also reiterated the fact that Plaintiff does not possess

    the original Guaranty.        Defendant argued that Plaintiff did not plead that the

    original document had been lost, misplaced, stolen or destroyed, and, therefore,

    Plaintiff did not establish the necessary grounds for allowing a copy of the

    contract to be admitted into evidence.        Defendant is specifically upset that the

    original    document    was    not produced    because    he wished    to conduct       a


I                                                                                               / ;l_
                                                                        Circulated 12/15/2015 03:15 PM




     handwriting examination of the document.        It does not matter that the original

     does not exist; if. the original is lost then the copy is sufficient.   First, the best

     evidence rule (Pa. R. Evid. No. 1002) concerns the admissibility of documents; it ·

     is not a defense that if proven at trial would entitle a party to judgment in their

     favor.    Second, Defendant never served supplemental interrogatories asking

     who, if anyone, might possess the original document. Third, Defendant did not

     seek recourse in the judiciary in order to find the missing original Guaranty.

     Fourth, there is no evidence that the Plaintiff has lost or destroyed the document

    in bad faith.     Fifth, there is no evidence that Plaintiff ever had the original

    Guaranty.       Finally, and most importantly, even if the failure to produce the

    original Guaranty was a meritorious defense, or a fatal defect on the record,

    Defendant did not raise the argument in the Petition to Open or Strike and the

    argument is therefore waived.



              It is clear that there no evidence has been produced that would warrant

    referring the question of whether Mr. Stees signed the Guaranty to a jury. The

    original document has been misplaced, but a copy of a Guaranty containing a

    signature above the signature line reserved for Mr. Stees has been produced. In

    addition, the Lease Agreement, which Mr. Stees does not dispute signing,

    requires Mr. Stees to sign a personal guarantee. Further, the Guaranty was in

    fact signed and witnessed and Defendant produced no evidence to the contrary.

    None of the witnesses that testified were present at the signing of the Guaranty.


I                                                                                              ( ;2,
                                                                       Circulated 12/15/2015 03:15 PM




      The witnesses to the execution of the Guaranty were not deposed.        Further, that

      Attorney . Lutz's Law Offices could not locate the original or a copy of the

      executed Guaranty     is not sufficient evidence to establish that an executed

      Guaranty never existed because, in fact, a copy of the Guaranty containing the

      signatures of all the Parties involved plus witnesses has been produced.        Finally,

      no argument or evidence has been presented that the signature on the Guaranty

     was not Mr. Stees'.     It has only been argued that Mr. Stees did not sign the

      Guarantee,   not that the Guarantee contains a forged signature.          Therefore,

     judgment will not be opened.




            Defendant's final two meritorious defenses again concern allegations that

     the amount confessed in the judgment was inappropriate because it reflected

     damages not incurred by Plaintiff, but in fact expenses paid by third parties.    The

     Court has determined that the items claimed in the confession of judgment were

     permitted by the warrant of attorney because they arise from damage Plaintiff

     claims was done to the property beyond normal wear and tear and because there

     is no contractual provision preventing the inclusion of third party expenses.

     Defendant raises as a meritorious defense that the property was left with only

     normal wear and tear and that the judgment amount confessed is therefore not

     permitted by the Guaranty.




II
                                                                       Circulated 12/15/2015 03:15 PM




            There is nothing in the record beyond the claim in the Petition and

     Answer, both of which have not been verified by Mr. Stees, that the property was

     left with only normal wear and tear. It is alleged in the Petition that George

     Karanicolas [sic.], one the partners of K&S, will testify that the property only had

     normal wear and tear immediately prior to Defendant vacating the premises.         Mr.

     Karadrikas in fact did not provide such testimony and instead testified that in

     September or October of 2010 he went to the property for a beer and that he

     could not recall the condition of the property. In addition, Mr. Karandrikas

     testified that he had not and did not conducting any sort of inspection. Mr.

     Skeparnias, the other partner of K&S and the father of the current tenants, was

     not deposed.   In addition, Plaintiff has produced photographic evidence in

    response to Defendant's written discovery requests evidencing the alleged

    damage to the property. Defendant has provided no documentary evidence to

    contradict those photos.   Defendant has not presented sufficient evidence that

    the property was left in an acceptable condition and this issue need not be

    submitted to a jury.



           The Court may modify an excessive judgment award. In this case,

    Defendant has made no argument nor presented any evidence that the judgment

    amount is excessive.   The principal balance that formed the basis of the

    judgment award in this case totaled $86,210.99.    The lease, which was in effect

    for ten years, originally provided for rent in the amount of $276,000 for a term of


I                                                                                             I ,_-.
                                                                      Circulated 12/15/2015 03:15 PM




 three years.   It is evident therefore, that Defendant must have spent over

 $900,000 in rent for the property over the course of the approximately ten years.

 It is not unreasonable that Defendant and his business, a restaurant, caused

 about $86,000 of damage to the property over that period of time, and Plaintiff

 has produced photographic documents reflecting the claimed damage. Further,

 the judgment amount includes the equipment and fixtures Plaintiff alleges the

 Defendant removed from the property and failed to replace.      Defendant has

 provided no evidence to contradict that allegation.

        In addition, no argument has been made by Defendant that attorney's fees

awarded in this case, 5% of the principal for a total of $4,310.55,    are excessive.

We will note that the Superior Court in Dollar Bank refused to strike an award of

attorney's fees in the amount of 15% of the principal in a confessed judgment

because the award was "specifically authorized by the warrant of attorney."

Dollar Bank, 431 Pa. Super at 552. While a court may modify a confessed

judgment where the attorney's fees awarded are excessive, the Superior Court

refused to do so as Appellant did not "make any argument as to why the fees are

claimed to be excessive" or cite any evidence on the record supporting the claim

that the fees were excessive. Id.; see also RAIT Partnership v. E. Pointe

Properties, 2008 PA Super 225, 957 A.2d 1275 (2008). Accordingly, the Court

finds no evidence that the judgment amount is excessive and modification of the

award on that basis is therefore inappropriate.   The only consideration left to the

Court is whether the attorney's fees awarded are reasonable.
                                                                          Circulated 12/15/2015 03:15 PM




               In general, each party is responsible for their own attorney's fees unless

     the award of fees is authorized by statute, agreement, or other exception.           It is

     within the "sound discretion" of the trial court to determine the reasonableness of

     a fee. In Re Estate of LaRocca, 431 Pa. 542, 547 (1968). Where an agreement

     between parties permits the award of attorney's fees but is silent as to whether

    those fees must be reasonable, the Supreme Court has determined that the trial

    court may consider the reasonableness of the claimed fees and reduce the fees,

    if appropriate, and has held that a trial court has the authority to consider the

    reasonableness of fees. McMullen v. Kutz, 603 Pa. 602, 615 (2009).                   The

    Supreme Court has established that the following factors are to be considered in

    a court's determination of the reasonableness of attorney's fees:

               "[1] the amount of work performed; [2] the character of services
              rendered; [3] the difficulty of the problems involved; [4] the
              importance of litigation; [5] the amount of money or value of the
              property in question; [6] the degree of responsibility incurred; [7]
              whether the fund involved was 'created' by the attorney; [8] the
              professional skill and standing of the attorney in his profession; [9]
              the results [the attorney] was able to obtain; [1 OJ the ability of the
              client to pay a reasonable fee for the services rendered; and very
              importantly [11] the amount of money or the value of the property in
              question." LaRocca, 431 Pa. 546.

    LaRocca, 431 Pa. at 546. The Superior Court has required that all the

    factors     be considered by the trial court when determining the

    reasonableness of fees. McMullen, 925 A.2d 832, 836 (Super.Ct. 2007);

    Estate of Murray v. Love, 602 A.2d 366, 370 (Sup.Ct. 1992).




I
                                                                       Circulated 12/15/2015 03:15 PM




        The amount of work involved in confessing judgment is, in general,

 somewhat minimal. Essentially, all that required is the filing of the Confession of

 Judgment and Complaint in Confession of Judgment with the Prothonotary.             In

 this case, Counsel determined that a breach pursuant to the Lease and Guaranty

 had occurred, determined the expenses incurred by Plaintiff as a result of the

 breach, identified the provisions of the contracts permitting the confession of

judgment against Mr. Stees personally, and Counsel listed in the Complaint each

breach and each expense incurred as a result of the breach.      The services

rendered in this case were routine, but very thorough.    There has been no

litigation in this case because judgment was confessed.     Nevertheless, this

matter is clearly important to Defendant as he is seeking to either strike the

judgment, and make Plaintiff try again, or open the judgment and litigate the

matter. The amount of money at issue in this case also reflects the importance

of this matter.

       The amount of money in question is a total judgment of $95,694.20,

reflecting the principal balance, interest, and the attorney's fees. The attorney's

fees awarded are the result of calculating 5% of the principal balance, without

interest. The principal balance at issue in this case is $86,210.99.    As to the

degree of responsibility incurred, judgment was confessed because of

Defendant's breach. There are allegations that the damages were actually

incurred by the new tenant and that Plaintiff was not responsible for the expense.

However, Defendant has produced no evidence to support this allegation.
                                                                    Circulated 12/15/2015 03:15 PM




 Further, Defendant has produced no evidence that he did not remove fixtures or

 equipment from the premises in violation of the Lease and Guaranty.

        No fund has been created by any attorney in this case. Attorney Douglas

 A. France, Counsel for Plaintiff, is highly skilled professionally in good standing

 with the legal community. Attorney France did properly file a Complaint in

 Confession of Judgment and judgment for his client was awarded. The Court

 does not know whether Plaintiff is able to pay the reasonable attorney's fees, but

 the Court has no reason to believe that Plaintiff could not pay the fees as Plaintiff

 owns at least one property capable of producing rental income.

        The Supreme Court advises that the most important factor is the amount

of money in question. As stated above, the amount of money in question is at

least the principal balance of $86,210.99.   This is a substantial sum of money.

Counsel filed a thorough and correct Complaint in Confession of Judgment

without defect or irregularity and successfully secured for Plaintiff the large

judgment.   After reviewing all the relevant factors, especially the amount of

money in question, the Court finds in this case that the award of attorney's fees

in the amount of $4,310.55 is reasonable.



                                     Conclusion

       In conclusion, the Court will DENY the Defendant's Petition to Strike or

Open Confessed Judgment filed on November 15, 2011.          An Order consistent

with this Opinion will be entered.


                                                                                         I   ,
                                                                                         \   I
                                                              Circulated 12/15/2015 03:15 PM




          The Prothonotary shall forward copies of this Memorandum Opinion to

    counsel of record.




                                               n   . Linebaugh, President Judge
                                       19th Judicial District of Pennsylvania

          =3 / ~-s I,_,{_
    Date: __




I
