J-A02031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSQUEHANNA BANK                                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

THORNBURY PROPERTY GROUP, LLC
AND THOMAS J. CONWAY, IV

APPEAL OF: THOMAS J. CONWAY, IV

                                                      No. 3537 EDA 2015


                 Appeal from the Order Entered October 19, 2015
         in the Court of Common Pleas of Delaware County Civil Division
                             at No(s): 2015-006252

BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 07, 2017

        Appellant, Thomas J. Conway IV, appeals pro se from the order

entered in the Delaware County Court of Common Pleas denying the petition

to open confessed judgment. We affirm.

        On July 16, 2015, judgment was entered against Appellant.1 On

August 14, 2015, Appellant filed a petition to open the judgment. 2       On


*
    Former Justice specially assigned to the Superior Court.
1
  Appellee complied with Pa.R.C.P. 2955 which provides that “[t]he plaintiff
shall file with the complaint a confession of judgment substantially in the
form provided by Rule 2962.” Pa.R.C.P. 2955(a). Rule 2962 provides the
form for the confession of judgment where the action is commenced by
complaint. See Pa.R.C.P. 2962.
2
 The petition to open the confessed judgment was timely.        See Pa.R.C.P.
2959(a)(3).
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October 19, 2015, following a hearing, the trial court denied the petition to

open judgment.        This timely appeal followed.3    Appellant filed a court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and

the trial court filed a responsive opinion.

        Appellee made the following averments in the complaint which

Appellant admitted in his answer to the complaint:4

           4. On May 26, 2009, [Appellant] signed a Promissory Note
           in the original principal amount of Twenty Five Thousand
           Dollars ($25,000.00). [Appellant] entered into a Change
           in Terms Agreement dated May 25, 2011 making the
           following modifications to the loan: Borrower agreed to
           pay the then principal amount of $24,696.17 together with
           interest on the unpaid balance from May 26, 2011 using
           interest rate of 6.00% per annum until paid in full.
           Borrower to pay loan in 72 payments of $410.39 each
           commencing on June 26, 2011 and on the same day of
           each month thereafter with final payment due on May 26,
           2017, which will be for all principal and accrued interest
           not yet paid.

           5. By signing the Agreements, [Appellant] agreed to make
           repayment of monies loaned as referenced above.

Complaint in Support of Confession of Judgment, 7/16/15, at 2 (citation

omitted). Appellant contends that “[t]he Loan is not in default. [Appellant]

has . . . placed the payments into escrow during the dispute.” “Appellant’s

Petition to Open Judgment Under Code Pa.R.C.P. 2959” at Ex. “A.”

        Appellant raises the following issues for our review:

3
    We note that Appellee did not file a brief.
4
 See “[Appellant’s] Petition to Open Judgment Under Code Pa.R.C.P. 2959”,
8/14/15, at Ex. “A.”



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         1. When a contract is materially altered, should the
         personal guarantor of the original contract be made
         contractually aware and require endorsement?

         2. Is a contract ambiguous when it specifically states the
         choice of venue (Philadelphia [C]ounty) for legal action and
         that action (Confession of Judgment) is initiated in a
         different county (Delaware [C]ounty) where no activity
         took place?

         3. Would [Appellee] have been prejudiced had the court
         Granted [Appellant’s] Petition to Open Judgment in order
         to allow limited discovery for the following:

            Proof of application of payments by [Appellee] to
            determine principal balance

            [Appellee’s] failure to adhere to the cure provisions in
            the Change in Terms Agreement

            [Appellee’s] failure to provide proof of a Commercial
            Guarantee endorsement at the time the agreement
            changed on May 25, 2011

            [Appellee’s] breach of the contract’s covenants

         4. If a lender is in breach of its covenants, is it an
         appropriate legal measure for the borrower to place the
         demanded       monthly    payments     into    escrow and
         communicate as such until the breach has been cured or a
         court of law instructs borrower to release the funds?

Appellant’s Brief at 1.5


5
  Appellant’s Rule 1925(b) statement contains issues that are not raised on
appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288 n.11
(Pa. Super. 2015) (stating issues raised in Rule 1925(b) and not addressed
in the statement of questions or body of brief held abandoned on appeal).

      Furthermore, Appellant’s brief is violative of Pa.R.A.P. 2119, which
provides as follows:




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     In the petition to open the confessed judgment, Appellant averred that

        [t]he Confession of Judgment (null and void) was
        premature and void.       [Appellant], a Certified Public
        Accountant licensed and in good standing in the State of
        PA placed all payments into escrow and notified [Appellee]
        by certified mail, return receipt and communicated with
        their attorney, Robert L. Saldutti, Esquire the same. The
        attorney would not confirm knowledge of the payments
        made to escrow.

“[Appellant’s] Petition to Open Judgment Under Code Pa.R.C.P. 2959” at 4.

     Our review is governed by the following principles:




        The argument shall be divided into as many parts as there
        are questions to be argued; and shall have at the head of
        each part─in distinctive type or in type distinctively
        displayed─the particular point treated therein, followed by
        such discussion and citation of authorities as are deemed
        pertinent.

Pa.R.A.P. 2119(a).

        [A]ppellate briefs and reproduced records must materially
        conform to the requirements of the Pennsylvania Rules of
        Appellate Procedure. Pa.R.A.P. 2101. This Court may
        quash or dismiss an appeal if the appellant fails to conform
        to the requirements set forth in the Pennsylvania Rules of
        Appellate Procedure. Id. Although this Court is willing to
        liberally construe materials filed by a pro se litigant, pro
        se status confers no special benefit upon the appellant. To
        the contrary, any person choosing to represent himself in a
        legal proceeding must, to a reasonable extent, assume
        that his lack of expertise and legal training will be his
        undoing.

In re Ullman, 995 A.2d 1207, 1211–12 (Pa. Super. 2010) (some citations
omitted). We decline to quash based on the defects in Appellant’s brief.




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            In reviewing a trial court’s order on a petition to open a
         confessed judgment, we have the following standard of
         review:

            A petition to open judgment is an appeal to the
            equitable powers of the court.     As such, it is
            committed to the sound discretion of the hearing
            court and will not be disturbed absent a manifest
            abuse of discretion.

         PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002)
         (citation omitted). Furthermore, a court should open a
         confessed judgment if the petitioner promptly presents
         evidence on a petition to open which in a jury trial would
         require that the issues be submitted to the jury.        A
         petitioner must offer clear, direct, precise and
         believable evidence of a meritorious defense,
         sufficient to raise a jury question. In determining
         whether sufficient evidence has been presented, we
         employ the same standard as in a directed verdict: we
         view all the evidence in the light most favorable to the
         petitioner and accept as true all evidence and proper
         inferences therefrom supporting the defense while we
         reject adverse allegations of the party obtaining the
         judgment.

Stahl Oil Co. v. Helsel, 860 A.2d 508, 512 (Pa. Super. 2004) (some

citations omitted and emphasis added).       Appellant acknowledges that in

order to have a petition to open a confessed judgment granted, he must

allege a meritorious defense. Appellant’s Brief at 3.

      In the case sub judice, the trial court opined:

            The Defendants/Petitioners, Thornbury Property Group,
         LLC and Thomas J. Conway, IV, have appealed from this
         [c]ourt’s denial of their Petition to Open the Judgment
         Confessed against them by the Plaintiff, Susquehanna
         Bank . . ., for defaulting on commercial loan indebtedness
         for which the Defendant, Thomas J. Conway, IV, had
         pledged, as Guarantor, repayment in the event of a default
         by the Defendant Borrower, Thornbury Property Group


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         LLC, of which he is the sole member.            Because the
         Defendants have admitted to owing the arrearages on that
         indebtedness and to a ready willingness to repay them . . .
         this Petition is deemed to be wholly lacking in merit.

                                  *    *    *

            In order to prevail on their Petition to Open Confessed
         Judgment, the Defendants were required to respond
         promptly to the judgment confessed against them, about
         which no issue has been raised here below, to allege a
         meritorious defense, and to present sufficient evidence
         that would allow its submission to a jury. The evidence
         produced must be clear, direct, precise and credible.
         Nevertheless, since the Defendants have admitted liability
         for the confessed upon judgment and have taken issue
         only with the means employed by Plaintiff to collect it, they
         have submitted no defense to this action . . . .

Trial Ct. Op., 4/27/16, at 16. We agree no relief is due.

      At the hearing for the petition to open the confession of judgment,

Appellant appeared pro se. He testified, inter alia, as follows:

         [Appellant]: I sent them a letter and said I will release the
         money immediately. I’ve took─I sent multiple letters that
         said I will release the money immediately. I sent it
         certified mail, return receipt.

                                  *    *    *

         [Appellant] . . . I am happy to release the money at any
         time during this issue.

         The Court: Why haven’t you released it before today?

         [Appellant]: Because Mr. Saldutti and I have not had a
         conversation prior to his filing the Confession of Judgment.

         The Court: Have you picked up Alexander Graham Bell’s
         invention and dialed it or . . . punched in the number to
         talk to him?



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         [Appellant]: The   Confession    of   Judgment   is   another
         adversarial act.

         The Court: Yes. They want their money.

         [Appellant]: Yes, and I want to give them their money.

         The Court: Well, why don’t you give it to them then?

         [Appellant]: Because they─because I keep sending them
         letters and no one responds.

N.T., 10/19/15, at 19, 21-22.

      Instantly, Appellant has not alleged a meritorious defense sufficient to

raise a question for the jury.   See Stahl Oil Co., 860 A.2d at 512.      We

discern no abuse of discretion by the trial court in denying the petition to

open the confessed judgment. See id. Accordingly, we affirm the order of

the trial court.6

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2017




6
 Because Appellant has not shown he was entitled to open the judgment,
we need not address the remaining arguments in his pro se brief.



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