J. A19037/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH BONACUSE                         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
PETER J. BONACUSE,                      :          No. 12 MDA 2018
                                        :
                       Appellant        :


            Appeal from the Order Entered December 17, 2017,
           in the Court of Common Pleas of Lackawanna County
                      Civil Division at No. 16 CV 5302


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: NOVEMBER 8, 2018

     Peter J. Bonacuse appeals from the December 17, 2017 order entered

by the Court of Common Pleas of Lackawanna County denying his petition to

strike and/or open judgment. After careful review, we affirm.

     The trial court provided the following factual and procedural history:

           (1)   On    September      19,   2016,  [appellee],
                 Joseph Bonacuse,     filed  a  Complaint   in
                 Confession of Judgment against his brother,
                 Peter J. Bonacuse, III.

           (2)   In the Complaint, [appellee] alleges that
                 [appellant] executed a promissory note in favor
                 of [appellee] on August 1, 2006.

           (3)   As of the filing of the Complaint, [appellee]
                 claims he is owed the sum of $611,420.00,
                 which includes interest and attorney’s fees.

           (4)   On September 19, 2016, pursuant                to
                 [appellee’s] Complaint, a judgment             by
J. A19037/18


                 confession was entered in the aforementioned
                 amount.

           (5)   On January 12, 2017, [appellant] filed a Petition
                 to Strike and/or Open Judgment.

           (6)   On December [14], 2017, after completion of
                 oral argument and briefs submitted by counsel,
                 this court denied [appellant’s] Petition to Strike
                 and/or Open Judgment.

           (7)   On December 22, 2017, [appellant] filed a
                 Notice of Appeal to the Superior Court of
                 Pennsylvania.

           (8)   On February 8, 201[8, appellant] filed a Concise
                 Statement of Matters Complained of on Appeal.

Trial court memorandum at 1. The trial court filed a memorandum pursuant

to Pa.R.A.P. 1925(a).

     Appellant raises the following issues for our review:

           A.    Whether the hearing judge erred and abused
                 discretion in failing to strike the confessed
                 judgment     because     the  complaint  filed
                 September 19, 2016 and Note dated August 1,
                 2006 on their face show that the statute of
                 limitations has expired?

           B.    Whether the hearing judge erred and abused
                 discretion in failing to strike the confessed
                 judgment because [appellee] omitted attaching
                 an affidavit that the copy of the Note attached
                 to the complaint was a true and correct copy of
                 the original Note, a requirement of both the
                 Note itself and Pa.R.C[iv.]P. 2952(a)(2), where
                 [appellee] has admitted he never had
                 possession of the Note at issue?

           C.    Alternatively, whether the hearing judge erred
                 and abused discretion in failing to open the
                 confessed judgment in the face of black letter


                                    -2-
J. A19037/18


                   statutory law mandating that [appellee] be in
                   possession of the original Note either at the time
                   of enforcement or at the time of loss,
                   destruction or theft of the Note under Sections
                   1201(21), 3301 and 3309 of the Pa. UCC.
                   Appellee [] was never a holder of the lost,
                   destroyed or stolen Note under UCC Section
                   3301 and UCC Section 1201(21) and is
                   therefore not a person entitled to enforce the
                   Note, a valid defense?

            D.     Alternatively, whether the hearing judge erred
                   and abused discretion in failing to open the
                   confessed judgment because the payment
                   terms of the Note are ambiguous and the
                   statute of limitations cannot be resolved without
                   a fact-finder’s resolution of the ambiguity?

Appellant’s brief at 4-5.

      Having     determined,   after   careful   review,   that   the   Honorable

Margaret Bisignani Moyle, in her Rule 1925(a) memorandum, ably and

comprehensively disposes of appellant’s issues on appeal, with appropriate

reference to the record and without legal error, we will affirm on the basis of

that memorandum.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/8/2018




                                       -3-
                                                                                                 Circulated 10/25/2018 03:46 PM



JOSEPH BONACUSE                                                 : IN THE COURT OF COMMON PLEAS
     Plaintiff                                                        OF LACKAWANNA COUNTY

          v.                                                                   CIVIL - ACTION - LAW

PETER J. BONACUSE, III
     Defendant                                                                        2016 CV 5302
·································································································································
.................................................................................................................................

                                                  MEMORANDUM

BISIGNANI MOYLE, J.

          I._PROCEDURAL AND FACTUAL IDSTORY

(1)       On September 19, 2016, the Plaintiff'.Joseph Bonacuse, filed a Complaint in

Confession of Judgment against his brother, Peter J. Bonacuse III.

(2)       In the Complaint, the Plaintiff alleges that the Defendant executed a promissory

notein favor of the Plaintiff on August 1, 2006.

(3)        As of the filing of the Complaint, the Plaintiff claims he is owed the sum of

$611,420.00, which includes interest and attorney's fees.

(4)        On September 19, 2016, pursuant to the Plaintiff's Complaint, a judgment by

confession was entered in the aforementioned amount.

(5)        On January 12, 2017, Defendant filed a Petition to Strike and/or Open Judgment.

(6)        On December 17, 2017, after completion of oral argument and briefs submitted by

counsel, this court denied Defendant's Petition to Strike and/or Open Judgment.

 (7)       On December 22, 2017, Defendant filed a Notice of Appeal to the Superior Court

 of Pennsylvania.

 (8)       On February 8, 2017, Defendant filed a Concise Statement of Matters

 Complained of on Appeal.

 (9)        This Memorandum accompanies the Order filed by this Court on December 1 7,

 2017.

                                                      1

                                                                                                                                    .3'1
                   II. MATTERS COMPLAINED OF ON APPEAL

        In his Concise Statements of Matters Complained of on Appeal, the Defendant
                                                                                             -....
raises the following allegations of error:

       The hearing Judge erred in failing to strike the confessed judgment because:

           (1) The complaint filed September 19, 2016 and note dated August 1,
               2006 on their face show that the statute of limitations long ago
                expired; and
            (2) The Plaintiff failed to attach an affidavit that the copy of the note
                attached to the complaint was a true and correct copy of the original
                note, a requirement of both the note.itself and Pa.R.C.P. 2952(a)(2).
                Alternatively, the hearing Judge erred in failing to open the
                confessed judgment because:
            (1) The record shows that the Plaintiff was never a holder of the lost,
                destroyed or stolen note under UCC Section 301, and is therefore
                not a person entitled to enforce the note under UCC Section 309, 13
                Pa.C.S.A. 3301 and 3309, a defense that must be presented in a jury
                trial; and
            (2) If the note at issue is determined to be ambiguous, a jury trial is
                necessary to resolve the ambiguity of when the first payment
                thereunder became due and payable in light of the drafting
                attorney's note that interest only was payable until July 2016.


                                     ID. DISCUSSION

A)      PETITION TO STRIKE: .

        A petition to strike a judgment may be granted only for a fatal defect or

 irregularity appearing on the face of the record. 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 Javor the warrant is given, i.e., the complaint and the

 documents which contain confession of judgment clauses. Matters dehors the


                                       2


                                                                                        38
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.

Resolution Trust Corp. v. Copley Ou-Wayne Assocs., 546 Pa. 98, 683 A.2d 269,

273 (1996) (emphasis in original, internal citations omitted).

        In his first argument, Defendant asserts that the complaint filed September 19,

2016 and note dated August 1, 2006 on their face show that the statute of limitations long

ago expired. However, a plain reading of the terms of the note clearly indicate that no

payment, duty or other obligation was required until August 1, 2016. Under
                                                                    1
                                                                                                              e,
                                                                                                              ;;


Pennsylvania law, the four-year statute of limitations applicable to claims for failure to

make payments due under a contract does not start to run until the payment is due.

Raucci v. Candy & Toy Factory, 145 F.Supp.3d 440 (E.D.Pa. 2015). Accordingly,

Plaintiffs action did not accrue until Defendant failed to make his first payment in

August of 2016. Thus, the statute of limitations argument is without merit and the appeal

should be denied.

         In his second argument, Defendant relies on the assertion that Plaintiff failed to

attach an affidavit that the copy of the note attached to the complaint was a true and

correct copy. See PaR.C.P. 2952(a)(2). In Equibank. N.A. v. Dobkin, 425 A.2d 461, 465

 (Pa. Super 1981 ), the Pennsylvania Superior Court addressed this issue by stating that

 "Appellee's failure to include the copy of the note which had been typographically

 corrected was no more than a technical error which did not justify the opening of the

judgment. The terms and conditions of the note were the same on both copies and we can

 discern no prejudice to the Appellant. .. " In the instant matter, Plaintiffs complaint

 included a copy of the note. Notably, no one disputes the copy is an exact copy of the




 1
  Attorney Nicholas Tellie, scrivener of the note, testified in his deposition that no payment was
 due until August 1, 2016 (N.T. at pp. 53-54).
                                              3

                                                                                                     ,.,t°)
                                                                                                     ,j .•
original note. Similar to the court in Eguibank, this court is unable to discern any

prejudice to the Defendant as a result of Plaintiff's counsel's failure to use the words

"true and correct" in its Complaint. Therefore, this argument is without merit and the

appeal should be denied ..

B)     PETITION TO OPEN:

       A petition to open a judgment is an appeal to the equitable powers of the court.

First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 506 Pa. 439, 485

A.2d 1086 (1984). It is committed to the sound discretion of the hearing court and will

not be disturbed absent a manifest abuse of that discretion. Id If a petition to open a

judgment is to be successful, it must meet the following test: (1) the petition to open must

be promptly filed; (2) the failure to appear or file a timely answer must be excused; and

(3) the party seeking to open the judgment must show a meritorious defense. McCoy v.

Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Liquid Carbonic Corp. v.

Cooper & Reese, Inc., 272 Pa. Super. 462, 416 A.2d 549 (1979).

        Defendant argues that since the Plaintiff attached a copy of the original note to his

Complaint, and never having been a holder of the original note, he is unable to enforce

the note under 13 Pa.C.S.A. §3309.

        Under Pennsylvania law, the following are entitled to enforce an instrument:

         "Person entitled to enforce" an instrument means:

        (1) the holder of the instrument;
        (2) a nonholder in possession of the instrument who has the rights of
        a holder; or

        (3) a person not in possession of the instrument who is entitled to enforce
        the instrument pursuant to section 3309 (relating to enforcement of lost,
        destroyed or stolen instrument) or 3418(d) (relating to payment or
        acceptance by mistake).


 13 PaC.S.A. § 3309.
                                      4
        As the payee identified in the Note, Plaintiff has the rights of a holder. See 13

Pa.C.S.A. §1201. Furthermore, the Defendant has repeatedly acknowledged having

executed the Note and enjoyed the benefit of having received a substantial amount ofreal

estate as a result of its execution.2 Accordingly, this argument is without merit.

        In his final argument, the Defendant avers that he is entitled to a jury trial to
                                                                                                              ....
resolve "ambiguity" contained in the note. More specifically, he points to an attorney's                      .
                                                                                                              ;..




note disclosed during discovery that he alleges suggests that interest only was payable on

the note until July 2016. We find this argument to be meritless.
                                                                                                              e
                                                                                                              ;:


         A contract's language is unambiguous if it can be determined without any other

guide than knowledge of the simple facts on which its meaning depends. Profit Wize

Marketing v. Wiest 812 A.2d 1270, 1274 (Pa.Super.2002). When the contract is clear

and unambiguous, the meaning of the contract is ascertained from the writing

alone. Kmart of Pennsylvania. L.P. v. MD Mall Associates, LLC, 959 A.2d 939, 944

(Pa.Super.2008), appeal denied, 602 Pa. 667, 980 A.2d 609 (2009). A court must not

distort the meaning of the language or resort to a strained contrivance to find an

ambiguity. Mitsock v. Erie Ins. Exchange. 909 A.2d 828, 831 (Pa.Super.2006).

Additionally, a mere disagreement between the parties regarding the proper construction

of the language does not render the contract ambiguous. Baney v. Eoute, 784 A.2d 132,

 J 36 (Pa.Sup·�r.2001). In the context of a petition to open a confessed judgment, "[tjhe

function of our [C)ourt is not to [w]eigh the evidence in support of the defense, but

 merely to determine whether there was sufficient evidence to go to the jury". Foerst v.

 Rotkis, 244 Pa.Super. 447, 368 A.2d 805, 807-08 (1976). We find the language

 contained in the promissory note to be clear and unambiguous. Any assertions made by



 2 The Defendant acknowledged in his deposition that his execution of the Note was necessary to
 give effect to his father's estate planning, which resulted in Defendant's receipt of approximately
 $1.7 million ofreal estate.
                                              s

                                                                                                       ij-1
Defendant to the contrary are the types of distortions of plain facts that we are forbidden

from considering. Accordingly, the argument is without merit and the appeal should be

denied.




                                      6
