J-A05044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANTANDER BANK, N.A.,                             IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                    v.

KING DRIVE CORP.; A LA CARTE
ENTERPRISES, INC.; ANGINO &
ROVNER, P.C. AND RICHARD C. ANGINO
AND ALICE K. ANGINO, H/W,

                          Appellants                  No. 2346 EDA 2014


               Appeal from the Order Entered July 23, 2014
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 0330 March Term, 2014


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                                 FILED APRIL 28, 2015

      Appellants   King    Drive   Corporation   (“King    Drive”),   A   La   Carte

Enterprises, Inc. (“A La Carte”), Angino & Rovner, P.C., Richard C. Angino

and Alice K. Angino, h/w, (“Anginos”) (collectively “Appellants”), appeal from

a July 23, 2014 order from the Court of Common Pleas of Philadelphia

County, denying Appellants’ Petition to stay, strike, order discovery, hold a

hearing, or open judgment. We affirm.

      The trial court summarized the facts of this case as follows:

             Plaintiff Santander Bank (“Santander”) and defendants
      King Drive Corporation (“King Drive”) and A La Carte Enterprises
      (“A-La-Carte”), entered into a number of commercial loan
      agreements beginning in 2007.         Under these contractual
      relationships, Santander agreed to provide funds to defendants
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     for the development of a golf course and annexed facilities in
     Dauphin County, Pennsylvania.

            On July 3, 2007, Santander and King Drive executed a
     Construction Loan and Security Agreement (“Loan No. 1”).
     Under the terms of Loan No. 1, Santander agreed to provide to
     King Drive funds in the amount of $2 million. The maturity date
     of this loan, July 1, 2009, could be extended for one year subject
     to the conditions contained in the Loan Agreement. The Loan
     No. 1 agreement contained a pacing provision which required
     borrower to sell a specified number of property lots within each
     year. The promissory note on Loan No. 1 was guaranteed by
     individual defendants Richard C. Angino and Alice K. Angino (the
     “Anginos”). Furthermore, the promissory note on Loan No. 1
     was secured by a mortgage on a property (the “Mockingbird
     Drive Property”), which was owned by defendant King Drive.

            On November 28, 2007, King Drive executed and delivered
     to Santander a Mortgage Loan Note in the amount of $3.5
     million for a second loan provided by Santander (Loan No. 2).
     On the same date, King Drive also executed and delivered to
     Santander a Line of Credit Promissory Note, in the amount of
     $750,000, for a loan provided by Santander to cover the working
     capital needs of King Drive (Loan No. 3). In addition, Loans Nos.
     2 and 3 were secured by an Unlimited Guaranty and Suretyship
     Agreement executed by the Anginos.         This agreement was
     accompanied by an “Explanation and Waiver of Rights Regarding
     Confession of Judgment,” which was executed by the Anginos.
     Pursuant to the language therein, the Anginos acknowledged
     that Santander could exercise the right to confess judgment
     against them.

           On November 28, 20[07], defendant A-La-Carte executed
     and delivered to Santander a Line of Credit Promissory Note for
     a fourth loan (“Loan No. 4”), in the amount of $750,000.
     Pursuant to the Line of Credit Promissory Note, A-La-Carte
     empowered Santander to confess Judgment against A-La-Carte
     in any court of record in Pennsylvania or elsewhere. Loan No. 4
     was also guaranteed by the Anginos under an Unlimited
     Guaranty and Suretyship Agreement dated November 28,
     20[07].     The above mentioned guaranty and suretyship
     agreement was also backed by an Explanation and Waiver of
     Rights Regarding Confession of Judgment.        Pursuant to the
     language in the waiver, the Anginos “irrevocably and

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     unconditionally” waived any immunity for themselves, their
     properties and assets, in the event of any legal suit arising under
     Loan No. 4. In addition, Loan No. 4 was also guaranteed under
     the terms of an Unlimited Guaranty and Suretyship Agreement
     executed by Angino & Rovner, P.C. (“Angino & Rovner”), a law
     firm controlled in whole or in part by individual defendant
     Richard C. Angino, Esquire.

           On July 14, 2011, Santander and defendants entered into
     a “Loan Modification Agreement.”        Pursuant to this loan
     modification, the maturity date for repayment of all loans was
     extended to December 31, 2013. In addition, defendants King
     Drive, A-La-Carte, Angino & Rovner, Richard C. Angino and Alice
     K. Angino, agreed to supplement collateral security to the loans
     with additional mortgages upon the residence and vacation home
     of the Anginos, as well as a separate parcel of land owned by
     defendants.

          On July 19, 2012, the parties entered into a “First
     Amendment to Agreement Modification of July 14, 2011.” On
     December 27, 2012, the parties entered into a Second
     Amendment to the Modification Agreement dated July 14, 2011.
     The original loan modification agreement and its two
     amendments contained warrants of attorney to confess
     judgment against each defendant in any court of record.

           On February 1, 2013, the instant defendants filed a
     complaint in the Court of Common Pleas, Berks County, against
     Santander’s predecessor in interest and two other parties. The
     complaint asserted claims which included breach of contract,
     breach of fiduciary duty and breach of the duty of good faith and
     fair dealing. On June 25, 2013, the Court of Berks County
     sustained the preliminary objections to the complaint, dismissed
     the complaint in its entirety, and granted the instant defendants
     leave to file an amended complaint. On July 11, 2013, the
     instant defendants filed an amended complaint in the Court of
     Berks County against Santander’s predecessor in interest and
     another defendant, Weir and Partners, LLP. However, the Berks
     County court found that the amended complaint offered
     allegations which were substantially similar to those asserted in
     the original complaint. Consequently, the court in Berks County




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       again sustained the preliminary objections to the amended
       complaint.   Herein defendants filed an appeal which is still
       pending before the Pennsylvania Superior Court.1

            By letter dated July 17, 2013, Santander informed the
       Anginos that they were in default for failure to pay to Santander
       $500,000 as required pursuant to the modifications to the loan
       agreements executed by the parties.         The letter gave the
       Anginos ten (10) days to cure the default. None of the instant
       defendants was able to cure.

             On March 20, 2014, Santander filed a praecipe for entry of
       judgment confession with an accompanying complaint. On April
       17, 2014, all defendants in the instant action filed a petition to
       stay, strike, order discovery, hold a hearing, and/or open
       judgment, accompanied by a memorandum of law. Santander
       timely filed a response and memorandum of law in opposition to
       the petition of defendants. On June 5, 2014, the parties met at
       an unsuccessful settlement conference chaired by a Court-
       appointed Judge pro-tempore. Subsequently, the Court held a
       hearing on July 9, 2014.

Trial Court Opinion, 7/24/14, at 1–5 (footnotes omitted). On July 24, 2014,

the trial court denied Appellants’ petition. Appellants filed a timely appeal.

       Appellants’ brief describes the issues on appeal as follows:2

       1.      Did the trial court err when Defendants requested a
              hearing and an opportunity to be heard, the trial court
              scheduled a hearing, but refused to permit Defendants to
              call witnesses or offer exhibits and limited defense counsel
              to a brief oral argument?
____________________________________________


1
    On January 18, 2015, a panel of this court affirmed the Berks County
court order sustaining the preliminary objections to Appellants’ amended
complaint. Angino, et al. v. Santander, et al, No. 489 MDA 2014 (Pa.
Super. filed January 28, 2015) (unpublished memorandum at 15). On April
2, 2015, Appellants’ petition for reargument en banc was denied.
2
    The trial court did not order Appellants to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.



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     2.   Should the Santander Confession of Judgment be opened
          based upon the meritorious defenses presented in the
          instant law suit that include identical issues in the Court of
          Common Pleas of Berks County involving the same parties
          in reverse roles, Civil Action - Law - Equity, No. 13-1563,
          under the principal of lis pendens which is currently on
          appeal to the Superior Court based upon the trial court’s
          grant of Santander’s preliminary objections to Plaintiffs
          Amended Complaint with prejudice.              The following
          meritorious issues have been raised and are pending from
          Plaintiffs’ Amended Complaint and present Defendants’
          appeal to the Superior Court including the following:

     a.   Does [there] exist a duty of good faith and fair dealing in
          the lender/lendee context in Pennsylvania in certain
          situations?

     b.   Do the factual averments in Plaintiffs’ Berks County
          Amended Complaint aver sufficient facts to present to a
          jury Santander’s violation of its duty of good faith in the
          context of Santander’s threat of foreclosure, coerced
          forebearance agreement, the terms of the forebearance
          agreement, First and Second Amendments, and refusal to
          cooperate with Defendants in obtaining refinancing and/or
          sale[s] of parcels of Defendants’ secured property and
          therefore constitute meritorious defenses in the instant
          Confession of Judgment action?

     c.   Did Santander commit a breach of contract when it
          revoked irrevocable letters of credit due to the
          Defendants?

     d.   Do the factual averments in Defendants’ Amended
          Complaint in the Berks County action and the supporting
          exhibits evidence or state a claim for breach of contract
          under the reasonable expectations doctrine?

     e.   Do the factual averments in Defendants’ Amended
          Complaint in the Berks County action and the exhibits
          evidence or state a claim for breach of contract under the
          defense of impracticability?




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      f.    Do the factual averments in Defendants’ Amended
            Complaint in the Berks County action and the exhibits
            evidence or state a claim for breach of contract under the
            defense of waiver or estoppel?

      g.    Do the factual averments in Defendants’ Amended
            Complaint in the Berks County action and the exhibits
            evidence or state a claim for breach of contract under the
            tort of civil conspiracy?

      h.    Do the factual averments in Defendants’ Amended
            Complaint in the Berks County action and the exhibits
            evidence or state a claim for breach of contract under the
            tort of defamation?

      i.    Do the factual averments in Defendants’ Amended
            Complaint in the Berks County action and the exhibits
            evidence or state a claim for breach of contract under the
            tort of fraud?

Appellants’ Brief at 5–6 (verbatim).

      Appellants’ argument that the trial court erred in denying them a

hearing on the merits of their petition to open judgment because they were

not permitted to call witnesses, offer exhibits, or produce evidence, is

impossible to evaluate. What is known is that the trial court held a hearing

on Appellants’ motion on July 9, 2014. Appellants did not file any discovery

requests prior to the hearing. The record does not indicate that Appellants

requested that the hearing be transcribed. More importantly, the record on

appeal does not include a transcript of the hearing as required by the

Pennsylvania Rules of Appellate        Procedure.   See Pa.R.A.P. 1911(a)

(announcing general rule that Appellant shall request any transcript required

for appeal) and Pa.R.A.P. 1921 (the transcript of proceedings, inter alia,



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shall constitute the record on appeal). Nor did Appellants attempt to comply

with the procedure outlined in Pa.R.A.P. 1923 regarding statements in

absence of transcript. Without a transcript we are unable to determine what

transpired at the hearing.         We cannot discern whether a request for an

expanded hearing was presented, or the trial court’s response, if any, to

such a request.      Since the record in this case does not contain the facts

necessary to evaluate the validity of Appellants’ argument on this issue, we

cannot consider it on appeal. Conner v. Daimler Chrysler Corp., 820 A.2d

1266, 1273 (Pa. Super. 2003).3

       Appellants also argue that the trial court erred in denying their petition

to open the judgment.          A petition to open the judgment is governed by

Pa.R.C.P. 29594 and is an appeal to the equitable powers of the court.

____________________________________________


3
   In its Memorandum Opinion denying Appellants’ motion, the trial court did
not specifically address whether it met its obligation concerning the extent of
the hearing it conducted on Appellants’ petition. The trial court, however,
observed in a footnote that:

       ‘in the context of a judgment confessed . . . the hearing required
       to comport with due process means simply an opportunity to be
       heard; it does not require a proceeding comparable to a full trial,
       but may be satisfied by other procedural opportunities to be
       heard, such as a petition to open judgment . . . .’

Trial Court Opinion, 7/24/14, at 5 n.17 (quoting Dollar Bank, Federal
Savings Bank v. Northwood Cheese Co., Inc., 637 A.2d 309, 313 (Pa.
Super. 1994)) (citation omitted).
4
    Rule 2959 provides generally that:

(Footnote Continued Next Page)


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Crum v. F.L. Shaffer Co., 693 A.2d 984, 986 (Pa. Super. 1997). As such,

it is committed to the court’s sound discretion.         PNC Bank v. Kerr, 802

A.2d 634, 638 (Pa. Super. 2002).             Relief may be granted only where the

petitioner presents evidence of a meritorious defense that is “clear, direct,

precise, and believable.”         Germantown Savings Bank v. Talacki, 657

A.2d 1285, 1289 (Pa. Super. 1985) (citation omitted). The burden rests on

the party against whom judgment was confessed to disprove the facts

contained within the confession of judgment. Davis v. Woxall Hotel, Inc,

577 A.2d 636, 638 (Pa. Super. 1990).              Ordinarily, an order denying the

petition will not be disturbed absent a manifest abuse of the trial court’s

discretion.   Smith v. Friends Hospital, 928 A.2d 1072, 1074 (Pa. Super.

2007).

      Appellants contend that the confession of judgment entered should be

opened under the principle of lis pendens in that the meritorious defenses

presented in this action encompass the identical issues litigated in the Berks

                       _______________________
(Footnote Continued)

         (a)(1) Relief from a judgment by confession shall be sought
      by petition. Except as provided in subparagraph (2), all grounds
      for relief whether to strike off the judgment or to open it must
      be asserted in a single petition. The petition may be filed in the
      county in which the judgment was originally entered, in any
      county to which the judgment has been transferred or in any
      other county in which the sheriff has received a writ of execution
      directed to the sheriff to enforce the judgment.

Pa.R.C.P. 2959.




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County action that Appellants initiated against Santander.         These issues

include:   1) the existence of a duty of good faith and fair dealing in the

lender-borrower context; 2) whether Santander breached this duty; 3)

Santander breached a contract when it revoked lines of credit; 4) breach of

contract under reasonable expectations doctrine; 5) breach of contract under

defense of impracticability; 6) breach of contract under defense of waiver or

estoppel; 7) breach of contract under tort of civil conspiracy; 8) breach of

contract under tort of defamation; and 9) breach of contract under tort of

fraud. Appellants’ Brief at 5–6.

      In Pennsylvania, “[w]hen two lawsuits are pending, the common law

doctrine of lis pendens permits the dismissal of the newer suit if both suits

involve the same parties, the same relief requested, the same causes of

action, and the same rights asserted.” Barren v. Commonwealth, 74 A.3d

250, 253 (Pa. Super. 2013). Additionally, “an abeyance may be appropriate

even where the petitioner cannot strictly meet the above-referenced test if

the two actions would ‘create a duplication of effort on the part of the parties

and waste judicial resources by requiring two courts of common pleas to

litigate a matter that in all likelihood could be fully addressed in one forum.’”

PNC Bank, National Association v. Bluestream Technology, Inc., 14

A.3d 831, 835 (Pa. Super. 2010) (quoting Norristown Automobile Co.,

Inc. v. Hand, 562 A.2d 902, 905 (Pa. Super. 1989)).




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      Although we review a trial court’s order denying a petition to open for

abuse of discretion, we review de novo whether lis pendens operates as a

meritorious defense. Id., 14 A.3d at 835. The trial court determined that

Appellants could not rely on lis pendens to open the judgment because the

case before it did not involve two pending actions:            “Santander’s instant

judgment by confession is not a pending lawsuit but a mere ministerial act

performed by the Office of the Prothonotary, whose duty is to merely enter

the judgment by confession in accordance with the Pennsylvania Rules of

Civil Procedure.”       Trial Court Opinion, 7/24/14, at 11 (citation omitted).

While on its face a judgment of confession is an administrative function,

when Appellants filed a petition to open this judgment, the proceeding was

converted   into    a    lawsuit.   Therefore,   the   trial   court   erred   in   its

characterization of the entry of the judgment of confession as a clerical task

and in rejecting Appellants’ lis pendens argument on this basis.

      Nevertheless, we conclude that Appellants’ lis pendens argument is

unavailing because it is moot. On January 28, 2015, the panel in Appellants’

appeal of the Berks County case issued a decision affirming the trial court’s

order sustaining Santander’s preliminary objections to Appellants’ complaint.

Angino, et al. v. Santander, et al, No. 489 MDA 2014 (Pa. Super. filed

January 28, 2015) (unpublished memorandum at 15). On April 2, 2015,

Appellants’ petition for reargument before this Court en banc was denied.




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Thus, there is no pending lawsuit implicating application of lis pendens

principles.

       An additional consideration is that the panel in Angino, et al. v.

Santander, et al., addressed and rejected each of the defenses raised by

Appellants in this appeal. Angino, slip op. at 7–15. Accordingly, it is not

within our province to adjudicate the merits of the defenses raised by

Appellants.     It is beyond the power of a panel of the Superior Court to

overrule a prior decision of the Superior Court.          Commonwealth v.

Hull, 705 A.2d 911, 912 (Pa. Super. 1998) (citations omitted).5

       Accordingly, we affirm the order of the trial court, albeit for different

reasons. Order affirmed.




____________________________________________


5
    Appellants also presented a one-paragraph argument that venue in the
Philadelphia County Court of Common Pleas was improper. This issue is
waived because it was not put forth in Appellants’ statement of questions
involved nor was it developed in any meaningful manner. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby”); Banfield v.
Cortes, ___ A.3d ___, 2015 WL 668060, *18, 83 MAP 2013 (Pa. 2015)
(filed February 17, 2015) (where appellate brief fails to develop issue in any
meaningful fashion capable of review, claim is waived).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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