J-A18004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMPLETE BUSINESS SOLUTIONS                      IN THE SUPERIOR COURT
 GROUP, INC.                                         OF PENNSYLVANIA

                             Appellant

                        v.

 ROYAL METALS GROUP, INC. AND
 CHELSEA GLESS AND JOHN T. CLARK

                             Appellees               No. 462 EDA 2018


                Appeal from the Order Entered January 16, 2018
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No: 03318 September Term, 2017


BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 15, 2018

       Appellant, Complete Business Solutions Group, Inc. (“CBSG”), appeals

from the January 16, 2018 order entered in the Court of Common Pleas of

Philadelphia County, granting the petition to strike its confession of judgment

entered against Appellees, Royal Metals Group, LLC (“RMG”), Chelsea Gless

(“Gless”), and John T. Clark (“Clark”) (collectively “Appellees”). Upon review,

we affirm.




____________________________________________


* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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      By way of background, the parties entered into two Factoring

Agreements in 2017, with CBSG purchasing RMG’s receivables.         Gless and

Clark acted as guarantors for the agreements.       The agreements included

confession of judgment clauses and provided that Pennsylvania law applied.

      On September 27, 2017, CBSG filed and served a complaint requesting

entry of judgment by confession in the amount of $403,599.86 plus interest

and costs. Judgment was entered and, on October 31, 2017, CBSG filed a

writ seeking garnishment of Appellees’ bank accounts. On December 5, 2017,

Appellees filed a motion to strike, or alternatively, open, the confession of

judgment and stay execution proceedings. The trial court issued a rule to

show cause why the judgment should not be stricken or opened. CBSG filed

a response contending, inter alia, that Appellees’ petition should be denied

because it was filed outside the 30-day time limit for filing a petition

unsupported by compelling reasons for delay.

      By order entered on January 16, 2017, the trial court granted Appellees’

petition to strike and directed that the judgment entered by confession be

stricken. This timely appeal followed. The trial court did not direct CBSG to

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The

trial court did issue an opinion in conjunction with its order and subsequently

issued a Rule 1925(a) opinion indicating that the reasons for granting the

petition were set forth in the January 16, 2018 memorandum opinion, which

it incorporated by reference.


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      In its brief filed with this Court, CBSG lists five issues for our

consideration:


      A. Did the trial court abuse its discretion in striking this judgment
         in claiming that the judgment was void or voidable?

      B. Did the trial court commit a legal error in striking this judgment
         in claiming that the judgment was void or voidable?

      C. Does failure to include a statement outlined in Pa.R.Civ.P.
         2952(a)(5) constitute a fatal flaw in a confession of judgment
         where the petition to strike does not allege prejudice due to
         the failure to include said statement?

      D. Did the court abuse its discretion or commit a legal error in
         completely ignoring the 30-day time limitation placed by
         Pa.R.Civ.P. 2959 for the filing of a petition to open/strike,
         where the filing party only did so after it was subject to bank
         account garnishments and it had the benefit of legal counsel
         well before the 30[-]day time limit?

      E. Given the court’s finding of the specified errors statement in
         the trial judge’s opinions, would opening the judgment have
         been the proper legal option[?]

Appellant’s Brief at 5 (some capitalization omitted).

      Although CBSG identified five issues in its Statement of Questions

Involved, its Argument section is divided into only two sections as follows:

      I.    The court erred striking a judgment served upon Appellees
            three months prior to their filing a motion to strike[.]

      II.   The court erred finding that there was a “fatal error” in the
            complaint in confession of judgment making it a void
            judgment[.]




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Appellant’s Brief at 9, 12.1

       We review a trial court’s ruling on a motion to strike or open a confessed

judgment for an abuse of discretion or error of law. See, e.g., Ferrick v.

Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013). As this Court explained in

Neducsin v. Caplan, 121 A.3d 498 (Pa. Super. 2015):

       “A petition to strike a judgment is a common law proceeding which
       operates as a demurrer to the record. A petition to strike a
       judgment may be granted only for a fatal defect or irregularity
       appearing on the face of the record.” Resolution Trust Corp. v.
       Copley Qu–Wayne Associates, 546 Pa. 98, 106, 683 A.2d 269,
       273 (1996).

          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. 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. . . . An order of the court striking a judgment
          annuls the original judgment and the parties are left as if no
          judgment had been entered.

       Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa. Super. 2011) (quoting
       Resolution Trust Corp., supra). In other words, the petition to
       strike a confessed judgment must focus on any defects or
       irregularities appearing on the face of the record, as filed by the
       party in whose favor the warrant was given, which affect the
       validity of the judgment and entitle the petitioner to relief as a
       matter of law. ESB Bank v. McDade, 2 A.3d 1236, 1239 (Pa.
       Super. 2010). “[T]he record must be sufficient to sustain the
       judgment.” Id. The original record that is subject to review in a
       motion to strike a confessed judgment consists of the complaint
____________________________________________


1We remind counsel for CBSG that “[t]he argument shall be divided into as
many parts as there are questions to be argued[.]” Pa.R.A.P. 2119(a).



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      in confession of judgment and the attached exhibits. Resolution
      Trust Corp., supra at 108, 683 A.2d at 274.

      In contrast, “if the truth of the factual averments contained in [the
      complaint in confession of judgment and attached exhibits] are
      disputed, then the remedy is by proceeding to open the
      judgment,” not to strike it. Id. at 106, 683 A.2d at 273.

Id. at 504.

      In its first issue, CBSG complains that the trial court erred by striking a

judgment that was served on Appellees three months before they filed the

motion to strike. CBSG relies on the language of Pa.R.C.P. 2959 (Striking Off

or Opening Judgment), and in particular Rule 2959(a)(3), which provides: “(3)

If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2)

or Rule 2973.1(c), the petition shall be filed within thirty days after such

service. Unless the defendant can demonstrate that there were compelling

reasons for the delay, a petition not timely filed shall be denied.”

      Here, service was effected on September 27, 2017 and the petition to

strike was filed on December 5, 2017. Therefore, the petition clearly was not

filed within the 30-day period.

      Appellees argued in their petition to strike that CBSG failed to comply

with the requirements for confession of judgment set forth in Pa.R.C.P.

2952(a)(5); therefore, the judgment was void.         In accordance with Rule

2952(a), a complaint for confession of judgment “shall contain the following:

. . . (5) either a statement that judgment has not been entered on the




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instrument in any jurisdiction or if it has been entered an identification of the

proceedings.”

      As the trial court recognized, “A review of the record shows no evidence

that [CBSG] filed such a statement.      In the response in opposition to the

petition to strike, [CBSG] generally denies [Appellees’] averment, yet

attempts to rectify the afore-mentioned omission by stating that ‘this is the

only filing related to the Agreements between the parties.’”         Trial Court

Opinion, 1/16/18, at 2 (quoting CBSG’s response in opposition to strike at

¶ 28.)

      The trial court continued, quoting US Bank N.A. v. Mallory, 982 A.2d

986 (Pa. Super. 2009), in which this Court explained:

      [In Pennsylvania,] when deciding if there are fatal defects on the
      face of the record for the purposes of a petition to strike a
      judgment, a court may only look at what was in the record when
      the judgment was entered. . . . [W]here a fatal defect or
      irregularity is apparent from the face of the record, the
      prothonotary will be held to have lacked the authority to enter
      default judgment and the default judgment will be considered
      void.

Trial Court Opinion, 1/16/18, at 2 (quoting Mallory, 982 A.2d at 991).

      Further, “[t]he validity of a confession of judgment requires strict

compliance with the Rules of Civil Procedure as well as rigid adherence to the

provisions of the warrant of attorney. Absent such compliance a confession

of judgment cannot stand.” Id. at 3 (ellipses omitted) (quoting First Union

Nat. Bank v. Portside Refrigerated Services., Inc., 827 A.2d 1224, 1231

(Pa. Super. 2003)).

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      CBSG notes that Rule 2959 was amended in 1996. Prior to that time,

under the common law, confessed judgments could be stricken or opened if

the application was filed within “a reasonable time,” based on the doctrine of

laches. Appellant’s Brief at 10. However, following the 1996 amendment,

setting a 30-day time limit for filing the petition, our courts have made it clear

that an untimely petition to strike must be dismissed. Id. at 10-11 (citations

omitted).

      In support of this proposition, CBSG cites, inter alia, M & P

Management, L.P. v. Williams, 937 A.2d 398 (Pa. 2007). Appellant’s Brief

at 11. M & P Management does not support CBSG’s position and, in fact,

defeats it. In that case, our Supreme Court recognized that “a void judgment

is a mere blur on the record, and which it is the duty of the court of its own

motion to strike off, whenever its attention is called to it.” Id. at 401 (quoting

Romberger v. Romberger, 139 A. 159, 160 (Pa. 1927)). The Court noted

that both amended Rule 2959 and the comments to the rule are “silent as to

any intent to overturn the common law rule” and that the “silence could be

interpreted to mean that the new time limitation is applicable to all confessed

judgments, whether void, voidable, or valid.       However, there are good

reasons to believe that it cannot apply to void judgments.” Id. at 401

(emphasis added).     As the Court explained:

      [A] void judgment is one that the court does not have the power
      to enter. It cannot become valid through the lapse of time.
      Comm. ex rel. Penland v. Ashe, 341 Pa. 337, 341, 19 A.2d 464,
      466 (1941) (“It is certainly true that a void judgment may be

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      regarded as no judgment at all; and every judgment is void, which
      clearly appears on its own face to have been pronounced by a
      court having no jurisdiction or authority in the subject matter.”).
      While the instant case raises this question in a context where there
      is serious question as to the status of the confessed judgment,
      i.e., whether it is void, voidable or valid, a different example
      makes this clear. If a confessed judgment is mistakenly entered
      against a person who never had any relationship with the
      judgment holder, it would be absurd to believe that that
      judgment, with no basis in law or fact, becomes valid merely
      because notice was given and thirty days elapsed. Although M & P
      is correct in asserting that providing finality to judgments is a
      worthy goal, one that we agree is achieved for valid and voidable
      judgments through the 1996 amendments to Pa.R.C.P. 2959, we
      cannot provide finality to a judgment when a court lacked subject
      matter jurisdiction over the underlying dispute. Void judgments
      are to be treated in the same way that they were treated at
      common law, i.e., at any time that a void judgment is brought to
      the attention of the court, it must be stricken.

Id. at 401-02 (citations omitted).

      The trial court concluded that CBSG’s judgment was void. “In brief, the

record of [CBSG’s] confession of judgment is fatally flawed because [CBSG]

failed to file a statement that judgment has not been previously entered as

required under Pa.R.C.P. No. 2952(a)(5). [CBSG] never suppled this

statement even though [CBSG] supplemented its record to address other

defects.” Rule 1925(a) Opinion, 3/12/18, at 1-2. We agree. Because the

judgment entered on September 27, 2017 was void, Appellees’ petition filed

on December 5, 2017 was not subject to Rule 2952(a)(5)’s 30-day time

limitation and the trial court neither committed error of law nor abused its

discretion by striking the judgment. CBSG’s first issue fails.




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      CBSG next argues that the trial court erred in finding a “fatal error” in

the complaint for confession of judgment. CBSG maintains the error could

have been cured by amendment. Appellant’s Brief at 12 (citing George H.

Althof, Inc. v. Spartan Inns of America, Inc., 441 A.2d 1236, 1237-38

(Pa. Super. 1982)). However, Althof involved a technical defect, i.e., the lack

of a verification. By contrast, the complaint filed in the instant case lacked a

representation that was required to be included in a complaint for judgment

by confession, “either a statement that judgment has not been entered on the

instrument in any jurisdiction or if it has been entered an identification of the

proceedings.” Pa.R.C.P. 2952(a)(5).

      The trial court’s finding of a fatal error in the complaint is supported by

this Court’s similar holding in Dime Bank v. Andrews, 115 A.3d 358 (Pa.

Super. 2015), which involved a complaint that failed to include an averment

required by Pa.R.C.P. 2952(a)(6). This Court determined:

      Rule of Civil Procedure 2952 provides, in relevant part, that a
      complaint in confession of judgment based upon an agreement
      that subjects confession of judgment proceedings to a condition
      precedent must include “an averment of the default or of the
      occurrence of the condition precedent.” Pa.R.C.P. 2952(a)(6). At
      a minimum, our case law suggests strongly that a failure to aver
      the occurrence of a condition precedent, when, as here, the
      agreement under which judgment is confessed establishes such a
      condition, is an irremediable defect, obviating any obligation of
      the party against whom judgment has been entered to establish
      prejudice.

Id. at 365-66 (citations omitted). See also ESB Bank v. McDade, 2 A.3d at

1244 (trial court erred in failing to strike confessed judgment for a fatal defect


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appearing on the face of the record where complaint, in contravention of Rule

2952(a), failed to identify residential mortgages, attach documentation, or

state that McDade was in default of those loans).

      We conclude the trial court did not err in finding a fatal error in CBSG’s

complaint. CBSG’s second issue fails for lack of merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/18




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