J-S42021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TAMARA L. HECKMAN                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHARLES R. ADDISON AND TAMMY D.
ADDISON, HIS WIFE

                            Appellants                No. 1393 WDA 2015


                     Appeal from the Order August 26, 2015
             In the Court of Common Pleas of Westmoreland County
                      Civil Division at No(s): 3753 of 2014


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED AUGUST 3, 2016

        Charles R. Addison and Tammy D. Addison, his wife (“the Addisons”),

appeal from the order entered August 26, 2015, in the Westmoreland

County Court of Common Pleas, denying their “Petition for a Rule to Show

Cause Why the Court Should Open a Judgment Entered by Confession, Order

a Hearing, Stay a Sheriff’s Sale and Stay All Proceedings” (Petition). 1 The

Addisons raise five issues that can be distilled to the following three claims:

(1) the trial court erred in upholding the confession of judgment in

ejectment in favor of Tamara L. Heckman based upon its reasoning in a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 We note that despite the convoluted name, the Petition was essentially a
petition to open. The trial court’s order denying the petition is immediately
appealable. See Pa.R.A.P. 311(a)(1).
J-S42021-16



related action, Docket No. 1823 of 2014, because that action was

adjudicated in the absence of an indispensable party; (2) the Installment

Land Contract at issue is illegal under Act 6 of 1974, and (3) if this Court

does not reverse the trial court’s order, this Court should remand to amend

the Petition.   For the reasons set forth below, we affirm the trial court’s

order.

      This appeal arises from an Installment Land Contract between the

parties for $550,000.00, whereby Heckman conveyed to the Addisons

approximately 51 acres of land, including a house, barn and other

outbuildings.    See Complaint for Confession of Judgment, 7/30/2014,

Exhibits A (Installment Land Contract, 5/1/2012) and Exhibit B (property

description (Exhibit A of Installment Land Contract)).   The Installment Land

Contract contains a confession of judgment clause allowing Heckman to eject

the Addisons from the property in the event of default prior to the entire

payment.   See id., Exhibit A (Installment Land Contract, 5/1/2012, at 6–7).

On July 30, 2014, Heckman filed a complaint in confession of judgment in

ejectment against the Addisons.       Thereafter, on September 22, 2014,

Heckman filed a writ of possession.




                                      -2-
J-S42021-16



       On October 24, 2014, the trial court was presented with the Addisons’

Petition.   See Order, 10/27/2014.2,           3
                                                   The Petition alleged the Installment

Land Contract was formed based on fraud and mutual mistake. On October

27, the trial court issued a rule upon Heckman to show cause why the

Addisons were not entitled to relief, set a hearing date for February 19,

2015, and ordered the Petition would be decided under Pa.R.C.P. 206.7

(“Procedure After Issuance of Rule to Show Cause”). On November 6, 2014,

Heckman filed a “Response to a Rule Issued on Plaintiff to Show Cause Why

Defendant is Not Entitled to Relief Requested,” and an “Answer to Petition

for Rule to Show Cause and New Matter.”                  Subsequently, on January 9,

2015, the trial court granted the Addison’s attorneys’ motion to withdraw

from representation, granted the Addison’s 30 days to obtain new counsel,

and extended all deadlines to February 27, 2015. On March 25, 2015, the
____________________________________________


2
  The Addisons’ Petition was time-stamped as filed November 19, 2014.
However, the trial court’s October 27, 2014 order indicates the court was
presented with the Addisons’ Petition on October 24, 2014.
3
  The Addisons presented their Petition to the trial court after the 30-day
period set forth in Pa.R.C.P. 2959(a)(3). On August 18, 2014, the Addisons
signed a return receipt card of service of the confession of judgment and
notice under Pa.R.C.P. 2958.1, but presented their Petition to the trial court
beyond the 30-day deadline, on October 24, 2014

     The Addisons’ Petition averred that the Petition “was timely presented
due to the court’s assignment of four different Judges to this matter and
because of the illness of [Addison’s] counsel.”          Addisons’ Petition,
1/19/2014, at 8, ¶ 32. The trial court addressed the Addisons’ Petition on
the merits, and did not make findings regarding timeliness.




                                           -3-
J-S42021-16



trial court issued an order directing, inter alia, that the Addisons’ counsel

enter his appearance on or before April 16, 2015, and that any party may

file a brief or memorandum of law on or before April 16, 2015. The Addisons

filed a Reply to Heckman’s Response on April 16, 2015.

       On August 20, 2015, the trial court denied the Petition based on its

reasoning in a related action between the parties at Docket No. 1823 of

2014, instituted by the Addisons.4 The trial court explained:

       The present matter concerns a Confession of Judgment with
       regard to an Installment Land Contract that was entered into
       between the parties on May 1, 2012. In a related case, at Docket
       No. 1823 of 2014, this Court, in its August 19, 2015 Order of
       Court, granted Judgment on the Pleadings in favor of
       [Defendants, Christopher F. Heckman, III, and Tamara L.
       Heckman], ruling that the same Installment Land Contract was
       the final and controlling document between the parties, and that
       [Plaintiffs, Charles R. Addison and Tammy D. Addison] could not
       prevail on a claim for fraud with regard to the execution of said
       Contract. As to the present matter, after a review of the
       pleadings, and with the Court finding that the present Petition
       for Rule to Show Cause involves similar issues to the related
       case at Docket No. 1823 of 2014, including the allegation of
       fraud, the Court finds that [Addisons’] Petition for a Rule to
       Show Cause Why the Court Should Open a Judgment Entered by
       Confession, Order a Hearing, Stay a Sheriffs Sale and Stay All
       Proceedings is hereby DENIED.

       The Court determined in the August 19, 2015 Order of Court at
       Docket No. 1823 of 2014 that the Installment Land Contract
____________________________________________


4
  We note Docket No. 1823 of 2014 involved the parties herein and
Heckman’s husband, Christopher F. Heckman, III, as a defendant, and was
appealed to this Court at 1391 WDA 2015. The appeal was quashed on
December 14, 2015 because counter-claims were still pending.        See
Addison v. Heckman, No. 1391 WDA 2015.




                                           -4-
J-S42021-16


       between the parties is the final, binding, and controlling
       document with regard to the subject property. Accordingly, this
       Court has determined that the reasoning and analysis set forth
       in said Order of Court is applicable to the legal and factual issues
       raised in the present matter.

Trial Court Order, 8/20/2015 at 2-3; Amended Order, 8/26/2015.5               This

appeal followed.6

       The Addisons present five issues for this Court’s review:

       1. Whether the order upholding the confession of judgment must
       be reversed, when the common pleas court relied on a decision
       in a related case confirming the validity of an installment land
       sale contract that was litigated in the absence of an owner of the
       property?

       2. Whether the absent landowner of the property that was the
       subject of an installment land sale contract, Charles Williams,
       was an indispensable party?

       3. Whether the common pleas court erred by upholding the
       confession of judgment, when it relied upon a decision in a
       related case where it did not have subject matter jurisdiction due
       to the absence of an indispensable party?

       4. Whether the confession of judgment provision of the
       installment land contract is illegal under Act 6 of 1974, 41 P.S. §
       407, when it involves land that contains the Addisons[’] sole
       residence, and when the installment land contract purports to
       waive Act 6?

       5. Whether, as an alternative to reversal, the Superior Court
       should grant the [Addisons’] application for relief in the nature of


____________________________________________


5
  The trial court did not attach its decision in the action at Docket No. 1823
of 2014 to its orders in this case.
6
  The trial court did not enter an order directing the filing of a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).



                                           -5-
J-S42021-16


       a motion to remand, in order to permit the amendment of the
       pleadings and the assertion of new defenses?[7]

The Addisons’ Brief at 8-9.

       At the outset, we state our standard of review:

       We review the order denying [a]ppellant’s petition to open the
       confessed judgment for an abuse of discretion.

           Judicial discretion requires action in conformity with law
           on facts and circumstances before the trial court after
           hearing and consideration. Consequently, the court
           abuses its discretion if, in resolving the issue for decision,
           it misapplies the law or exercises its discretion in a
           manner lacking reason.

       The trial court may open a confessed judgment if the petitioner
       (1) acts promptly, (2) alleges a meritorious defense, and (3) can
       produce sufficient evidence to require submission of the case to
       a jury.

Neducsin v. Caplan, 121 A.3d 498, 506 (Pa. Super. 2015) (emphasis

removed) (citations omitted).

       Relevant to this appeal, the Pennsylvania Rules of Civil Procedure state

in relevant part: “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


____________________________________________


7
  On February 2, 2016, the Addisons filed an “Application for Relief in the
Nature of a Motion for Remand or in the Alternative a Motion for
Enlargement for Time to File Appellants’ Brief and Reproduced Record” in
this Court. On February 3, 2016, this Court granted the Addisons’ request for
an extension of time to file the brief and reproduced record. See Order,
2/3/2016.



                                           -6-
J-S42021-16



petition.” Pa.R.C.P. 2959(a)(1). “A party waives all defenses and objections

which are not included in the petition or answer.” Pa.R.C.P. 2959(c).

      The first three issues raised herein relate to a third party, Charles

Williams. See Addisons’ Brief at 8. The Addisons claim they discovered that

Williams had an ownership interest in the land subject to the Installment

Land Contract in January of 2016, after this appeal was filed. Id. at 14-15.

The Addisons maintain that Williams is an indispensable party who was not

involved in the action at Docket No. 1823 of 2014.         Id. at 21-23.    The

Addisons argue the trial court, in adjudicating the action at Docket No, 1823

of 2014, “held, without the involvement of Charles Williams or knowledge of

his existence, that the Installment Land Contract constituted the entire final,

controlling agreement of the parties [and] never considered the impact of

Williams’ absence on its jurisdiction or on the validity of the Installment Land

Contract.” Id. at 22. The Addisons assert that, in the present case, the trial

court erred “by upholding the confession of judgment, when the judgment

was taken pursuant to an Installment Land Contract that purported to sell

land to the Addisons[] without the involvement of an owner, who is an

indispensable party.” Id. at 24.

      The Addisons’ argument is unavailing. The issue of Williams’ interest

in the land subject to the Installment Land Contract, since it was discovered

only after this appeal was taken, was never litigated or decided by the trial

court. Because the Addisons did not include any issue regarding Williams in

their Petition, they may not appeal the trial court’s denial of the Petition on

                                     -7-
J-S42021-16



that basis. See Pa.R.C.P 2959(c); Stahl Oil Company, Inc. v. Helsel, 860

A.2d 508, 515 (Pa. Super. 2004), appeal denied, 885 A.2d 43 (Pa. 2005)

(arguments raised which are not included in petition to strike/open are

waived). Additionally, “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Therefore,

we are precluded from deciding Addisons’ claims related to Williams.

      In the Addisons’ fourth issue, they claim the confession of judgment

clause in the Installment Land Contract is illegal. See Addisons’ Brief at 24-

28.   Specifically, the Addisons claim the contract involves “residential real

property,” and as such, the provisions of Act 6 of 1974, specifically, 41 P.S.

§§ 407 and 408, “limit[] the use of confessions of judgment on residential

property and proscribe[] waiver of the statute.” Id. at 18; see also 28-30.

The Addisons maintain, “although the Addisons did not raise this defense

below, the issues of illegality of a contract and violation [of] public policy are

not waived if a party failed to invoke them.” Id. at 24 (citation omitted).

      Here, however, the Addsions do not argue that the Installment Land

Contract is illegal based on issues already presented to the trial court.

Rather, the Addisons claim in this appeal that the real property in question is

“residential.”   Heckman counters that the real property is “commercial.”

See Heckman’s Brief at 16–17, 19. As this issue was not raised in the trial

court, the trial court made no determination as to the nature of the property

underlying the Installment Land Contract.           Therefore, similar to the



                                      -8-
J-S42021-16


Addisons’ first three issues, the Addisons’ fourth claim is unavailing.     See

Pa.R.C.P. 2959(c), Pa.R.A.P. 302(a).

      Lastly, the Addisons ask this Court to remand this case with leave to

amend the Petition to aver the newly discovered evidence involving, inter

alia, Williams’ ownership interest in the land subject to the Installment Land

Contract.   See Addison’s Brief at 31–32. However, in light of this Court’s

order of February 3, 2016, this issue is moot.

      In sum, in the present case, the Addisons fail to make a claim that the

trial court erred in its decision to deny its Petition based on the facts and

issues presented in the Petition itself. Accordingly, we affirm the trial court’s

order denying the Addisons’ Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2016




                                      -9-
