J-S42020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W&M HI ACRE STABLES, INC                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ADDISON HI ACRE STABLES, LLC

                            Appellant                 No. 1392 WDA 2015


                 Appeal from the Order Entered August 26, 2015
             In the Court of Common Pleas of Westmoreland County
                     Civil Division at No(s): No. 4158 of 2014


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

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

        Addison Hi Acre Stables, LLC1 (“Addison”) appeals from the order

entered August 26, 2015, in the Westmoreland County Court of Common

Pleas, denying its “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).2     Addison claims the trial court

erred in upholding the confession of judgment in favor of W&M Hi Acre


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Addison Hi Acre Stables, LLC, is owned by Charles R. Addison and Tammy
D. Addison. See Petition, 11/19/2014, at ¶1.
2
  We note that despite the convoluted name, the Petition is essentially a
petition to open. The trial court’s order denying the petition is immediately
appealable. See Pa.R.A.P. 311(a)(1).
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Stables, Inc. (“W&M”)3, based upon its reasoning in a related action, Docket

No. 1823 of 2014, because that action was adjudicated in the absence of an

indispensable party. In addition, Addison asks this Court to remand to

amend the Petition.        For the reasons set forth below, we affirm the trial

court’s order.

       This appeal arises from an Installment Note that was security for an
                                                                                   4, 5
Asset Purchase Agreement between Addison and W&M for $50,000.00.

The Installment Note contains a clause providing for confession of judgment

in the event of default. On August 25, 2014, W&M filed a complaint in

confession of judgment against Addison in the amount of $52,500.00, which

included $2,500.00 for attorney fees.

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

Petition. See Order, 10/27/2014.6,         7
                                               Addison’s Petition alleged a confession
____________________________________________


3
  The President of W&M is Tamara L. Heckman. See W&M’s Confession of
Judgment, 8/25/2014 (Verification).
4
   The Installment Note is contained in the certified record. The Asset
Purchase Agreement is not part of the certified record.
5
   See Installment Note, 5/1/2012 (W&M’s Complaint Confession of
Judgment, 8/25/2014, Exhibit A); W&M’s Response to a Rule Issued on
Plaintiff to Show Cause Why Defendant is Not Entitled to Relief Requested,
11/6/2014, at 2 (unnumbered); W&M’s Answer to Petition for Rule to Show
Cause and New Matter, 11/6/2014; Addison’s Reply to Response to a
Petition and Rule of the Plaintiff, 4/16/2015, at ¶5.
6
  Addison’s Petition was time-stamped as filed November 19, 2014.
However, the trial court’s October 27, 2014 order indicates the court was
presented with Addison’s Petition on October 24, 2014.



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of   judgment    in    a   separate     Installment   Land   Contract,   claimed   the

Installment Land Contract was formed based on fraud and mutual mistake,

and referenced an action at Docket No. 1823 of 2014.8               On October 27,

2014, the trial court issued a rule upon W&M to show cause why Addison

was 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, W&M 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 Addison’s attorneys’ motion to withdraw from representation,

granted Addison 30 days to obtain new counsel, and extended all deadlines

to February 27, 2015. On March 25, 2015, the trial court issued an order
                       _______________________
(Footnote Continued)
7
  Addison presented its Petition to the trial court after the 30-day period set
forth in Pa.R.C.P. 2959(a)(3). On September 10, 2014, Addison signed a
return receipt card of service of confession of judgment and notice under
Pa.R.C.P. 2958.1, but presented its Petition to the trial court beyond the 30-
day deadline, on October 24, 2014.

      Addison’s 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.” Addison’s Petition, 1/19/2014, at 8,
¶32. The trial court addressed Addison’s Petition on the merits, and did not
make findings regarding timeliness.
8
 The Installment Land Contract is not part of the certified record. Addison’s
Petition states that the Installment Land Contract is attached as Exhibit A,
but is not attached to the Petition. See Addison’s Petition, 11/19/2014, at
¶3.



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directing, inter alia, that Addison’s 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. Addison filed a Reply to W&M’s Response on April

16, 2014.

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

reasoning in the related action at Docket No. 1823 of 2014.9 The trial court

explained:

       The present matter concerns a Confession of Judgment with
       regard to an Installment Note 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 an
       Installment Land Contract, entered into on the same day and
       under the same circumstances as the Installment Note, was the
       final and controlling document between the parties, and that
       [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 [Addison’s] 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 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
____________________________________________


9
  We note No. 1823 of 2014 involved the parties herein in their individual
capacities, as well as Heckman’s husband, Christopher F. Heckman, III, 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.



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       between the parties is the final, binding, and controlling
       document with regard to the subject property. Similarly, the
       Installment Note was entered into under the same
       circumstances, on the same day, and signed by the same
       parties, and the Court finds that therefore, it is the final and
       controlling document with regard to this matter for the same
       reasons as set forth in the August 19, 2015 Order of Court at
       Docket 1823 of 2014. 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, 8/26/2015.10             This

appeal followed.11

       Addison presents two issues for this Court’s review:

       Whether the order upholding the confession of judgment should
       be vacated, when the common pleas court relied on a related
       decision confirming the validity of an installment land sale in
       which it lacked subject matter jurisdiction due to the absence of
       an indispensable party?

       Whether [Addison]’s motion to remand should be granted, when
       [Addison] wishes to amend the pleadings to aver material,
       relevant facts based on after-discovered evidence and raise
       meritorious defenses to the confession of judgment[? 12]


____________________________________________


10
   The trial court did not attach its decision in the action at Docket No. 1823
of 2014 to its orders in this case.
11
   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).
12
   On February 2, 2016, Addison 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 Addisons’ request for an extension of
time to file the brief and reproduced record. See Order, 2/3/2016.



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Addison’s Brief at 8.

      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

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 issue raised herein relates to a third party, Charles Williams.

See Addison’s Brief at 20. Addison states that after new appellate counsel

were hired in January of 2016, Williams was discovered to be an owner of

the land subject to the separate Installment Land Contract. Id. at 13–14.

Addison claims that because Williams has an ownership interest in the land,

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the trial court issued its decision at Docket No. 1823 of 2014 without an

indispensable party. Id. Addison relates the action at Docket No. 1823 of

2014 to the present case, stating:

      The [trial court] never considered the impact of Williams’
      absence on its jurisdiction or on the validity of the Installment
      Land Contract; nor did the [trial c]ourt consider whether the
      Installment Note served any purpose without a valid Installment
      Land Contract. Clearly, if the Installment Land Contract is
      unenforceable due to the absence of an indispensable party, the
      purposes of the Installment Note and Asset Purchase Agreement
      are frustrated. Simply put, [Addison] has no reason to purchase
      and pay for horses, horse equipment, and business materials, if
      [Charles and Tammy Addison] are unable to secure ownership of
      the land to support the horses. The contracts stand together or
      fall together.

Id. at 21.

      Addison’s 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 Addison did not include any issue regarding Williams in its Petition,

it may not appeal the trial court’s denial of the Petition on 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 petitioner’s 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).

      Moreover, Williams’ ownership interest and Addison’s claim that he is

an indispensable party in the action at Docket No. 1823 of 2014 has no

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bearing on the confession of judgment contained in the Installment Note at

issue herein. Contrary to Addison’s position, the fact that a separate

Installment Land Contract was the reason Addison entered the Asset

Purchase Agreement and Installment Note does not tie the contracts such

that “the contracts stand or fall together.” Addison’s Brief at 21. Addison’s

motivation for entering into the Asset Purchase Agreement and Installment

Note has no relevance.   Accordingly, Addison’s first claim warrants no relief.

      Addison’s second issue is a request that this Court remand the case

with leave to amend in order 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 25–26. However, in light

of this Court’s order of February 3, 2016, this issue is moot.

      In the present case, Addison fails to make any claim that the trial

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

presented to the court in the Petition itself. Accordingly, we affirm the trial

court’s order denying Addison’s Petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2016




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