J-A26037-18

                                  2019 PA Super 113



    POPS PCE TT, LP                                   IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    R&R RESTAURANT GROUP, LLC., F/K/A
    BREWSTONE PITTSBURGH, LLC,

                             Appellant                  No. 644 WDA 2018


                   Appeal from the Order Entered April 9, 2018
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD 15-11052


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY BENDER, P.J.E.:                              FILED APRIL 11, 2019

        Following this Court’s November 18, 2016 remand of this case to the

trial court,1 R&R Restaurant Group, LLC, f/k/a Brewstone Pittsburgh, LLC

(“Appellant”) appeals from the April 9, 2018 order denying its petition to open

the confessed judgment in favor of Pops PCE TT, LP (“Pops”). After careful

review, we reverse and remand to the trial court for further proceedings

consistent with this opinion.

        This case arises from a commercial lease executed between Appellant

and Pops for premises located in Pittsburgh, Pennsylvania, for a 10-year term

commencing on December 22, 2013, and ending on November 30, 2023

____________________________________________


1See Pops PCE TT, LP v. R&R Restaurant Group, LLC, No. 1944 WDA
2015, unpublished memorandum (Pa. Super. filed Nov. 18, 2016) (“Pops I”).
J-A26037-18



(“Lease”). Pursuant to the terms of the Lease, Appellant was to pay Pops a

total of $21,028.41 per month for the period of December 22, 2013 through

December 21, 2018, and $22,421.08 per month during the period of

December 22, 2018 through November 30, 2023, while remaining responsible

for certain additional charges actually incurred. See Complaint in Confession

of Judgment, 6/30/15, Exhibit A (Lease) at 2. In the event of a default by

Appellant, the Lease contained a provision for the acceleration of rent, see id.

at 28-30 ¶23, and further provided that Pops may confess judgment for all

sums due under the Lease. Id. at 42 ¶45.

      Appellant leased the premises with the intention of operating a

restaurant and bar and, thus, avers its obligations under the Lease, in whole

or in part, were contingent upon its ability to obtain a liquor license.

Appellant’s Petition to Open and/or Strike Judgment Entered by Confession

(“Petition to Open”), 7/22/15, ¶¶21-22. The Lease instructs Appellant to “take

whatever reasonable actions” to acquire the liquor license – referred to by the

parties as the Landlord Liquor License (“LLL”) – that was owned by a former

tenant of the property.    See Lease at 44 ¶49(A)(ii).      In the event that

Appellant is unsuccessful, the Lease provides Appellant with the option of

attempting to obtain a Tenant Liquor License (“TLL”). Id. at 46-47 ¶49(A)(xi).

If Appellant is unable to secure a TLL within a prescribed period of time (“TLL

Transfer Period”), then Appellant is permitted to extend the TLL Transfer

Period and, ultimately, to terminate the Lease by undertaking specified action:




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J-A26037-18


      If, notwithstanding [Appellant’s] best efforts, [Appellant] is unable
      to obtain approval to transfer the [TLL] to the Premises within [the
      TLL Transfer Period], then [Appellant] shall have the right to
      extend the [TLL] Transfer Period by up to sixty (60) days by
      delivery of written notice thereof to [Pops]. If, following such
      extension, [Appellant] is unable to obtain the necessary
      governmental approvals to sell alcoholic beverages at the
      [p]remises during all hours of operation, [Appellant] may elect to
      terminate the Lease by providing notice of its intent to terminate
      this Lease by: (i) delivering to [Pops], within two (2) business
      days following the expiration of the [TLL] Transfer Period, with
      written notice of its inability to obtain the [TLL] prior to expiration
      of the [TLL] Transfer Period and exercising its right to terminate
      this Lease; and (ii) including with such notice all documentary
      evidence of [Appellant’s] efforts to obtain the [TLL] on or before
      expiration of the [TLL] Transfer Period. If [Appellant] elects to so
      terminate this Lease and satisfied all of the conditions stated in
      the preceding sentence with respect thereto, then this Lease shall
      terminate[.]

Lease at 48 ¶49(B)(iv). Paragraph 49 further states that for any period that

Appellant is unable to sell alcohol “as a result of [a] pending application” for a

liquor license, all minimum rent “shall be abated and shall not be due and

payable until” the license is secured. Id. at 43 ¶49.

      On May 31, 2014, Appellant notified Pops via e-mail that it had

exhausted its efforts to transfer the LLL, was electing to obtain a TLL, and was

in discussions to purchase a liquor license from a potential seller. Petition to

Open, Exhibit B. On July 1, 2014, Appellant informed Pops by letter that it

“intends, pursuant to [paragraph] 49(B)(iv) to elect its right to terminate the

[L]ease … if it is unable to obtain approval to transfer a [TLL] to the Premises

within the [TLL] Transfer Period.” Id., Exhibit D (“July 1, 2014 letter”). The

July 1, 2014 letter further stated that the TLL Transfer Period would expire on




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August 28, 2014.2 As of November of 2014, Appellant continued to undertake

efforts to secure a TLL to be used at the premises leased from Pops. See

Affidavit in Support of Petition to Open (“Affidavit”), 10/13/15, at 4 ¶27

(unpaginated). Ultimately, however, Appellant did not obtain a liquor license

and failed to pay rent beginning in January of 2015. Complaint in Confession

of Judgment at 5 ¶22.

       On January 20, 2015, Pops filed a landlord-tenant complaint before a

Magisterial District Judge (“MDJ”), seeking possession of the leased premises

only. On January 29, 2015, the MDJ entered a notice of judgment, finding,

inter alia, that Appellant was in default of the Lease and granting possession

of the premises to Pops. No monetary damages were awarded. Appellant did

not appeal the MDJ’s decision.           Subsequently, Pops filed a complaint in

confession of judgment for money damages against Appellant.           Confessed

judgment in the amount of $2,334,608.87, plus post-judgment interest and

costs of suit, was entered against Appellant on June 30, 2015.         This sum

included accelerated rent due under the Lease through November 2023.

       On July 22, 2015, Appellant filed a petition to open and/or strike the

confessed judgment, raising, inter alia, the following defenses: (1) it had not

breached the Lease; (2) its July 1, 2014 letter to Pops properly terminated

the Lease; and (3) Pops was precluded from entering the confessed judgment

____________________________________________


2 The parties are in agreement regarding the expiration date of the TLL
Transfer Period.


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J-A26037-18



pursuant to Paragraph 45 of the Lease, as Pops had already obtained

possession of the leased premises. Petition to Open at 5 ¶20. On August 25,

2015, the trial court denied Appellant’s request to strike the confessed

judgment, but issued a rule to show cause on Pops as to why Appellant’s

petition to open should not be granted. In response, Pops filed an answer and

new matter accompanied by a brief in which it argued generally that all of

Appellant’s defenses were barred by res judicata and collateral estoppel

because they had already been litigated and decided by the MDJ. Appellant

then filed a brief, a reply to Pops’ new matter, and an affidavit prepared by

Louis Caputo, Esquire, who was retained by Appellant to assist it in obtaining

a liquor license.3

       After conducting oral argument, the trial court concluded that

Appellant’s defenses to the confessed judgment were barred by res judicata

and collateral estoppel and, on November 13, 2015, the court denied

Appellant’s petition to open. Appellant appealed to this Court, which issued a

memorandum decision on November 18, 2016. See Pops I, supra. We held

that Appellant’s defenses to the entry of confessed judgment were not barred

by res judicata or collateral estoppel. Accordingly, we vacated the trial court’s

November 13, 2015 order and remanded for further proceedings for the court

to consider the defenses raised in Appellant’s petition to open. Id. at *9.



____________________________________________


3The affidavit summarized Appellant’s efforts to obtain the LLL or a TLL. See
TCO at 2; Affidavit at 1-5.

                                           -5-
J-A26037-18



      On January 31, 2018, the trial court heard argument on the merits of

Appellant’s petition to open. At the hearing, Appellant maintained that this

case presented questions of fact for a jury, including whether Appellant

undertook reasonable steps to secure a liquor license and whether its July 1,

2014 letter properly terminated the Lease. N.T. Hearing, 1/13/18, at 6-9.

Appellant also appealed to the equitable powers of the court by arguing that

the confessed judgment was “extremely inequitable.” Id. at 10. Pops replied

that Appellant did not dispute Pops’ claim of unpaid rents and, furthermore,

argued that Appellant failed to properly terminate the Lease. Id. at 15, 22.

      Pops extensively argued that Paragraph 49 of the Lease prescribed a

specific procedure and timeline for termination: Appellant was to notify Pops

of termination within two days following the expiration of the TLL Transfer

Period. Pops interpreted this provision to mean, when the TLL Transfer Period

expired on August 28, 2014, that Appellant was required to notify Pops

between August 29 and 31, 2014.         Id. at 33, 51.    Pops contended that

Appellant’s July 1, 2014 letter could not have terminated the Lease because

not only did the letter predate the expiration of the TLL Transfer Period, but

Appellant also continued to pay rent and attempted to obtain a liquor license

after the letter was sent. Id. at 32, 38, 44-45, 51. Pops reasoned that there

was no dispute regarding any question of fact in terms of what Appellant did,

but Pops argued, rather, that the issue was “what Paragraph 49 means,” and

that the interpretation of a contract is a question of law for the court, not the

jury. Id. at 27, 52. Appellant responded, without further explanation, that

                                      -6-
J-A26037-18



its July 1, 2014 notification to Pops was timely “[b]ased on [its] calculation of

what [it] understood the [L]ease to be,” and reiterated “this is a factual issue

as to whether [the July 1, 2014 letter] was appropriate under the [L]ease.”

Id. at 51-52.4

        On April 9, 2018, the trial court denied Appellant’s petition to open. It

found that Appellant’s July 1, 2014 letter could give rise to a jury question as

to whether [Appellant] properly terminated the Lease. Trial Court Opinion

(“TCO”), 4/9/18, at 4. However, the court determined that the letter failed to

include any documentary evidence of Appellant’s efforts to obtain a TLL, as

required by Paragraph 49(B)(iv) of the Lease. As further explained by the

trial court:

        To effectively terminate the Lease, [Appellant] was required to:
        1) deliver to [Pops] written notice of [Appellant’s] intention to
        terminate the Lease within two days following the expiration of
        the [TLL] Transfer Period (August 28, 2014); and 2) include with
        the notice all documentary evidence of [Appellant’s] best efforts
        to obtain the [TLL] on or before the expiration of the [TLL]
        Transfer Period.      [Appellant] has set forth evidence which
        establishes the existence of such documentary evidence, [5] but
        fails to set forth evidence that any of that documentary evidence
        was included with [Appellant’s] supposed notice of termination.
____________________________________________


4 Following the hearing, but on the same day, Appellant filed a supplemental
brief, in which it expanded on its argument that issues of material fact for the
jury exist. See Appellant’s Supplemental Brief, 1/31/18, at 5-6. On February
13, 2018, the trial court ordered Pops to file a responsive supplemental brief.
In compliance, Pops filed a supplemental brief on March 15, 2018, and
reiterated its argument that Appellant’s July 1, 2014 letter did not comply with
Paragraph 49(B)(iv)’s requirement for termination. See Pops’ Supplemental
Brief, 3/15/18, at 3-11.

5   See id.; Affidavit at 2-4 ¶¶15, 19-21, 24.

                                           -7-
J-A26037-18



TCO at 5.     Accordingly, the court found that Appellant failed to present

“sufficient evidence to give rise to a jury question as to whether it properly

terminated the Lease through the delivery of the July 1, 2014 letter to [Pops]”

and, thus, it concluded that opening of the confessed judgment was not

warranted. Id. at 5-6.

      On May 4, 2018, Appellant filed a timely notice of appeal. Appellant

now presents the following issues for our review:

      A. Whether [Pops] waived its ability to challenge the sufficiency
         of [Appellant’s] July 1, 2014 notice of termination[?]

      B. Whether the trial court abused its discretion and/or committed
         an error of law by weighing the sufficiency of the July 1, 2014
         termination letter[?]

      C. Whether the trial court abused its discretion and/or committed
         an error of law by failing to properly consider principals of
         equity when denying [Appellant’s] petition to open [confessed]
         judgment[?]

      D. Whether the trial court abused its discretion and/or committed
         an error of law by refusing to open the judgment when [Pops]
         had possession at the time it filed its complaint in confession
         of judgment – money damages[?]

      E. Whether the trial court abused its discretion or committed an
         error of law by denying [Appellant] the ability to conduct
         discovery or depositions[?]

         i.    Whether the issues contained herein are ripe for appeal
               as the trial court only deferred its decision on
               [Appellant’s] request for depositions and discovery[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We address Appellant’s issues out of order, for ease of disposition, and

remain mindful of the following:



                                     -8-
J-A26037-18


          We review the order denying [an] [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.” Generally, the court will dispose of the rule on petition and
     answer, along with other discovery and admissions.

                                   ***
     A meritorious defense is one upon which relief could be afforded
     if proven at trial.

        Pa.R.Civ.P. 2959(e) sets forth the standard by which a court
        determines whether a moving party has properly averred a
        meritorious defense. If evidence is produced which in a jury
        trial would require the issues to be submitted to the jury the
        court shall open the judgment. Furthermore, the court must
        view the evidence presented in the light most favorable to
        the moving party, while rejecting contrary evidence of the
        non-moving party.        The petitioner need not produce
        evidence proving that if the judgment is opened, the
        petitioner will prevail. Moreover, we must accept as true
        the petitioner’s evidence and all reasonable and proper
        inferences flowing therefrom.

     In other words, a judgment of confession will be opened if a
     petitioner seeking relief therefrom produces evidence which in a
     jury trial would require issues to be submitted to a jury. The
     standard of sufficiency here is similar to the standard for a
     directed verdict, in that we must view the facts most favorably to
     the moving party, we must accept as true all the evidence and
     proper inferences in support of the defense raised, and we must
     reject all adverse allegations. The trial court can make this
     decision as a matter of law when the defense presented is without
     adequate substance, because contract construction and
     interpretation is generally a question of law for the court to decide.


                                      -9-
J-A26037-18


      …. In the context of a petition to open a confessed judgment, [t]he
      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.

Neducsin v. Caplan, 121 A.3d 498, 506-07 (Pa. Super. 2015) (internal

quotation marks, emphasis, and citations omitted).

      Instantly, Appellant avers that Pops failed to argue, prior to the 2016

appeal in this case, that the July 1, 2014 letter was insufficient to terminate

the Lease and, therefore, Pops is precluded from raising this argument after

remand by this Court. Appellant’s Brief at 17-19. In support, Appellant relies

on Pa.R.C.P. 2959(c), which states: “[A] party waives all defenses and

objections which are not included in the petition or answer.” Id. at 18 (citing

Pa.R.C.P. 2959(c)).

      Contrary to Appellant’s assertions, however, Pops stated in its answer

and new matter that all the meritorious defenses set forth in Appellant’s

petition to open “fail[ed] as a matter of law under the terms of the Lease[,]”

and averred that the MDJ had rejected Appellant’s defense that it had

previously terminated the Lease. Answer and New Matter, 9/14/15, at 5 ¶20.

Moreover, at the post-remand January 31, 2018 hearing, Pops extensively

argued that Appellant’s July 1, 2014 letter did not terminate the Lease. See

N.T. Hearing at 21-23, 25-29, 31-33, 49-54.           Despite having ample

opportunity to respond, Appellant failed to raise any argument – either at the

hearing or in its subsequently filed supplemental brief – that Pops’ contention

was waived under Pa.R.C.P. 2959(c). Rather, Appellant merely stated that it

believed its July 1, 2014 letter to be a timely notice of termination based on

                                    - 10 -
J-A26037-18



its interpretation of the Lease. Id. at 51-52. Based on the foregoing, we

conclude that Appellant’s first issue is waived due to Appellant’s failure to raise

it before the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”). See

also Dollar Bank v. Swartz, 657 A.2d 1242, 1245 (Pa. 1995) (stating that

“[a]n appellate court does not sit to review questions that were neither raised,

tried, nor considered in the trial court….      It is a fundamental principle of

appellate review that we will not reverse a judgment or decree on a theory

that was not presented to the trial court.”).

      In its second issue, Appellant asserts that the trial court erred in

“weighing the sufficiency” of its July 1, 2014 “termination letter.” Appellant’s

Brief at 19. Appellant acknowledges that the interpretation of a contract is a

question of law, but states that “[t]he terms of the Lease are not at issue

herein.”   Id. at 20-21.     Instead, Appellant contends that “[t]he factual

question that remains for the jury is whether [Pops] had sufficient notice of

[Appellant’s] termination of the Lease.” Id. at 21. We disagree.

      The record clearly reflects that there is no disagreement regarding the

fact that Appellant sent a letter to Pops on July 1, 2014, which stated: (1)

that Appellant “intends, pursuant to [Paragraph] 49B(iv) to elect its right to

terminate the lease … if it is unable to obtain approval to transfer a [TLL] to

the Premises within the [TLL] Transfer Period;” and (2) that the TLL Transfer

Period would expire at a future date, August 28, 2014.           The crux of the

dispute, rather, is whether Appellant’s letter complied with Paragraph

                                      - 11 -
J-A26037-18



49(B)(iv)’s requirements for termination of the Lease. This issue presents a

question of contract interpretation for the trial court, not an issue of fact to be

submitted to a jury. See Neducsin, 121 A.3d at 507.

      It is well-established that:

      [C]ontract construction and interpretation is generally a question
      of law for the court to decide.

         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. When the contract is clear and
      unambiguous, the meaning of the contract is ascertained from the
      writing alone….

         “Whether a judge has correctly interpreted a writing and
         properly determined the legal duties which arise therefrom
         is a question of law for the appellate court.” The legal effect
         or enforceability of a contact provision presents a question
         of law accorded full appellate review and is not limited to an
         abuse of discretion standard.

Id. (internal citations omitted).    “Absent fraud or unconscionability, courts

should not set aside terms on which sophisticated parties agreed.” John B.

Conomos, Inc. v. Sun Co., 831 A.2d 696, 708 (Pa. Super. 2003).

      In the instant matter, Paragraph 49(B)(iv) of the Lease expressly

provides, in pertinent part:

      [Appellant] may elect to terminate the Lease by providing notice
      of its intent to terminate this Lease by: (i) delivering to [Pops],
      within two (2) business days following the expiration of the [TLL]
      Transfer Period, with written notice of its inability to obtain the
      [TLL] prior to expiration of [TLL] Transfer Period and exercising its
      right to terminate this Lease; and (ii) including with such notice
      all documentary evidence of [Appellant’s] efforts to obtain the
      [TLL].




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J-A26037-18



Lease at 48.6 The trial court interpreted this provision as follows:

       [T]o effectively terminate the Lease, [Appellant] was required to:
       1) deliver to [Pops] written notice of [Appellant’s] intention to
       terminate the Lease within two days following the expiration of
       the [TLL] Transfer Period (i.e., within two days of August 28,
       2014; accordingly, by August 30, 2014); [7] and 2) include with
       the notice all documentary evidence of [Appellant’s] best efforts
       to obtain the [TLL] on or before the expiration of the [TLL]
       Transfer Period, August 28, 2014.

TCO at 3 (emphasis added). The July 1, 2014 letter was presented to Pops

well prior to the expiration date of the TLL Transfer Period and merely stated

that Appellant would terminate the lease at a future date if it could not obtain

a liquor license.     Moreover, as reflected in the record, the letter failed to

include the requisite documentary evidence of its efforts to obtain a TLL.

Accordingly, we discern no error or abuse of discretion in the trial court’s

finding that the July 1, 2014 letter was insufficient to terminate the Lease.
____________________________________________


6 We note that neither party fully addressed whether Appellant was required
to first seek an extension of the TLL Transfer Period before it could terminate
the Lease. See Lease at 48 ¶49(B)(iv) (providing in the event that Appellant
is unable to obtain a TLL, “[Appellant] shall have the right to extend the [TLL]
Transfer Period by up to sixty (60) days…. If, following such extension,
[Appellant] is unable to obtain [a TLL, Appellant] may elect to terminate the
Lease….”). Nevertheless, we may resolve Appellant’s claim on appeal without
reaching this issue, where the parties agree – regardless of whether Appellant
sought or received an extension of time – that the TLL Transfer Period expired
on August 28, 2014, and the termination letter at issue was dated and sent
prior to that date.

7 The clear and unambiguous phrase “within two (2) business days following
the expiration of the [TLL] Transfer Period” means within two days after the
expiration of the TLL Transfer Period, which the parties agree was August 28,
2014. See Webster’s Ninth New Collegiate Dictionary at 479 (1987) (defining
“following” to mean “subsequent to”).



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J-A26037-18



       In its fourth issue, Appellant argues that the trial court erred in refusing

to open the judgment by which it granted Pops accelerated rent, as Pops had

already been granted possession of the leased premises.8 Appellant asserts

that Pops is not legally permitted to obtain a judgment for accelerated rent

through the end of the Lease, in addition to a judgment for possession of the

leased premises.      It is true that under Pennsylvania law, “a landlord ‘can

confess a judgment for future rent accruing under the acceleration clause, or

a judgment in ejectment, but not both.’”           Homart Development Co. v.

Sgrenci, 662 A.2d 1092, 1101 (Pa. Super. 1995) (quoting Matovich v.

Gradich, 187 A. 65, 69 (Pa. Super. 1936) (emphasis supplied)). See also

Greco v. Woodlawn Furniture Co., 1930 WL 3618 (Pa. Super. January 1,


____________________________________________


8 Contrary to the Dissent’s contention that this issue has been waived, we
determine that Appellant properly preserved this claim in its Petition to Open,
wherein it averred: “[Pops] has received possession of the Lease[d] Premises
and, thus, is precluded from entering the Confessed Judgment pursuant to
Paragraph 45 of the Lease[.]” Appellant’s Petition to Open at ¶¶14(D), 20(D).
The Dissent attempts to distinguish the defense asserted in the Petition to
Open from the issue raised on appeal, see Concurring & Dissenting Opinion
at 3, whereas, we deem the claims to be essentially the same. Moreover, we
disagree with the Dissent’s implication that Appellant relied on Paragraph 45
as “the authority” for its defense asserted in paragraphs 14(D) and 20(D) of
its Petition to Open. Id. Rather, we view the averments contained in these
paragraphs as a claim that Pops is legally precluded from obtaining a
confessed judgment on the ground that Pops already received possession of
the leased premises, and we interpret the reference to Paragraph 45 as a mere
citation to the relevant section of the Lease which governs confessed
judgments. To the extent that the Dissent suggests Appellant makes no
mention of accelerated rent in its petition, we note that Appellant’s Petition to
Open incorporates Paragraph 45 of the Lease, which grants Pops the remedy
of judgment by confession for “unpaid rentals … by acceleration….” Lease at
42 § 45(i).

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J-A26037-18



1930) (holding a petition to open judgement confessed upon a commercial

lease containing an acceleration clause for calculation of damages was

properly granted where the landlord had also confessed judgment for

possession of the leased premises).

      As we further explained in Homart:

      The landlord may cumulate remedies provided in the lease, but he
      may not avail himself of double remedies insofar as they are
      conflicting or antagonistic. He can eject the tenant and at the
      same time enter judgment for the rent accrued when the tenant
      was evicted; but he cannot recover both the possession and the
      rent for the balance of the term.

Id. at 1100.   Our decision in Homart was based on the following long-

standing principles:

      A landlord must elect whether to confess judgment for possession
      and for all monies then due, or to confess judgment for all monies
      due for the entire term. When the judgment is entered for
      possession, the landlord is, of course, entitled to recover, as
      damages in a civil action, those losses which he suffers in
      attempting to re[-]let the premises for the term of the lease….
      The landlord, however, cannot … enter judgment for possession
      and for all moneys which would otherwise be due as rents through
      the end of the term.

Id. at 1101 (emphasis added).

      Here, the record indicates that Pops obtained a judgment for possession

of the leased premises on January 29, 2015, and remained in possession of

the premises at the time it filed its complaint in confession of judgment in

June of 2015, in which it sought monetary damages including accelerated rent

through October of 2023. Under Pennsylvania law, however, Pops was limited

to seeking actual monetary damages as of the date it took possession, and it


                                      - 15 -
J-A26037-18



was legally precluded from seeking accelerated damages against Appellant.

See id.   See also Ferrick v. Bianchini, 69 A.3d 642 (Pa. Super. 2013)

(acknowledging the basic principle that a landlord must choose between taking

possession of property and collecting future rents). Based on the foregoing,

we deem the trial court’s refusal to open the confessed judgment to be a clear

error of law.

      Finally, in its third issue, Appellant appeals to our equitable powers. “It

is a basic tenet of our system of civil justice that a plaintiff may not obtain a

double recovery for a single wrong,” Homart, 662 A.2d at 1100, and, yet,

that is precisely what Pops has done via the two judgments granted in its favor

in the present case. Failure to open the confessed judgment results in the

unjust enrichment of Pops and is clearly inequitable. “Where a judgment is

entered for items … authorized by the judgment note, but excessive in

amount, the court will modify the judgment and cause a proper judgment to

be entered.” Id. at 1101. A judgment in excess of $2.3 million, which includes

more than eight years of accelerated rent, is certainly excessive and should

have been modified by the trial court. See id. at 1102 (holding confessed

judgment should have been opened to resolve amount of money judgment

where the appellee had also confessed judgment for possession).

      Moreover, there is an implication in the record that, since obtaining

possession of the leased premises, Pops redeveloped the property and began

leasing to another tenant.    Just as Pops should not be entitled to double

recovery in the form of possession and accelerated rent, equity dictates that

                                     - 16 -
J-A26037-18



it should also not be permitted to collect accelerated rent from Appellant for

months in which Pops has received rent from a new tenant. See H.A. Steen

Industries, Inc. v. Richer Communications, Inc., 314 A.2d 319, 321 (Pa.

Super. 1973) (holding that despite the strict limitations placed on the opening

of a confessed judgment, the judgment must be opened, for in refusing to

require the appellee to mitigate damages, the trial court committed clear error

of law).

       Accordingly, we reverse the April 9, 2018 order refusing to open the

judgment and remand this matter to the trial court so that evidence may be

offered to ascertain the actual damages suffered by Pops.9

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judge Shogan joins this opinion.

       Judge Murray files a concurring and dissenting opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2019



____________________________________________


9 In light of our disposition, Appellant’s final claim regarding whether it was
precluded by the trial court from conducting discovery post-remand is deemed
moot; thus, we need not address the merits of this issue.

                                          - 17 -
