J-S51002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OGONTZ PROPERTY HOLDINGS, LLC                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

CHAIM LANDAU

                         Appellant                    No. 2645 EDA 2016


                Appeal from the Order Entered July 18, 2016
            In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 002000 March Term, 2016


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                                FILED MAY 14, 2018

      Chaim Landau appeals the July 18, 2016 order denying his motion to

open or strike the $352,000 judgment entered by confession in connection

with his personal guaranty of a commercial loan. We affirm.

      On February 25, 2015, Phili Equities, LLC (“Phili Equities”) agreed to

purchase several commercial properties located in Philadelphia, Pennsylvania

for the sum of $1,400,000. Appellant is the owner and sole member of Phili

Equities. In order to facilitate the purchase, Phili Equities obtained a primary

mortgage on the properties totaling $700,000.        It financed an additional

$350,000 of the purchase price through a short-term loan with the property

owner, Ogontz Property Holdings, LLC, (“Ogontz Holdings”). As the short-

term loan is the genesis of this appeal, we discuss it further.


* Former Justice specially assigned to the Superior Court.
J-S51002-17



      A promissory note (the “Note”) and a second mortgage on the

properties secured the $350,000 principal.       The Note had a six-month

maturity date. Prior to satisfying the total debt at the Note’s maturity, Phili

Equities was required to make monthly interest-only payments at eight

percent. However, pursuant to the terms of the mortgage, in the event of a

default, the interest increased to twelve percent.        In addition to the

enhanced interest under the second mortgage, the Note assessed a late

charge equaling five percent of the outstanding principle.           The loan

agreement, Note, and second mortgage were identified collectively as the

loan documents.

      As additional security for the $350,000 loan, Appellant, acting in his

individual capacity, executed a Guaranty and Surety Agreement (the

“Guaranty”) in favor of Ogontz Holdings. Pursuant to the Guaranty, which

included a confession of judgment clause, Appellant agreed unconditionally

to guarantee the payment of any monies due to Ogontz Holdings under the

sales agreement, second mortgage, and Note.

      The Guaranty, which identified Ogontz Holdings as the “Lender,” Phili

Equites as the “Borrower,” and Appellant as the “Guarantor,” provided in

pertinent part as follows:

      2.   Obligations Guaranteed. (a) [Appellant] unconditionally
      guarantees to [Ogontz Holdings]       (1) the prompt and
      unconditional payment of the Loan and the interest thereon,
      whether now or hereafter advanced, as the same shall become
      due and payable under the Note and Loan Agreement, whether

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     at stated maturity, by acceleration or otherwise, and any and all
     sums of money which, at the time, may have become or become
     due and payable under the provisions of the Loan Agreement,
     the Mortgage or any other Loan Document, and (ii) payment in
     full of any and all expenses that may be paid or incurred by
     [Ogontz Holdings] in the collection of all or any portion of
     [Appellant’s] obligations hereunder or the exercise or
     enforcement of any one or more of the other rights, powers,
     privileges, remedies and interests of [Ogontz Holdings] under
     the Loan Documents of hereunder, irrespective of the manner or
     success of any such collection, exercise or enforcement, and
     whether or not such expenses constitute part of [Phili Equities’s]
     obligation.

     3.    Unconditional Guaranty. This Guaranty is an absolute,
     unconditional, present and continuing guaranty of payment and
     performance and not of collection and is in no way conditioned or
     contingent upon any attempt to enforce [Ogontz Holdings’s]
     rights against [Phili Equities] or to collect from [Phili Equities] or
     upon any other condition or contingency; accordingly, [Ogontz
     Holdings] shall have the right to proceed against [Appellant]
     immediately upon an Event of Default without taking any prior
     action or proceeding to enforce the Loan Documents or any of
     them or for the liquidation or foreclosure of any security [Ogontz
     Holdings] may at any time hold pursuant thereto. [Appellant]
     hereby waives and releases any claims (within the meaning of
     11 U.S.C. § 101) which [he] may have against [Phili Equities]
     arising from a payment made by [Appellant] under the Guaranty
     and agrees not to assert or take advantage of any subrogation
     rights of [Appellant] or any right of [Appellant] to proceed
     against [Phili Equities] for reimbursement.         It is expressly
     understood that the waivers and agreements of [Appellant]
     constitute additional and cumulative benefits given to [Ogontz
     Holdings] for its security and as an inducement of its extension
     of credit to [Phili Equites].

Guaranty and Surety Agreement, 2/25/15, at 1-2.

     The Guaranty enumerated a litany of situations that constituted an

“Event of Default,” any of which would trigger a warrant of attorney to




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confess judgment under the agreement.           The pertinent recital specified in

bold, capitalized text,

      13 POWERS TO CONFESS JUDGMENT.                [Appellant] hereby
      empowers any attorney of any court of record, after the
      occurrence of any event of default hereunder, to appear for
      [him] and, with or without complaint filed, confess judgment, or
      a series of judgments, against [him] in favor of [Ogontz
      Holdings] for the amount of the obligations and an attorney’s
      commission of the greater of five percent (5%) of such principal
      and interest or $2,000.00 which shall be added as a reasonable
      attorney’s fee and for doing so the guaranty or copy verified by
      affidavit shall be sufficient warrant. [Appellant] hereby forever
      waives and releases all errors in said proceedings and all rights
      of appeal and all relief from any and all appraisement, stay or
      exemption laws or any stay now in force or hereafter enacted.

Id. at 5 (capitalization omitted). Thus, in addition to the increased interest

and five percent fee that were incorporated into the second mortgage and

Note that the corporate entity executed, the Guaranty, which Appellant

signed      individually,   assessed   an   additional   five   percent   attorney’s

commission upon confession of judgment.

      Finally, the Guaranty included an integration clause that read,

            20. Entire Agreement; Amendments.          This Guaranty
      contains the entire agreement of the parties with respect to the
      subject matter hereof and supersedes all prior oral or written
      agreement or statements relating to such subject matter, and
      none of the terms and provisions hereof may be waived,
      amended or terminated except by a written instrument signed by
      the Person against whom enforcement of the waiver amendment
      or termination is sought.

Id. at 8.




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      The Note matured on August 25, 2015. However, Phili Equities failed

to satisfy the principal in full on that date as required by its terms. Instead,

it paid approximately $30,000 of the principal and continued to make the

monthly interest payments pursuant to the Note.

      On March 21, 2016, Ogontz Holdings filed a complaint in confession of

judgment alleging that, as guarantor, Appellant was liable for Phili Equities’s

default under the loan documents, and that the default triggered the

confession of judgment clause included in the Guaranty.          Thus, Ogontz

Holdings requested the trial court enter judgement against Appellant in the

sum of $352,000, including late charges, continuing interest, and attorney’s

fees as authorized by the loan documents and Guaranty.          The confessed

judgment was calculated as follows:

      Principal                                  $320,000
      5% Late Charge                             $ 16, 000
      5% Attorneys’                              $ 16, 000

                                    Total        $352,000

      On May 19, 2016, Appellant filed a petition to strike or open the

confessed judgment.      As it related to striking the confessed judgment,

Appellant leveled six challenges asserting facial defects in the complaint,

Guaranty, or both. In regards to opening the judgment, Appellant asserted

that the Guaranty was procured by fraud and executed unknowingly,

involuntarily, or unintelligently. He also asserted that Ogontz Holdings was

equitably estopped from confessing judgment and that issues of fact existed

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as to Phili Equities’s alleged indebtedness. The trial court denied the petition

to strike or open the confessed judgment. This appeal followed.1

       Appellant reiterates his prior complaints on appeal.

       1. Whether the [trial] [c]ourt erred as a matter of law or
          otherwise abused its discretion by deciding the [p]etition
          without a hearing and/or without taking testimony or
          evidence.

       2. Whether the [trial] [c]ourt erred as a matter of law or
          otherwise abused its discretion by denying the [p]etition and
          refusing to strike the [c]onfessed [j]udgment entered against
          [Appellant].

       3. Whether the [trial] [c]ourt erred as a matter of law or
          otherwise abused its discretion by denying the [p]etition and
          refusing to open the [c]onfessed [j]udgment entered against
          [Appellant].

Appellant’s brief at 8.

       We review the trial court’s denial of a petition to open or strike a

confessed judgment for an abuse of discretion or legal error. First Union

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

(Pa.Super. 2003). A judgment of confession should be stricken only if there

is a defect on the face of the record. Id. On appeal, our review is limited to

____________________________________________


1 Ogontz Holdings confessed a separate judgment against Phili Equities
pursuant to the warranty of attorney provision included in the loan
documents. The trial court denied Phili Equities’s petition to strike/open the
judgment filed in that case as well. Our independent review of the Superior
Court and trial court dockets did not reveal a companion appeal by Phili
Equities. Nevertheless, to the extent that the corporate entity pursued an
appeal in that case, we do not address it herein.



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whether the record, as filed by the party confessing judgment, is adequate

to sustain the judgment. Id.; Germantown Savings Bank v. Talacki, 657

A.2d 1285 (Pa.Super. 1995). With respect to Appellant’s petition to open,

we review the trial court’s determination for an abuse of discretion.      First

Union Nat. Bank, supra at 1227. Absent an abuse of discretion or error of

law, we will sustain the trial court’s decision. Id.

      Pennsylvania Rules of Civil Procedure 2959 outlines the procedure for

striking or opening a judgment entered by confession. It provides,

      Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure

      (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.

            ....

      (e) The court shall dispose of the rule on petition and answer,
      and on any testimony, depositions, admissions and other
      evidence. The court for cause shown may stay proceedings on
      the petition insofar as it seeks to open the judgment pending
      disposition of the application to strike off the judgment. 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.

Pa.R.C.P. 2959 (a)(1), (e).

      First, we consider whether the trial court erred in rejecting the petition

without a hearing, and for the reasons that follow, conclude that no relief is

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due. Appellant argues that he was entitled to oral argument prior to the trial

court’s decision to deny his petition to strike or open the confessed

judgment. In North Penn Consumer Discount Co. v. Shultz, 378 A.2d

1275, 1278 (Pa.Super. 1977), we explained, “In the context of a judgment

confessed on a judgment note, due process requires, at a minimum, that the

judgment debtor have an opportunity to be heard prior to execution of the

judgment against the debtor’s property.” Appellant invokes this principle as

support for the proposition that the trial court erred in rejecting his petition

to strike or open without first affording him the opportunity for oral

argument. His reliance upon our holding in North Penn is unavailing.

      Contrary to Appellant’s protestations, we did not find in North Penn

that the trial court was required to convene an oral argument prior to

denying a petition to strike or open a confessed judgment.       In reality, we

held that, in the context of judgment confessed on a note, due process

requires an opportunity to be heard prior to execution of the judgment,

which has yet to occur in this case. Further, we explained that due process

can be satisfied by procedural components such as the ability to file petitions

to open the judgment, enforce a stay of execution, and to respond to a rule

to show cause.    Id.; see also Dollar Bank v. Northwood Cheese Co.,

637 A.2d 309, 313 (Pa.Super. 1994) (noting that an opportunity to be heard

does not always require a hearing, and that other procedural means exist to

satisfy due process requirement).

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      Instantly, Appellant was afforded opportunities to be heard. He filed a

petition to strike or open the judgment, and a supporting memorandum of

law, which assailed the confessed judgment on several fronts. Although the

memorandum alluded to the general due process rights outlined in North

Penn, supra, Appellant’s petition to strike or open neglected to request

either an oral argument or an evidentiary hearing.        Nevertheless, before

rejecting Appellant’s petition on the merits of the assertions raised therein,

the trial court reviewed Appellant’s arguments in the petition, Ogontz

Holdings’s response, and the countervailing memoranda of law.           Hence,

Appellant had the opportunity to raise before the trial court all of his alleged

grounds for relief, articulate his case, and have the trial court address his

arguments on the merits prior to execution of the confessed judgment. The

fact that the trial court did not require an oral argument or evidentiary

hearing to dispose of Appellant’s assertions is more an indictment of

Appellant’s legal position rather than an indication of the denial of due

process. Hence, no relief is due.

      Next, we address the litany of reasons that Appellant contends the

confessed judgment should be stricken as facially defective.         As noted,

supra, we review the record as filed by the confessing party, i.e., the

complaint and exhibits containing the warrant of attorney, to determine

whether it is adequate to sustain the judgment.        See First Union Nat.

Bank, supra.

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      Appellant’s first complaint is that the parties indirectly nullified

Appellant’s personal guaranty by orally modifying the terms of the

agreement between Ogontz Holdings and Phili Equities by extending the

loan’s maturity date for one year. Interestingly, Appellant does not dispute

the fact that the Note matured on August 25, 2015, challenge the fact of

Phili Equities’s default, or even argue that the one-year extension actually

applied.   Instead, he posits that the endeavored oral modification, which

never materialized, nullified the warrant of attorney in the loan documents.

This position rests upon the proposition that the oral modification of a

contract that contains a warrant of attorney nullifies the warrant of attorney

absent clear evidence that the provision survived modification. E.g., Franz

Tractor Co. v. Wyoming Valley Nursey, 120 A.2d 303, 306 (Pa. 1956)

(“It is true that a written contract may be modified by parol, but it does not

follow that the warrant of attorney attaches to that modification.”).

      Appellant’s argument misses the mark because the potential existence

of a related oral agreement would require the consideration of facts outside

of the record, which makes striking the judgment impossible.        Recall that

our scope of our review of the order denying the petition to strike the

judgment by confession is limited to the complaint and the exhibit that

includes the operative warrant of attorney, i.e., the Guaranty.     See First

Union Nat. Bank, supra (review of petition to strike limited to examination

of complaint and exhibits containing the warrant of attorney, to determine

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whether documents are adequate to sustain the judgment). Instantly, the

complaint does not reference either an oral or written modification and the

exhibits do not support the notion that a modification exists. Hence, it is not

obvious from the face of the documents of record that striking the judgment

is warranted. Stated another way, since the record does not establish that

the alleged modification discussions occurred, there is no evidence of a

defect that would support striking the judgment by confession.

      While Appellant’s implication of an oral modification might justify

opening the confessed judgement under Rule 2959 in some circumstances,

i.e., raising an issue required to be submitted to the fact finder, it is not a

patent irregularity on the face of the record that would warrant striking it.

See Resolution Trust Corp. v. Copley Qu–Wayne Assoc., 683 A.2d 269,

273 (Pa. 1996) (“If the record is self-sustaining, the judgment will not be

stricken. However, if the truth of the factual averments contained in such

record are disputed, then the remedy is by a proceeding to open the

judgment and not to strike.”).     As Appellant does not seek to open the

judgment on this basis, no relief is due.

      Appellant next complains that aspects of the wording used in the

warrant of attorney violated Pa.R.C.P. 2951(a) and 2952(a), which govern

the commencement of confession actions and the contents of a complaint for

a confessed judgment. Appellant first protests that the warrant of attorney

included in the Guaranty indicates that Ogontz Holdings could confess

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judgment without a complaint.        He is correct insofar as Rule 2951(a)

mandates that an action for a judgment by confession shall be commenced

by “a complaint substantially in the form provided by Rule 2952.” However,

that is precisely what occurred herein. Ogontz Holdings confessed judgment

against Appellant by filing a complaint that substantially complied with

Rule 2952. The fact that the warrant of attorney included in the Guaranty

inaccurately stated that the lender could confess judgment without a

complaint did not negate the fact that Ogontz Holding did, in fact, file a

complaint consistent with the Rule 2951(a) mandate. Appellant’s attempt to

conflate the issues regarding the text of the Guaranty and the content of the

complaint is unpersuasive. Stated plainly, as Ogontz Holdings complied with

Rule 2951(a), Appellant’s assertion regarding the language in the warrant of

attorney does not illustrate a defect in the record.

      The second technicality that Appellant invokes relates to the Rule

2952(a)(3) requirement that the complaint affirm “that judgment is not

being entered by confession against a natural person in connection with a

consumer credit transaction.”     In short, the portion of Ogontz Holdings’s

complaint that complied with this aspect of the rule omitted the phrase

“against a natural person.” In actuality, it advised that judgment was “not

being entered in connection with a consumer credit transaction.” Complaint

in Confession of Judgment, 3/21/16, unnumbered at 4.         While Appellant

appears to recognize that the variance in phrasing was de minimis, he

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argues that, since the complaint is required to be construed strictly against

the party to be benefited, it was necessarily defective. We disagree.

     First, the underpinnings of Appellant’s argument are faulty. Contrary

to Appellant’s contention, the trial court was not required to construe

Ogontz’s complaint strictly. Rather, “the validity of a judgment entered by

confession rests upon a strict construction of the language of the warrant of

attorney.” PNC Bank, Nat. Ass'n v. Bluestream Technology, Inc., 14

A.3d 831, 843 (Pa.Super. 2010). Thus, while the complaint and warrant of

attorney must be read together to determine the authority to confess

judgment, the strict construction of the operative language relates expressly

to the warrant of attorney. Id. Indeed, the pertinent rules governing the

initiation of confessed judgments and the content of the predicate complaint

provide for substantial compliance with the form of complaints.          See

Pa.R.C.P. 2951 and 2952.

     Moreover, Appellant’s claim is unreservedly meritless. The purpose of

the Rule 2952(a)(3) requirement is to ensure that the debt was not incurred

in connection with a consumer credit transaction, which our jurisprudence

recognizes as unsuitable for the confession of judgment.     See Rule 2952

Explanatory Cmt.—1996.     Thus, notwithstanding Appellant’s preoccupation

with the rule’s reference to “a natural person,” the important facts are: (1)

this case does not involve a consumer credit transaction; and (2) the

complaint for confessed judgment clearly states as much.        As the Rule

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2952(a)(3) reference to a natural person was inconsequential in this case,

the omission is negligible.    See Pa.R.C.P. 2951(a) (requiring substantial

compliance with Rule 2952); Lechowicz v. Moser, 164 A.3d 1271

(Pa.Super.   2017)   (record   self-sustaining   where   affidavit   attached   to

complaint attested debt incurred was not result of consumer credit

transaction).

      Next, Appellant argues that the confessed judgment was defective

because the notices of loan default were addressed to Phili Equities rather

than Appellant, and those notices did not reference the Guaranty. Without

citing any legal authority or contract provision to support his position,

Appellant suggests that his personal liability under the Guaranty was

dependent upon receiving individualized, formal notice of the loan default.

The reason for Appellant’s empty posturing is clear; however, support does

not exist for that proposition.     Ogontz Holdings issued notices to Phili

Equities, the party in default of the loan, and more importantly it provided

notice to the attorney who represented the corporation’s legal interest, as

required by the Note and the other loan documents.         Stated another way,

Appellant was not the party in default, and as guarantor, Appellant’s

responsibility was limited to answering for the payment of Phili Equities’s

debt under the loan documents. As neither statute, case law, nor contract

obligated Ogontz Holdings to issue a separate notice of default to Appellant




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personally   as     the    guarantor,   his   protestations    to   the   contrary   are

unpersuasive.

      The penultimate basis that Appellant provides for striking the

confession of judgment challenges the late charges and attorney fees

included in the complaint for confession of judgment.               Notably, Appellant

does not complain that the charges were unauthorized under the loan

documents.        Instead, he      contends    that   the     confessed judgment is

tantamount to an unenforceable penalty because the late charge, default

interest rate, and attorney’s fees requested in the complaint were excessive.

Specifically, Appellant opines, the “late charge, continuing default interest at

the rate of twelve (12%) percent per annum and [attorney’s fees calculated

at] five percent (5%) of the principal sum . . . is an unenforceable penalty

and should have been stricken.” Appellant’s brief at 22.

      In its entirety, Appellant’s argument on this point consists of the

preceding conclusory assertion and a block quote that recounts settled

Pennsylvania jurisprudence which proscribes penal objectives in stipulated

damages clauses.          Appellant neglects to include any discussion supporting

his bare assertion that the charges were punitive. As discussed below, his

misstep is fatal.

      Appellant’s statement of the law is correct insofar as, “[w]here a

stipulated damages clause is intended as a form of punishment [designed] to

secure compliance” with a contract, it is unenforceable. See Holt's Cigar

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Co., 222 Liberty Associates, 591 A.2d 743, 747-48 (Pa.Super. 1991).

However, this principle is not in dispute.     The material question, which

Appellant declines to confront directly, is whether the terms in the loan

documents are impermissibly punitive. As we highlight infra, they are not.

     Appellant failed to establish that the fees outlined in the Note and

Guaranty are punitive.      Instantly, the negotiated Guaranty provides that

Appellant unconditionally guarantees to pay all sums due under the Note,

including legal fees incurred in the confession of judgment. Specifically, in

outlining the authority to confess judgment following default, the Guaranty

established “an attorney’s commission of the greater of five percent (5%) of

such principal and interest or $2,000.00” Guaranty and Surety Agreement,

2/25/15, at 5.   Likewise, the Note stated that a five percent late charge

would be calculated based upon the amount in default:

     [Phili Equities] also promises to pay a late payment charge of
     five cents ($.05) for each dollar ($1.00) of each payment that is
     made more than fifteen (15) days after the due date thereof,
     which charge shall be due and payable with each such late
     payment.

Loan Note, 2/25/15, at 1.

     These provisions are not tantamount to a penalty.       In actuality, the

foregoing fees amount to the parties’ reasonable anticipation of the losses

Ogontz Holdings would incur suffer as a result of Phili Equities’s breach and

lagging payment of its outstanding debt.      Moreover, the collection of five

percent fee and attorney’s commission in the event of a default is

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reasonable. Indeed, even when the fees are combined, the resulting one-

time assessment of ten percent of the outstanding balance is facially

reasonable.   This Court has routinely determined that warrant-of-attorney

clauses that exceed the amount at issue herein were enforceable. See e.g.,

Rait Partnership, L.P. v. E Pointe Properties I, Ltd., 957 A.2d 1275,

1279 (Pa.Super. 2008) (upholding fifteen percent attorney’s commission);

Dollar Bank, Federal Sav. Bank v. Northwood Cheese Co., Inc., 637

A.2d 309, 314 (Pa.Super. 1994) (fifteen percent attorney’s commission was

reasonable). In fact, as it relates to Appellant’s paltry argument herein, the

Dollar Bank Court held that a bare allegation of excessiveness was

meritless where, as here, the attorney’s fees are specifically authorized by

the warrant of attorney. Cf. Lechowicz, supra at 1277 (bald assertion of

unreasonable legal fee is unavailing).

      Similarly, since the loan documents provide a corrective measure for

the overpayment of interest, the twelve percent default interest rate is not a

valid basis to strike the confessed judgment, even if it were deemed

excessive.    Indeed, the Note which incorporates the “Default Rate”

specifically states, “Should [lender] receive any payment of interest which is

or would be in excess of that permitted to be charged under any such

applicable law, such payment shall have been and shall be deemed to have

been, made in error and shall thereupon be applied to reduce the principal

balance outstanding on this Note.” Loan Note, supra at 2. Hence, to the

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extent that the late fees can be viewed as excessive, the loan documents set

forth that the charges shall be applied to the principal balance. Thus, even if

we embraced Appellant’s characterization of the default interest rate as

disproportionate, which we do not, Appellant’s remedy would be to have the

excess amounts applied to the principal.              Again, although that scenario

might justify opening a confessed judgement, it is not a patent irregularity

on the face of the documents that would warrant striking it.                    See

Resolution Trust Corp., supra.                 Accordingly, we find that Appellant’s

assertions that the confessed judgment must be stricken because the agreed

upon fees and interest are usurios is misplaced.2

       Finally, Appellant argues that the trial court erred in failing to strike

the confessed judgment because the underlying complaint did not provide an

itemized computation of the fees and interest due to Ogontz Holdings under

the warrant of attorney.        The crux of this claim is that the complaint for

confessed judgment neglected to alleged how the amount was calculated.

Again, no relief is due.

       The certified record belies Appellant’s contention that the complaint

neglected to provide an itemized calculation of the total amount due. Our



____________________________________________


2 Appellant does not invoke a corresponding argument as a basis to open the
judgment.



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review of the pleading confirms that Ogontz Holdings specifically asserted

that it was entitled to

              a.      Principal                            $320,000.00
              b.      Late charge                            16, 000.00
              c.      Attorney’s Commission @ 5%             16, 000.00

                      TOTAL                                $352,000.00

Complaint     in    Confession   of    Judgment,   3/21/16,   unnumbered      at    3.

Apparently     conceding      that    Ogontz   Holdings   provided   the   foregoing

illustration in the complaint, Appellant complains that the itemization “was

woefully inadequate” because it does not “state how the late charges are

calculated and under what authority” they are imposed. Appellant’s brief at

23. Again, we disagree.

      First and foremost, the procedural dictates that govern the confession

of money judgments do not require the level of specificity in a complaint that

Appellant suggests. Pursuant to Pa.R.C.P. 2952, the complaint must include,

inter alia, “an itemized computation of the amount then due . . ., which may

include interest and attorneys’ fees authorized by the instrument[.]” Rule

2952(a)(7).        That is precisely what Ogontz Holdings provided herein.          In

addition to the itemized calculation outlined supra, the complaint also

identified the Note and Guaranty as the authorizing instruments.                   See

Complaint in Confession of Judgment, 3/21/16, unnumbered at 2, 3.

Contrary to Appellant’s protestations, Rule 2952 simply does not direct that

a plaintiff illustrate the underlying computation of the fees, i.e., show its

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work, and we are unwilling to attach an additional component the rule did

not require. Appellant’s argument is baseless.

      For all the foregoing reasons, Appellant failed to establish any defects

on the face of the record that would warrant striking the confessed judgment

entered against him. As the certified record in support of the judgment was

self-sustaining, we will not disturb the trial court’s order denying Appellants

petition to strike the confessed judgment.       See Resolution Trust Corp.,

supra at 273.

      The next portion of Appellant’s arguments relate to his petition to open

the confessed judgment. Again, we review the trial court’s determination for

an abuse of discretion, and absent said error, we will sustain the trial court’s

decision.   Id.; First Union Nat. Bank, supra at 1227.                 A confessed

judgment should be opened if the respondent submits evidence that would

require an issue to be submitted to a fact-finder.       Pa.R.C.P. 2959(e).      To

prevail on his petition to open a judgment, Appellant must demonstrate:

“(1) the petition to open must be promptly filed; (2) the failure to appear or

file a timely answer must be excused; and (3) the party seeking to open the

judgment    must     show    a     meritorious     defense[.]”    Green       Acres

Rehabilitation     and   Nursing    Center    v.   Sullivan,     113   A.3d   1261




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(Pa.Super. 2015) (quoting (Mother's Restaurant, Inc. v. Krystkiewicz,

861 A.2d 327, 336 (Pa.Super. 2004) (en banc )).3

       Appellant asserts four claims of trial court error in relation to the

court’s decision to deny the motion to open the confessed judgment. They

all relate to the court’s determination that Appellant failed to establish a

meritorious defense that warranted opening the judgment. First, he argues

that the underlying warrant of attorney was procured by fraud.              Then,

Appellant claims that he did not execute the warrant of attorney knowingly,

voluntarily, or intelligently.     Next, Appellant invokes principles of equitable

estoppel. Finally, he claims that the trial court disregarded an issue of fact

regarding the fair market value of the properties he purchased.

       We address the cruces of Appellant’s first two arguments collectively.

His position is that the warranty of confession was obtained fraudulently, in

part because he did not read the warrant of attorney or understand the loan

documents. Appellant’s brief at 26. He also claims that he believed that the

agreement with Ogontz Holdings was governed by Heter Iska, a Jewish

____________________________________________


3  In Lechowicz, supra at 1274-75, we clarified that the determination of
whether the petition to strike or open a confession of judgment was filed
promptly is gauged in relation to the date that plaintiff filed the notice of
execution upon the judgment by confession, and not the preceding date that
the prothonotary issued notice of the confessed judgment pursuant to Rule
236. As Appellant filed his petition to strike or open the confessed judgment
before Ogontz Holdings sought execution, the variance between the two
dates is irrelevant herein.



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religious arrangement, which Appellant describes as “a joint venture where

each party owes the other a fiduciary duty of honesty and good faith.”

Petition to Strike/Open Confessed Judgment, 5/19/16, at 2; Appellant’s brief

at 26-27. As a related component of this argument, Appellant contends that

Ogontz Holdings fraudulently induced the agreement by misrepresenting

that the properties were a profitable investment and omitted that it

“managed and/or controlled most of the tenants[.]” Appellant’s brief at 27.

In sum, Appellant opines that, in light of the Heter Iska and the alleged

fraudulent inducement, his failure to read the loan documents did not

preclude him from asserting that the Guaranty and warrant of attorney were

voidable. For the following reasons, we disagree.

      In rejecting Appellant’s fraud-based claims, the trial court concluded

that Appellant failed to establish the existence of a fiduciary duty or any

special relationship under the purported Heter Iska that would supersede the

arms-length agreement outlined in the loan contract documents.        Indeed,

Appellant was represented by counsel in the transaction and exercised equal

bargaining power.     Tellingly, notwithstanding his protestations to the

contrary, the record is devoid of any evidence that would buoy Appellant’s

assertion of Heter Iska except his self-serving averments, which the trial

court roundly rejected. Accordingly, we sustain the trial court determination

that Appellant’s failure to read the pertinent documents was fatal.




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      It is axiomatic that the failure to read a document is not a basis to

avoid its consequences. Standard Venetian Blind v. American Empire

Insurance, 469 A.2d 563, 566 (Pa. 1983); Pittsburgh National Bank v.

Larson, 507 A.2d 867, 869 (Pa.Super. 1986) (“The failure to read a contract

is certainly an unavailing defense and will not justify an avoidance of the

contract.”). In Dollar Bank, supra, at 313 (citation omitted) the Superior

Court held that “The failure to read a confession of judgment clause will not

justify avoidance of it.    This is particularly true where the confession of

judgment clause is clear and conspicuous and part of a commercial

transaction.”    As the certified record in the case at bar confirms that the

warrant of attorney clause in the Guaranty was both clear and conspicuous

and invoked as part of a commercial transaction, we can discern no basis to

disturb it.

      Next, we address Appellant’s claim of fraudulent inducement based

upon alleged misrepresentations of the properties’ potential for producing

income.       He contends that Ogontz Holdings’s oral representations were

material to Phili Equities’s decision to purchase the properties and his desire

to execute the Guaranty that facilitated the deal. Ogontz Holdings counters

that Appellant’s claim of fraudulent inducement is baseless in light of the

integration clauses in the loan documents, which effectively bar the

introduction of parol evidence. We agree.




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      Initially, we note that the sales agreement that facilitated the purchase

included a recital wherein Appellant, acting as the principal of Phili Equities,

confirmed that he was a “sophisticated investor, knowledgeable and

experienced in the acquisition and operation of commercial buildings” and

that he “evaluated the merits and risks of making an investment in the

propert[ies], and had determined that such an investment is suitable[.]”

Agreement of Sale ¶9.1, at 6-7. Moreover, Appellant acknowledged that he

had an opportunity to inspect the properties and that Phili Equities “is not

purchasing    the      Propert[ies]   in    reliance   upon   any   oral   or   written

representation, warranty, agreement or condition made or agreed to by

Seller.”   Id. at 7.    Hence, the recitals that Appellant adopted in the sales

agreement contradict his current assertion that he relied upon outside

assurances provided by Ogontz Holdings in deciding to purchase the subject

properties.

      More importantly, the sales agreement, Note, and Guaranty which

Appellant executed, either personally or as the principal of the corporate

entity, each has a separate integration clause that limits the scope of the

pertinent agreements to the written documents. Specifically, as it relates to

the Guaranty that forms the basis of Appellant’s personal liability that is at

issue in this appeal, that document provided: “This Guaranty contains the

entire agreement of the parties with respect to the subject matter hereof




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J-S51002-17



and supersedes all prior oral or written agreements or statements related to

the subject matter[.]” Guaranty and Surety Agreement ¶20, at 6.

       It is axiomatic that “where the parties to an agreement adopt a writing

as the final and complete expression of their agreement, alleged prior or

contemporaneous oral representations or agreements concerning subjects

that are specifically covered by the written contract are merged in or

superseded by that contract.”         Youndt v. First National Bank, 868 A.2d

539, 546 (Pa.Super. 2005). Indeed, “[o]nce a writing is determined to be

the parties’ entire contract, the parol evidence rule applies and evidence of

any previously oral or written negotiations or agreements involving the same

subject matters as the contract is almost always inadmissible to explain or

vary the terms of the contract.”          Id.   Moreover, Appellant’s allegations of

fraud in the inducement are insufficient to overcome the application of the

parol evidence rule.        McGuire v. Schneider, Inc., 534 A.2d 115, 117

(Pa.Super. 1987) (parol evidence rule is particularly applicable where

agreement contains integration clause). As the integration clause and parol

evidence rule precluded Appellant from introducing any evidence to support

his claim of fraud in the inducement, we sustain the court’s refusal to open

the judgment on that basis.4

____________________________________________


4 Appellant’s reliance upon PNC Bank, Nat. Ass'n v. Bluestream
Technology, Inc., 14 A.3d 831 (Pa.Super. 2010), for the proposition that
(Footnote Continued Next Page)


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J-S51002-17



      Similarly, we reject Appellant’s claim that he did not knowingly

execute the warrant of attorney.               This contention is premised upon

Appellant’s assertion that he is foreign born and was not educated in

English, and that he neglected to read the Guaranty or any of the documents

that he signed. Relying upon our holding in Egyptian Sands Real Estate,

Inc. v. Polony, 294 A.2d 799 (Pa.Super. 1972), he argues that the warrant

of attorney required a clear manifestation of assent, which he asserts was

absent herein.     Appellant contends that he is in a similar situation to the

appellants in Egyptian Sands, in that he, like those lessees, is a foreign-

born businessman with limited knowledge of English and who executed a

commercial agreement without first reading the confession of judgment

clause.   In essence, Appellant equates his circumstances to “a blind child

[who] relied completely on [Ogontz Holdings representations].” Appellant’s

brief at 29.

      Appellant’s invocation of our holding in Egyptian Sands Real Estate,

is misplaced.     While it is accurate that the appellants in both cases were
(Footnote Continued) _______________________

evidence of misrepresentation was admissible, is misplaced because the
agreements in that case did not include integration clauses. Thus, the parol
evidence rule simply did not apply therein. Id. at 842. Moreover, although
“[o]ne exception to th[e] general rule is that parol evidence may be
introduced to vary a writing meant to be the parties’ entire contract where a
party avers that a term was omitted from the contract because of fraud,
accident, or mistake[,]” Appellant does not invoke any of these bases herein.
As noted, supra, Appellant expressly invoked fraud in the inducement, which
may not be supported by parol evidence. Id.



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J-S51002-17



foreign-born parties with limited English skills who neglected to read

cognovit clauses in the governing agreements, the case at bar does not

highlight the patent lack of consent that was evident in Egyptian Sands

Real Estate. Indeed, in invoking our holding in that case, Appellant ignores

the most salient aspects of our analysis, i.e., the lessor’s manipulation, the

lessees’ lack of legal representation during the transaction, and the lessees’

reliance upon the lessor’s attorney. We reasoned,

           In the present case, the defendants did not read the
     confession of judgment provision in the lease. Instead, they
     relied upon the plaintiff's attorney for guidance, having been
     dissuaded by the plaintiff from procuring outside counsel. The
     attorney did not mention the cognovit provision, and in
     retrospect thought that he had represented the plaintiff alone.
     Without intending in the slightest to suggest any impropriety on
     the part of the attorney, we do not feel that the circumstances of
     this case suggest the clear consent necessary to sustain a
     confession of judgment clause.

Id. at 323-24.

     Appellant was represented by his own counsel during the underlying

negotiations, and he does not allege that Ogontz Holdings discouraged him

from either reading the pertinent documents or relying upon his counsel’s

legal advice. Unlike the scenario in Egyptian Sands, Appellant’s failure to

read the cognovit clause was not a basis to open the judgment.

     Appellant’s next argument is that Ogontz Holdings was equitably

estopped from confessing judgment because Appellant relied upon its

alleged misrepresentation of the properties’ income potential. We reject this



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J-S51002-17



claim for the same reason we rebuffed Appellant’s primary argument

concerning his petition to open. Specifically, the failure to read a document

is not a basis to avoid its consequences, Appellant failed to establish the

existence of the Heter Iska, fiduciary duty, or any special relationship, and

Appellant’s claims of fraudulent inducement are baseless in light of the

integration clauses and the application of the parol evidence rule. No relief

is due.

      Finally, Appellant argues that the trial court erred in disregarding a

material issue of fact relating to the amount of Phili Equities’s total debt

under the loan documents.            This assertion resurrects   the previous

complaints regarding Ogontz Holdings’s representation of the properties’

value. He asserts that Ogontz Holdings represented that the properties had

a fair market value of $1,400,000; “[h]owever, an appraisal a mere six (6)

months later revealed that the fair market value of the . . . properties was

substantially less than that.” Appellant’s brief at 30. He continues with the

conclusory assertion, with no citation to relevant legal authority, that “equity

demands that the value of the Note, and any liability under the Guaranty, be

reduced pro rata in accordance with the accurate fair market value of the

. . . properties.” Id. This claim fails.

      First, Appellant waived his contentions by omitting citation to pertinent

legal authority to support this bare assertion of trial court error.       See

Pa.R.A.P. 2119(a).    As we observed in In re Estate of Whitley, 50 A.3d

                                      - 28 -
J-S51002-17



203, 209 (Pa.Super. 2012), Rule 2119(a) mandates that any legal point

must be “followed by such discussion and citation of authorities as are

deemed pertinent.” As we have previously concluded, “[t]his Court will not

consider the merits of an argument which fails to cite relevant case or

statutory authority[,] . . . [and the] [f]ailure to cite relevant legal authority

constitutes waiver of the claim on appeal.”         Id. at 209-201 (citations

omitted).

      Moreover, assuming arguendo that the claim was properly presented,

it is patently baseless. The instant assertion presupposes the existence of

relevant    admissible   evidence   to   support   Appellant’s   allegations   of

misrepresentation.    However, as Ogontz Holdings accurately observes, the

purported evidence that Appellant attempts to invoke concerning (1) the

properties’ value; (2) the existence of Heter Iska; (3) the status of tenants

and leases when the agreements were executed; and (4) his own failure to

read the cognovit clause are either barred by the parol evidence rule,

irrelevant, or legally insufficient to warrant opening the judgment.       Thus,

Appellant’s argument is unpersuasive.

      As Appellant failed to establish any basis to strike or open the

judgment of confession, we do not disturb the trial court order denying

Appellant’s petition for relief.

      Order affirmed.




                                     - 29 -
J-S51002-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




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