J-A25025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN W. LISTER AND LISA R.                 :   IN THE SUPERIOR COURT OF
    LISTER                                     :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WHITE LABEL COMMUNICATIONS,                :
    LLC.                                       :
                                               :   No. 1065 EDA 2017
            Appellant                          :

                  Appeal from the Order Entered March 2, 2017
                In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 2016-10927-JD


BEFORE:      OTT, J., STABILE, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 20, 2018

        White Label Communications, LLC (White Label) appeals from the order

entered on March 2, 2017, in the Court of Common Pleas of Chester County,

denying White Label’s petition to open or strike the confessed judgment taken

by John W. and Lisa R. Lister (Listers). Specifically, White Label claims the

trial court erred in granting the petition without first issuing a rule to show

cause regarding the petition, pursuant to Pa.R.C.P. 2959(b). After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we reverse and remand for the issuance of a rule to show cause on

White Label’s petition, thereby allowing the development of evidence as

contemplated by rule.


____________________________________________



    Former Justice specially assigned to the Superior Court.
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      We recite the procedural history of this matter as related by the trial

court in its Pa.R.A.P. 1925(a) opinion.

      On November 17, 2016 [Listers] filed their Complaint in
      Confession of Judgment based upon a confession of judgment
      clause in paragraph 27.d of a Lease Agreement executed by
      Plaintiff John W. Lister and Thomas R. Joseph on behalf of [White
      Label]. On the same day, an Affidavit of Service of Notice of
      Defendant’s Rights, Confession of Judgment and Complaint was
      docketed. [White Label] filed its petition to Open or Strike
      Confession of Judgment on December 16, 2016 and [Listers] filed
      their response on January 5, 2017. As stated above, we denied
      [White Label’s] Petition by Order dated March 2, 2017.

Trial Court Opinion, 5/15/2017, at 1.

      We glean the facts underlying this action from the certified record.

Listers and White Label entered into a lease agreement for 2,400 square feet

of space at 1450 Boot Road, Site 400D, West Chester, Pennsylvania.

Complaint, Plaintiffs Exhibit 1, Lease, ¶¶ 1, 2. The term of the lease was for

three (3) years, commencing on October 1, 2013 and terminating September

30, 2016. Id. at ¶ 2, Complaint at ¶ 12. The Lease also contained an early

termination clause at ¶ 6.d that stated:

      6. Term

                                     ***

        d. Early Termination

            i. Tenant may terminate this lease upon a minimum 120 day
               written notice to landlord. Lease termination will take
               place at the end of the calendar month following 120 days
               from notice.

            ii. In the event tenant elects to terminate early, Tenant will
                compensate Landlord “Early Termination Rent.” Early

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               Termination rent shall be equal to 50% of the rent due
               under the terms of the lease from the date of early
               termination to the end of the lease term.

             iii. Early termination rent will be due 30 days prior to
                 termination.

Complaint, Plaintiffs Exhibit 1, at ¶ 6.d (i)-(iii).

      Listers claimed that White Label vacated the property on or about March

30, 2016 and failed to pay rent for April, 2016 – September, 2016,

representing the final six months of the lease term. Id. at ¶ 12. Other than

in the Lease itself, Listers’ Complaint makes no mention of the early

termination clause, or any alleged attempt by White Label to invoke that

clause. Pursuant to Paragraph 27.d of the Lease, Listers sought a confessed

judgment in the amount of $25,885.81.             Judgment in that amount was

docketed on November 17, 2016.

      On December 16, 2016, White Label filed a timely Petition to Open or

Strike the Confessed Judgment, claiming it had invoked the early termination

clause and had tendered $8,275.02, which represented the full 50% of the

remaining rent due, as required by the Lease. Along with the petition, White

Label also filed a Praecipe for Determination, asking for a Rule to Show Cause

why said petition should not be granted. As noted above, Listers filed their

answer to the petition on January 5, 2017 and the trial court denied White

Label’s petition, without a hearing, on March 2, 2017. White Label filed this

timely appeal.

      Initially, we note,



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      [A] petition to open a judgment is an appeal to the equitable
      powers of the court. It is committed to the sound discretion of the
      hearing court and will not be disturbed absent a manifest abuse
      of that discretion. Ordinarily, if a petition to open a judgment is to
      be successful, it must meet the following test: (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.

Century Surety Co. v. Essington Auto Center, LLC, 140 A.3d 46, 53 (Pa.

Super. 2016) (citation omitted).

      Further,

      A trial court's decision to deny a petition to open or strike a
      judgment of non pros is scrutinized on the abuse of discretion
      standard of appellate review.

Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011)

(citation omitted).

      Relevant to this matter, Pa.R.C.P. 2959(b) states:

      If the petition states prima facie grounds for relief the court shall
      issue a rule to show cause and may grant a stay of proceedings.
      After being served with a copy of the petition the plaintiff shall file
      an answer on or before the return day of the rule. The return day
      of the rule shall be fixed by the court by local rule or by special
      order.

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

      The disposition of the rule is governed by Rule 2959(e), which states:

      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(e).

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      Pursuant to Rule 2959(b), if the defendant’s petition to open the

judgment states prima facie grounds for relief, then the trial court shall issue

a rule to show cause. If grounds are so stated, evidence of record is to be

developed and a hearing, if necessary, will be held. Here, the petition was

filed in a timely manner and it presented a prima facie meritorious defense,

namely, that White Label had provided Listers with notice of its intent to

exercise the early termination clause and that it had paid the required sum.

The trial court prematurely based its decision on Listers’ answer to the

Petition, by not allowing White Label the opportunity to test Listers’ claims and

to present its own evidence in support of its Petition.

      We note that Listers have also argued that White Label failed to follow

the local rules in seeking the rule to show cause, specifically, they claim White

Label was required to submit the rule to show cause to the court administrator

for “‘per curiam signature’ in accordance with C.C.R.C.P. 206.4(c)(1).”

Appellee’s Brief at 8. Instead, Listers argue, White Label submitted a praecipe

for determination seeking the issuance of a “per curiam rule to show cause.”

Id. The trial court did not dispose of this matter based on any alleged failure

to follow the local rules, so we will not address this argument. Nonetheless,

our review of the certified record indicates White Label sought submission of

“the Rule to Show Cause attached to the Petition to Open or Strike Confession

of Judgment to the Court Administrator for Per Curiam signature pursuant to

Local Rule 206.4(c)(1).”     See White Label’s Praecipe for Determination,

12/16/2016.

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J-A25025-17



      In light of the foregoing, we vacate the order denying White Label’s

petition to open or strike the confession of judgment, and remand for the

issuance of a rule to show cause, forthwith, allowing for the development of

evidence as contemplated by Pa.R.C.P. 2959.

      Order vacated. This matter is remanded for further action consistent

with this decision. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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