J-S21017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LAWRENCE PARK PARTNERSHIP                             IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                       v.

JEFFREY P. BOMZE, M.D.

                             Appellant                     No. 1876 EDA 2015


                 Appeal from the Order Entered June 10, 2015
               In the Court of Common Pleas of Delaware County
                       Civil Division at No(s): 2014-09974


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                   FILED MAY 24, 2016

        Jeffrey P. Bomze, M.D., appeals from the order entered in the Court of

Common       Pleas   of     Delaware     County,   which   denied   his   motion   for

reconsideration of the court’s February 9, 2015 order.               The underlying

February 9, 2015 order denied Dr. Bomze’s petition to strike or open the

confessed judgment entered against him based upon default of a commercial

lease agreement.       After careful review, we reverse the ruling of the trial

court and order the judgment stricken.

        The trial court summarized the procedural history and facts of this

matter as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     On November 6, 2014, Appellee/Plaintiff Lawrence Park
     Partnership (Lawrence Park) filed a Complaint in Confession of
     Judgment for Money. Lawrence Park is a business located in
     Springfield Township, Delaware County, Pennsylvania. Lawrence
     Park is the landlord of an industrial and/or business park known
     as Lawrence Park Business Center. On June 8, 2011, [Dr.]
     Bomze entered into a Lease Agreement with Lawrence Park to
     occupy and operate in a certain space in the Lawrence Park
     Business Center, consisting of an area of approximately 2,733
     square feet of rentable space . . . at 590 Reed Road, Broomall,
     Pennsylvania (Leased Premises). [Dr.] Bomze used the Leased
     Premises as a pediatrician’s office.      Pursuant to the Lease
     Agreement, the parties agreed to a seven[-]year lease term to
     begin on August 15, 2011.

     According to Section 2A of the Lease Agreement, [Dr.] Bomze
     agreed to pay a certain Annual Minimum Rent (Minimum Rent)
     per year on a per month basis. The Minimum Rent for the first
     year was $3,302.26 and increased each following year. As
     specified in Section 4 of the Lease Agreement, [Dr.] Bomze
     agreed to pay the water and sewer charges, taxes and other
     charges as Additional Rent. Under Section 4 of the Lease
     Agreement, [Dr.] Bomze agreed to pay as Additional Rent
     certain fixed Common Area Maintenance (CAM) charges per year
     on a per month basis begin[ning] in August 2011, the first year
     of the lease term. Pursuant to Exhibit C-1 and 2 of the Lease
     Agreement, the parties agreed that Lawrence Park would make
     certain improvements to the Leased Premises.                The
     improvements cost $65,704.78 and were specific to the
     operation of a pediatrician’s office.

     In its Complaint in Confession of Judgment, Lawrence Park
     alleged that [Dr.] Bomze is the responsible party to the Lease
     Agreement based upon his signature on page 18 of the Lease
     Agreement. Lawrence Park further alleged that as evidenced by
     his signature, [Dr.] Bomze did not sign the Lease Agreement in
     any officer[-]held capacity of the tenant. Lawrence Park argued
     that [Dr.] Bomze signed the Lease Agreement as the individual
     respons[ible] on the Lease Agreement, which failed to indicate
     any representative corporate capacity.

     Under the Lease Agreement, [Dr.] Bomze defaulted on his
     obligations by failing to make certain Minimum Rent payments
     when due. On June 3, 2014, Lawrence Park, pursuant to the
     Lease Agreement, issued to [Dr.] Bomze a Notice to Cure the

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      Default (Notice). Despite the Notice being sent to him, [Dr.]
      Bomze failed to cure [the] default.      In its Complaint in
      Confession of Judgment, Lawrence Park alleged that [Dr.]
      Bomze, as a result of his default, owes Lawrence Park a total
      amount of $281,178.86 plus costs and attorneys’ fees. The total
      amount of damages is comprised of the following items: (1)
      Additional Rent for Tenant Improvements: $65,704.68; (2) Total
      Amount of Accelerated Minimum Rent (starting in August 2014
      through August 2018: $190,171.38; and (3) Total Amount of
      Accelerated Additional Rent for CAM Charges (starting in August
      2014 through August 2018): $25,302.80.

      On November 25, 2014, [Dr.] Bomze filed a Petition to Strike,
      or, in the Alternative, to Open Judgment Entered by Confession
      and Emergency Petition to Stay Execution. On February 9,
      2015, the Trial Court held [o]ral [a]rgument on [Dr.] Bomze’s
      Petition, which it denied on the same date. On February 19,
      2015, [Dr.] Bomze filed a Motion for Reconsideration of the Trial
      Court’s February 9, 2015 Order. On February 25, 2015, the Trial
      Court granted reconsideration and scheduled [a hearing]. In the
      interim, [Dr.] Bomze filed a Motion for Sanctions and a Motion
      for Judgment on the Pleadings.

      On June 1, 2015, the Trial Court held [o]ral [a]rgument on [Dr.]
      Bomze’s Motion for Reconsideration. On June 10, 2015, the Trial
      Court denied the aforementioned motion and issued Findings of
      Fact and Conclusions of Law in support of its decision. On June
      11, 2015, the Trial Court denied [Dr.] Bomze’s Motion for
      Sanctions and Motion for Judgment on the Pleadings. On June
      22, 2014, [Dr.] Bomze filed his Notice of Appeal and an
      Emergency Motion to Reconsider and Stay Proceedings Pursuant
      to Local Delaware County R.C.P. 206(c) before a Three Judge
      Panel of the Court of Common Pleas of Delaware County. On
      July 15, 2015, the Trial Court denied only the Emergency Motion
      for Reconsideration filed on June 22, 2015. On July 20, 2015,
      the Honorable James F. Proud denied the request for a Three
      Judge Panel. [Dr.] Bomze’s timely appeal followed.

Trial Court Opinion, 8/13/15, at 2-4.

      On appeal, Dr. Bomze raises the following issues for our review:

      1. Did the lower court err in denying Jeffrey P. Bomze, M.D.’s
         (“Dr. Bomze’s”) petition to strike the judgment confessed
         against him in his individual capacity when:

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          a. Dr. Bomze was not a party to the lease agreement
             dated June 8, 2011 (the “Lease”) between the [L]essee,
             1201 Pediatric Group, P.C. (the “Lessee”), and Lessor,
             Lawrence Park Business Center, which contained the
             warrant of attorney to confess judgment against the
             Lessee only;

          b. Dr. Bomze was not a guarantor of the Lessee’s
             obligations under the Lease;

          c. the Lessee and the Lessor were the only parties to the
             Lease;

          d. the warrant of attorney only applied to the Lessee,
             1201 Pediatric Group, P.C.; and

          e. the corporate veil of the Lessee has not been pierced in
             any judicial proceeding to permit a creditor to hold its
             principal individually liable for corporate debts?

     2. Did the lower court err in denying Dr. Bomze’s petition to
        strike the judgment confessed against him by the Plaintiff,
        Lawrence Park Partnership, when:

          a. the lessor and holder of the warrant of attorney was
             Lawrence Park Business Center (the “Lessor”), but the
             Plaintiff was Lawrence Park Partnership; and

          b. the Complaint for Confession of Judgment did not aver
             that the Plaintiff, Lawrence Park Partnership, was an
             assignee or transferee of the holder of the warrant, the
             Lessor Lawrence Park Business Center?

     3. In the alternative, did the lower court err in denying Dr.
        Bomze’s petition to open the judgment confessed against him
        personally on the grounds that his Petition raised meritorious
        defenses to his personal liability?

     4. Did the lower court err in denying Dr. Bomze’s right, under
        Pa.R.C.P. 2959(c), to defend against the confessed judgment
        by presenting evidence that, he contends, supports his right
        to open the confessed judgment?




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Brief of Appellant, at 2-4.1

        When considering a motion to strike a confessed judgment, the motion

        will not be granted unless a fatal defect in the judgment appears
        on the face of the record. If the record is self-sustaining, the
        judgment will not be stricken. . . . It is well-settled that a written
        lease or contract which authorizes a party to confess judgment
        must be clear and explicit and strictly construed. If any doubt
        exists as to the propriety or effect of a warrant of attorney
        authorizing confession of judgment, the doubt must be resolved
        against the party in whose favor the warrant is given.

Solebury Nat. Bank of New Hope v. Cairns, 380 A.2d 1273, 1275 (Pa.

Super. 1977).      “It is fundamental that an authority to confess judgment

cannot operate in favor of a stranger to the contract.” Ulick v. Vibration

Specialty Co., 35 A.2d 332, 334 (Pa. 1944). In this regard,

        [w]here the record establishes that the one in whose favor
        judgment has been confessed is the real party for whom the
        power to confess judgment was intended the judgment is
        properly of record. Where, however, this is not disclosed by the
        record, by affidavit, averment or otherwise, the result is
        otherwise.

Id. Indeed, “the facts which entitle a party to confess judgment as the real

party in interest must be filed of record or else the judgment will be

stricken.”    Fourtees Co. v. Sterling Equip. Corp., 363 A.2d 1229, 1233

(Pa. Super. 1976).

        Here, the warrant to confess judgment contained in the Lease

Agreement provides that the Lessor, Lawrence Park Business Center, may

____________________________________________


1
    We note that Appellee did not file an appellate brief.



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confess judgment against the Lessee, 1201 Pediatric Group, P.C. See Lease

Agreement, at 1, 15-16. Although the Lease Agreement provides Lawrence

Park Business Center with the authority to confess judgment, the instant

judgment instead was obtained by Lawrence Park Partnership.          On this

basis, Dr. Bomze argues that the confession of judgment provision was

exercised in favor of a stranger to the contract.

      In its complaint to confess judgment, Lawrence Park Partnership

indicated it “is the landlord of an industrial and/or business park known as

the Lawrence Park Business Center.” Complaint in Confession of Judgment

for Money, at ¶ 3.    While this information indicates a connection between

Lawrence Park Business Center and Lawrence Park Partnership, it fails to

indicate whether they are separate legal entities, fictitious names, or have

some other relationship with each other that would make Lawrence Park

Partnership the real party in interest entitled to confess judgment. Thus, it

is not clear on the face of the record that Lawrence Park Partnership had the

power to confess judgment instantly; therefore, the judgment should be

stricken. Ulick, supra; Fourtees, supra.

      Even if we assume that the above explanation was sufficient to

demonstrate Lawrence Park Partnership’s authority to confess judgment, an

additional error is apparent on the face of the record.     Pursuant to the

warrant, judgment may only be confessed against the Lessee.       The Lease

Agreement clearly refers to the Lessee as 1201 Pediatrics Group, P.C., only.

Nowhere in the Lease Agreement is Dr. Bomze included or referred to as

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Lessee.   Thus, in strictly construing the warrant, confession of judgment

against Dr. Bomze as an individual is not authorized by the provision and the

judgment must be stricken. Solebury Nat. Bank, supra.

     Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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