J-A28021-14


                                  2015 PA Super 114

THE DIME BANK                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PETER ANDREWS

                            Appellant                 No. 1129 EDA 2014


                 Appeal from the Order Entered March 6, 2014
                In the Court of Common Pleas of Monroe County
                     Civil Division at No.: 8939 CIVIL 2012


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

DISSENTING OPINION BY GANTMAN, P.J.:                     FILED MAY 08, 2015

       I respectfully disagree with the majority’s decision to reverse and

remand the case for further proceedings.        Instead, I think the trial court

correctly denied Mr. Andrews’ petition to strike the confessed judgment. I

further disagree with the majority that the case of A. B. & F. Contracting

Corp. v. Matthews Coal Co., 166 A.2d 317 (Pa.Super. 1960) is dispositive

of the present case. Hence, I dissent.1

____________________________________________


1
    Preliminarily, the majority questions this Court’s         subject   matter
jurisdiction. Our Rules of Appellate Procedure provide:

          Rule 311. Interlocutory Appeals as of Right

             (a) General rule. An appeal may be taken as of
          right and without reference to Pa.R.A.P. 341(c) from:

(Footnote Continued Next Page)
J-A28021-14


      Mr.   Andrews       asserts    the    guarantee   and   suretyship   agreement

contained a condition precedent for the entry of a confessed judgment,

requiring Dime Bank to provide Mr. Andrews with written notice of a default

ten (10) days prior to the commencement of a collection action.                  Mr.

Andrews relies on A. B. & F. Contracting Corp., supra for the following

proposition: “If a document requires notice for a specific number of days

prior to entry of confession of judgment, the failure to allege in the

                       _______________________
(Footnote Continued)

             (1) Affecting judgments. An order refusing to open,
          vacate or strike off a judgment.    If orders opening,
          vacating or striking off a judgment are sought in the
          alternative, no appeal may be filed until the court has
          disposed of each claim for relief.

Pa.R.A.P. 311(a)(1).

       Here, the court entered the following order disposing of Mr. Andrews’
petition to strike:

          AND NOW, … upon consideration of [Mr. Andrews’]
          Petition to Strike Confession of Judgment and the response
          thereto, it is hereby ORDERED that [Mr. Andrews’]
          Petition is DENIED. It is further ORDERED that [Dime
          Bank] shall be granted 20 days from the date of this Order
          to file a Second Amended Complaint in accordance with
          the forgoing Opinion.

(Trial Court Opinion and Order, filed March 6, 2014, at 5). The court refused
to strike off the judgment, and Mr. Andrews’ petition did not seek orders
opening or vacating the judgment in the alternative. I do not think the
court’s order suggests, in any manner, that the court sub silentio opened or
struck the judgment, as the majority states in its footnote 3. Instead, I
think the court allowed Dime Bank to remedy a defect by amendment of
record, nunc pro tunc. Consequently, I conclude, without doubt, that we
have proper jurisdiction over the appeal.



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J-A28021-14


complaint compliance with such notice is grounds to strike the confession of

judgment.”    (Mr. Andrews’ Brief at 7).   Mr. Andrews insists Dime Bank’s

amended complaint did not allege that the bank complied with the ten-day

notice condition in the guarantee and suretyship agreement. Mr. Andrews

concludes Dime Bank’s failure to allege its compliance with the ten-day

notice constituted a fatal defect on the face of the record to strike the

confessed judgment. I disagree.

      “In examining the denial of a petition to strike or open a confessed

judgment, we review the order for an abuse of discretion or error of law.”

Ferrick v. Bianchini, 69 A.3d 642, 647 (Pa.Super. 2013).        “A petition to

strike a judgment may be granted only for a fatal defect or irregularity

appearing on the face of the record.”      Midwest Financial Acceptance

Corp. v. Lopez, 78 A.3d 614, 622 (Pa.Super. 2013) (quoting Resolution

Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 106, 683 A.2d

269, 273 (1996)). As the majority notes, “If the defect is one that can be

remedied by an amendment of the record or other action, nunc pro tunc, the

judgment should not be stricken off.” George H. Althof, Inc. v. Spartan

Inns of America, Inc., 441 A.2d 1236, 1237 (Pa.Super. 1982). “Formal

defects, mistakes and omissions, in confessions of judgment, may be

corrected by amendment where the cause of action is not changed, where

the ends of justice require the allowance of such amendment and where the

substantive rights of defendant or of any third persons will not be prejudiced


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thereby.” Id. at 1238.

     “Historically, Pennsylvania law has recognized and permitted entry of

confessed judgments pursuant to the authority of a warrant of attorney

contained in a written agreement.” Midwest Financial Acceptance Corp.,

supra at 623.

        [A] warrant of attorney is a contractual agreement
        between the parties and the parties are free to determine
        the manner in which the warrant may be exercised. Entry
        of a valid judgment by confession must be made in rigid
        adherence to the provisions of the warrant of attorney;
        otherwise, such judgment will be stricken. A warrant to
        confess judgment must be explicit and will be strictly
        construed, with any ambiguities resolved against the party
        in whose favor the warrant is given.

Id. (internal citations and quotation marks omitted).

     Instantly, Dime Bank filed its complaint in confession of judgment on

October 19, 2012.     On December 5, 2012, the parties entered into a

stipulation allowing Dime Bank to file an amended complaint in confession of

judgment. Dime Bank filed its amended complaint in confession of judgment

on December 19, 2012. In it, Dime Bank claimed, “A default occurred under

the Note in that the Borrowers failed to pay the money due and owing [Dime

Bank] pursuant to the Note, whereupon [Dime Bank] demanded the entire

balance of the Note immediately due and payable.”           (See Amended

Complaint in Confession of Judgment, filed 12/19/12, at 2.) Nevertheless,

the amended complaint did not specifically aver that Dime Bank had

complied with the ten-day notice condition contained in the guarantee and


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J-A28021-14


suretyship agreement.

      On January 2, 2013, Mr. Andrews again filed a petition to strike

confession of judgment, complaining that Dime Bank “failed to allege in the

Complaint, the giving of [Mr. Andrews] written notice…and to specify the

default ten (10) days prior to taking this action.”    (See Petition to Strike

Confession of Judgment, filed 1/2/13, at 2.) In its answer to the petition to

strike, Dime Bank stated, “[O]n or about September 22, 2012, [Dime Bank]

demanded payment in full from the borrower and the guarantors.”           (See

Answer to Petition to Strike Confession of Judgment, filed 1/22/13, at 1.)

      Based upon the foregoing, the court reasoned: “A review of the record

reveals that a technical defect in the proceedings has taken place, …

however, we believe that this error can be corrected by amendment as the

cause of action has not changed, the ends of justice require the allowance of

such amendment, and the substantive right of [Mr. Andrews] will not be

prejudiced.” (See Trial Court Opinion and Order at 3-4.) Addressing Dime

Bank’s assertion regarding notice before the filing of the original complaint in

confession of judgment, the court said:

         [Dime Bank’s] Answer to [Mr. Andrews’] Petition to Strike
         Confession of Judgment…filed on 1/22/2013, states that on
         or about September 22, 2012, [Dime Bank] demanded
         payment in full from [Mr. Andrews]. Since we cannot
         surmise whether the demand contained the 10-day notice,
         we permitted the amendment. The failure to attach the
         demand letter, which may or may not contain the…notice
         as required by the warrant, is an amendable defect….

(See Trial Court Opinion, filed May 14, 2014, at 3 n.i) (internal citation

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J-A28021-14


omitted).   Here, the trial court observed that Dime Bank’s September 22,

2012 demand letter could have contained sufficient notice required under

the guarantee and suretyship agreement. Thus, rather than characterizing

Dime Bank’s omission as a complete failure to aver notice, pursuant to A. B.

& F. Contracting Corp., supra, I think it was within the court’s discretion

to treat Dime Bank’s pleading omission as one that could be easily remedied

through an amendment of the record or other action, nunc pro tunc, and the

judgment should not be stricken. See George H. Althof, Inc., supra. In

my opinion, the court did not abuse its discretion or commit an error of law

in denying Mr. Andrews’ petition to strike the confessed judgment at this

juncture.     Although   compliance    with    the   pleading    rules    governing

confessions of judgment is necessary, I cannot agree that the flaw in this

case, so easily fixed by amendment, should compel striking the judgment

and require a whole new complaint.            Thus, I firmly disagree with the

majority, which states: “[T]he judgment before us presently must be

stricken under controlling case law.”          I am convinced A. B. & F.

Contracting    Corp.,    supra   is   not   controlling   case   law     under   the

circumstances of this case, where we have some evidence of due notice on

the record, even if that evidence needs to be developed.           Accordingly, I

dissent.




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