J-S42001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    POPULAR COMMUNITY BANK                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYDER CUP TAXI LLC,                        :
                                               :
                       Appellant               :   No. 3378 EDA 2018

                 Appeal from the Order Entered October 24, 2018
              In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): December Term, 2017 No. 0111

    POPULAR COMMUNITY BANK                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EVERETT ABITBOL,                           :
                                               :
                       Appellant               :   No. 3380 EDA 2018

                 Appeal from the Order Entered October 24, 2018
              In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): December Term, 2017 No. 0112


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 15, 2019

        Ryder Cup Taxi, LLC, and Everett Abitbol (Ryder and Abitbol,

respectively) appeal from the orders entered on October 24, 2018,1 denying

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*   Retired Senior Judge assigned to the Superior Court.

1The October 24, 2018 orders made final the orders of October 11 and 12,
2018.
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petitions to open or strike the confessed judgments filed by Popular

Community Bank against them, as well as a motion for reconsideration.2

Although procedurally, this appeal has a somewhat convoluted history, the

facts are that Ryder and Abitbol filed timely appeals that are presently before

this Court. Ryder and Abitbol raise three issues, claiming the trial court erred

in: 1) failing to find the signature of the Ryder corporate representative was

too far from the confession of judgment clause for the clause to be valid; 2)

failing to find the lack of proof of assignment of the note rendered the

complaint defective; and 3) failing to find the requested attorneys’ fees were

facially excessive.3 After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm in part, reverse in part, and

remand with instructions.

        It appears, from our review of the certified record, that Ryder Cup Taxi

borrowed $286,000.00 from Doral Bank to finance the purchase of a taxi

medallion. Abitbol guaranteed the loan. However, Popular Community Bank

became the successor in interest when Doral Bank encountered severe

financial problems and sold assets. The loan was structured so that initial
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2The two underlying cases listed in the caption are separate cases filed in the
Court of Common Pleas of Philadelphia County, both seeking payment for the
same loan. Ryder borrowed the money and Abitbol signed the note on behalf
of Ryder, and the guaranty individually. Oddly, it does not appear the cases
were officially related in the court below. It is unclear if the trial court was
aware the two cases involved the same debt. The cases were consolidated on
appeal. There is no dispute that there is at issue but a single debt, of which
Abitbol was the guarantor.

3   We have reordered the arguments for our convenience.

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payments were low with a subsequent balloon payment. It was anticipated

that Ryder would refinance the loan so that the balloon payment would not be

an issue.    Unfortunately for Ryder, and the taxi business in general, ride-

sharing services Uber and Lyft came into being and undermined the value of

a taxi medallion. This made it virtually impossible for Ryder to obtain new

financing for the loan, which went into default.         Pursuant to the loan

agreement, Popular Community Bank exercised its right to confess judgment.

It did so in separate lawsuits against both Ryder and Abitbol.4      Ryder and

Abitbol filed similar petitions to open or strike the confessed judgment. Each

petition was denied, effectively ordering Ryder and Abitbol to pay Popular

Community Bank $346,125.46. Relevant to this appeal, that sum included a

request for an award of $30,000 to Popular Community Bank for attorney’s

fees in each lawsuit. Attorneys’ fees were later reduced pursuant to motion

to $23,833.00 regarding Ryder and $26,025.00 regarding Abitbol.

       We begin by noting:

       Our standard of review from the denial of a petition to strike a
       judgment is limited to whether the trial court manifestly abused
       its discretion or committed an error of law. A petition to strike a
       judgment will not be granted unless a fatal defect in the judgment
       appears on the face of the record. Matters outside of the record
       will not be considered, and if the record is self-sustaining, the
       judgment will not be stricken. For example, a judgment is properly

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4 See Philadelphia County docket numbers 1712-00111 and 1712-00112,
respectively. These cases were part of the “Taxi Program” instituted by the
Philadelphia Court of Common Pleas. The existence of this program speaks to
the widespread distress of the taxi industry in Philadelphia.


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J-S42001-19


      stricken where the record indicates a fatal flaw such as defective
      service.

Vogt v. Liberty Mutual Fire Insurance Company, 900 A.2d 912, 915-16

(Pa. Super. 2006) (internal citations omitted).

      Further,

      A motion to strike a default judgment, as opposed to a petition to
      permit a defense, may not be granted unless a fatal defect
      appears on the face of the record. 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) (internal citations omitted).

      Finally,

      [i]t has always been held that formal defects, mistakes and
      omissions in confessions of judgment may be corrected by
      amendment where the cause of the 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 thereby.

West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86

(Pa. 1951).

      Ryder and Abitbol both claim the first facial defect of the confession of

judgment is the signatures on the note and guarantee are too far removed

from the cognovits clause to make that clause enforceable. Abitbol argues his

signature is two pages from the clause in question on both documents, and

that, pursuant to L.B. Foster Co. v. Tri-W Construction Co., 186 A.2d 18

(Pa. 1962), this is insufficient. We disagree.

      Foster requires:


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J-S42001-19



       A warrant of attorney to confess judgment must be self-sustaining
       and to be self-sustaining the warrant must be in writing and
       signed by the person to be bound by it. The requisite signature
       must bear a direct relation to the warrant of attorney and may not
       be implied.

Id. at 20.

       The issue here is whether the signature bears a direct relation to the

clause at question.      There is no absolute rule as to the placement of the

signature in relation to the clause. However, recent case law has illuminated

this requirement, stating,

       [t]here should be no doubt that the lessee signed the warrant and
       that he was conscious of the fact that he was conferring a warrant
       upon the lessor to confess judgment in the event of breach.

Ferrick v. Bianchini, 69 A.3d 642, 651 (Pa. Super. 2013).

       Here, the trial court concluded the signature on the note and guaranty,

both signed by Abitbol,5 bore a direct relation to the clause at issue. Our

review of the certified record shows the cognovits clause, paragraph 17 of the

Guaranty, begins on page seven and concludes on page eight, and is printed

in all capital letters; Abitbol’s signature appears on page nine, after paragraph

23.   The Ryder Note does not have numbered paragraphs; however, the

cognovits clause begins on page three and concludes on page four, and again,

is the sole paragraph printed in all capital letters. Abitbol’s signature appears


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5 The notation under Abitbol’s signature on the Note identifies him as a
“member/manager” of Ryder Cup Taxi, LLC.



                                           -5-
J-S42001-19



on page five.      Additionally, neither Ryder nor Abitbol claim to have been

unaware of the clause.6

       Neither Ryder nor Abitbol have presented any controlling case law

demonstrating the signature was too far removed from the confession of

judgment clause. The distinctive appearance of the clause and the fact that

neither Ryder nor Abitbol claim to have been unaware of the clause support

the trial court’s determination that Abitbol was aware of what he was signing

on behalf of Ryder and as guarantor, and the signature bore a direct relation

to the clause.     Accordingly, the trial court did not abuse its discretion or

commit an error of law regarding the resolution of this issue.      Ryder and

Abitbol are not entitled to relief on this issue.

       Next, Ryder and Abitbol argue the confession of judgment was facially

flawed by the failure to include the assignment of the note from Doral Bank

to Popular Community Bank. Ryder and Abitbol are not entitled to relief on

this claim.




____________________________________________


6 The claim regarding the signature being divorced from the clause is a claim
of a technical fault. Indeed, neither Ryder nor Abitbol could argue they were
unaware of the clause as the certified record contains an additional document,
signed the same day (3/24/2014) as the Note and Guaranty, stating Abitbol
was aware of the confession of judgment clause. See Plaintiff’s Memorandum
of Law in Opposition to Defendant’s Petition to Open and/or Strike the
Confessed Judgment, Exhibit “B”, 3/19/18. While we note the document’s
existence, we do not base our conclusion upon the document’s existence.




                                           -6-
J-S42001-19



       Popular Community Bank contends the issue has been waived by failing

to include it in the Pa.R.A.P. 1925(b) statement of matters complained of on

appeal.    Neither Ryder nor Abitbol was ordered to file a Rule 1925(b)

statement, although Ryder did file one in docket number 1217-00111 (Ryder).

Popular Community Bank is correct that the issue was not included in the

statement, and is therefore waived.7 However, Abitbol, as guarantor, did not

file a Rule 1925(b) statement, and the issue was raised before the trial court

in the petition to open and or strike. Therefore, we can consider the issue as

it applies to Abitbol’s matter.

       Pennsylvania Rule of Civil Procedure 2952 addresses the requirements

for a complaint seeking to confess a judgment. The relevant portion of that

rule is found at Subsection 2952(a)(4), which states:

       (a) The complaint shall contain the following:

              (4) a statement of assignment of the instrument.

Pa.R.C.P. 2952(a)(4).

       Case law holds this rule is satisfied when the complaint contains a recital

of assignment,8 the first paragraph of the complaint states:



____________________________________________


7 See Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005)
(party is bound by Pa.R.A.P. 1925(b) statement even if trial court did not order
one be filed).

8See Manor Building Corp. v. Manor Complex Assocs., Ltd., 645 A.2d
843, 847 n. 3 (Pa. Super. 1994).



                                           -7-
J-S42001-19


        1. Plaintiff is Popular Community Bank, successor-in-interest to
        Doral Bank, with an address at 85 Broad Street, 10th Floor, New
        York, N.Y. 10004.

Complaint, 12/4/2017, at ¶ 1 (emphasis added).

        In Weitzman v. Ulan, 450 A.2d 173 (Pa. Super. 1982), a panel of our

Court determined, “This lease has been assigned from Anna Weitzman to

Frank Weitzman and Shirley Shumsky”9 fulfilled the requirements of Rule

5924(a)(4). Paragraph 1 of Popular Community Bank’s complaint is sufficient

and neither Ryder (by waiver) nor Abitbol (substantively) are entitled to relief

on this issue.

        Finally, Ryder and Abitbol claim the attorneys’ fees sought were facially

excessive, even after having been reduced, part of this claim is an assertion

Popular Community Bank is attempting to collect double fees.10 Here, we note

that Popular Community Bank filed separate confessions of judgment against

both Ryder and Abitbol to collect the unpaid principal of a single loan. Despite

filing separate lawsuits to collect on a single loan, Popular Community Bank is

not entitled to collect the entire unpaid principal, late fees, and interest from

both defendants. Nonetheless, Popular Community Bank is entitled to collect

reasonable attorneys’ fees based upon the amount at issue – that is the

$273,946.92 principal balance.



____________________________________________


9   Id. at 178.

10In the trial court and on appeal, Popular Community Bank was represented
by the same lawyers and law firm in both matters.

                                           -8-
J-S42001-19



       Without explanation, the trial court used different methods of calculating

the attorneys’ fees awarded against each defendant. The trial court awarded

Popular Community Bank attorneys’ fees of $23,833.00 against Ryder to

collect the debt (an 8.7% fee commission), and $26,025.00 against Abitbol (a

9.5% fee commission) to collect the same debt. The trial court determined

the reasonableness of each fee based upon Popular Community Bank

collecting the entire debt from each defendant. However, if Popular

Community Bank is paid the entire fee commission levied against each

defendant, that will result in a combined fee commission of 18.2%. The trial

court never discussed the reasonableness of this percentage as a fee

commission.

       Independently, each order granting attorneys’ fees appears reasonable,

notwithstanding the unexplained different amounts awarded for what appears

to be identical work.11 Each order allows a fee commission of less than 10%

to collect the $273,946.92 principal balance (plus incidental costs). Popular

Community Bank is not entitled to collect the entire principal balance from

each defendant because Abitbol is only a guarantor of the Ryder debt.

       Until apportionment of the debt is determined between Ryder and

Abitbol, it is impossible to determine the reasonableness of the attorneys’ fees

awarded against each defendant.                Accordingly, we vacate the award of

attorneys’ fees against both Ryder and Abitbol and remand for recalculation
____________________________________________


11We know how the trial court arrived at the different fee amounts; we do not
know why the trial court awarded different amounts.

                                           -9-
J-S42001-19



of the attorneys’ fees or for explanation of the reasonableness of the combined

fee commission including an explanation why the fee commission is different

for each defendant.12

       Order affirmed in part, vacated in part. This matter is remanded for

action consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/19




____________________________________________


12 Because the trial court did not offer an analysis of the reasonableness of
the combined fee commission, we cannot offer an analysis of the
reasonableness of the trial court’s action. We are not specifically ruling the
combined fee is excessive, although the 18.2% commission is higher than any
fee commission approved in any of the case law cited by Popular Community
Bank.

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