J-A04028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE ESTATE OF SYLVESTER H. COOK       :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     v.                   :
                                          :
    DIANNE NOWICKI AND                    :
    ALLAN J. NOWICKI,                     :
                                          :
                          Appellants      :   No. 1677 EDA 2019

                   Appeal from the Order Entered May 9, 2019
                 in the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2018-03455

BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.:                          Filed: June 18, 2020

        Dianne Nowicki and Allan J. Nowicki (collectively, Appellants), pro se

appeal from the May 9, 2019 order denying their petition to strike/open a

confessed judgment. We affirm.

        The trial court provided the following factual and procedural history,

derived from the complaint of the Estate of Sylvester H. Cook (the Estate)1.

              This matter involves a mortgage loan by [the Estate] to
        RRQ, LLC,[a] for fifty-six acres of property in Tinicum Township,
        Bucks County. The mortgage was for $375,000[] at an interest
        rate of 4% annum. … The mortgage contained a confession of
        judgment and suretyship and guaranty clause personally binding

1 The personal representative of the Estate of Sylvester H. Cook in his/her
capacity as executor/executrix or administrator of the estate should have been
named as a party, not the Estate. Myers v. Estate of Wilks, 655 A.2d 176,
178 (Pa. Super. 1995) (stating estate of decedent is not proper party to suit
commenced after decedent’s death; rather, it is the personal representative
of decedent’s estate); see also 20 Pa.C.S. § 3373 (“An action or proceeding
to enforce any right or liability which survives a decedent may be brought by
or against his personal representative alone or with other parties as though
the decedent were alive.”).

* Retired Senior Judge assigned to the Superior Court.
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     [Appellants] to the mortgage. A mortgage note was executed on
     May 7, 2013. [Appellants] both signed [guaranty and suretyship
     agreements (GSA) and] disclosures for confession of judgment
     indicating their understanding that a default on the mortgage note
     would make them personally responsible for the loan.

           _____
           [a] RRQ, LLC is a Pennsylvania LLC[.] The Nowicki[]s are the

           only two members of RRQ[, LLC].

           On May 6, 2015, [RRQ, LLC and the Estate] agreed to a note
     and mortgage modification agreement changing the terms of
     payment and maturity of the initial mortgage note. Aside from
     these changes, no other changes were made to the terms of the
     note. At this time, [Appellants each] signed another [GSA and]
     disclosure for confession of judgment.

           RRQ, LLC[] did not make a required payment on the
     mortgage of $75,000[] on May 7, 2016, and while an interest
     payment of $12,000[] was made on June 3, 2016, no other
     payments have been made since that date. [Appellants] were the
     personal guarantors on the mortgage, and since RRQ, LLC
     defaulted on the mortgage, the obligations of [Appellants] under
     the [GSAs] became due.

            On October 10, 2017, the Estate filed a complaint in
     confession of judgment against RRQ, LLC. On June 12, 2018, the
     Estate filed a complaint in confession of judgment against
     [Appellants] seeking payment in the sum of $364,501.85[, which
     is the subject of this appeal]. On July 12, 2018, [Appellants] filed
     a petition to strike/open judgment. The Estate filed [a] response
     to [an] order to show cause on [Appellants’] petition to open
     judgment. [Appellants] filed their memorandum of law to
     strike/open judgment on March 25, 2019. Oral argument was
     heard on the petition to strike/open judgment on May 9, 2019. On
     that same day, the petition was denied.

          On May 15, 2019, [Appellants] filed a motion for
     reconsideration. On May 16, 2019, [Appellants] filed a motion for
     recusal.

Trial Court Opinion, 9/6/2019, at 1-3 (citations to record omitted;

unnecessary capitalization removed).

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      This timely-filed appeal followed.2 Both Appellants and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Appellants raise one issue for our review: whether the trial

court erred in denying their motion to strike/open judgment. Appellants’ Brief

at 6. In their brief, Appellants only address the denial of their petition to open

the confessed judgment.

      We review a challenge to an order denying a petition to open a confessed

judgment for an abuse of discretion.3 PNC Bank v. Bluestream Tech., Inc.

14 A.3d 831, 835 (Pa. Super. 2010) (citations omitted). “A petition to open

judgment is an appeal to the equitable powers of the court. As such, it is

committed to the sound discretion of the [trial] court and will not be disturbed

absent a manifest abuse of discretion.” Id., quoting PNC Bank v. Kerr, 802

A.2d 634, 638 (Pa. Super. 2002). A “petition to open rests within the discretion




2 On August 8, 2019, the trial court deemed the motions for reconsideration
and recusal moot. See Valley Forge Ctr. Associates v. Rib-It/K.P., Inc.,
693 A.2d 242, 245 (Pa. Super. 1997) (“Generally, either the lapse of 30 days
beyond the date of entry of an original order, or the filing of a notice of appeal
will vitiate the jurisdiction of the trial court to modify, alter, or otherwise
proceed further in the matter. Pa.R.A.P. 1701(a). Rule 1701, however, allows
the trial court to view its order for up to thirty days, even after an appeal has
been filed, if a party files a petition for reconsideration within the 30-day
appeal period and the trial court files an order ‘expressly granting’
reconsideration within the same period. Pa.R.A.P. 1701(b)(3)(i), (ii). … If a
trial court fails to grant reconsideration expressly within the prescribed 30
days, it loses the power to act upon both the petition [for reconsideration] and
the original order.”) (some citations omitted).

3As the Estate points out in its brief, Appellants incorrectly state the standard
of review in their brief. Estate’s Brief at 11-13; Appellants’ Brief at 5.
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of the trial court, and may be granted if the petitioner (1) acts promptly, (2)

alleges a meritorious defense, and (3) can produce sufficient evidence to

require submission of the case to a jury.” Id. at 836 (citations omitted).

       Preliminarily, we observe that in its brief, the Estate attempts to present

its arguments via incorporation by reference to other documents and does not

set forth any argument on the merits. Rather it incorporates the arguments

set forth in its response, and memorandum of law in support thereof, to

Appellants’ petition to strike/open the judgment filed in the trial court, and

“defers to the determinations made by the trial court.” 4 See Estate’s Brief at

6-7.

       Incorporation by reference is not proper development of an issue raised

in a brief. Our Supreme Court has

       previously held that such “incorporation by reference” is an
       unacceptable manner of appellate advocacy for the proper
       presentation of a claim for relief to our Court. Our rules of
       appellate procedure specifically require a party to set forth in his
       or her brief, in relation to the points of his argument or arguments,
       “discussion and citation of authorities as are deemed pertinent,”
       as well as citations to statutes and opinions of appellate courts

4 In its brief, the Estate also asks us to dismiss Appellants’ appeal for failure
to comply with our rules of appellate procedure relating to the reproduced
record. Estate’s Brief at 7-11. Specifically, it argues Appellants’ failure to file
a reproduced record designation or to include relevant documents in the
reproduced record requires dismissal of the appeal. Id. While we do not
condone Appellants’ failure to comply fully, the documents cited by the Estate
as missing are part of the certified record. Thus, we do not believe the defects
are so substantial as to warrant dismissal as in Rosselli v. Rosselli, 750 A.2d
355 (Pa. Super. 2000), cited by the Estate, and we decline to dismiss the
appeal on this basis. See Booher v. Olczak, 797 A.2d 342, 344 (Pa. Super.
2002).

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     and “the principle for which they are cited.” Pa.R.A.P. 2119(a),
     (b). Therefore[,] our appellate rules do not allow incorporation by
     reference of arguments contained in briefs filed with other
     tribunals, or briefs attached as appendices, as a substitute for the
     proper presentation of arguments in the body of the appellate
     brief.

Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011) (citations

omitted) (finding Briggs’ claim waived where he incorporated by reference the

argument set forth in a separate brief). “[C]ompliance with these rules by

appellate advocates who have any business before our Court is mandatory.”

Id. at 343. Thus, we decline to consider the Estate’s arguments. See id.;

Commonwealth v. Dodge, 77 A.3d 1263, 1274-75 (Pa. Super. 2013)

(noting with disapproval the Commonwealth’s attempt to incorporate by

reference its previous briefs and declining to consider the Commonwealth’s

arguments).

     We now turn to the issue on appeal. By way of background, on February

27, 2018, Allan Nowicki filed, in Bucks County Court of Common Pleas at

docket number 2018-01221, a complaint against the Estate, which alleged

counts of fraud, fraudulent misrepresentation, and unjust enrichment in

connection with the sale of the aforementioned property (Fraud Action). The

Estate filed preliminary objections to the Fraud Action on May 23, 2018, which

were overruled on February 6, 2019. See Nowicki’s Memorandum of Law to

Strike/Open Judgment, 4/8/2019, at Ex. A (Fraud Action, Order, 2/6/2019).

     In   their   petition   to   open   the   confessed   judgment,   Appellants

incorporated by reference the Fraud Action by attaching the docket entries

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and a copy of the first amended complaint from the Fraud Action to their

petition.   Petition to Strike/Open Judgment, 7/12/2018, at Exs. C, D. This

Court has held that incorporation of a complaint from a prior action within a

petitioner’s petition to open a confessed judgment is sufficient to plead the

petitioner’s defenses. Bluestream Tech., Inc., 14 A.3d at 840; see also

Pa.R.C.P. 1019(g) (“Any part of a pleading may be incorporated by reference

in another part of the same pleading or in another pleading in the same action.

A party may incorporate by reference any matter of record in any State or

Federal court of record whose records are within the county in which the action

is pending, or any matter which is recorded or transcribed verbatim in the

office of the prothonotary, clerk of any court of record, recorder of deeds or

register of wills of such county.”). Thus, Appellants sufficiently pleaded their

defenses.

      Appellants’ argument in their brief is underdeveloped and not clearly

articulated. Nonetheless, we glean that it centers on their assertion that the

doctrine of lis pendens,5 and their incorporation of Allan Nowicki’s claims of

fraud and fraudulent misrepresentation against the Estate in the Fraud Action,

permit opening of the confessed judgment. Appellants’ Brief at 9-12.




5“Pursuant to the doctrine of lis pendens, dismissal of a later cause of action
may be appropriate when the same parties are involved, the same rights are
asserted, and identical relief is sought in each action.” Bluestream Tech.,
Inc., 14 A.3d at 835.


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J-A04028-20

      The Estate did not challenge the promptness of Appellants’ petition.

Therefore, we begin by examining whether Appellants have alleged a

meritorious defense. The doctrine of lis pendens can present a meritorious

defense to support a petition to open a confessed judgment. Bluestream

Tech., Inc., 14 A.3d at 836. “We review de novo whether lis pendens operates

as a meritorious defense.” Id. at 836.

      In order to determine if [an appellant] presented a meritorious
      defense based on the doctrine of lis pendens, we examine if both
      suits involved the same parties (acting in the same legal capacity),
      the same causes of action (with due regard for the common law
      distinctions between contract, trespass, and equity actions), the
      same rights asserted, and the same relief requested.

Id. (citations and quotation marks omitted).

      Here, the trial court rejected Appellants’ lis pendens argument,

explaining that the instant action and the Fraud Action involve “a different

configuration” of parties and “different rights are being asserted.” Trial Court

Opinion, 9/6/2019, at 10.

      We first review whether the same parties are involved. We start by

noting that, as is the case here, the fact that a party is a plaintiff in a prior

action, but a defendant in the later action, is not dispositive of the identity of

party issue.6 Bluestream Tech., Inc., 14 A.3d at 837. However, as the trial

court pointed out, the Fraud Action was brought by Allan Nowicki against the




6Allan Nowicki is the plaintiff in the Fraud Action and a defendant in the instant
action. Conversely, the Estate is the plaintiff in the instant action and a
defendant in the Fraud Action.
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J-A04028-20

Estate and its co-executors, Herbert Cook and Stuart Cook. Dianne Nowicki is

not a party to the Fraud Action. Because all the parties in this case are not

parties to the Fraud Action, Appellants have not established this aspect of the

doctrine of lis pendens. See id.

      Additionally, Appellants have not established that the same causes of

action are present in both matters for the doctrine of lis pendens to apply.

“[T]he case/cause of action/controversy must be the same. …[I]n deciding

whether the controversy in each case is the same, one is ordinarily required

to examine the nature of the relief sought and the rights asserted by the

parties.” Id.

      First, although the rights asserted by Allan Nowicki in the case sub

judice, i.e., avoidance of payment on the loan, are subsumed by the rights he

asserted against the Estate in the Fraud Action, Dianne Nowicki’s rights in this

case were not implicated in the Fraud Action because she was not a party to

that action. See id. at 838. Further, the Estate’s “rights in each case differ

since it is declaring a right to collect in the current matter,” but there is nothing

in the record before us to show that the Estate was “asserting a right to collect

in the prior action.” Id. Second, the relief that the Estate “could receive in the

two actions is distinct since it would not be entitled to enforcement of the

loan[] in the [Fraud Action] unless it filed a counterclaim.” Id. at 839. There

is nothing in the record to indicate the Estate filed a counterclaim in the Fraud

Action. Accordingly, Appellants have not presented a meritorious defense


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based on the doctrine of lis pendens and are not entitled to the opening of the

judgment on this basis. See id.

      We next consider whether Appellants’ incorporation of Allan Nowicki’s

claims of fraud and fraudulent misrepresentation against the Estate in the

Fraud Action entitles Appellants to the judgment being opened.

      Fraud and misrepresentation are meritorious defenses that can support

the opening of a confessed judgment. Id. at 840. However, as we have

explained,

      the mere pleading of those defenses is insufficient. [An appellant]
      must also establish that it set forth sufficient evidence in support
      of those defenses to give rise to a question that would require
      submission of the case to a jury. In deciding if sufficient evidence
      has been pled to compel presentation of the question to a jury,
      this Court must view all of the evidence in a light most favorable
      to the petitioner and must accept as true all evidence and proper
      inferences therefrom that support such a defense.

Id. (citation omitted).

      The trial court found that Appellants’ attempt to incorporate other prior

pending actions to establish fraud was insufficient to “meet their burden to

show any clear, direct, precise and believable evidence of a meritorious

defense, sufficient to present any issue to a jury.”      Trial Court Opinion,

9/6/2019, at 8.

      In the Fraud Action, Allan Nowicki averred that the Estate’s co-executors

fraudulently induced him to enter into the agreement of sale of the

aforementioned property, which he later assigned to RRQ, LLC. See Petition

to Strike/Open Judgment, 7/12/2018, at Ex. D (Fraud Action, First Amended

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Complaint, 4/4/2018). Specifically, Allan Nowicki averred that the Estate’s co-

executors made misrepresentations relating to a right-of-way to access the

property, and the rental of a mobile home, garage, and shed on the property.

Id. According to Allan Nowicki, he “would have never assigned his agreement

to purchase the 56 acre parcel to RRQ, LLC … if he was made aware of this

information” or “knew there was not a perfected legal right-of-way.”          Id.

Likewise, Allan Nowicki averred he “would have never agreed to the personal

guarantee of the loan and the confession of judgment … if he knew that there

was not a perfected legal right-of-way.” Id.

      In deciding whether sufficient evidence has been pleaded to compel

presentation of the question to a jury, we examine whether the parol evidence

rule bars Appellants from introducing evidence of misrepresentation. Our

Supreme Court has explained the parol evidence rule as follows.

            Where the parties, without any fraud or mistake, have
      deliberately put their engagements in writing, the law declares the
      writing to be not only the best, but the only, evidence of their
      agreement. All preliminary negotiations, conversations and verbal
      agreements are merged in and superseded by the subsequent
      written contract and unless fraud, accident or mistake be averred,
      the writing constitutes the agreement between the parties, and its
      terms and agreements cannot be added to nor subtracted from by
      parol evidence.

            Therefore, for the parol evidence rule to apply, there must
      be a writing that represents the entire contract between the
      parties. To determine whether or not a writing is the parties’ entire
      contract, the writing must be looked at and if it appears to be a
      contract complete within itself, couched in such terms as import a
      complete legal obligation without any uncertainty as to the object
      or extent of the parties’ engagement, it is conclusively presumed
      that the writing represents the whole engagement of the parties.

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Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)

(citations, quotations marks, brackets, and ellipses omitted). “An integration

clause which states that a writing is meant to represent the parties’ entire

agreement is [] a clear sign that the writing is meant to be just that and

thereby expresses all of the parties’ negotiations, conversations, and

agreements made prior to its execution.” Id. (citations omitted); see also

Hart v. Arnold, 884 A.2d 316, 341 (Pa. Super. 2005) (stating the “effect of

an integration clause is to make the parol evidence rule particularly applicable”

and “parol evidence of prior representations is inadmissible as to a matter

covered by the written agreement with an integration clause”) (citations

omitted). “Once a writing is determined to be the parties’ entire contract, the

parol evidence rule applies and evidence of any previous oral or written

negotiations or agreements involving the same subject matter as the contract

is almost always inadmissible to explain or vary the terms of the contract.”

Yocca, 854 A.2d at 437 (citations omitted). Exceptions to this rule are

recognized where the writing is found to be ambiguous, and where a party

avers that a term was omitted from the contract because of fraud, accident,

or mistake. Id.

      With respect to the agreement of sale of the property between Allan

Nowicki and the Estate, even though the first amended complaint in the Fraud




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Action states that such agreement was attached as an exhibit, 7 we are unable

to locate it in the certified record before us, and it is not contained in the

reproduced record.

      This Court cannot meaningfully review claims raised on appeal
      unless we are provided with a full and complete certified record.
      This requirement is not a mere “technicality” nor is this a question
      of whether we are empowered to complain sua sponte of lacunae
      in the record. In the absence of an adequate certified record, there
      is no support for an appellant’s arguments and, thus, there is no
      basis on which relief could be granted.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)

(some citations omitted). “Our law is unequivocal that the responsibility rests

upon the appellant to ensure that the record certified on appeal is complete

in the sense that it contains all of the materials necessary for the reviewing

court to perform its duty.” Id.; see also Pa.R.A.P. 1931. Because Appellants

have failed to comply with relevant procedural rules, we are unable to look at

the writing to determine whether the agreement of sale formed the entire

contract between Allan Nowicki and the Estate such that it cannot be added

to or subtracted from by parol evidence. See Yocca, 854 A.2d at 436-37.

Thus, this claim is waived. See Preston, 904 A.2d at 8.

      Next, to the extent Appellants are attempting to assert the Estate

committed fraud and fraudulent misrepresentation upon them to enter into

the GSAs, which form the basis of the confessed judgment against them in




7 See Petition to Strike/Open Judgment, 7/12/2018, at Ex. D (Fraud Action,
First Amended Complaint, 4/4/2018, at ¶ 12).
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the instant matter, the parol evidence rule bars Appellants from introducing

such evidence. The GSAs, each signed by both Appellants, contained

integration clauses. See Complaint in Confession of Judgment on Guaranty

and Suretyship Agreement, 6/12/2018, at Exs. 4 (GSA, 5/7/2013, at ¶ 4)

(“Guarantor agrees that no promises, representations, agreements, conditions

or covenants have been made relating to this Guaranty other than those

contained herein, and that no modification of the terms hereof shall be binding

on Lender unless in writing signed by Lender.”), 8 (GSA, 5/6/2015, at ¶ 4)

(same). Thus, the GSAs represent the entire contract between Appellants and

the Estate and the parol evidence rule applies.

      Appellants do not invoke any of the exceptions to the parol evidence

rule with respect to the GSAs. As discussed supra, Allan Nowicki averred fraud

in the inducement in the Fraud Action. Such an averment cannot be supported

by parol evidence. As our Supreme Court explained,

      while parol evidence may be introduced based on a party’s claim
      that there was a fraud in the execution of the contract, i.e., that
      a term was fraudulently omitted from the contract, parol evidence
      may not be admitted based on a claim that there was fraud in the
      inducement of the contract, i.e., that an opposing party made
      false representations that induced the complaining party to agree
      to the contract.

Yocca, 854 A.2d at 437 n.26. Appellants make no assertion of fraud in the

execution of the GSAs. Because the GSAs constitute the entire contract, to

the extent Appellants attempt to rely on extrinsic evidence to show that the

Estate made fraudulent misrepresentations that induced them to agree to the


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GSAs, it is barred by the parol evidence rule and negates Appellants’ alleged

meritorious defense. Accordingly, viewing the evidence in a light most

favorable to Appellants and accepting as true all evidence and proper

inferences therefrom, Appellants have failed to set forth sufficient evidence in

support of their defenses of fraud and misrepresentation in connection with

the GSAs to give rise to a question that would require submission of the case

to a jury.

      Based upon the foregoing, we discern no abuse of discretion by the trial

court in denying Appellants’ petition to strike/open the confessed judgment.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/20




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