J-A22024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PR FINANCING LIMITED PARTNERSHIP                 IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ZHEN XIANG WENG AND YUE YING
DONG, TRADING AS SUKURA EXPRESS

                            Appellants                No. 274 MDA 2015


                      Appeal from the Order January 8, 2015
                  in the Court of Common Pleas of York County
                    Civil Division at No(s): 2013-NO-7486-30
                                             2014 SU-1030-40



BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 28, 2015

        Appellants Zhen Xiang Weng and Yue Ying Dong (“Appellants”) appeal

the January 8, 2015 order of the York County Court of Common Pleas

denying their Petition to Open Confession of Judgment. We affirm.

        On October 22, 2012, while represented by counsel, Appellants

entered into a commercial lease agreement with PR Financing Limited

Partnership (“PR Financing”) to operate a Chinese restaurant in the North

Hanover Mall, located in Hanover, Pennsylvania. The parties amended the



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*
    Retired Senior Judge assigned to the Superior Court.
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lease on November 28, 2012.1 The restaurant opened on August 31, 2013,

but closed within two weeks.




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1
    The lease’s confession of judgment clause provides, in pertinent part:

        Confession of Judgment – Rent.            Tenant covenants and
        agrees that if there is an Event of Default, then Landlord may,
        without limitation, cause judgments for money to be entered
        against Tenant and, for those purposes, Tenant hereby grants
        the following warrant of attorney: Tenant hereby irrevocably
        authorizes and empowers any prothonotary, clerk of court,
        attorney of any record of court, and/or Landlord (as well as
        someone acting for Landlord) in any and all actions commenced
        against Tenant for recovery of the Rent and/or other amounts to
        be paid to Landlord by Tenant to appear for Tenant, assess
        damages, and confess or otherwise enter judgment against
        Tenant for all or any part of the Rent and/or other amounts to be
        paid to Landlord by Tenant including, without limitation, sums
        under Section 16.02(a), together with interest, costs, and an
        attorneys’ commission of five percent (5%) of the full amount of
        such Rent, amount and sums. Thereupon, writs of execution as
        well as attachment may forthwith issue and be served without
        any prior notice, writ, or proceeding whatsoever except as may
        otherwise be required by applicable law.         The warrant of
        attorney herein granted shall not be exhausted by one or more
        exercises of it; successive actions may be commenced and
        successive judgments may be confessed or otherwise entered
        against Tenant, from time to time, as often as any of the Rent
        and/or other amounts and sums shall fall or be due or be in
        arrears. This warrant of attorney may be exercised during the
        Term of this Lease, any extension or renewals thereof, and/or
        after the termination or expiration of the Term. The provisions
        of Section 16.02(d) are incorporated herein by this reference.

Lease, Section 16.02(b).




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      PR Financing sent Appellants a notice of default on September 17,

2013. On October 22, 2013, PR Financing sent Appellants a notice that it

had taken possession of the premises without termination of the lease.

      On November 15, 2013, PR Financing filed a complaint in confession of

judgment, and the York County Court of Common Pleas prothonotary

entered judgment against Appellants.       That same day, the prothonotary

served Appellants with a notice of entry of the confessed judgment.

Appellants received the notice within a few days. PR Financing also served

Appellants with the Important Notice of Intent to Execute on the Judgment,

which Appellants received via overnight delivery to their home on November

22, 2013.

      Over four months later, on March 26, 2014, Appellants filed a Petition

to Open Confession of Judgment (“Petition to Open”). The trial court allowed

discovery on the Petition to Open. Appellants were deposed with the aid of a

Chinese-Mandarin interpreter.      During the deposition, Appellant Weng

testified that he is a naturalized citizen of the United States who has been in

the United States for 20 years and doing business as a restauranteur for

over 18 years; he was educated as an accountant in China; he has retained

attorneys before for the purposes of entering two prior English-language

leases for his restaurants; he consulted with numerous attorneys during the

four month period between receiving the notice of confession of judgment

and the filing of the Petition to Open; and he was aware of the need to act in

response to the Confession of Judgment.

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      The trial court conducted a hearing on the Petition to Open on October

16, 2014. At the hearing, the parties relied on the deposition testimony and

exhibits to make argument to the court.       On January 12, 2015, the trial

court denied the Petition to Open. Appellants timely appealed.

      Appellants raise a single claim for review:

      Whether the [t]rial [c]ourt improperly denied Appellant’s [sic]
      Petition to Open Confession of Judgment, thereby committing
      abuse of discretion?

Appellants’ Brief, p. 5.

      We have noted that:

      [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 hearing court and will not be disturbed absent a
      manifest abuse of discretion.

PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa.Super.2002); Huntington Nat.

Bank v. K-Cor, Inc., 107 A.3d 783, 785 (Pa.Super.2014) (“We review a

court’s order denying a petition to open a confessed judgment for an abuse

of discretion.”).

      This Court’s standard of review regarding the denial of a petition to

open or strike a default judgment requires that the Court:

      examine the entire record for any abuse of discretion, reversing
      only where the trial court’s findings are inconsistent with the
      clear equities of the case. Moreover, this Court must determine
      whether there are equitable considerations which require that a
      defendant, against whom a default judgment has been entered,
      receive an opportunity to have the case decided on the merits.
      Where the trial court’s analysis was premised upon record
      evidence, where its findings of fact were deductions from other

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       facts, a pure result of reasoning, and where the trial court made
       no credibility determinations, this Court may draw its own
       inferences and arrive at its own conclusions. Finally, where the
       equities warrant opening a default judgment, this Court will not
       hesitate to find an abuse of discretion.

Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1280

(Pa.Super.2005)        (quoting   Reid   v.    Boohar,    856   A.2d    156,   159

(Pa.Super.2004)).

       The Pennsylvania Rules of Civil Procedure permit judgment by

confession and govern the opening of such a judgment. See Pa.R.C.P. 2950

et seq.

       [A] petition to open rests within the discretion 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.

Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa.Super.2011) (quoting PNC Bank,

Nat.      Ass’n   v.   Bluestream     Tech.,    Inc.,    14   A.3d   831,   835-36

(Pa.Super.2010)).        Once a written notice of a judgment entered by

confession is served, a defendant/petitioner has 30 days in which to file a

petition to open the judgment.            Pa.R.C.P. 2959(a)(3).        “Unless the

[petitioner] can demonstrate that there were compelling reasons for the

delay, a petition not timely filed shall be denied.” Id.

       As this Court has explained:

       a court should open a confessed judgment if the petitioner
       promptly presents evidence on a petition to open which in a jury
       trial would require that the issues be submitted to the jury. A
       petitioner must offer clear, direct, precise and believable
       evidence of a meritorious defense, sufficient to raise a jury

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      question. In determining whether sufficient evidence has been
      presented, we employ the same standard as in a directed
      verdict: we view all the evidence in the light most favorable to
      the petitioner and accept as true all evidence and proper
      inferences therefrom supporting the defense while we reject
      adverse allegations of the party obtaining the judgment.

Stahl Oil Co. v. Helsel, 860 A.2d 508, 512 (Pa.Super.2004) (internal

citations omitted).

      Appellants argue that the trial court erred in denying the Petition to

Open because the combination of a failure to retain counsel despite having

contacted 10 different attorneys during the 30 days after receiving the

notice of confessed judgment and an alleged language barrier provided a

compelling reason justifying their four-month delay in filing the Petition to

Open. See Appellants’ Brief, pp. 9-13. We disagree.

      The instant case turns on whether Appellants promptly filed their

petition to open judgment.    Appellants admit they received notice of the

confession of judgment within a few days of November 15, 2013, but did not

file their Petition to Open until four months after receiving service of the

notice.   Because they did not file their petition to open within 30 days of

service of the notice, Appellants must demonstrate a compelling reason for

the delay. See Pa.R.C.P. 2959(a)(3).    Without citing to any legal authority,

Appellants claim that an inability to speak, read, or understand the English




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language well is a per se compelling reason to excuse their delay.2

Alternatively, they claim their alleged language barrier, combined with a

failure to retain counsel despite visiting at least 10 law firms in the 30 days

that followed receipt of the Notice of Intent to Execute, prevented timely

filing of the Petition to Open and thereby provides a compelling reason for

the delay.

       PR Financing argues that an inability to understand or communicate

well in the English language is akin to “any other insufficiency of knowledge

or risk that a business person must appreciate or take the consequences[,]”

and does not provide a valid excuse to avoid liability on contracts. 3 See PR

Financing’s Brief, p. 8 (citing Fried for Use of Berger Supply Co. v. Feola,

129 F. Supp. 699 (W.D. Pa. 1954) (difficulty understanding English does not

render contract unenforceable) and Morales v. Sun Constructors, Inc.,

541 F.3d 218, 222 (3d Cir. 2008) (“In the absence of fraud, the fact that an

offeree cannot read, write, speak, or understand the English language is

immaterial to whether an English-language agreement the offeree executes

is enforceable.”)). PR Financing likens a language barrier to a failure to read

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2
  Appellants simply conclude that “it is common sense that a language
barrier is [p]er [s]e a compelling reason.” Appellants’ Brief, p. 12.
3
  This Court’s research has revealed no Pennsylvania case discussing
whether an alleged language barrier provides a per se compelling reason for
delay in filing a petition to open a confession judgment after receipt of
notice.



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a contract, which, as supine negligence, does not provide a compelling

reason to avoid the terms of the contract.4 See PR Financing’s Brief, pp. 7-

8.

       In any event, regardless whether an alleged language barrier alone is

a defense, Appellants’ claim fails. Appellant Weng admitted that he received

the notice of confession of judgment. Further, his actions in attempting to

secure representation in the 30 days that followed his receipt of the notice

illustrate that he knew action was required.     This is not simply a case of

foreign language-speaking individuals not understanding the contents of the

warning and/or not being able to find representation until after the 30-day

period had passed. Rather, Appellants’ problem stems from the nearly three

months delay5 between the 30-day period during which they claim to have


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4
  Pennsylvania courts have found that a failure to read a confession of
judgment is not grounds to open the judgment: Dollar Bank, Fed. Sav.
Bank v. Northwood Cheese Co., 637 A.2d 309 (Pa.Super.1994);
Pittsburgh Nat. Bank v. Larson, 507 A.2d 867 (Pa.Super.1986); T. W.
Phillips Gas & Oil Co. v. Kline, 84 A.2d 301 (Pa.1951); Germantown
Sav. Bank v. Talacki, 657 A.2d 1285, 1289 (Pa.Super.1995) (allegation
that party did not read the documents she signed and would not have
understood the documents even if she had read them insufficient reason to
open judgment).
5
 Appellants received the notice of confession of judgment via overnight mail
on November 22, 2013.        Therefore, the 30-day period during which
Appellant claimed to have contacted 10 attorneys ended on December 22,
2013. Appellants did not secure the services of counsel until March 17,
2014. Appellants offer no explanation for the intervening 82 days.




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contacted 10 attorneys and when they retained representation and filed the

Petition to Open.

        The trial court found Appellants’ excuses insufficient, explaining:

        The Petition to Open was filed over four months after confession
        of judgment was entered, well beyond the 30 day requirement.
        The excuse for the delay was [Appellants’] difficulty retaining
        counsel and their difficulty communicating in English; however,
        [Appellant] Weng consulted with numerous attorneys during that
        four month period and was aware of the need to act in response
        to the Confession of Judgment. In addition, [Appellant] Weng
        has been in the United States for approximately 20 years, has
        operated two business [sic] for over 18 years and is a
        naturalized citizen who was educated as an accountant in China.
        The alleged language barrier also did not prevent [Appellants]
        from retaining counsel and entering into the lease that is subject
        of the confession of judgment or entering into two prior
        restaurant leases that were also drafted in English.

Order Denying Petition to Open Confession of Judgment, January 8, 2015, 6

p. 2.

        We discern no abuse of discretion in the trial court’s ruling that

Appellants’ alleged language barrier and difficulty retaining counsel did not

present a compelling reason or reasonable explanation for their delay in

filing the Petition to Open.

        For the preceding reasons, we affirm the trial court’s January 8, 2015

denying Appellants’ Petition to Open Confession of Judgment.

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6
 While signed on January 8, 2015, this order was not docketed until January
12, 2015. The trial court’s Pa.R.A.P. 1925(a) Opinion incorporates this
order. See Pa.R.A.P. 1925(a) Opinion, March 6, 2015, pp. 1-2.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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