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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LYNDORA HOTEL, INC. AND THE             :    IN THE SUPERIOR COURT OF
ESTATE OF MICHAEL L. PAWK               :         PENNSYLVANIA
                                        :
                  v.                    :
                                        :
HARRY KOCH AND MELISSA KOCH             :
                                        :
                  Appellants            :
                                        :    No. 844 WDA 2017

                    Appeal from the Order May 10, 2017
   In the Court of Common Pleas of Butler County Civil Division at No(s):
                               2015-21506


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 10, 2018

     Appellants, Harry Koch and Melissa Koch (hereinafter “Appellants”),

appeal from an order entered on May 10, 2017 that denied their petition to

open or strike a confessed judgment entered against them. We affirm.

     The historical facts and procedural history of this case are as follows.

     [On or about September 22, 2015, Lyndora Hotel, Inc. and the
     Estate of Michael L. Pawk, (hereinafter “Appellees”), filed a
     complaint in confession of judgment for possession.         The
     complaint alleged numerous material breaches by Appellants of a
     May 3, 2007 Article of Agreement involving the sale of business
     assets and real property with respect to the Lyndora Hotel,
     located at 1 Main Street, Lyndora, Butler County, Pennsylvania
     16045].

     Pursuant to the above[-]referenced Article of Agreement, a deed
     would be executed and possession would be transferred to
     Appellants on or about May 15, 2022, upon the completion of
     total payment in the amount of Five Hundred Forty[-]Two
     Thousand Six Hundred Dollars and Fifteen Cents ($542,600.15),
     as well as Appellants having met all other terms and conditions
     of the Article of Agreement including the payment of any and all
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     real estate taxes associated with [the Lyndora Hotel]. See
     Article of Agreement[, 5/3/07]. Additionally, said Article of
     Agreement provided a confession of judgment clause permitting
     Appellees to confess judgment against Appellants for possession,
     and thereby eject them from the premises without further
     proceeding of court.

     Appellants initially contracted for the sale of the Lyndora Hotel
     with Michael L. Pawk (hereinafter “Dr. Pawk”).          Dr. Pawk
     maintained a working relationship with Appellants from the date
     of the execution of the Article of Agreement [(May 3, 2007)], to
     the date of his death on or about October 7, 2014. Upon Dr.
     Pawk’s death, and pursuant to the terms of Dr. Pawk’s will,
     Michael J. Pawk was named executor of Dr. Pawk’s estate.

     [Appellees alleged] that from [the time of] Dr. Pawk’s death until
     August 2015, numerous material breaches [of the Article of
     Agreement] occurred, including but not limited to [Appellants’
     failure] to pay real estate taxes for the years 2013, 2014, and
     2015 for the real property located at 1 Main Street, Lyndora,
     Pennsylvania 16045[.] It is as a result of these alleged material
     defaults that Appellees filed their complaint in confession of
     judgment for possession on or about September 22, 2015, as
     well as a praecipe for writ of possession on or about September
     23, 2015.

     Based upon said filings by Appellees, the Prothonotary’s Office of
     Butler County, Pennsylvania, issued a writ of possession which
     was served by the Sheriff’s Office of Butler County,
     Pennsylvania, upon Appellants on or about September 24, 2015.
     At that time, Appellees retook possession of the business. In
     response, on or about October 19, 2015, Appellants timely filed
     a petition to open or strike judgment or to [issue] a rule to show
     cause. [The trial court issued a rule to show cause on October
     21, 2017.]

     Further, [] on or about November 23, 2015, Appellees filed a
     complaint in confession of judgment for money damages[,]
     which resulted in [the entry of a judgment] on or about
     November 23, 2015, against Appellants in the amount of Four
     Hundred Ninety Three Thousand Three Hundred [] Six Dollars
     ($493,306.00). In response, on or about December 22, 2015,
     Appellants timely filed a petition to open or strike confessed
     judgment for money damages[.]



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      Discovery in both cases commenced and was to be completed no
      later than February 10, 2017, at which time th[e trial c]ourt
      issued a status conference order scheduling argument on
      Appellants’ petition to open or strike judgment or to [issue] a
      rule to show cause, and on Appellant[s’] corresponding petition
      to open or strike confessed judgment for money damages[.]

      At the completion of [] argument and upon consideration of the
      parties’ filings/briefs with regard thereto, th[e trial c]ourt issued
      an order of court [on] May 10, 2017, denying Appellant[s’]
      petition to open or strike [confessed j]udgment [for possession]
      or to issue a rule to show cause[. The trial court also issued an
      order on May 10, 2017 that] grant[ed] Appellants’ petition to
      open or strike confessed judgment for money damages[ entered
      on or about November 23, 2015 in the amount of Four Hundred
      Ninety-Three       Thousand     Three     Hundred      Six    Dollars
      ($493,306.00)].

      Appellants subsequently filed a notice of appeal on or about June
      9, 2017[] with respect to the [May 10, 2017 order] denying
      Appellants’ petition to open or strike [confessed j]udgment [of
      possession] or to issue a rule to show cause[.]

      Upon receipt of [the n]otice of appeal, on or about June 13,
      2017, in accordance with Rule 1925(b) of the Pennsylvania Rules
      of Appellate Procedure, th[e trial c]ourt entered an [order]
      wherein [] Appellants were directed to file of record and serve
      upon the [] trial judge a concise statement of [errors]
      complained of on appeal no later than twenty-one (21) days
      from the date of the order[.]

      On or about July 5, 2017, [Appellants filed their concise
      statement] pursuant to the Pennsylvania Rules of Appellate
      Procedure [1925(b) and the trial court issued its opinion on
      August 3, 2017].

Trial Court Opinion, 8/3/17, at 1-4 (certain capitalization omitted).

      Appellants raise the following issues for our review:

         Did the trial court err in failing to strike the judgment taken
         by confession against [Appellants]?

         Did the trial court err in failing to open the judgment taken by
         confession against [Appellants]?

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          Did the trial court err in administering equitable relief in the
          face of a legally-insufficient confession of judgment clause?

Appellants’ Brief at 4.1

       In their first issue, Appellants assert that the trial court erred in

refusing to strike a confessed judgment entered in favor of Appellees. We

review such an order for manifest abuse of discretion or error of law. See

Atlantic National Trust, LLC v. Stivala Investments, Inc., 922 A.2d

919, 922 (Pa. Super. 2007).

       It is well settled that:

       A petition to strike a judgment is a common law proceeding
       which operates as a demurrer to the record. A petition to strike
       a judgment may be granted only for a fatal defect or irregularity
       appearing on the face of the record. Resolution Trust Corp. v.
       Copley Qu–Wayne Associates, 683 A.2d 269, 273 (Pa. 1996).

         In considering the merits of a petition to strike [a judgment
         entered by confession], the court will be limited to a review
         of only the record as filed by the party in whose favor the
         warrant is given, i.e., the complaint and the documents
         which contain confession of judgment clauses.          Matters
         dehors the record filed by the party in whose favor the
         warrant is given will not be considered. If the record is
         self-sustaining, the judgment will not be stricken.... An
         order of the court striking a judgment annuls the original
         judgment and the parties are left as if no judgment had
         been entered.

       Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa. Super. 2011),
       quoting Resolution Trust Corp., supra. In other words, the
       petition to strike a confessed judgment must focus on any
       defects or irregularities appearing on the face of the record, as
____________________________________________


1  We have re-ordered the issues raised by Appellants to facilitate our
discussion.



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     filed by the party in whose favor the warrant was given, which
     affect the validity of the judgment and entitle the petitioner to
     relief as a matter of law. ESB Bank v. McDade, 2 A.3d 1236,
     1239 (Pa. Super. 2010). “[T]he record must be sufficient to
     sustain the judgment.” Id. The original record that is subject to
     review in a motion to strike a confessed judgment consists of the
     complaint in confession of judgment and the attached exhibits.
     Resolution Trust Corp., supra, 683 A.2d at 274.

Neducsin v. Capian, 121 A.3d 498, 504 (Pa. Super. 2015).

     Moreover, we assess the enforceability of a warrant of attorney clause

under the following guidelines:

     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. See
     Scott Factors, Inc. v. Hartley, 228 A.2d 887 (Pa. 1967). “[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.” Atlantic Nat. Trust, LLC
     v. Stivala Investments, Inc., 922 A.2d 919, 924 (Pa. Super.
     2007), appeal denied, 936 A.2d 39 (Pa. 2007). 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.”     Dollar Bank, Federal Sav. Bank v.
     Northwood Cheese Co., Inc., 637 A.2d 309, 311–312
     ([Pa.Super.] 1994), appeal denied, 653 A.2d 1231 (Pa. 1994).
     “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. “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.”     Hazer, supra at 1171; see also Ferrick v.
     Bianchini, 69 A.3d 642 [(Pa. Super. 2013)] (stating same).

Midwest Financial Acceptance Corp. v. Lopez, 78 A.3d 614, 622–623

(Pa. Super. 2013).




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      In this case, Appellees filed their complaint in confession of judgment

for possession on or about September 22, 2015.          Appellees attached the

parties’ Article of Agreement (which included the confession of judgment

clause) to their complaint.      Appellees alleged in their complaint that,

pursuant to the Article of Agreement, Appellants agreed to make monthly

payments of principle and interest to Appellees for a 15-year term and to

pay all taxes that became due on the property.        Appellees further alleged

that Appellants breached these terms and that such defaults continued in

excess of 30 days.       Finally, Appellees alleged that the cognovit clause

empowered them to confess judgment for possession “in case of default of

payment of any sum of principal or interest [or] taxes herein agreed to be

paid … for the space of thirty (30) days after the same shall become due and

payable by the terms hereof[.]”        Appellees’ Complaint in Confession of

Judgment for Possession, 9/22/17, at 4. It is evident that the original record

that is subject to judicial review, i.e. Appellees’ complaint and the

attachments thereto, is self-sustaining.

      Notwithstanding,    Appellants   claim   that   the   cognovit   clause   is

unenforceable on its face “due to a lack of conspicuousness and clear

relationship [] between the signature of the bound part[ies] and the

confession of judgment clause.” Appellants’ Brief at 10. Appellants explain

that the warrant of attorney provision in the Article of Agreement was not

conspicuous, and therefore failed to make clear to the signatories that they


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were entering into a confession of judgment clause, because: 1) it was not

printed in bold text; 2) it did not appear in capital letters; 3) it was not set

off from other text in the parties’ contract with contrasting typeface; and, 4)

it continued over two pages. See Appellants’ Brief at 13. Appellants also

contend that their signatures were too remote from the challenged clause to

bear a direct relation to the provision since three paragraphs appear

between the clause and the signature lines on the Article of Agreement. We

discern no merit in either asserted ground for relief.

       Appellees argue at some length that Pennsylvania law mandates that a

confession of judgment clause must appear in a typeface and format that

stands in contrast to other text found in a contractual agreement. Our own

research has revealed, however, that while we have upheld cognovit clauses

where they appear conspicuously within an agreement, the threshold

requirements for enforcement remain that the provision be in writing and

signed by the party to be bound.2                See, e.g., Midwest Financial

Acceptance Corp., supra. In fact, our prior decision in Germantown Sav.

____________________________________________


2 Appellants cite no case law to support their claim that conspicuousness is a
legal prerequisite to enforcement of a confession of judgment clause. In
fact, Appellants cite only 13 Pa.C.S.A. § 1201(10), a Uniform Commercial
Code (UCC) provision that defines the term “conspicuousness,” to support
their claims.    Since the UCC does not apply to real estate or other
transactions that do not involve the sale of goods, see Kaplan v.
Cablevision of PA, Inc., 671 A.2d 716, 722-723 (Pa. Super. 1996), appeal
denied, 683 A.2d 883 (Pa. 1996), this provision of the UCC offers no
relevant guidance in the instant dispute.



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Bank v. Talacki, 657 A.2d 1285 (Pa. Super. 1995) strongly suggests that

Appellants’ claim is meritless.    In Talacki, we rejected a challenge to the

enforcement of a confession of judgment clause where the clause appeared

only as a separately numbered paragraph within the body of an agreement

(it was paragraph six out of 18 and found on page three of nine pages) and

was printed in the same size type as the rest of the text.        Id. at 1289.

Talacki demonstrates that the absence of contrasting typeface and font

does not preclude enforcement of a confession of judgment clause.

         We also reject Appellants’ claim that their signatures were too remote

from the challenged clause to bear a direct relation to the cognovit

provision.     The parties’ signatures appeared at the end of the Article of

Agreement in which the confession of judgment clause was located.

Moreover, only three short paragraphs, each a single sentence in length,

separated the confession of judgment clause from the parties’ signature

block.      This separation was not so substantial as to defeat a direct

relationship between the requisite signatures and the challenged clause.

Pennsylvania case law holds only that a signature on a contract will not bind

the signatory to a warrant of attorney clause found outside the agreement.

See Frantz Tractor Co. v. Wyoming Valley Nursery, 120 A.2d 303, 305

(Pa. 1956) (“A general reference in the body of an executed lease to terms

and conditions to be found outside the agreement is insufficient to bind the

lessee to a warrant of attorney not contained in the body of the lease unless


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the lessee signs the warrant where it does appear. In short, a warrant of

attorney to confess judgment is not to be foisted upon anyone by implication

or by general and nonspecific reference.”); Egyptian Sands Real Estate,

Inc. v. Polony, 294 A.2d 799, 803 (Pa. Super. 1972) (warrant of attorney

provision on second page of document will not bind signer of first page);

Hazar, 26 A.3d at 1171-1172 (cognovit clause found in addendum to signed

commercial lease was unenforceable against lessee where only a reference

to the clause appeared in the 32 paragraph, five-page lease and addendum

was unsigned). Under the circumstances before us, Appellants’ signatures

at the end of an agreement that contained a confession of judgment clause

were not so remote as to support the conclusion that enforcement here

occurred solely by implication or general and nonspecific reference.

       We now turn to Appellants’ second issue. Here, Appellants claim that

the trial court erred in denying their petition to open because they

unknowingly signed the confession of judgment clause3 and because they

possessed meritorious defenses to Appellees’ claims.              “[W]e review [an]

order denying [a] petition to open [a] confessed judgment for an abuse of

discretion.” PNC Bank, Nat. Ass'n v. Bluestream Technology, Inc., 14

A.3d 831, 835 (Pa. Super. 2010).               “Judicial discretion requires action in

____________________________________________


3 We have said that claims asserting an unknowing, involuntary, or
unintelligent execution of a confession of judgment clause constitute
arguments for opening such a judgment. See Neducsin, 121 A.3d at 509.



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conformity with law on facts and circumstances before the trial court after

hearing and consideration. Consequently, the court abuses its discretion if,

in resolving the issue for decision, it misapplies the law or exercises its

discretion in a manner lacking reason.” Miller v. Sacred Heart Hosp., 753

A.2d 829, 832 (Pa. Super. 2000) (internal citations omitted).

     The following principles govern our review of an order denying a

petition to open a judgment.

     The trial court may open a confessed judgment “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.” PNC Bank, Nat. Ass'n, supra at 836. Generally, the
     court will dispose of the rule on petition and answer, along with
     other discovery and admissions. Pa.R.C.P. 2959(e).

     When determining if the petitioner acted promptly, “the courts
     are not bound by an inflexible time frame. The crucial factor in
     determining whether a petition is timely is not the specific time
     which has elapsed but rather the reasonableness of the
     explanation given for delay.” First Seneca Bank & Trust Co.
     v. Laurel Mountain Development Corp., 485 A.2d 1086, 1088
     (Pa. 1984).

     “A meritorious defense is one upon which relief could be afforded
     if proven at trial.” Ferrick, supra, at 647.

        Pa.R.Civ.P. 2959(e) sets forth the standard by which a court
        determines whether a moving party has properly averred a
        meritorious defense. If evidence is produced which in a jury
        trial would require the issues to be submitted to the jury the
        court shall open the judgment. Furthermore, the court
        must view the evidence presented in the light most
        favorable to the moving party, while rejecting contrary
        evidence of the non-moving party. Continental Bank v.
        Axler 510 A.2d 726, 728 (Pa. Super. 1986); Pawco v.
        Bergman Knitting Mills, Inc. 424 A.2d 891, 897 (Pa.
        Super. 1980). The petitioner need not produce evidence
        proving that if the judgment is opened, the petitioner will

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        prevail.    Id.  Moreover, we must accept as true the
        petitioner's evidence and all reasonable and proper
        inferences flowing therefrom. Federman v. Pozsonyi 529
        A.2d 530, 533 (Pa. Super. 1987), citing Hamilton Bank v.
        Rulnick 475 A.2d 134, 137 (Pa. Super. 1984).

     Liazis v. Kosta, Inc., 618 A.2d 450, 453 (Pa. super. 1992). In
     other words, a judgment of confession will be opened if “a
     petitioner seeking relief therefrom produces evidence which in a
     jury trial would require issues to be submitted to a jury.” Foerst
     v. Rotkis, 368 A.2d 805, 807–808 (Pa. Super. 1976). The
     standard of sufficiency here is similar to the standard for a
     directed verdict, in that we must view the facts most favorably
     to the moving party, we must accept as true all the evidence and
     proper inferences in support of the defense raised, and we must
     reject all adverse allegations. Greenwood v. Kadoich, 357
     A.2d 604, 606 (Pa. Super. 1976). The trial court can make this
     decision as a matter of law when the defense presented is
     without adequate substance, because contract construction and
     interpretation is generally a question of law for the court to
     decide. Profit Wize Marketing v. Wiest, 812 A.2d 1270, 1274
     (Pa. Super. 2002).

Neducsin, 121 A.3d at 506-507.

     There is no dispute in this case that Appellants acted promptly in filing

their petition to open the confessed judgment.             Appellees filed their

complaint in confession of judgment on or about September 22, 2015.

Thereafter, a writ of possession issued by the Butler County prothonotary

was served upon Appellants on or about September 24, 2015.             Appellants

then filed their petition to open or strike the judgment on or about October

19, 2015. This timeline demonstrates a prompt response by Appellants.

     Appellants argue that they alleged two distinct meritorious defenses.

First, they contend that the cognovit clause employed unclear and

ambiguous     language   and   that   they     gave   uncontroverted   deposition

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testimony which established that they were unaware of the clause and

lacked understanding of its meaning and legal consequences.                    See

Appellants’ Brief at 17-20.          Next, Appellants contend that any alleged

breaches of the parties’ agreement were not material and, therefore, did not

trigger the confession of judgment clause. See id. at 20-26. We discern no

error of law or abuse of discretion in the trial court’s rejection of these

alleged meritorious defenses.

       Melissa and Harry Koch were deposed on September 1, 2016 and

January 12, 2016, respectively.4 At her deposition, Mrs. Koch5 testified that

she signed the Article of Agreement because she was the spouse of Mr.

Koch. See N.T. Depo., 9/1/16, at 7.            She did not read the agreement or

consult with counsel prior to signing it.          Id.   As a result, she lacked an

understanding as to Mr. Koch’s obligations under the contract and only

understood that he was “renting to buy” the property and business from Dr.

Pawk. Id. at 8.

       Mr. Koch testified that he did not recall seeing the parties’ agreement

until they met to sign it; however, he reviewed it at that time.          See N.T.

Depo., 1/12/16, at 7.        No one told Mr. Koch that he needed to sign the
____________________________________________


4 The trial court could consider matters outside the record for purposes of
assessing Appellees’ petition to open the confessed judgment.          See
Neducsin, 121 A.3d at 506.

5 Although we shall refer to Melissa Koch as “Mrs. Koch,” the record reflects
that she divorced Harry Koch in late 2007.



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agreement immediately. Id. Mr. Koch never consulted with legal counsel

about the parties’ agreement and could not recall whether he told Appellees

that he retained counsel to assist him in the transaction. Id. at 7, 8, and

21.   Mr. Koch did not understand that he signed an agreement with a

confession of judgment clause and he was unaware of what consequences

flowed from his agreement to such a provision. Id. at 21. Mr. Koch did not

recall whether the confession of judgment clause was ever brought to his

attention. Id.

      The trial court characterized Appellants’ testimony as self-serving and

refused to find that it supported a meritorious defense. See, e.g., N.T. Oral

Argument, 5/10/77, at 11 (trial court observing that, “I don’t know how you

get around the self-serving purpose of that testimony.”). This was entirely

consistent with Pennsylvania law, which holds that, in the absence of fraud,

one’s failure to read or attain an understanding of a contractual provision is

not grounds for opening a judgment. See Talacki, 657 A.2d at 1289. In

that case, the guarantor of a commercial obligation sought to open a

confessed judgment, alleging (among other things) that she did not read the

contractual documents she signed, she would not have understood them

even if she read them, she signed them at the behest of her husband, and

she did not know of the existence of the confession of judgment language in

the materials. Id. In rejecting these claims, we reasoned:

      It is well established that, in the absence of fraud, the failure to
      read a contract before signing it is “an unavailing excuse or

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     defense and cannot justify an avoidance, modification or
     nullification of the contract”; it is considered “supine negligence.”
     Standard Venetian Blind Co. v. American Emp. Ins. Co.,
     469 A.2d 563, 566 (Pa. 1983), quoting Olson Estate, 291 A.2d
     95, 98 (Pa. 1972). Moreover, without evidence to support
     appellant's allegations that she did not voluntarily consent to the
     warrant of attorney, and when appellant's signature clearly
     appears on the last page of the [agreement], we cannot find that
     the trial court abused its discretion when it refused to open the
     judgment on this basis. See North Penn Consumer Discount
     Co. v. Shultz, 378 A.2d 1275 (Pa. Super. 1977) (record
     supported court's finding that debtors' allegation that they did
     not understand warrant of attorney were not credible).

                                     ***

     It is clear that a party's signature to a contract is designed to
     evidence his or her intention to be bound thereby. Petrie v.
     Haddock, 119 A.2d 45 (Pa. 1956). Where, as here, the debtor
     has not alleged fraud, and has produced no evidence to show a
     lack of capacity to understand the document signed, or that he
     or she had asked for an explanation of the contract language,
     the debtor must be held to the contract's terms.          Provco
     Leasing Corp. v. Safin, 402 A.2d 510 (Pa. Super. 1979).

Talacki, 657 A.2d at 1289 (footnote omitted).

     Appellants’ alleged lack of knowledge, awareness, and understanding

of the presence and legal effect of the confession of judgment clause came

about as the result of their own failure to review and digest the parties’

Article of Agreement and consult with counsel.       In the absence of fraud,

these allegations will not furnish grounds to open the judgment.

     We next consider Appellants’ claim that any alleged breaches were not

material. Here, Appellants do not dispute that they failed, at times, to make

payments of principal and interest, that they failed to pay property taxes

when due, and that these default conditions persisted for more than 30

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days.    Instead, Appellants argue that “the fact that some payments could

not be made when due [is] simply part and parcel of the restaurant

business.” Appellants’ Brief at 23. Appellants further point out that while a

tax sale of the property was threatened in September 2015, no sale

occurred because of a last minute payment. Appellants also note the course

of their dealings with the late Dr. Pawk, who entertained a more flexible

approach to the resolution of contractual defaults.     Taking these factors

together, the thrust of Appellants’ claim is that their alleged breaches were

not material to the parties’ agreement and that Appellees, therefore, were

not entitled to pursue contractual remedies triggered by Appellants’ failure

to perform their obligations under the agreement.

        Appellants’ position misapprehends the concept of “material breach”

under Pennsylvania law.6 “When performance of a duty under a contract is

due, any nonperformance is a breach.” Dufalla, 837 A.2d at 467, quoting

Restatement (Second) of Contracts § 235(2) (1981). “A material breach by

one party to a contract entitles the non-breaching party to suspend

performance.” Dufalla, 837 A.2d at 467. In the present case, Appellees’

only contractual duties were to accept payments from Appellants and convey

title to the property and restaurant after all payments had been tendered.
____________________________________________


6Appellants do not even purport to apply the four-factor test for establishing
or disproving a material breach of a contract under Pennsylvania law. See
Widmer Engineering, Inc. v. Dufalla, 837 A.2d 459, 468 (Pa. Super.
2003).



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Legally speaking, Appellees never “suspended” performance under the

parties’ agreement but, instead, invoked contractual remedies intended to

secure performance by Appellants. We simply fail to see how the concept of

a material breach has any application under the present circumstances.

      In reviewing whether the trial court correctly permitted Appellees to

confess judgment for possession in light of Appellants’ admitted failures to

pay property taxes when due and make full and timely monthly payments of

principal and interest, we are guided by the following principles.

      A contract's language is unambiguous if it can be determined
      without any other guide than knowledge of the simple facts on
      which its meaning depends. [Wiest, 812 A.2d at 1274.] When
      the contract is clear and unambiguous, the meaning of the
      contract is ascertained from the writing alone.       Kmart of
      Pennsylvania, L.P. v. MD Mall Associates, LLC, 959 A.2d
      939, 944 (Pa. Super. 2008), appeal denied, 980 A.2d 609 (Pa.
      2009). A court must not distort the meaning of the language or
      resort to a strained contrivance to find an ambiguity. Mitsock
      v. Erie Ins. Exchange, 909 A.2d 828, 831 (Pa. Super. 2006).
      Additionally, a mere disagreement between the parties regarding
      the proper construction of the language does not render the
      contract ambiguous. Baney v. Eoute, 784 A.2d 132, 136 (Pa.
      Super. 2001). In the context of a petition to open a confessed
      judgment, “[t]he function of our [C]ourt is not to [w]eigh the
      evidence in support of the defense, but merely to determine
      whether there was sufficient evidence to go to the jury.”
      Foerst, supra.

        Whether a judge has correctly interpreted a writing and
        properly determined the legal duties which arise therefrom
        is a question of law for the appellate court.” Riccio v.
        American Republic Ins. Co., 705 A.2d 422, 426 (Pa.
        1997). The legal effect or enforceability of a contract
        provision presents a question of law accorded full appellate
        review and is not limited to an abuse of discretion standard.
        Id.; see also Patriot Commercial Leasing Co., Inc. v.


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        Kremer Restaurant, 915 A.2d 647 (Pa. Super. 2006),
        appeal denied, 951 A.2d 1166 (Pa. 2008)[.]

Neducsin, 121 A.3d at 507 (quotations omitted).

     In this case, the Article of Agreement obligated Appellants to make

monthly payments of principal and interest and to pay property taxes when

they become due. In the event Appellants defaulted under these terms, the

warrant of attorney clause empowered Appellees to confess judgment for

possession if the default conditions existed for more than 30 days.     The

agreement between the parties did not predicate its payment terms on

economic conditions within the restaurant industry, partial payments toward

past due balances, or past dealings between the parties. The language of

the contract was clear and unambiguous and the trial court rightfully

ascertained that Appellants’ admitted defaults triggered the clause allowing

Appellees to confess judgment for possession.

     In their final claim, Appellants assert that the trial court erred in

assessing the equitable considerations in this case since the confession of

judgment clause was legally unenforceable.      We disagree.   As we have

explained above, Appellees’ complaint and the cognovit clause were

self-sustaining and Appellants were not entitled to an order granting their

petition to strike the judgment.   In addition, Appellants have not come

forward with a meritorious defense and, thus, were not entitled to an order

that opened the judgment.    Simply put, the trial court did not improperly




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allow its evaluation of the equities to displace its examination of the legal

issues. Accordingly, Appellants’ third claim merits no relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/10/2018




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