J-S05034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS A. STEWART,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SCOTT E. ROSEBERRY, D.D.S.

                            Appellant                 No. 168 MDA 2015


               Appeal from the Order Entered December 31, 2014
                 in the Court of Common Pleas of Berks County
                         Civil Division at No.: 14-21441


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 03, 2016

        Appellant, Scott E. Roseberry, D.D.S., appeals from the order denying

his petition to vacate, strike, or open the confession of judgment filed

against him by Appellee, Thomas A. Stewart. Specifically, he challenges the

court’s denial of the petition to open. We affirm.1




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*
    Retired Senior Judge assigned to the Superior Court.
1
   Appellee requests attorney fees in his response brief. (See Appellee’s
Brief, at 8-9). Although we conclude that Appellant’s issue lacks merit, there
is no evidence that his “appeal is frivolous or taken solely for delay or that
the conduct of the participant against whom costs are to be imposed is
dilatory, obdurate or vexatious.” Pa.R.A.P. 2744. Therefore, we deny
Appellee’s request.
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      We take the following factual and procedural background from the trial

court’s March 26, 2015 opinion and our independent review of the record.

As aptly stated by the trial court:

             [Appellee] owns a medical office building where
      [Appellant] leased office space for a dental practice. According
      to the lease, the initial term was for eighteen months,
      commencing on January 1, 2012, and terminating on June 30,
      2013. The lease automatically renews for successive terms of
      one year each, commencing on July 1, 2013. Either party has to
      give written notice of the intention to terminate the lease no
      later than 180 days prior to the expiration of the current term,
      unless [the lease is terminated] prior thereto pursuant to
      another lease provision.      The present term of the lease
      commenced in [July] 2014 and expires in June 2015.

            [Appellant’s] premises suffered accidental water damage
      [o]n June [23,] 2014. [Appellee] completed the repairs on July
      7, 2014, within one month of the damage. . . .

            On July 22, 2014, [Appellee] received a letter from
      [Appellant] informing him of [his] intention to vacate and not
      return to occupancy. This letter states in pertinent part:

                  In December of 2013 I bought a property in
            Bernville where I am living now. My plan was to
            move the office to a barn on the property by 2015.
            However, the recent events have caused me to move
            up my plans due to all the insecurities that have
            surfaced in the past years.

            [On November 13, 2014, Appellee filed a complaint for
      confession of judgment] to recover rent from August 2014
      through November 2014. The prothonotary entered judgment
      against [Appellant] for $12,072.33 which was comprised of
      $11,088.60 for rent, $408.76 for interest, and $574.87 for
      attorney fees.

            [Appellant] filed an answer to the complaint [on November
      26, 2014]. The answer alleges that an opinion of a licensed
      architect who was to have been retained by [Appellee] had not
      given a professional opinion that the premises were fit for a

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       dental practice.    [Appellee] did not contact an architect.
       Therefore, [Appellant] terminated the lease. [Appellant] relies
       on paragraph 15(a)(i) of the lease which reads in pertinent part
       as follows:

              If: (i) such damage or destruction renders the lease
              premises unfit for occupancy and the conduct of
              [Appellant’s] dental practice therein and cannot be
              repaired within one hundred eighty (180) days of the
              date of such damage or destruction (in the opinion of
              a licensed architect retained by [Appellee]) . . .
              either party may terminate this lease by written
              notice to the other (specifying a termination date no
              later than thirty (30) days thereafter) . . .

             [Further,]     paragraph     15(b)   [of   the   lease]   states   in
       pertinent part:

              If such damage or destruction does not affect
              [Appellant’s] occupancy and the conduct of its
              business therein or can be fully repaired within
              one hundred [eighty] (180) days of the date of
              such damage or destruction, the parties shall
              rebuild and restore the leased premises . . .

             [Appellant] also alleges that the term of the Lease was July
       1, 2013 to July 1, 2014.

             [On November 26, 2014, Appellant filed a] petition to
       vacate, strike or open the confessed judgment [that] raised the
       same issues as the [answer]. [On December 22, the trial court
       heard argument2 on Appellant’s petition.]         Based on the
       foregoing evidence, [the trial] court denied [Appellant’s] petition

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2
  It is not clear whether the court conducted oral argument or a hearing.
Although the docket reflects that, on December 2, 2014, the trial court
scheduled a hearing on Appellant’s petition, (see Docket Number 14-21441,
at 1), Appellant represents that there was no stenographer present and that
no testimony was taken. (See Appellant’s Brief, at 4). Because this does
not affect our disposition, we make note of it for the sake of completeness
only.



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      to vacate, strike or open the confessed judgment [on December
      31, 2014]. [Appellant] filed a timely appeal.

(Trial Court Opinion, 3/26/15, at 1-3) (unnecessary capitalization omitted;

emphases added).

      On February 5, 2015, the trial court ordered Appellant to file a Rule

1925(b) statement of errors complained of on appeal.           See Pa.R.A.P.

1925(b).   On February 13, 2015, then pro se Appellant filed a proof of

service of a Rule 1925(b) statement, but failed to file the statement itself.

Instead, he forwarded the trial judge a copy of his Superior Court docketing

statement as his intended Rule 1925(b) statement, but did not file the

document. (See Application for Remand, 6/19/15, at unnumbered pages 1-

2; see also Appellant’s Clarification of Application for Remand, 7/24/15, at

unnumbered page 2). The trial court filed its Rule 1925(a) opinion on March

26, 2015. See Pa.R.A.P. 1925(a).

      On May 11, 2015, counsel entered his appearance on Appellant’s

behalf in this Court. On June 19, 2015, he filed an application for remand to

enable Appellant to file a proper Rule 1925(b) statement.       See Pa.R.A.P.

1925(c)(2).   On July 29, 2015, this Court ordered Appellant to file the

original Rule 1925(b) statement that he had forwarded to the trial court’s

chambers, directed that it was to be treated as filed with the proof of service

on February 13, 2015, and denied his application for remand as moot. (See




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Per Curiam Order, 7/29/15). Appellant filed the Rule 1925(b) statement on

August 5, 2015 per this Court’s order.3

       Appellant raises one issue for this Court’s review: “Did the [trial] court

abuse its discretion or commit and [sic] error of law by denying Appellant’s

petition to open judgment where the Appellant pleaded a defense that was

meritorious on its face by accepting as true allegations in the complaint?”

(Appellant’s Brief, at 3) (unnecessary capitalization omitted).

             In reviewing a trial court’s order on a petition to open a
       confessed judgment, we have the following standard of review:

                    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.

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

denied, 885 A.2d 43 (Pa. 2005) (citations omitted).

       Here, Appellant maintains that the trial court erred in declining to open

the judgment because he has a meritorious defense that, because Appellee
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3
  Appellant’s Rule 1925(b) statement does not technically comply with Rule
1925(b)(4). Specifically, it does not “set forth only those rulings or errors
that [A]ppellant intends to challenge.” Pa.R.A.P. 1925(b)(4)(i); (see Rule
1925(b) Statement, at unnumbered pages 1-6). It is not concise, but
instead contains rambling legal citations that are not pertinent to the errors
that Appellant claims in his statement. See Pa.R.A.P. 1925(b)(4)(ii), (iv);
(Rule 1925(b) Statement, at unnumbered pages 3-6). However, because
the trial court and this Court are able to interpret Appellant’s issues on
appeal from the “triable facts” section of his statement, we will not find
waiver on this basis. (Rule 1925(b) Statement, at unnumbered page 3)
(emphasis omitted); (see Trial Ct. Op., at 3).



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refused to restore the leased premises to be fit for Appellant’s dental

practice, he properly terminated the lease. (See Appellant’s Brief, at 6, 10).

Appellant further argues that his alleged meritorious defense was “proper”

because “[i]f [he] is able to prove at trial that the property was unfit and

that Appellee refused to restore [it], [he] would be entitled to relief under

the terms of the [l]ease.” (Id. at 10). However, Appellant misapprehends

his burden in a petition to open a confessed judgment.

      It is well-settled that “[a] judgment by confession will be opened if the

petitioner acts promptly, alleges a meritorious defense, and presents

sufficient evidence in support of the defense to require the submission of the

issues to a jury.” Ferrick v. Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013)

(citation omitted). Further:

      . . . [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 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., supra at 512 (citations and quotation marks omitted)

(emphases added).

      In this case, our review of the record confirms the trial court’s

observation that Appellant did not offer any evidence in support of his

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defense that the leased premises were “not fit for a dental practice,” thus

entitling him to terminate the lease. (Trial Ct. Op., at 4).4 In fact, the only

evidence Appellant provided was in support of his counterclaim for damages

that reveals a decrease in his revenue, but neither connects that decrease to

Appellee’s alleged negligence nor shows that the premises were unfit for

Appellant’s use.      (See Appellant’s Answer to Complaint in Confession of

Judgment, 11/26/14, at Exhibits D-H).5

       Therefore, even when “view[ing] all the evidence in the light most

favorable to [Appellant] and accept[ing] as true all evidence and proper

inferences therefrom[,]” we conclude that the trial court properly found that

Appellant failed to provide “clear, direct, precise and believable evidence[,]”

in support of his alleged meritorious defense. Stahl Oil Co., supra at 512

(citations omitted). Accordingly, the trial court did not manifestly abuse its

discretion when it denied Appellant’s petition to open the confessed




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4
  Appellant promptly filed his petition to open less than two weeks after
Appellee filed the complaint in confession of judgment.      (See Docket
Number 14-21441, at 1).
5
  Exhibits A through C included the complaint for confession of judgment,
the July 22, 2014 letter from Appellant terminating the lease, and Appellee’s
September 11, 2014 notice of default.         (See Appellant’s Answer to
Complaint in Confession of Judgment, 11/26/14, at Exhibits A-C).




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judgment. See id.6 Therefore, Appellant’s issue on appeal does not merit

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




____________________________________________


6
  Moreover, we observe that Appellant relies on Provident Credit Corp. v.
Young, 446 A.2d 257 (Pa. Super. 1982), for the proposition that “[t]he
requirement of a meritorious defense is only that a defense must be pleaded
that if proved at trial would justify relief.” (Appellant’s Brief, at 9) (citing
Provident Credit Corp., supra at 263).              However, that case is
distinguishable from the one at bar because Provident involved a default
judgment that was entered against the defendant as a procedural
mechanism where she had failed to respond to a complaint. See Provident
Credit Corp., supra at 259. This is inapposite to the case herein, which
involves a confession of judgment entered pursuant to a warrant of
attorney.



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