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04/25/97 JAY D. CRUM VS F.L. SHAFFER COMPANY FRED

April 25, 1997

JAY D. CRUM VS F.L. SHAFFER COMPANY, FRED L. SHAFFER AND SHERON R. SHAFFER, APPELLANTS


Appeal from the Order entered November 14, 1995 in the Court of Common Pleas of Dauphin County, Civil No. 1890 N 1993. Before, EVANS, J.

Before: Cirillo, P.j.e., and Popovich and Hester, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED April 25, 1997

F.L. Shaffer Company (the Company/Tenant), Fred L. Shaffer and Sheron R. Shaffer (the Shaffers or Appellants), appeal from the amended order, entered in the Court of Common Pleas of Dauphin County, granting in part and denying in part their petition to strike and/or open a confession of judgment, striking $7,065.00 from the judgment, and indexing the confession of judgment in the amount of $30,532.00. We reverse.

On April 1, 1990, Plaintiff/Appellee, Jay D. Crum, entered into a five-year commercial lease agreement with Appellants, whereby Crum leased approximately 3,200 square feet of office space to Appellants in a building located on Eisenhower Boulevard in Dauphin County. The lease agreement contained a confession of judgment clause and was signed by Crum and F.L. Shaffer Company. The Shaffers signed the document, in their personal capacities, as witnesses to and as guarantors of the performance and monies due under the lease by the Tenant/Company.

Pursuant to the lease, Appellants were required to pay $1,500.00 on the first of each month, with payments to commence on April 1, 1990 and end on March 31, 1995. On April 13, 1993, Crum filed a complaint in confession of judgment, in accordance with Pa.R.C.P. 2951(b), alleging that Appellants had defaulted on the lease by failing to pay rent and committing waste upon the premises. *fn1 In his complaint, Crum claimed damages and all amounts due under the lease which totalled $37,597.00, plus interest and costs. *fn2 On July 7, 1993, "pursuant to the authority contained in the warrant of attorney," the prothonotary of the Court of Common Pleas of Dauphin County entered judgment by confession against the Appellants. After the entry of the judgment, the Appellants filed a petition to strike and/or open the judgment, attaching an answer and new matter. After the taking of depositions, the court denied appellant's petition. *fn3 On appeal, appellants raise the following issues for our review:

(1) Whether F.L. Shaffer Company knowingly waived its due process right to pre-judgment notice and hearing?

(2) Whether the warrant of attorney in the lease bears a direct relation to the separate guaranty of the lease signed by the Shaffers as individuals?

(3) Whether the confessed judgment includes items for which the landlord has no authority to confess judgment?

(4) Whether the appellants have demonstrated the presence of believable evidence in support of meritorious defenses to the confessed judgment? *fn4

A petition to open a confessed judgment is an appeal to this court's equitable powers. Liazis v. Kosta, Inc., 421 Pa. Super. 502, 506, 618 A.2d 450, 452 (1992). On appeal from the denial of a petition to strike an order or judgment, a trial court will be reversed only if there is a manifest abuse of discretion or error of law. Peoples Bank v. Dorsey, 453 Pa. Super. 94, 683 A.2d 291 (1996). In order to meet this burden, the petitioner must act promptly, allege a meritorious defense, and provide sufficient evidence to create an issue for the jury. Id. See Pa.R.C.P. 2959(e). In determining whether sufficient evidence has been presented, we employ the same standard as in a directed verdict: "viewing all the evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense while rejecting adverse allegations of the party obtaining the judgment." Suburban Mechanical Contractors. Inc. v. Leo, 348 Pa. Super. 324, 327, 502 A.2d 230, 232 (1985) (citations omitted). Because we find that there was no valid entry of a confessed judgment in the present case, we must reverse the order of the trial court.

Where a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record. Parliament Indus. Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 459 A.2d 720 (1983). Furthermore, the determination of the validity of a judgment entered by confession rests upon a strict construction of the language of the warrant of attorney, and any doubt as to validity must be resolved against the party entering the judgment. Scott Factors Inc. v. Hartley, 425 Pa. 290, 228 A.2d 887 (1967); Continental Bank v. Tuteur, 303 Pa. Super. 489, 450 A.2d 32 (1982). "Because a warrant of attorney authorizing the confession of judgment can be an oppressive weapon, entry of a valid judgment by confession can only be accomplished if such entry is made in rigid adherence to the provisions of the warrant of attorney, which must be fully complied with; otherwise, such judgment will be stricken." Scott Factors, 425 Pa. at , 228 A.2d at 888.

Having acknowledged that Crum properly instituted this suit by filing a complaint in confession of judgment, we must examine the confession of judgment clause found in the parties lease in order to ascertain whether the judgment was validly entered. The April lease ...


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