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TCPF Limited Partnership v. Skatell

June 17, 2009

TCPF LIMITED PARTNERSHIP, A LIMITED PARTNERSHIP, APPELLANT
v.
JAMES SKATELL, APPELLEE
TCPF LIMITED PARTNERSHIP, A LIMITED PARTNERSHIP, : APPELLANT
v.
JAMES SKATELL, APPELLEE



Appeal from the Order Entered October 25, 2007, Court of Common Pleas, Westmoreland County, Civil Division, at No. 8239 of 2006. Appeal from the Order Entered November 21, 2007, Court of Common Pleas, Westmoreland County, Civil Division, at No. 8239 of 2006.

The opinion of the court was delivered by: Shogan, J.

BEFORE: MUSMANNO, SHOGAN and COLVILLE*fn1, JJ.

OPINION

¶ 1 In this consolidated appeal, Appellant, TCPF Limited Partnership, appeals from two orders denying Appellant's first and second motions for leave to file an amended complaint in confession of judgment against Appellee, James Skatell ("Skatell"). For the reasons that follow, we affirm.

¶ 2 Appellant is the owner of commercial property located at 1185 East Pittsburgh Street, Greensburg, Pennsylvania. Appellant agreed to lease a portion of the building located on that property to T&J Sub Shoppe, Inc. ("T&J") for the operation of a Quiznos sub shop. Skatell, as president of T&J, executed the agreement of lease dated July 18, 2003. The lease was for a period of seven years commencing on the opening of the business or October 1, 2003, whichever event occurred first.

¶ 3 Also on July 18, 2003, Thomas Altmiller ("Altmiller") and Skatell executed an individual guaranty. Pursuant to the guaranty, Altmiller and Skatell guaranteed the full and prompt payment of all rent and additional rent and any and all other sums and charges payable by T&J. The guaranty contained a warrant of attorney and confession of judgment provision enabling Appellant to bring an action to confess judgment against Altmiller and Skatell for all or any sums due. The individual guaranty contained language allowing for the successive exercises of the warrant of attorney until all obligations of Altmiller and Skatell under the lease had been discharged. Beginning in June of 2006, T&J defaulted on its obligation under the lease.

¶ 4 On September 19, 2006, Appellant filed a complaint in confession of judgment against Altmiller and Skatell for T&J's breach of its lease obligations in the amount of $65,196.91. Appellant invoked the right to accelerate the rent and other charges for the entire unexpired balance of the term of the lease. On the same date, judgments by confession in favor of Appellant and against Altmiller and in favor of Appellant and against Skatell were entered in the amount of $65,196.91.*fn2 Subsequent to the filing of the complaint and entries of judgment, Appellant discovered that it had calculated the amount of judgment for the amount due under only a portion of the unexpired balance of the term of the lease, from June of 2006 through September of 2007, and not the entire lease term. On August 20, 2007, Appellant requested leave of court to file an amended complaint in confession of judgment to increase the amount of judgment to $203,420.45, which represents the entire unexpired balance of the term of the lease from June of 2006 through September of 2010. On October 25, 2007, the trial court denied Appellant's request.

¶ 5 Appellant then presented a second motion for leave to file an amended complaint in confession of judgment to invoke its right to accelerate the rent and other charges, payments, costs and expenses for only that part of the unexpired balance of the term of the lease from June of 2006 through September of 2007 and reserving its right to confess judgment for amounts coming due under the lease subsequent to September of 2007. On November 21, 2007, the trial court denied the second motion. On November 26, 2007, Appellant filed an appeal from both the October 25, 2007 and November 21, 2007 orders.*fn3 On December 14, 2007, Appellant filed amended appeals which separately appealed the October 25, 2007 and November 21, 2007 orders. All of the appeals from the orders denying amendments to the complaint in confession of judgment*fn4 were sua sponte consolidated by this Court on January 18, 2008.*fn5

¶ 6 Appellant raises the following issues on appeal:

1. Did the trial court err in denying Appellant's Motion For Leave To Amend Complaint In Confession Of Judgment to correct the amount of the judgment to include the balance of the rent and other payments, costs and expenses due Appellant for the balance of the term of the lease?

2. Did the trial court err in denying Appellant's Second Motion For Leave To Amend Complaint In Confession Of Judgment seeking leave to amend paragraph 11 of the Complaint In Confession Of Judgment to aver that Appellant was invoking its right to accelerate the rent and other charges, payments, costs and expenses for only that portion of the unexpired balance of the term of the lease extending from June, 2006, through September, 2007, and reserving all rights to thereafter confess judgment for amounts coming due under the Lease subsequent to September of 2007?

Appellant's Brief at 3.

¶ 7 Appellant contends that the trial court erred in denying the first and second motions to amend the complaint in confession of judgment. "The decision of the trial Court to deny a motion to amend a complaint is within the sound discretion of the trial court, and the trial court's determination will not be disturbed absent an abuse of that discretion." Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1132 (Pa. Super. 2001). It is insufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, it was charged with the duty imposed on the trial court below. Paden v. Baker Concrete Construction, Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995).

ΒΆ 8 Appellant first asserts that the trial court erred in denying leave to file its first amended complaint in confession of judgment. Appellant relies upon Pennsylvania Rule of Civil Procedure 1033, which governs amendment to pleadings. Rule 1033 provides in relevant part: "A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading." Pa.R.C.P. 1033. Appellant contends that because Rule 1033 allows for liberal amendments and because the proposed amendment does not "present an entirely new cause of action or unfairly surprise or prejudice an opposing party" the amendment should have been granted by the trial court. Appellant's Brief at 10-11. Appellant, however, ignores reference to ...


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