United States District Court, W.D. Pennsylvania
GIBSON UNITED STATES DISTRICT JUDGE.
the Court is Defendant's motion to enforce settlement.
(ECF No. 23.) The issues have been fully briefed
(see ECF Nos. 24, 25), and the motion is ripe for
disposition. For the reasons that follow, Defendant's
motion will be GRANTED in part and DENIED in
Court has subject matter jurisdiction over the instant action
pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441.
Venue is proper pursuant to 28 U.S.C. § 1391.
initiated this action by filing a complaint in the Court of
Common Pleas of Blair County, Pennsylvania, on July 15, 2016.
(ECF No. 1.) Defendant removed the case to this Court on
August 8, 2016. (Id.)
leased commercial property to Defendant. After Defendant
defaulted on its lease, Plaintiff brought suit to accelerate
rent and confess judgment pursuant to the written commercial
lease agreement (the "Lease Agreement").
(See ECF No. 1, exhibit 3.) Plaintiff sued to
enforce Article XV of the Lease Agreement, titled
"Default by Lessee." The relevant paragraph reads:
"LESSOR may, at its option while such default or
violation of covenant or condition continues, declare all the
rent reserved for the full term of this Lease remaining due
and payable at once; and LESSEE does hereby empower any
attorney of any Court of Record in the State of Pennsylvania,
or elsewhere to appear for it and waive the issuance and
service of process and confess a judgment against it for the
whole or any part of said rent and thereafter to release all
errors and warrant all rights of appeal and stay of
execution. The initial exercise or use of this warrant of
attorney shall not exhaust the same, but the same may be used
and exercised without limitation as often as necessity for
the use of the same may arise. The exercise or use of this
warrant of attorney shall not prevent LESSOR from
subsequently terminating this Lease, by giving Notice to
LESSEE of its election to do so, and upon its tender to
LESSEE of a sum equal to the amount, if any, paid by the
LESSEE for rents accruing after the date of
the case was removed to this Court (see ECF No. 1,
exhibit 1), Defendant filed a motion to dismiss and a brief
in support. (ECF Nos. 4, 5.) While Defendant's motion to
dismiss was pending, the parties underwent mediation and
executed a Post-Mediation Settlement Agreement (the
"Settlement Agreement") on November 1, 2016.
(See ECF Nos. 19, 20.) This Court marked the case
administratively closed on November 2, 2016. (ECF No. 20.)
Settlement Agreement provides that the parties will
"enter into an Addendum to the 5th Amendment
to Lease which will address rent penalty; ADR; and eliminate
the confession of judgment provisions and the... arbitration
provisions." (See ECF Nos. 24,
The Settlement Agreement also contains a graduated rent
penalty scale; this scale specifies the penalties (as a
percentage of rent) that Defendant will be liable for in the
event of default, from the 6th through the
21st day after rent is due.
(Id.) The Settlement Agreement does not mention
the acceleration provision.
the parties executed the Settlement Agreement, they exchanged
numerous proposed drafts of the Addendum to the Lease
Agreement. (See ECF Nos. 24, 26.) But the parties
have been unable to agree on the final language of the
Addendum, because they disagree about whether the Settlement
Agreement eliminated the acceleration provision.
argues that the confession of judgment provision and the
acceleration provision are "inextricably
intertwined." (ECF No. 24 at 4.) Thus, Defendant
contends that when the parties agreed to "eliminate the
confession of judgment provision" pursuant to the
Settlement Agreement, they also agreed to eliminate the
acceleration provision. (Id.) Therefore, Defendant
insists that the Addendum to the Lease Agreement should not
contain the acceleration provision. (Id.)
disputes that it ever agreed or intended to eliminate the
acceleration provision (ECF No. 26, at 3-4.) Plaintiff argues
that the acceleration provision and the confession of
judgement provision are separate remedies, and thus contends
that the Settlement Agreement did not eliminate the
acceleration remedy. Therefore, ...