Heckman, T. v. Addison, C. ( 2016 )

J-S42021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAMARA L. HECKMAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES R. ADDISON AND TAMMY D.
ADDISON, HIS WIFE
Appellants No. 1393 WDA 2015
Appeal from the Order August 26, 2015
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 3753 of 2014
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 3, 2016
Charles R. Addison and Tammy D. Addison, his wife (“the Addisons”),
appeal from the order entered August 26, 2015, in the Westmoreland
County Court of Common Pleas, denying their “Petition for a Rule to Show
Cause Why the Court Should Open a Judgment Entered by Confession, Order
a Hearing, Stay a Sheriff’s Sale and Stay All Proceedings” (Petition). 1 The
Addisons raise five issues that can be distilled to the following three claims:
(1) the trial court erred in upholding the confession of judgment in
ejectment in favor of Tamara L. Heckman based upon its reasoning in a
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
We note that despite the convoluted name, the Petition was essentially a
petition to open. The trial court’s order denying the petition is immediately
appealable. See Pa.R.A.P. 311(a)(1).
J-S42021-16
related action, Docket No. 1823 of 2014, because that action was
adjudicated in the absence of an indispensable party; (2) the Installment
Land Contract at issue is illegal under Act 6 of 1974, and (3) if this Court
does not reverse the trial court’s order, this Court should remand to amend
the Petition. For the reasons set forth below, we affirm the trial court’s
order.
This appeal arises from an Installment Land Contract between the
parties for $550,000.00, whereby Heckman conveyed to the Addisons
approximately 51 acres of land, including a house, barn and other
outbuildings. See Complaint for Confession of Judgment, 7/30/2014,
Exhibits A (Installment Land Contract, 5/1/2012) and Exhibit B (property
description (Exhibit A of Installment Land Contract)). The Installment Land
Contract contains a confession of judgment clause allowing Heckman to eject
the Addisons from the property in the event of default prior to the entire
payment. See id., Exhibit A (Installment Land Contract, 5/1/2012, at 6–7).
On July 30, 2014, Heckman filed a complaint in confession of judgment in
ejectment against the Addisons. Thereafter, on September 22, 2014,
Heckman filed a writ of possession.
-2-
J-S42021-16
On October 24, 2014, the trial court was presented with the Addisons’
Petition. See Order, 10/27/2014.2, 3
The Petition alleged the Installment
Land Contract was formed based on fraud and mutual mistake. On October
27, the trial court issued a rule upon Heckman to show cause why the
Addisons were not entitled to relief, set a hearing date for February 19,
2015, and ordered the Petition would be decided under Pa.R.C.P. 206.7
(“Procedure After Issuance of Rule to Show Cause”). On November 6, 2014,
Heckman filed a “Response to a Rule Issued on Plaintiff to Show Cause Why
Defendant is Not Entitled to Relief Requested,” and an “Answer to Petition
for Rule to Show Cause and New Matter.” Subsequently, on January 9,
2015, the trial court granted the Addison’s attorneys’ motion to withdraw
from representation, granted the Addison’s 30 days to obtain new counsel,
and extended all deadlines to February 27, 2015. On March 25, 2015, the
____________________________________________
2
The Addisons’ Petition was time-stamped as filed November 19, 2014.
However, the trial court’s October 27, 2014 order indicates the court was
presented with the Addisons’ Petition on October 24, 2014.
3
The Addisons presented their Petition to the trial court after the 30-day
period set forth in Pa.R.C.P. 2959(a)(3). On August 18, 2014, the Addisons
signed a return receipt card of service of the confession of judgment and
notice under Pa.R.C.P. 2958.1, but presented their Petition to the trial court
beyond the 30-day deadline, on October 24, 2014
The Addisons’ Petition averred that the Petition “was timely presented
due to the court’s assignment of four different Judges to this matter and
because of the illness of [Addison’s] counsel.” Addisons’ Petition,
1/19/2014, at 8, ¶ 32. The trial court addressed the Addisons’ Petition on
the merits, and did not make findings regarding timeliness.
-3-
J-S42021-16
trial court issued an order directing, inter alia, that the Addisons’ counsel
enter his appearance on or before April 16, 2015, and that any party may
file a brief or memorandum of law on or before April 16, 2015. The Addisons
filed a Reply to Heckman’s Response on April 16, 2015.
On August 20, 2015, the trial court denied the Petition based on its
reasoning in a related action between the parties at Docket No. 1823 of
2014, instituted by the Addisons.4 The trial court explained:
The present matter concerns a Confession of Judgment with
regard to an Installment Land Contract that was entered into
between the parties on May 1, 2012. In a related case, at Docket
No. 1823 of 2014, this Court, in its August 19, 2015 Order of
Court, granted Judgment on the Pleadings in favor of
[Defendants, Christopher F. Heckman, III, and Tamara L.
Heckman], ruling that the same Installment Land Contract was
the final and controlling document between the parties, and that
[Plaintiffs, Charles R. Addison and Tammy D. Addison] could not
prevail on a claim for fraud with regard to the execution of said
Contract. As to the present matter, after a review of the
pleadings, and with the Court finding that the present Petition
for Rule to Show Cause involves similar issues to the related
case at Docket No. 1823 of 2014, including the allegation of
fraud, the Court finds that [Addisons’] Petition for a Rule to
Show Cause Why the Court Should Open a Judgment Entered by
Confession, Order a Hearing, Stay a Sheriffs Sale and Stay All
Proceedings is hereby DENIED.
The Court determined in the August 19, 2015 Order of Court at
Docket No. 1823 of 2014 that the Installment Land Contract
____________________________________________
4
We note Docket No. 1823 of 2014 involved the parties herein and
Heckman’s husband, Christopher F. Heckman, III, as a defendant, and was
appealed to this Court at 1391 WDA 2015. The appeal was quashed on
December 14, 2015 because counter-claims were still pending. See
Addison v. Heckman, No. 1391 WDA 2015.
-4-
J-S42021-16
between the parties is the final, binding, and controlling
document with regard to the subject property. Accordingly, this
Court has determined that the reasoning and analysis set forth
in said Order of Court is applicable to the legal and factual issues
raised in the present matter.
Trial Court Order, 8/20/2015 at 2-3; Amended Order, 8/26/2015.5 This
appeal followed.6
The Addisons present five issues for this Court’s review:
1. Whether the order upholding the confession of judgment must
be reversed, when the common pleas court relied on a decision
in a related case confirming the validity of an installment land
sale contract that was litigated in the absence of an owner of the
property?
2. Whether the absent landowner of the property that was the
subject of an installment land sale contract, Charles Williams,
was an indispensable party?
3. Whether the common pleas court erred by upholding the
confession of judgment, when it relied upon a decision in a
related case where it did not have subject matter jurisdiction due
to the absence of an indispensable party?
4. Whether the confession of judgment provision of the
installment land contract is illegal under Act 6 of 1974, 41 P.S. §
407, when it involves land that contains the Addisons[’] sole
residence, and when the installment land contract purports to
waive Act 6?
5. Whether, as an alternative to reversal, the Superior Court
should grant the [Addisons’] application for relief in the nature of
____________________________________________
5
The trial court did not attach its decision in the action at Docket No. 1823
of 2014 to its orders in this case.
6
The trial court did not enter an order directing the filing of a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
-5-
J-S42021-16
a motion to remand, in order to permit the amendment of the
pleadings and the assertion of new defenses?[7]
The Addisons’ Brief at 8-9.
At the outset, we state our standard of review:
We review the order denying [a]ppellant’s petition to open the
confessed judgment for an abuse of discretion.
Judicial discretion requires action in 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.
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.
Neducsin v. Caplan, 121 A.3d 498, 506 (Pa. Super. 2015) (emphasis
removed) (citations omitted).
Relevant to this appeal, the Pennsylvania Rules of Civil Procedure state
in relevant part: “Relief from a judgment by confession shall be sought by
petition. Except as provided in subparagraph (2), all grounds for relief
whether to strike off the judgment or to open it must be asserted in a single
____________________________________________
7
On February 2, 2016, the Addisons filed an “Application for Relief in the
Nature of a Motion for Remand or in the Alternative a Motion for
Enlargement for Time to File Appellants’ Brief and Reproduced Record” in
this Court. On February 3, 2016, this Court granted the Addisons’ request for
an extension of time to file the brief and reproduced record. See Order,
2/3/2016.
-6-
J-S42021-16
petition.” Pa.R.C.P. 2959(a)(1). “A party waives all defenses and objections
which are not included in the petition or answer.” Pa.R.C.P. 2959(c).
The first three issues raised herein relate to a third party, Charles
Williams. See Addisons’ Brief at 8. The Addisons claim they discovered that
Williams had an ownership interest in the land subject to the Installment
Land Contract in January of 2016, after this appeal was filed. Id. at 14-15.
The Addisons maintain that Williams is an indispensable party who was not
involved in the action at Docket No. 1823 of 2014. Id. at 21-23. The
Addisons argue the trial court, in adjudicating the action at Docket No, 1823
of 2014, “held, without the involvement of Charles Williams or knowledge of
his existence, that the Installment Land Contract constituted the entire final,
controlling agreement of the parties [and] never considered the impact of
Williams’ absence on its jurisdiction or on the validity of the Installment Land
Contract.” Id. at 22. The Addisons assert that, in the present case, the trial
court erred “by upholding the confession of judgment, when the judgment
was taken pursuant to an Installment Land Contract that purported to sell
land to the Addisons[] without the involvement of an owner, who is an
indispensable party.” Id. at 24.
The Addisons’ argument is unavailing. The issue of Williams’ interest
in the land subject to the Installment Land Contract, since it was discovered
only after this appeal was taken, was never litigated or decided by the trial
court. Because the Addisons did not include any issue regarding Williams in
their Petition, they may not appeal the trial court’s denial of the Petition on
-7-
J-S42021-16
that basis. See Pa.R.C.P 2959(c); Stahl Oil Company, Inc. v. Helsel, 860
A.2d 508, 515 (Pa. Super. 2004), appeal denied, 885 A.2d 43 (Pa. 2005)
(arguments raised which are not included in petition to strike/open are
waived). Additionally, “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Therefore,
we are precluded from deciding Addisons’ claims related to Williams.
In the Addisons’ fourth issue, they claim the confession of judgment
clause in the Installment Land Contract is illegal. See Addisons’ Brief at 24-
28. Specifically, the Addisons claim the contract involves “residential real
property,” and as such, the provisions of Act 6 of 1974, specifically, 41 P.S.
§§ 407 and 408, “limit[] the use of confessions of judgment on residential
property and proscribe[] waiver of the statute.” Id. at 18; see also 28-30.
The Addisons maintain, “although the Addisons did not raise this defense
below, the issues of illegality of a contract and violation [of] public policy are
not waived if a party failed to invoke them.” Id. at 24 (citation omitted).
Here, however, the Addsions do not argue that the Installment Land
Contract is illegal based on issues already presented to the trial court.
Rather, the Addisons claim in this appeal that the real property in question is
“residential.” Heckman counters that the real property is “commercial.”
See Heckman’s Brief at 16–17, 19. As this issue was not raised in the trial
court, the trial court made no determination as to the nature of the property
underlying the Installment Land Contract. Therefore, similar to the
-8-
J-S42021-16
Addisons’ first three issues, the Addisons’ fourth claim is unavailing. See
Pa.R.C.P. 2959(c), Pa.R.A.P. 302(a).
Lastly, the Addisons ask this Court to remand this case with leave to
amend the Petition to aver the newly discovered evidence involving, inter
alia, Williams’ ownership interest in the land subject to the Installment Land
Contract. See Addison’s Brief at 31–32. However, in light of this Court’s
order of February 3, 2016, this issue is moot.
In sum, in the present case, the Addisons fail to make a claim that the
trial court erred in its decision to deny its Petition based on the facts and
issues presented in the Petition itself. Accordingly, we affirm the trial court’s
order denying the Addisons’ Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2016
-9-