D'Amelio, P. v. Capponi, A. ( 2014 )

J.A05043/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANDREW CAPPONI, :
C&H SERVICES, :
DUE AMICI DEVELOPMENT, LLC, :
DUE AMICI DEVELOPMENT ASSOCIATES :
:
APPEAL OF: DUE AMICI DEVELOPMENT :
LLC AND DUE AMICI DEVELOPMENT :
ASSOCIATES : No. 1761 EDA 2013
Appeal from the Order Entered June 10, 2013
In the Court of Common Pleas of Philadelphia County
Civil Division No(s).: 03392 March Term 2011
BEFORE: ALLEN, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 22, 2014
Appellants, Due Amici Development LLC and Due Amici Development
Associates, appeal from the order entered in the Philadelphia County Court
of Common Pleas denying their petition to strike confessed judgment against
authorized confession of judgment against Appellants. We affirm.
Due Amici Development, LLC is the general partner of Due Amici
Development Associates, LP. See
*
Former Justice specially assigned to the Superior Court.
J. A05043/14
3/30/11, at 1. Capponi is the president of Due Amici LLC. See
to Strike Confessed J., 8/8/13, at 4.
Appellants do not contest these averments.
The trial court summarized the facts and procedural history of this
case as follows:
The instant matter concerns a Confession of Judgment
entered by [Appellee] against four parties: (1) Andrew
[Appellee] filed the Confession of Judgment against these
four parties on March 30, 2011, claiming that they
defaulted on their obligation to pay [him] a total of
$70,000. The Confession of Judgment [Note]1 from which
this debt originates was signed by Andrew Capponi on April
3, 2008, and was attached to the Confession of Judgment
as an exhibit. The agreement begins with the following
paragraph:
I, Andrew Capponi, individually, and/or C&H
Service and/or Due Amici Development
Associates LP, promise to pay to the order of
[Appellee] d/b/a Budget Check Cashing their
successors, heirs and/or assigns, the sum of
$101,000.00. At the option of the holder, and upon
default of payment in the sum of $101,000.00 shall
become immediately due and payable, the unpaid
principle balance bearing interest at a rate of twelve
percent (12%) per annum, compounded monthly,
calculated upon $101,000.00 from the date of
execution of this judgement [sic] notice [signed by
Capponi].
1
We note that the trial court refers to the Confession of Judgment Note as
rd
See
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J. A05043/14
Trial Ct. Op., 7/23/13, at 1-2 (citations to record omitted and emphasis
added).
Paragraph four of the note provides as follows:
If this note is in default and forced to litigate, I agree to
pay all court costs and no
fees in collection of same. To secure payment of this note,
I hereby authorize irrevocably the office of judicial support,
clerk of court, prothonotary or any attoroney [sic] of any
court of record to appear for me in such court at any time
before or after maturity and confess a judgment against
me in favor of any holder of this note with or without the
following of an averment of default, with the releases of
errors, without stay of execution and inquisition and
extention [sic] upon any levy on real estate ABD for such
amount as may appear to be unpaid thereon, together
undersigned has been informed that if he/she does not
fully understand the legal impact of this note and all of the
waivers contained herein, that he/she should discuss the
matter with their counsel before any transaction takes
place.
Confession of Judgment Note, 4/3/08, at 1-2.
[2]
Str The trial
court denied the petition to strike. This timely appeal followed. Appellants
filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal and the trial court filed a responsive opinion.
Appellants raise the following issues for our review:
2
We note that the timeliness of the petition to strike is not an issue in the
instant case. See M & P Management, L.P. v. Williams, 937 A.2d 398,
-3-
J. A05043/14
1. Whether, the trial court erroneously found that the
warrant relied upon by [Appellee] gave sufficient authority
for the confession of judgment against [Appellants], or
alternatively stated, whether the trial court erroneously
determined that the warrant relied upon by [Appellee]
was not at least ambiguous on the issue of whether it gave
sufficient authority for the confession of judgment against
[Appellants], in which case it should have been construed
against [Appellee].
2. The trial court erroneously found that the warrant relied
upon by [Appellee] was signed on behalf of [Appellants].
-3.
ppellants
paragraph four of the note authorizing the confession of judgment. Id. at 8.
They argue that the trial court erred because these pronouns refer to natural
persons, judgment cannot be entered against Appellants-which are
corporations and not natural persons. Id. at 8-9. They aver that the
additional reference to a person, i.e., the undersigned, in paragraph four
also makes reference to a singular person. Id. at 9. Appellants argue that
the agreement cannot authorize confession of judgment against them
because it does not expressly name them. Id. at 14. They conclude that
the document containing the warrant was signed by Capponi alone and
therefore cannot be applied to Appellants by implication. Id. at 16. We find
no relief is due.
strike a confessed judgment to determine whether the
record is sufficient to sustain the judgment. A petition to
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J. A05043/14
strike a judgment may be granted only if a fatal defect or
irregularity appears on the face of the record. . . .
* * *
In considering the merits of a petition to strike, the
court will be limited to a review of only the record as filed
by the party in whose favor the warrant is given, i.e., the
complaint and the documents which contain confession of
judgment clauses. Matters dehors the record filed by the
party in whose favor the warrant is given will not be
considered. If the record is self-sustaining, the judgment
will not be stricken. However, if the truth of the factual
averments contained in such record are disputed, then the
remedy is by a proceeding to open the judgment and not
to strike. An order of the court striking a judgment annuls
the original judgment and the parties are left as if no
judgment had been entered.
Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa. Super. 2011) (citations
omitted); accord Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614(Pa. Super. 2013) (holding court cannot address factual disputes in petition
to strike).3
The trial court considered the complaint in confession of judgment and
the attached exhibits and opined:
1. There was no fatal error in entering Confession of
Judgment against Due Amici LP because such an entry was
authorized by the plain language of the Confession of
Judgment Agreement.
3
To the extent that Appellants claim Capponi did not have authority to sign
on their behalf, this argument raises a factual issue that would have to be
raised in a petition to open the judgment. See Midwest Fin., 78 A.3d at
623.
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J. A05043/14
2. There was no fatal error in entering Confession of
Judgment against Due Amici LLC, because it was liable, as
15 Pa.C.S. § 8533(b).[4]
* * *
In the instant matter, the terms of the Confession of
Judgment Agreement clearly bind Andrew Capponi in an
individual capacity, as an agent of C&H Services, and as an
agent of Due Amici LP. The first sentence of the
agreement indicates that it was meant to obligate Mr.
use of singular and personal pronouns which occurs
throughout the remainder of the agreement does not
create a level of ambiguity sufficient to warrant the striking
of said Confession of Judgment. As such, this Court found
that the express terms of the Confession of Judgment
Agreement authorize [Appellee] to enter a Confession of
Judgment against Due Amici LP.
Further, it was proper for Confession of Judgment to
be entered against Due Amici LLC because of [its] liabilities
as a general partner of a limited partnership. . . .
Trial Ct. Op. at 3, 5. We agree no relief is due.
4
Section 8533(b) provides:
Except as
provided in this chapter, a general partner of a limited
partnership has the liabilities of a partner in a partnership
without limited partners to persons other than the
partnership and the other partners. Except as otherwise
provided in this chapter or in the partnership agreement, a
general partner of a limited partnership has the liabilities
of a partner in a partnership without limited partners to
the partnership and to the other partners.
15 Pa.C.S. § 8533(b).
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J. A05043/14
Instantly, Appellants advance the same arguments as they did before
the trial court. They focus on the singular pronouns within the Confession of
Judgment Note and argue that because those pronouns refer to natural
persons, judgment cannot be centered against them
and not natural persons. They contend that the note confessed judgment
against Capponi individually. Reviewing the record as filed by Appellee, viz.,
the complaint in confession of judgment and the attached exhibits, and
given thi
sustain the judgment. See Hazer, 26 A.3d at 1169. Accordingly, we affirm
the order denying the petition to strike the confessed judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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