Lechowicz, R. v. Moser, E. , 164 A.3d 1271 ( 2017 )

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2017 PA Super 168ROBERT LECHOWICZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD MOSER :
:
Appellant : No. 1889 EDA 2016
Appeal from the Order Entered May 24, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2007-01129
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
OPINION BY RANSOM, J.: FILED MAY 31, 2017
Appellant, Edward Moser, appeals from the order entered May 24,
2016, denying his petition to open and/or strike a confession of judgment
entered against Appellant in favor of Appellee, Robert Lechowicz, pursuant
to a judgment note arising out of legal services rendered to Appellant. We
affirm.
The relevant facts and procedural history are as follows. Moser
retained Lechowicz to represent him in a variety of business litigation
matters, including: Knox v. Moser, Mont. Cty. CCP No. 1998-01833; The
Moser Group v. Staufer; Bucks Cty. CCP No. 1997-08307; The Moser
Group v. David Cavalier; Mont. Cty. CCP No. 1997-21186; Moser
Construction Company v. OCAL, Mont. Cty. CCP No. 1997-21179; and the
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*
Former Justice specially assigned to the Superior Court.
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“Lynn Rose Plaza Matter.” See Petition to Open and/or Strike Judgment,
9/12/2014, at ¶ 12 (hereinafter “Petition”). In addition, Moser engaged
Lechowicz as defense counsel against allegations brought by Timoney Knox
LLP to collect legal fees for services rendered by Attorney John Knox during
Moser’s divorce (hereinafter “the Knox litigation”). See id. at ¶¶ 13-15. In
February 2004, Moser executed a judgment note confessing $55,000.00 in
favor of Lechowicz and an affidavit waiving any rights or defenses. See
Affidavit Accompanying Judgment Note, 2/9/2004.
In February 2007, Lechowicz filed a complaint for confession of
judgment in the Bucks County Court of Common Pleas. The court promptly
entered judgment for $55,000.00 against Moser. In November 2013,
Lechowicz filed a writ to revive the judgment. The court entered a judgment
on the docket in the revived amount of $89,257.16. Thereafter, in
September 2014, Moser filed a petition to open and/or strike the judgment
that was accompanied by a memorandum of law. Following additional
briefing and oral argument, the court denied and dismissed Moser’s petition
to open and/or strike. See Order, 5/24/2016. Moser timely filed a notice of
appeal and court-ordered 1925(b) statement. The court issued a responsive
opinion.
On appeal, Moser raises the following issues:
1. Did the [court] err when it held that the issue of time was
dispositive regarding the [p]etition to [o]pen/[s]trike
[j]udgment?
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2. Did the [court] err when considering the consumer nature of the
transaction when it held that [Appellant] failed to [show a defect
on the face of the record or] a bona fide defense on the merits,
namely that the use of judgment by confession was per se
illegal?
3. Did the [court] err when it failed to open judgment to allow
[Appellant] to contest the reasonableness and amount of claimed
legal fees as it is a matter of law that the issues of
reasonableness and amount of legal fees is always open to
review[?]
Appellant's Br. at 7-8 (reordered for ease of analysis).1
Moser appeals from the order denying his petition to open and/or
strike a confession of judgment. Our standard of review is as follows.
We review a trial court's order denying a petition to strike a
confessed judgment to determine whether the record is sufficient
to sustain the judgment. First Union National Bank v.
Portside Refrigerated Services, 827 A.2d 1224, 1227 (Pa.
Super. 2003). A petition to strike a judgment may be granted
only if a fatal defect or irregularity appears on the face of the
record. [First Union Nat’l Bank, 827 A.2d at 1227]. Similarly,
we review the order denying Appellant's petition to open the
confessed judgment for an abuse of discretion. Id.; PNC Bank
v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002) (“A petition to
open judgment is an appeal to the equitable powers of the court.
As such, it is committed to the sound discretion of the hearing
court and will not be disturbed absent a manifest abuse of
discretion.”).
ESB Bank v. McDade, 2 A.3d 1236, 1239 (Pa. Super. 2010).
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1
Mr. Moser identified four issues, but presents a single argument with
regard to whether the court erred in “considering the consumer nature of the
transaction.” Accordingly, we address the issues together. See Pa.R.A.P.
2119(a).
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A confession of judgment action is a proceeding to enter a judgment
by confession of money in which “[t]he rules requiring and establishing the
form of notices to defend and to plead in ordinary civil complaints do not
apply.” Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 625-26
(Pa. Super. 2013) (quoting Pa.R.C.P. 2952(b) cmt.); see also Pa.R.C.P.
1003 (“Rules relating to the manner of commencing an action or the time for
serving process or for filing or serving pleadings may be waived by
agreement of the parties.”). To enter a judgment of confession, the creditor
files a complaint for confession of judgment along with the judgment note
signed by the party to be bound pursuant to Pa.R.C.P. 2950 through 2967.
Midwest, 78 A.3d at 626. According to Rule 2956, the prothonotary shall
enter judgment in conformity with the confession and provide Rule 236
notice to the debtor. Pa.R.C.P. 2956; Pa.R.C.P. 236. Though the entry of a
confessed judgment lacks the hallmarks of an adversarial proceeding, “it has
all the qualities of a judgment on a verdict.” Midwest, 78 A.3d at 626(quoting O’Hara v. Manley, 12 A.2d 820, 822 (Pa. Super. 1940)).
A petition to strike operates as a demurrer to the record only if the
petitioner can show a fatal defect or irregularity on the face of the record.
Ferrick v. Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013) (citing
Graystone Bank v. Grove Estates, 58 A.3d 1277 (Pa. Super. 2012); see
also Resolution Trust Corp. v. Copley Qu-Wayne Assoc., 683 A.2d 269,
273 (Pa. 1996). “If the record is self-sustaining, the judgment will not be
stricken. However, if the truth of the factual averments contained in such
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record are disputed, then the remedy is by a proceeding to open the
judgment and not to strike.” Resolution Trust Corp., 683 A.2d at 273
(internal citations omitted).
First, Moser contends the court erred in finding the untimeliness of his
petition dispositive to any arguments raised in his petition. See Appellant's
Br. at 21. The court found Moser failed to act promptly to open the
judgment and failed to provide any explanation to excuse the delay,
rendering any defenses asserted in his petition untimely and subject to
waiver. See Trial Ct. Op. (TCO), 8/17/2016, at 10-12 (citing in support
cases relevant to default judgment).
Prior to amendments to the rule governing confession of judgments, a
petition to open and/or strike a judgment by confession had to be filed
promptly or within a reasonable time from the entry of judgment. See,
e.g., King Athletic Sporting Goods v. Redevelopment Auth., 393 A.2d
18, 20 (Pa. 1978); B. Lipsitz Co. v. Walker, 522 A.2d 562, 564 (Pa. Super.
1987); Bethlehem Steel Corp. v. Tri State Industries, Inc., 434 A.2d
1236, 1239 (Pa. Super. 1981) (superseded by legislation). However, in
1996, the rules relating to confession of judgment were substantially revised
and now require the creditor to provide notice to the debtor prior to or
contemporaneous with the execution on a confessed judgment. Pa.R.C.P.
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2950, cmt. (1996).2 As amended, the rule ties the common law requirement
of promptness to notice of execution; a defendant must promptly file their
petition to open and/or strike within thirty days from such notice. Thomas
Assocs. Investigative & Consulting Services, Inc. v. GPI Ltd., Inc.,
711 A.2d 506, 508 (Pa. Super. 1998); see Pa.R.C.P. 2959(a)(3).
The rule, as amended, states:
If written notice is served upon the petitioner pursuant to Rule
2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within
thirty days after such service. Unless the defendant can
demonstrate that there were compelling reasons for the delay, a
petition not timely filed shall be denied.
Pa.R.C.P. 2959(a)(3) (emphasis added). As this Court explained,
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2
The change occurred in light of Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1272 (3rd Cir. 1994), in which the Third Circuit
recognized that “a court faced with a due process challenge to a confessed
judgment should always inquire whether the judgment debtor's execution of
a document permitting judgment by confession is a valid waiver of his
constitutional right to pre-deprivation notice and hearing.” Thus, “the key
event becomes execution not confession, the due process concerns behind
adoption of the new rules seem equally valid in any case no matter how long
the period between confession and execution.” PNC Bank v. Kerr, 802
A.2d 634, 639-40 (Pa. Super. 2002); see also Great N.A. Funding Corp.
v. Tara Enterprises, Inc., 814 A.2d 258, 261 (Pa. Super. 2002)
(“Pennsylvania Rule of Civil Procedure 2959 now requires that a petition to
strike and/or open a judgment be filed within thirty days of the notice of
execution.”).
Another key revision was that the use of a confession of judgment in
consumer credit transactions was abolished. See Pa.R.C.P. 2950, cmt.
(1996). For a further discussion of this prohibition, see also, infra
(discussing Appellant’s second argument).
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The execution notice, however, has no timeliness requirement;
the judgment creditor may delay execution until the judgment
debtor acquires sufficient assets to satisfy the judgment.
Therefore, under the revised rules, timely filing of the petition to
strike and/or open means within thirty days from a notice of
execution which need not be timely at all.
Thomas Assocs., 711 A.2d at 508; see also Pa.R.C.P. 2959.1(c)(2)
(conditioning timeliness requirement of a petition to open and/or strike on
service of notice of execution).
Here, the prothonotary issued Rule 236 notice of judgment entered to
Moser in February 2007. Lechowicz filed a praecipe to revive the judgment
in November 2013 to account for interest on the unpaid balance. However,
Lechowicz never served Moser with notice of execution. Pa.R.C.P. 236
notice is insufficient to invoke the thirty-day requirement of Rule 2959.1, as
this Court explained:
Rule 236 requires that the prothonotary give written notice to
the defendant that a judgment has been confessed against him
or her. To the contrary, Rule 2956.1(c)(2) requires the plaintiff
to serve notice on the defendant that he or she intends to
execute on the defendant's property. The latter situation
employs the sheriff, a state actor, to take the defendant's
property and thereby raises substantial due process concerns not
implicated by the entry of judgment.
Thomas Assocs., 711 A.2d at 508 (citing Jordan v. Fox, Rothschild,
O'Brien & Frankel, 20 F.3d 1250, 1272 (3rd Cir. 1994)).
Without notice of execution in either instance, the promptness
requirement of Rule 2959 did not attach, and the clock did not begin to run.
Thomas Assocs., 711 A.2d at 508. Thus, contrary to the trial court’s
ruling, the former, common law timeliness requirement did not render any
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arguments made in Moser’s petition waived. Id. Accordingly, we find
Moser’s petition timely.
Although we conclude the trial court denied Moser’s petition for an
incorrect reason, this Court may affirm a decision on any proper legal
ground. Williams v. Wade, 704 A.2d 132, 135 (Pa. Super. 1997) (citing
Schimp v. Allaman, 659 A.2d 1032 (Pa. Super. 1995)). Thus, we shall
proceed to the merits of his petition.
In his second issue, Moser contends that the court erred in failing to
strike the judgment as illegal because it arose out of a consumer credit
transaction. According to Moser, at least a portion of the legal services
rendered by Lechowicz in regard to the Knox litigation were personal in
nature, as they related to his divorce. To the extent that Lechowicz
rendered legal services and did not require Moser to pay in advance for
these services, Moser asserts that the note and affidavit constituted an
extension of credit by Lechowicz to Moser. See Appellant's Br. at 16-19
(citing in support Pa.R.C.P. 2950).
Pennsylvania Rule of Civil Procedure 2950 precludes judgment by
confession in connection with a consumer credit transaction. Willits v.
Fryer, 734 A.2d 425, 428 (Pa. Super. 1999) (striking judgment where two
natural persons entered into promissory note to finance closing costs to
effect sale of a home); Pa.R.C.P. 2950. A “consumer credit transaction” is
defined as:
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a credit transaction in which the party to whom credit is offered
or extended is a natural person and the money, property or
services which are the subject of the transaction are primarily for
personal, family or household purposes.
Pa.R.C.P. No. 2950.
Moser’s argument is without merit. On the face of the record, there is
no evidence to support Moser’s contention that the note represented an
extension of credit in exchange for legal services. To the contrary,
Lechowicz attached to his complaint an affidavit in which he attested that
the debt incurred by Moser was not the result of a consumer credit
transaction. Thus, the record is self-sustaining. Resolution Trust Corp.,
683 A.2d at 273. Further, as Moser asserts no other fatal defect, the court
did not err in denying Moser’s petition to strike. ESB Bank, 2 A.3d at
1239.3
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3
On appeal, Moser does not seek opening the judgment based on
allegations of a consumer credit transaction. See Appellant’s Br. at 19
(concluding only that judgment should be stricken). Thus, he has
abandoned that claim on appeal. Nevertheless, we note the following.
Disputed evidence of a consumer credit transaction could support a
meritorious defense. Moreover, in Willits, this Court suggested that, in
some circumstances, legal fee arrangements could be interpreted as a
consumer credit transaction. Willits, 734 A.2d at 428 (citing in support
Dougherty v. Hoolihan, Neils, and Boland, Ltd., 531 F.Supp. 717, 721
(D. Minn. 1982); see also Bochetto v. Piper Aircraft Co., 94 A.3d 1044,
1050 (Pa. Super. 2014) (noting that we may rely on federal authority as
persuasive).
In Dougherty, clients signed a personal promissory note secured by a
mortgage in exchange for continued legal services in an upcoming criminal
matter. Interpreting the federal Truth in Lending Act broadly, the court
(Footnote Continued Next Page)
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Finally, Moser contends that the court erred in denying his petition to
open to contest the reasonableness of the legal fees incurred. Moser makes
a series of bald assertions, proclaiming that his petition presented a “bona
fide defense” and that it is his “unfettered right” to challenge the amount
and reasonableness of counsel fees. Appellant's Br. at 20.
Moser does not support this claim with any citation to pertinent legal
authority.4 Further, Moser never actually claims that the legal fees incurred
were unreasonable, and he has offered no evidence in support thereof.
Rather, Moser merely claims that he retains the right to challenge them.
The Rules of Appellate Procedure require the argument section of an
appellate brief to include “citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a). It is not the role of this Court to develop an appellant’s
argument where the brief provides mere cursory legal discussion.
Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009), cert. denied,
562 U.S. 906 (2010); see also In re C.R., 113 A.3d 328, 336 (Pa. Super.
2015), appeal denied, 125 A.3d 1197 (Pa. 2015) (“This Court will not
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(Footnote Continued)
found that this transaction constituted a consumer credit transaction. Id. at
721. The facts here are easily distinguishable, as there is no evidence that
Lechowicz extended Moser credit, whether secured or not, in exchange for
continued legal services. To the contrary, the amount confessed
represented fees for services previously rendered.
4
The only case cited by Moser in this portion of his argument, Shaffer v.
Smith, 648 A.2d 26 (Pa. Super. 1994), holds that “a criminal conviction
collaterally estops the defendant from denying his acts in a subsequent civil
trial.” It is, thus, completely inapposite here.
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consider an argument where an appellant fails to cite to any legal authority
or otherwise develop the issue.”).
Moser’s bald assertions cannot provide the basis for a meritorious
defense. See Ferrick, 69 A.3d at 647 (noting that a judgment of confession
will not be opened unless the court determines that the petitioner presents a
meritorious defense upon which relief could be afforded if proven at trial and
there is sufficient evidence to require submission of the issue to a jury).
Accordingly, he has waived this claim on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2017
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