Sharbonno v. Ingros Family, LLC

245 A.3d 1054 (Table)

Ryan D. SHARBONNO v. The INGROS FAMILY, LLC and Jeffrey S. Ingros, Appellants Ryan D. Sharbonno v. The Ingros Family, LLC and Jeffrey S. Ingros, Appellants

No. 8 WDA 2020

No. 9 WDA 2020

Superior Court of Pennsylvania.

Filed December 9, 2020

MEMORANDUM BY OLSON, J.:

Appellants, The Ingros Family, LLC and Jeffrey S. Ingros, appeal from the orders entered on December 19, 2019, dismissing, as untimely, their petitions to strike and/or open two confessed judgments. We affirm.

The trial court summarized the facts and procedural history of this case as follows:

[ ] Ryan D. Sharbonno [(Sharbonno)] is an adult individual domiciled [in] Aliquippa, Beaver County[,] Pennsylvania[,] 15001. [Appellants operate] a business located [in] Beaver County, Beaver, Pennsylvania, 15009. On May 3, 2018, [Sharbonno] filed a complaint in confession of judgment against [Appellants] at case number 31137-2018 in the amount of $60,000[.00]. On November 20, 2018, [Sharbonno] filed a second complaint in confession of judgment against [Appellants] at case number 33331-2018 in the amount of $460,000[.00]. Both complaints and confessions of judgment are based on a promissory note that [Sharbonno] and [Appelllants] entered into on April 16, 2018. ^[1] In accordance with Pa.R.Civ.P. 2958.1, counsel for [Sharbonno] served notices of intention to execute on the judgments upon [Appellants] on May 2, 2019, which required the filing of a petition to strike or open the judgment[s] within 30 days of service in order to potentially avoid execution.

The attorneys [for both parties] agreed to an extension for [Appellants] to respond to the confessed judgments until June 14, 2019. On or about June 14, 2019[,] counsel for [Appellants] mailed petitions to strike and/or open the judgments in each of the cases [(one for each confessed judgment)] to the Prothonotary of Beaver County. The Prothonotary did not receive and file/docket the petitions until June 17, 2019. Thereafter, [Sharbonno] filed motions to strike the petitions as untimely filed. [The trial court] held argument on these issues on November 13, 2019.

Trial Court Opinion, 12/19/2019, at 1-2.

In a single order and opinion entered on December 19, 2019, the trial court granted Sharbonno's motions to strike the petitions to open and/or strike the confessed judgments. In addition, the court denied Appellants' petitions to strike and/or open the judgments. These timely appeals resulted. ² On appeal, Appellants present the following issues for our review:

1. Did the [trial c]ourt err in holding that the [p]etitions [to strike and/or open judgment] were not timely filed?

2. Did the [trial c]ourt err in holding that the [p]etitions [to strike and/or open judgment] were required to be presented to the judge within 30 days?

3. Did the [trial c]ourt overlook the case law holding that a void judgment may be stricken at any time?

4. Was the second confessed judgment void because the warrant of attorney had been "exhausted" by the first confession?

5. Did the petition to open set forth prima facie grounds for relief?

Appellants' Brief at 4 (unnecessary capitalization omitted).

Initially, we note "[a] petition to strike a confessed judgment and a petition to open a confessed judgment are distinct remedies; they are not interchangeable." Neducsin v. Caplan , 121 A.3d 498, 504 (Pa. Super. 2015). Accordingly, we adhere to the following principles:

A confessed judgment will be stricken only if a fatal defect or irregularity appears on the face of the record. A judgment by confession will be opened if the petitioner acts promptly , alleges a meritorious defense, and presents sufficient evidence in support of the defense to require the submission of the issues to a jury. In adjudicating the petition to strike and/or open the confessed judgment, the trial court is charged with determining whether the petitioner presented sufficient evidence of a meritorious defense to require submission of that issue to a jury. A meritorious defense is one upon which relief could be afforded if proven at trial.

In examining the denial of a petition to strike or open a confessed judgment, we review the order for an abuse of discretion or error of law.

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.

When determining a petition to open a judgment, matters dehors the record filed by the party in whose favor the warrant is given, i.e. , testimony, depositions, admissions, and other evidence, may be considered by the court.

Ferrick v. Bianchini , 69 A.3d 642, 647 (Pa. Super. 2013) (internal citations and ellipsis omitted) (emphasis added).

In developing their first claim, Appellants point out that, when a judgment creditor serves written notice of entry of a confessed judgment, a petition to strike and/or open must be filed within 30 days under Pa.R.Civ.P. 2959(a)(3). Appellants maintain that this provision is inapplicable here because "the parties agreed to extend the time for [Appellants] to file petitions." Appellants' Brief, at 11, citing Pa.R.Civ.P. 2959. More specifically, Appellants assert "[t]he parties ultimately agreed to extend the time to respond to the confessed judgments until June 14, 2019 ^{[3 ]}" and the agreement was "confirmed by e-mail exchange." Id. at 7. As such, Appellants contend "Sharbonno waived the issue of timeliness by his agreement to extend the time for filing petitions." Id. at 10. Appellants acknowledge that "the [p]etitions [to open/strike the judgments] were not received by the Prothonotary until June 17, 2019, one business day later" than the agreed upon date. Id. Nevertheless, Appellants argue that "[f]ollowing [ ] waiver [by prior agreement], it was an abuse of discretion [for the trial court] to dismiss the petitions on the grounds that they were received by the Prothonotary one [business] day after the agreed upon extension." Id. Appellants contend that "[b]ased upon the [agreed upon] extension, the terms of Rule 2959(a)(3) do not literally apply." Id. at 11. Moreover, Appellants argue that "[c]ounsel for Sharbonno actually received [Appellants' p]etitions by the due date" and "[t]he fact that the [p]etitions were received by the Prothonotary one business day later should not permit [ ] default[.]" Id. Appellants argue that the trial court should have ignored their insubstantial non-compliance with procedural deadlines under principles of equity and a liberal construction of the procedural rules. Id. at 11-13.

Pennsylvania Rule of Civil Procedure 2959 provides, in pertinent part:

Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure

(a)(1) Relief from a judgment by confession shall be sought by petition. [...A]ll grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition.

* * *

(3) 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.

In interpreting timeliness under Rule 2959, an en banc panel of this Court has stated:

The thirty-day deadline in Pa.R.C.P. 2959(a)(3) applies whether the petition seeks to strike or open a confessed judgment. Pa.R.C.P. 2959(a)(3). The Rule is explicitly mandatory, stating that a petition "shall be filed within thirty days" and that, absent compelling reasons, an untimely petition "shall be denied."

Driscoll v. Arena , 213 A.3d 253, 258 (Pa. Super. 2019) ( en banc ). The Driscoll Court recognized that "the term ‘shall’ is mandatory for purposes of statutory construction when a statute is unambiguous." Id. at 258 n.6 (citation omitted).

In this case, the trial court determined:

[...C]ounsel [for Appellants] did not file [their] petition[s] to strike off or open the judgments within [30] days of the date of service of the notice to execute on the judgments. It is clear from the record at argument that the parties to this action agreed to extend the deadline, but that additional deadline was also not complied with in addition to the original [30]-day requirement under Rule 2959. [...]Additionally, [Appellants] have not presented any compelling reason for the delay. Even if [the trial c]ourt recognized the additional time to file that counsel agreed to, [Appellants] still failed to file within that deadline and failed to meet the requirements of the civil rules. Therefore, [Appellants'] petitions to open [and/or strike] were not timely filed.

Trial Court Opinion, 12/19/2019, at 4.

Upon review, we agree with the trial court's assessment. Here, there is no dispute the parties agreed to a specific, extended date by which Appellants needed to file their petitions to strike and/or open the confessed judgments. Thus, the first provision of Rule 2959(a)(3), stating that a petition must be filed within 30 days of written notice pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), was inapplicable herein, as Appellants point out. Notwithstanding, Appellants admit that their petitions to strike and/or open the judgments in this matter were filed three days, or one business day, after the agreed upon extension date. As such, Appellants' petitions to strike and/or open...