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HomeMy WebLinkAbout2008-4407 Civil PNC BANK, NATIONAL : IN THE COURT OF COMMON PLEAS OF ASSOCIATES, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : vs. : CIVIL ACTION – LAW : NO. 08-4407 CIVIL SNS BUDDIES, INC., d/b/a : UNI-MART, : Defendant : IN RE: MOTION TO STRIKE BEFORE HESS, J. OPINION AND ORDER On July 23, 2008, PNC Bank, National Association, hereinafter “PNC,” filed a complaint for confession of judgment under Pa.R.C.P. 2951. Judgment was entered by the Prothonotary in the amount of $383,164.21. The defendant, SNS Buddies, Inc., d/b/a Uni-Mart, hereinafter “SNS,” has filed a petition to strike and/or open the judgment. In its petition to strike, SNS contends that venue is not proper in Cumberland County. The petition to open asserts that there is a meritorious defense to the underlying claim. We address, first, the matter of venue. Under Pa.R.C.P. 1006, an action against an individual may only be brought in the county in which the individual may be served, the cause of action arose, or where a transaction or occurrence took place out of which the cause of action arose. According to Pa.R.C.P. 2179, referenced in paragraph (b) of Rule 1006, venue against a corporation exists in those counties in which the corporation’s registered office or principle place of business is located, it regularly conducts business, the cause of action arose, or a transaction or occurrence took place out of which the cause of action arose. The venue rules apply where there is “an action.” Pa.R.C.P. 1001 defines an action as a claim for relief heretofore asserted in NO. 08-4407 CIVIL assumpsit, trespass, or equity. Venue also applies to other forms of action which incorporate the venue rules by reference. See Pa.R.C.P. 1001(c). In addition, Rule 1006(e) requires that improper venue shall be raised by preliminary objection. The time limit for filing preliminary objections is set out in the notice to defend, the form for which is contained in Pa.R.C.P. 1018.1(b). Under the rules for confession of judgment, the term “action” has a different meaning, encompassing the entry of a judgment pursuant to an instrument which authorizes such confession. The complaint for judgment does not contain a notice to defend nor, according to Pa.R.C.P. 2952(b), is a responsive pleading required. Pa.R.C.P. 2959 provides that relief from a judgment by confession “shall be sought by petition” which may be filed in the county where the judgment was entered, in any county to which a county has been transferred, or in any other county in which the sheriff has received a writ of execution. See Pa.R.C.P. 2959(a)(1). Therefore, regardless of where the confession of judgment is originally filed, it would appear that the defendant preserves the right to challenge the judgment in a county where the defendant has some material connection. The rules with respect to confession of judgment are otherwise silent with respect to incorporating the venue rules and make no mention, specifically, of either Rule 1006 or Rule 2179. Thus, we are satisfied that the traditional rules with regard to venue have no 1 application to the initial filing of a confession of judgment. Moreover, the confession of judgment in this case provides that jurisdiction shall be in the “Courts of Common Pleas of the Commonwealth of Pennsylvania.” It also contains the 1 Accordingly, we decline to follow the holding of the Philadelphia Court of Common Pleas in Mountbatten Surety Co . Inc. v. Williams Graphics, Inc., 2004 W.L. 1921110 (Pa. Com. Pl.) wherein the Court granted a petition to strike a confessed judgment on grounds of improper venue. 2 NO. 08-4407 CIVIL rather standard language empowering “any attorney of any court of record” to appear and confess judgment in favor of the lender. Thus, even if venue could be made an issue, there is an argument that it has been waived. We next address the question of whether the judgment should be opened. In support of a petition to open, the petitioner must offer clear, direct, precise and believable evidence of a meritorious defense, sufficient to raise a jury question. See Stahl Oil Co., Inc. v. Helsel, 860 A.2d 508 (Pa.Super. 2004). The petition filed in this case does not deny that the defendant executed the relevant documents in the case, agreed to repay a loan and owes the money. It alleges, simply, that a third party, Kuber Financial Services, LLC, engaged by Uni-Mart to sell 255 of its stores, advised the petitioner that PNC was among the preferred lenders and had reviewed the financial statements of the stores (presumably finding them to be profitable). Kuber also made certain representations concerning the financial integrity of the stores at a seminar attended by the petitioner where, allegedly, representatives of PNC were present. The petition then goes on to allege that the petitioner relied on “representations and the conduct of PNC” to their detriment, though nowhere in the petition is it alleged that PNC, in fact, made any 2 representations. In short, the purported “defense” is neither clear nor precise. In addition, the claim of the petitioner is in the nature of an unliquidated set-off. It is well settled that in the absence of fraud, an unliquidated set-off is not ground for opening a confessed judgment. Harrison v. Galilee Baptist Church, 234 A.2d 314, 316 (Pa. 1967) citing numerous 2 This defense was expanded upon during the deposition of Sunil Khanna, majority owner of SNS. The gist of his testimony is that, because a bank should not give a loan to a business which is not profitable, the loan need not be repaid if the business proves to be unprofitable. This is pure sophistry. 3 NO. 08-4407 CIVIL cases. Nowhere in the petition to open is there any description of fraudulent conduct on the part of the plaintiff. Accordingly, the petition to open must be denied. ORDER th AND NOW, this 29 day of January, 2009, the petition of the defendant to strike and/or open judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Geoffrey S. Shuff, Esquire For the Plaintiff Robert C. Nowalis, Esquire For the Defendant :rlm 4 PNC BANK, NATIONAL : IN THE COURT OF COMMON PLEAS OF ASSOCIATES, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : vs. : CIVIL ACTION – LAW : NO. 08-4407 CIVIL SNS BUDDIES, INC., d/b/a : UNI-MART, : Defendant : IN RE: MOTION TO STRIKE BEFORE HESS, J. ORDER th AND NOW, this 29 day of January, 2009, the petition of the defendant to strike and/or open judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Geoffrey S. Shuff, Esquire For the Plaintiff Robert C. Nowalis, Esquire For the Defendant :rlm