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HomeMy WebLinkAbout2009-6533 GUISEPPE BARONE AND : IN THE COURT OF COMMON PLEAS OF GIOVANNNI BARONE, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : : BRANDON C. POWERS, : DEFENDANT : 09-6533 CIVIL TERM IN RE: DEFENDANT’S PETITION TO STRIKE OR ALTERNATIVELY OPEN CONFESSED JUDGMENT AND FOR STAY OF EXECUTION OPINION AND ORDER OF COURT Masland, J., September 26, 2011:-- Before the court is the petition to strike or alternatively open confessed judgment and request for stay of execution filed by Defendant, Brandon C. Powers. Following briefing and argument, the court now opens the confessed judgment and stays or strikes the writ of execution of said judgment. I. Background This matter arises from an alleged breach of a commercial lease agreement between Plaintiffs, Giuseppe Barone and Giovanni Barone, and the Defendant. What renders the instant matter somewhat odd is that Plaintiffs initially entered the instant confessed judgment in September of 2009 but did not execute the judgment until July 7, 2011. The 2009 correspondence between the parties’ counsel indicates that, after initially entering judgment, Plaintiffs agreed to forbear on executing the judgment so long as Defendant paid his rent arrears, back taxes, and Plaintiff’s counsel fees. After receipt of these payments, Plaintiff stated further terms that, if complied with, would lead to the withdrawal of the 09-6533 CIVIL TERM confessed judgment. Specifically: 1. Your client will make timely payment of his monthly rent to my client on st or before the 1 of each month, without exception, and with the next such payment due on or before November 1, 2009, and your client will do so for six (6) consecutive months to and including the rent payment due on or before April 1, 2010; 2. Your client will pay directly to Deborah A. Lupold, Treasurer for East Pennsboro Township, the 2009-10 school tax in the face amount of $3,053.45 prior to the expiration of the face period and before the imposition of further penalty, which date is October 31, 2009, and will provide my office with proof that such payment has been made; and 3. Your client will remain in compliance with each and every other term of the Lease Agreement between the parties. As a further condition of my client’s forbearance, your client will not challenge in any manner whatsoever the entry of the Confession of Judgment for Possession referred to above. In the event that your client fails to meet these conditions, my client will request that writ of execution be issued on the judgment for possession. However, if your client successfully meets the conditions outlined above, shortly after April 1, 2009, the judgment for possession will be satisfied of record and withdrawn. Def.’s Ex. D, Letter of Oct. 22, 2009 (emphasis added). From the time of the letter until June of 2011, the parties continued their contractual relationship. During that time Plaintiffs neither withdrew nor executed the confessed judgment. However, on June 17, 2011, following further alleged breaches of the lease agreement, Plaintiffs filed a praecipe for writ of execution which was subsequently executed by the Cumberland County Sherriff’s Office on July 7, 2011. On July 22, 2011, Defendant filed the instant petition to strike or open the judgment. -2- 09-6533 CIVIL TERM II. Discussion A. Petition to Strike A petition to strike a confessed judgment presents a question of law and “will only be granted if a fatal defect appears on the face of the record.” RAIT Partnership, LP v. E Pointe Properties I, Ltd., 957 A.2d 1275, 1277 (Pa. Super. 2008). Where, as here, the proceeding was initiated by complaint, the complaint and the confession of judgment clause must be read together to determine whether there are defects on the face of the record. Crum v. F.L. Shaffer Co., 693 A.2d 984, 986 (Pa. Super. 1997). A review of the record reveals no such defects. B. Petition to Open A petition to open a confessed judgment rests within the court’s equitable discretion, and may be granted if the defendant: “(1) acts promptly, (2) alleges a meritorious defense, and (3) can produce sufficient evidence to require submission of the case to a jury.” RAIT, 957 A.2d at 1277. First, Defendant filed the petition roughly two weeks after the execution of the confessed judgment and therefore acted promptly. Second, Defendant has alleged a meritorious defense. Specifically, he avers, “[b]etween November 2, 2009 and July 7, 2011, Petitioner complied with the terms set forth in the Lease Agreement, including but not limited to the timely payment of rent.” Pet. at ¶14. Defendant contends that he fulfilled all the previously stated requirements for the confessed judgment to be marked as satisfied and withdrawn in April of 2009. If proven, this would render the execution of the judgment to be inappropriate. -3- 09-6533 CIVIL TERM Unsurprisingly, Plaintiffs vigorously dispute whether Defendant ever complied with the lease agreement obligations, but that presents a question of fact that this court cannot resolve at this stage. Finally, regarding evidence for jury submission, Defendant has attached many copies of cancelled checks to his petition that purport to establish his compliance with the lease agreement. Again, Plaintiffs argue that this evidence is insufficient. Ultimately, the court finds this material, coupled with whatever testimony Defendant himself would supply, presents sufficient evidence for submission to a jury. Accordingly, the petition to open will be granted. III. Conclusion For the foregoing reasons, the court reaches the following conclusions: (1) the petition to strike is denied; (2) the petition to open is granted; and (3) the writ of execution is stricken. ORDER OF COURT AND NOW, this day of September, 2011, upon consideration of Defendant’s petition to strike or alternatively open confessed judgment and DENIED request for stay of execution: (1) the petition to strike is ; (2) the petition GRANTEDSTRICKEN to open is ; and (3) the writ of execution is . By the Court, Albert H. Masland, J. -4- 09-6533 CIVIL TERM Robert P. Kline, Esquire For Plaintiffs Paige Macdonald-Matthes, Esquire For Defendant :saa -5- GUISEPPE BARONE AND : IN THE COURT OF COMMON PLEAS OF GIOVANNNI BARONE, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : : BRANDON C. POWERS, : DEFENDANT : 09-6533 CIVIL TERM IN RE: DEFENDANT’S PETITION TO STRIKE OR ALTERNATIVELY OPEN CONFESSED JUDGMENT AND FOR STAY OF EXECUTION ORDER OF COURT AND NOW, this day of September, 2011, upon consideration of Defendant’s petition to strike or alternatively open confessed judgment and DENIED request for stay of execution: (1) the petition to strike is ; (2) the petition GRANTEDSTRICKEN to open is ; and (3) the writ of execution is . By the Court, Albert H. Masland, J. Robert P. Kline, Esquire For Plaintiffs Paige Macdonald-Matthes, Esquire For Defendant :saa