Opinion
J-A21004-16 No. 3447 EDA 2015 No. 3448 EDA 2015
11-01-2016
HAROLD L. ZUBERS, JR., Appellee v. PENN PHOTOMOUNTS, INC. AND C. DAVID MATTHIAS, Appellants HAROLD L. ZUBERS, JR., Appellee v. PENN PHOTOMOUNTS, INC. AND C. DAVID MATTHIAS AND ALISON S. MATTHIAS, Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 19, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2015-1839 Appeal from the Order Entered October 19, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2015-1842 BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellants, Penn Photomounts, Inc. (Penn Photomounts) and C. David Matthias (Mr. Matthias) and Alison S. Matthias (Mrs. Matthias), appeal from the October 19, 2015 orders denying their petition to open or strike the confessed judgments that were brought against them in two separate cases by Appellee, Harold L. Zuber, Jr., as the assignee of two loans originating with Sovereign Bank. After careful review, we affirm.
This Court sua sponte consolidated the appeals at 3447 EDA 2015 and 3448 EDA 2015 by per curiam order entered January 25, 2016.
On August 25, 2003, Penn Photomounts entered into a loan agreement with Sovereign Bank for the principal amount of $1,000,000.00, with Mr. Matthias named as the commercial guarantor of the sum's repayment in the event of default. Trial Court Opinion (TCO), 3/16/16, at 2. Penn Photomounts subsequently entered into a second loan agreement with Sovereign Bank on June 29, 2012, for the principal sum of $250,000.00, secured with the unlimited guaranty of Mr. Matthias and the limited guaranty of Mrs. Matthias. Id.
On February 26, 2015, Appellee filed complaints in confession of judgment in two separate actions to secure repayment of the foregoing loans. Judgments were entered by the Delaware County Prothonotary in each case on the same date. The first matter, captioned at Number 2015-1839, sought judgment in the amount of $804,770.56, against Mr. Matthias, as the commercial guarantor. Id. The second action, captioned at Number 2015-1842, sought judgment in the amount of $275,061.50, against Appellants, Penn Photomounts (the borrower) and Mr. and Mrs. Matthias (the guarantors). Id. On June 10, 2015, Appellants filed petitions to open and/or strike the confessed judgments entered in both actions. After hearing argument on the petitions, the trial court entered orders dated October 19, 2015, denying Appellants' request for relief, in both cases.
On November 2, 2015, Appellants filed a notice of appeal in each of the foregoing actions. The matters have since been consolidated on appeal. On December 21, 2015, Appellants timely filed a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Herein, Appellants present the following issues for our review:
Although Appellants' notices of appeal were docketed on November 23, 2015, a review of the record reveals that the notices were timely filed on November 2, 2015, as evidenced by the prothonotary's time-stamp.
1. As to Case No. 2015-1842, whether the trial court committed an error of law in refusing to strike the subject confessed judgment as to [Mrs. Matthias], since the express non-waivable conditions precedent to the pursuit and/or entry of a confessed judgment against [Mrs. Matthias] under her limited guaranty have neither occurred nor are alleged to have occurred in the complaint.
2. As to Case No. 2015-1842, whether the trial court committed an error of law in refusing to strike the subject confessed judgment as to [Mr. Matthias] since the non-waivable conditions precedent to the pursuit and/or entry of a confessed judgment against [Mr. Matthias] under his guaranty have neither occurred nor are alleged to have occurred in the complaint.
3. As to Case No. 2015-1842, whether the trial court committed an error of law in refusing to strike the subject confessed judgment as to [Mr. and Mrs. Matthias], since the allonges to NEPCO and, subsequently, to [Appellee] make no reference to anything other than the note being assigned to
NEPCO and [Appellee] - including no reference to the guarantees of [Mr. and Mrs. Matthias] as being assigned; therefore [Appellee] was not authorized to confess judgment against [Mr. Matthias] and/or [Mrs. Matthias].
4. As to Case No. 2015-1842, whether the trial court committed error in refusing to open the subject confessed judgment, as [Mrs. Matthias] maintains a valid defense, since the conditions precedent to the pursuit and/or entry of a confessed judgment against [Mrs. Matthias] under her limited guaranty have neither occurred nor are alleged to have occurred in the complaint, nor can they occur.
5. As to Case No. 2015-1842, whether the trial court committed error in refusing to open the subject confessed judgment, as [Mr. Matthias] maintains a valid defense, since the conditions precedent to the pursuit and/or entry of a confessed judgment against [Mr. Matthias] under his guaranty have neither occurred nor are alleged to have occurred in the complaint.
6. As to Case No. 2015-1842, whether the trial court committed error in refusing to open the subject confessed judgment, as [Mr. and Mrs. Matthias] maintain a valid defense, since the allonges to NEPCO and, subsequently, to [Appellee], make no reference to anything other than the note being assigned to NEPCO and [Appellee] - including no reference to the guaranties of [Mr. and Mrs. Matthias] as being assigned; therefore, [Appellee] was not authorized to confess judgment against [Mr. Matthias] and/or [Mrs. Matthias].
7. As to Case No. 2015-1842, whether the trial court committed error in refusing to open the subject confessed judgment, as [Appellants] maintain a valid defense, since [Appellee's] claim for attorneys' fees is excessive and not reasonable.
8. As to Case No. 2015-1839, whether the trial court committed an error of law in refusing to strike the subject confessed judgment, since the failure to attach the Carve Out Agreement - despite the fact that it provided for certain modifications to the terms of note upon which [Appellee] claims default and, consequently, the authority to confess judgment against [Appellants] - constitutes a defect on the face of the complaint.
9. As to Case No. 2015-1839, whether the trial court committed an error of law in refusing to strike the subject confessed judgment, since the failure to attach the 2003 and 2006 Business Loan Agreements - despite the fact that those agreements constituted related documents affecting the indebtedness and the note upon which [Appellee] claims default and, consequently, the authority to confess judgment against [Appellants] - constitutes a defect on the face of the complaint.Appellants' Brief at 2-6.
10. As to Case No. 2015-1839, whether the trial court committed error in refusing to open the subject confessed judgment, since the failure to attach the Carve Out Agreement - despite the fact that it provided for certain modifications to the terms of note upon which [Appellee] claims default and, consequently, the authority to confess judgment against [Appellants] - constitutes a valid defense to the confessed judgment.
11. As to Case No. 2015-1839, whether the trial court committed error in refusing to open the subject confessed judgment, since the failure to attach the 2003 and 2006 Business Loan Agreements - despite the fact that those agreements constituted related documents affecting the indebtedness and the note upon which [Appellee] claims default and, consequently, the authority to confess judgment against [Appellants] - constitutes a valid defense to the confessed judgment.
12. As to Case No. 2015-1839, whether the trial court committed error in refusing to open the subject confessed judgment, as [Appellants] maintain a valid defense, as [Appellee's] claim for attorneys' fees is excessive and not reasonable.
Initially, we are compelled to find that to the extent Appellants argue that the trial court erred in relying on allegations dehors the record in support of its refusal to strike the confessed judgments, these claims are waived, as Appellants' Rule 1925(b) concise statement is completely devoid of any such issues. It is well-settled under Pennsylvania law, that "[a]n appellant's failure to include an issue in his Rule 1925(b) statement waives that issue for purposes of appellate review." Madrid v. Alpine Mountain Corp., 24 A.3d 380, 382 (Pa. Super. 2011); see also Sovich v. Estate of Sovich , 55 A.3d 1161, 1165 (Pa. Super. 2012) (stating "issues not raised in the lower court are waived and cannot be raised for the first time on appeal") (quoting Pa.R.A.P. 302(a)).
See Appellants' Brief at 28-31.
The trial court issued an order dated November 30, 2015, directing Appellants to file a Rule 1925(b) concise statement of errors complained of on appeal within 21 days from the date of the order. The order further provided "that any issue not properly included in the statement timely filed and served pursuant to Pennsylvania Rule of Appellate Procedure No. 1925(b) shall be deemed waived." TCO, 11/30/15, at 1 (emphasis added). --------
In regards to Appellants' remaining issues, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-crafted 32-page opinion of the Honorable Charles B. Burr, S.J., of the Court of Common Pleas of Delaware County, entered March 17, 2016. We conclude that Judge Burr's extensive, well-reasoned opinion accurately disposes of the issues presented by Appellants. Accordingly, we adopt Judge Burr's opinion as our own and affirm the orders on that basis.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/1/2016
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