162 A.3d 461
Pa. Super. Ct.2017Background
- In May 2011 King Investment Group purchased commercial property and received a $125,000 purchase‑money judgment note with 3% interest. The note was personally guaranteed and recorded as a second mortgage.
- King defaulted on payments; in December 2015 the sellers filed to confess judgment for principal, interest, and late charges. King received notice of rights and timely filed a petition to open/strike the confession in January 2016.
- The trial court denied King’s petition to open/strike the confession on February 24, 2016, and denied reconsideration on March 16, 2016. King did not appeal that order within 30 days.
- On March 4, 2016 the sellers moved to modify the confessed judgment amount to account for a $2,000 payment by King; the court entered a nunc pro tunc reduction on March 28, 2016.
- King filed a notice of appeal on April 27, 2016 from the March 28 order and raised issues about set‑offs, estoppel, consolidation, and denial of reconsideration. The sellers moved to dismiss as untimely.
Issues
| Issue | Plaintiff's Argument (King) | Defendant's Argument (Sellers) | Held |
|---|---|---|---|
| Was the appeal timely? | The March 28 modification was a final order that superseded the Feb. 24 denial, so the April 27 appeal is timely. | King failed to timely appeal the Feb. 24 interlocutory order; appeal period ran from that order and is not extendable. | Appeal quashed as untimely; failure to appeal Feb. 24 order waived challenges. |
| Was the March 28 modification a final, appealable order? | The modification resolved amount and thus was a final disposition permitting appeal. | The modification was a corrective nunc pro tunc amendment of the judgment amount and did not decide claims or change rights; not a final appealable order. | The March 28 order was not a final appealable order under Pa.R.A.P. 341. |
| Could King raise set‑offs and defenses after failing to timely appeal the denial to open/strike? | King argued unliquidated set‑offs (repairs, post‑settlement rent, post‑breach interest, costs) supported opening the judgment. | Because King did not timely appeal the denial to open, those defenses are waived. | The court held those claims waived by failure to timely appeal the February 24 order denying the petition to open. |
| Is denial of a motion for reconsideration appealable or does it toll the appeal period? | King treated denial of reconsideration as a basis to appeal or as tolling. | Denial of reconsideration is not appealable and does not extend/toll the appeal period absent a stay. | Denial of reconsideration is not appealable and does not toll the appeal period; appeal period expired 30 days after Feb. 24 order. |
Key Cases Cited
- Hammel v. Hammel, 636 A.2d 214 (Pa. Super. 1994) (order denying petition to open a judgment is appealable and must be timely appealed or waived)
- Leonard v. Andersen Corp., 445 A.2d 1279 (Pa. Super. 1982) (time to appeal under Pa.R.A.P. 311 runs from entry of interlocutory order and cannot be enlarged)
- Dime Bank v. Peter Andrews, 115 A.3d 358 (Pa. Super. 2015) (formal defects in confessed judgments may be corrected nunc pro tunc without striking the judgment)
- Dollar Bank v. Northwood Cheese Co., Inc., 637 A.2d 309 (Pa. Super. 1994) (if a confessed judgment is excessive but for items within the note, court may modify to proper amount)
- West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84 (Pa. 1951) (defects, mistakes, and omissions in confessions may be corrected by amendment when substantive rights are not prejudiced)