162 A.3d 461
Pa. Super. Ct.2017Background
- In May 2011 King Investment Group purchased Chester County commercial property and received a $125,000 purchase-money loan evidenced by a judgment note with 3% interest.
- King defaulted on payments; in December 2015 sellers filed a complaint to confess judgment for principal, interest, and late charges.
- King timely filed a petition to open and/or strike the confession and requested a stay; the trial court denied the petition by order entered February 24, 2016 (no appeal taken from that order within 30 days).
- On March 28, 2016 the trial court entered a nunc pro tunc modification reducing the confessed judgment by $2,000 to correct the amount due.
- King filed a notice of appeal on April 27, 2016 from the March 28 order and raised multiple challenges to the court’s handling of defenses, set-offs, reconsideration, and consolidation.
- Appellees moved to quash as untimely, arguing King failed to appeal the February 24 interlocutory order within the 30-day period; the Superior Court granted the motion and quashed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument (King) | Defendant's Argument (Sellers) | Held |
|---|---|---|---|
| Whether the March 28 modification superseded the Feb. 24 denial so King’s appeal was timely | The March 28 order was final and superseded the interlocutory denial, so the April 27 appeal was timely | The March 28 order merely corrected the judgment amount nunc pro tunc and did not render the Feb. 24 order non-appealable or revive the appeal period | Held for Sellers: March 28 order is corrective, not a new final order; appeal was untimely and quashed |
| Whether King may raise set-offs and unliquidated claims in defense to confessed judgment | King argued the trial court should have considered set-offs (repair defaults, post-settlement rent, interest, costs) when deciding the petition to open | Sellers contended those defenses were waived by failure to timely appeal the denial of the petition to open | Held for Sellers: those arguments were waived by King’s failure to timely appeal the February 24 denial |
| Whether denial of reconsideration is appealable or tolls the appeal period | King attempted to appeal the denial of reconsideration to extend review | Sellers argued denial of reconsideration is not separately appealable and does not toll the appeal period absent a stay | Held for Sellers: denial of reconsideration is not appealable and does not toll the appeal period |
| Whether a nunc pro tunc modification of a confessed judgment is appealable as a final order | King asserted the modification made the order appealable | Sellers argued the modification corrected a calculational/clerical error and did not adjudicate new claims or change substantive rights | Held for Sellers: modification was corrective and not a final appealable order under Pa.R.A.P. 341 |
Key Cases Cited
- Hammel v. Hammel, 636 A.2d 214 (Pa. Super. 1994) (order refusing to open a judgment is appealable as of right under Pa.R.A.P. 311)
- Leonard v. Andersen Corp., 445 A.2d 1279 (Pa. Super. 1982) (appeal period for interlocutory Rule 311 orders runs from entry and cannot be enlarged)
- Dime Bank v. Peter Andrews, 115 A.3d 358 (Pa. Super. 2015) (clerical/record defects in confessed judgments may be corrected nunc pro tunc without striking judgment)
- Dollar Bank v. Northwood Cheese Co., Inc., 637 A.2d 309 (Pa. Super. 1994) (excessive amounts in confessed judgment may be modified to reflect proper amount)
- West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84 (Pa. 1951) (formal defects in confessions of judgment may be corrected by amendment where justice requires)
- Provident Nat’l Bank v. Rooldin, 378 A.2d 893 (Pa. Super. 1977) (denial of reconsideration is not separately appealable and does not toll appeal period)