Dime Bank v. Andrews, P.
115 A.3d 358
Pa. Super. Ct.2015Background
- Andrews guaranteed a loan to Dime Bank under a Guarantee & Suretyship Agreement that required the bank to give the guarantor 10 days’ written notice of borrower default before commencing collection/confession-of-judgment proceedings.
- Borrowers defaulted; Dime filed a complaint in confession of judgment (Oct 19, 2012) attaching the Note, modification, and Guarantee.
- Andrews filed a petition to strike; parties stipulated allowing Dime to file an amended complaint and preserved Andrews’ right to move to strike anew.
- Dime’s First Amended Complaint (Dec 19, 2012) alleged default but did not aver that the 10-day notice required by the Guarantee had been given.
- Trial court found the omission a facial defect but allowed Dime to cure by filing a Second Amended Complaint; Andrews appealed.
Issues
| Issue | Plaintiff's Argument (Andrews) | Defendant's Argument (Dime) | Held |
|---|---|---|---|
| Whether failure to aver compliance with a contractual 10‑day notice condition precedent in a complaint in confession of judgment is a fatal defect requiring striking the judgment | The Guarantee makes 10‑day written notice a condition precedent; the complaint must aver occurrence of the condition under Pa.R.C.P. 2952 and ABF; omission is fatal without proof of prejudice | The omission is amendable; courts may allow nunc pro tunc amendment where cause of action unchanged and no prejudice; prior cases allow curing such defects | The omission is a fatal defect under controlling precedent (A.B. & F.); judgment must be stricken; trial court’s denial reversed and case remanded to address post-judgment avenues |
| Whether defendant’s knowledge of earlier filings or a later demand/letter can excuse failure to aver the 10‑day notice in the operative record | Knowledge of prior filing or a demand does not substitute for the required averment; strict construction of warrants requires the averment | The record (answer and stipulation) and possibility that a demand contained the required notice make the defect amendable and not prejudicial | Knowledge/possession of information outside the operative pleading does not cure the facial defect; strict construction controls |
Key Cases Cited
- A. B. & F. Contr. Corp. v. Matthews Coal Co., 166 A.2d 317 (Pa. Super. 1960) (failure to aver required notice is fatal to confession of judgment)
- West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84 (Pa. 1951) (formal defects may be amended where defendant was informed and no prejudice)
- Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915 (Pa. 1997) (petition to strike reviews only face of record when judgment entered)
- Atlantic Nat’l Trust, LLC v. Stivala Investments, Inc., 922 A.2d 919 (Pa. Super. 2007) (amendment to cure defects may be allowed where not prejudicial)
- First Union Nat’l Bank v. Portside Refrigerated Servs., Inc., 827 A.2d 1224 (Pa. Super. 2003) (confessions of judgment require strict compliance with procedural and warrant provisions)