J-A05044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANTANDER BANK, N.A., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KING DRIVE CORP.; A LA CARTE 

ENTERPRISES, INC.; ANGINO & 

ROVNER, P.C. AND RICHARD C. ANGINO 

AND ALICE K. ANGINO, H/W,

Appellants No. 2346 EDA 2014

Appeal from the Order Entered July 23, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 0330 March Term, 2014

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 28, 2015

Appellants King Drive Corporation (“King Drive”), A La Carte 

Enterprises, Inc. (“A La Carte”), Angino & Rovner, P.C., Richard C. Angino 

and Alice K. Angino, h/w, (“Anginos”) (collectively “Appellants”), appeal from 

a July 23, 2014 order from the Court of Common Pleas of Philadelphia 

County, denying Appellants’ Petition to stay, strike, order discovery, hold a 

hearing, or open judgment. We affirm.

The trial court summarized the facts of this case as follows:

Plaintiff Santander Bank (“Santander”) and defendants 

King Drive Corporation (“King Drive”) and A La Carte Enterprises 

(“A-La-Carte”), entered into a number of commercial loan 

agreements beginning in 2007. Under these contractual 

relationships, Santander agreed to provide funds to defendants 
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for the development of a golf course and annexed facilities in 

Dauphin County, Pennsylvania.

On July 3, 2007, Santander and King Drive executed a 

Construction Loan and Security Agreement (“Loan No. 1”). 

Under the terms of Loan No. 1, Santander agreed to provide to 

King Drive funds in the amount of $2 million. The maturity date 

of this loan, July 1, 2009, could be extended for one year subject 

to the conditions contained in the Loan Agreement. The Loan 

No. 1 agreement contained a pacing provision which required 

borrower to sell a specified number of property lots within each 

year. The promissory note on Loan No. 1 was guaranteed by 

individual defendants Richard C. Angino and Alice K. Angino (the 

“Anginos”). Furthermore, the promissory note on Loan No. 1 

was secured by a mortgage on a property (the “Mockingbird 

Drive Property”), which was owned by defendant King Drive.

On November 28, 2007, King Drive executed and delivered 

to Santander a Mortgage Loan Note in the amount of $3.5 

million for a second loan provided by Santander (Loan No. 2). 

On the same date, King Drive also executed and delivered to 

Santander a Line of Credit Promissory Note, in the amount of 

$750,000, for a loan provided by Santander to cover the working 

capital needs of King Drive (Loan No. 3). In addition, Loans Nos. 

2 and 3 were secured by an Unlimited Guaranty and Suretyship 

Agreement executed by the Anginos. This agreement was 

accompanied by an “Explanation and Waiver of Rights Regarding 

Confession of Judgment,” which was executed by the Anginos. 

Pursuant to the language therein, the Anginos acknowledged 

that Santander could exercise the right to confess judgment 

against them.

On November 28, 20[07], defendant A-La-Carte executed 

and delivered to Santander a Line of Credit Promissory Note for 

a fourth loan (“Loan No. 4”), in the amount of $750,000. 

Pursuant to the Line of Credit Promissory Note, A-La-Carte 

empowered Santander to confess Judgment against A-La-Carte 

in any court of record in Pennsylvania or elsewhere. Loan No. 4 

was also guaranteed by the Anginos under an Unlimited 

Guaranty and Suretyship Agreement dated November 28, 

20[07]. The above mentioned guaranty and suretyship 

agreement was also backed by an Explanation and Waiver of 

Rights Regarding Confession of Judgment. Pursuant to the 

language in the waiver, the Anginos “irrevocably and 
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unconditionally” waived any immunity for themselves, their 

properties and assets, in the event of any legal suit arising under 

Loan No. 4. In addition, Loan No. 4 was also guaranteed under 

the terms of an Unlimited Guaranty and Suretyship Agreement 

executed by Angino & Rovner, P.C. (“Angino & Rovner”), a law 

firm controlled in whole or in part by individual defendant 

Richard C. Angino, Esquire.

On July 14, 2011, Santander and defendants entered into 

a “Loan Modification Agreement.” Pursuant to this loan 

modification, the maturity date for repayment of all loans was 

extended to December 31, 2013. In addition, defendants King 

Drive, A-La-Carte, Angino & Rovner, Richard C. Angino and Alice 

K. Angino, agreed to supplement collateral security to the loans 

with additional mortgages upon the residence and vacation home 

of the Anginos, as well as a separate parcel of land owned by 

defendants.

On July 19, 2012, the parties entered into a “First 

Amendment to Agreement Modification of July 14, 2011.” On 

December 27, 2012, the parties entered into a Second 

Amendment to the Modification Agreement dated July 14, 2011. 

The original loan modification agreement and its two 

amendments contained warrants of attorney to confess 

judgment against each defendant in any court of record.

On February 1, 2013, the instant defendants filed a 

complaint in the Court of Common Pleas, Berks County, against 

Santander’s predecessor in interest and two other parties. The 

complaint asserted claims which included breach of contract, 

breach of fiduciary duty and breach of the duty of good faith and 

fair dealing. On June 25, 2013, the Court of Berks County 

sustained the preliminary objections to the complaint, dismissed 

the complaint in its entirety, and granted the instant defendants 

leave to file an amended complaint. On July 11, 2013, the 

instant defendants filed an amended complaint in the Court of 

Berks County against Santander’s predecessor in interest and 

another defendant, Weir and Partners, LLP. However, the Berks 

County court found that the amended complaint offered 

allegations which were substantially similar to those asserted in 

the original complaint. Consequently, the court in Berks County 
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again sustained the preliminary objections to the amended 

complaint. Herein defendants filed an appeal which is still 

pending before the Pennsylvania Superior Court.1

By letter dated July 17, 2013, Santander informed the 

Anginos that they were in default for failure to pay to Santander 

$500,000 as required pursuant to the modifications to the loan 

agreements executed by the parties. The letter gave the 

Anginos ten (10) days to cure the default. None of the instant 

defendants was able to cure.

On March 20, 2014, Santander filed a praecipe for entry of 

judgment confession with an accompanying complaint. On April 

17, 2014, all defendants in the instant action filed a petition to 

stay, strike, order discovery, hold a hearing, and/or open 

judgment, accompanied by a memorandum of law. Santander 

timely filed a response and memorandum of law in opposition to 

the petition of defendants. On June 5, 2014, the parties met at 

an unsuccessful settlement conference chaired by a Courtappointed Judge pro-tempore. Subsequently, the Court held a 

hearing on July 9, 2014. 

Trial Court Opinion, 7/24/14, at 1–5 (footnotes omitted). On July 24, 2014, 

the trial court denied Appellants’ petition. Appellants filed a timely appeal. 

Appellants’ brief describes the issues on appeal as follows:2

1. Did the trial court err when Defendants requested a 

hearing and an opportunity to be heard, the trial court 

scheduled a hearing, but refused to permit Defendants to 

call witnesses or offer exhibits and limited defense counsel 

to a brief oral argument?

____________________________________________

1

 On January 18, 2015, a panel of this court affirmed the Berks County 

court order sustaining the preliminary objections to Appellants’ amended 

complaint. Angino, et al. v. Santander, et al, No. 489 MDA 2014 (Pa. 

Super. filed January 28, 2015) (unpublished memorandum at 15). On April 

2, 2015, Appellants’ petition for reargument en banc was denied. 

2

 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. 
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2. Should the Santander Confession of Judgment be opened 

based upon the meritorious defenses presented in the 

instant law suit that include identical issues in the Court of 

Common Pleas of Berks County involving the same parties 

in reverse roles, Civil Action - Law - Equity, No. 13-1563, 

under the principal of lis pendens which is currently on 

appeal to the Superior Court based upon the trial court’s 

grant of Santander’s preliminary objections to Plaintiffs 

Amended Complaint with prejudice. The following 

meritorious issues have been raised and are pending from 

Plaintiffs’ Amended Complaint and present Defendants’ 

appeal to the Superior Court including the following:

a. Does [there] exist a duty of good faith and fair dealing in 

the lender/lendee context in Pennsylvania in certain 

situations?

b. Do the factual averments in Plaintiffs’ Berks County 

Amended Complaint aver sufficient facts to present to a 

jury Santander’s violation of its duty of good faith in the 

context of Santander’s threat of foreclosure, coerced 

forebearance agreement, the terms of the forebearance 

agreement, First and Second Amendments, and refusal to 

cooperate with Defendants in obtaining refinancing and/or 

sale[s] of parcels of Defendants’ secured property and 

therefore constitute meritorious defenses in the instant 

Confession of Judgment action?

c. Did Santander commit a breach of contract when it 

revoked irrevocable letters of credit due to the 

Defendants?

d. Do the factual averments in Defendants’ Amended 

Complaint in the Berks County action and the supporting 

exhibits evidence or state a claim for breach of contract 

under the reasonable expectations doctrine?

e. Do the factual averments in Defendants’ Amended 

Complaint in the Berks County action and the exhibits 

evidence or state a claim for breach of contract under the 

defense of impracticability?
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f. Do the factual averments in Defendants’ Amended 

Complaint in the Berks County action and the exhibits 

evidence or state a claim for breach of contract under the 

defense of waiver or estoppel?

g. Do the factual averments in Defendants’ Amended 

Complaint in the Berks County action and the exhibits 

evidence or state a claim for breach of contract under the 

tort of civil conspiracy?

h. Do the factual averments in Defendants’ Amended

Complaint in the Berks County action and the exhibits 

evidence or state a claim for breach of contract under the 

tort of defamation?

i. Do the factual averments in Defendants’ Amended 

Complaint in the Berks County action and the exhibits 

evidence or state a claim for breach of contract under the 

tort of fraud?

Appellants’ Brief at 5–6 (verbatim).

Appellants’ argument that the trial court erred in denying them a 

hearing on the merits of their petition to open judgment because they were 

not permitted to call witnesses, offer exhibits, or produce evidence, is 

impossible to evaluate. What is known is that the trial court held a hearing 

on Appellants’ motion on July 9, 2014. Appellants did not file any discovery 

requests prior to the hearing. The record does not indicate that Appellants 

requested that the hearing be transcribed. More importantly, the record on 

appeal does not include a transcript of the hearing as required by the 

Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 1911(a) 

(announcing general rule that Appellant shall request any transcript required 

for appeal) and Pa.R.A.P. 1921 (the transcript of proceedings, inter alia, 
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shall constitute the record on appeal). Nor did Appellants attempt to comply 

with the procedure outlined in Pa.R.A.P. 1923 regarding statements in 

absence of transcript. Without a transcript we are unable to determine what 

transpired at the hearing. We cannot discern whether a request for an 

expanded hearing was presented, or the trial court’s response, if any, to 

such a request. Since the record in this case does not contain the facts 

necessary to evaluate the validity of Appellants’ argument on this issue, we 

cannot consider it on appeal. Conner v. Daimler Chrysler Corp., 820 A.2d 

1266, 1273 (Pa. Super. 2003).3

Appellants also argue that the trial court erred in denying their petition 

to open the judgment. A petition to open the judgment is governed by 

Pa.R.C.P. 29594and is an appeal to the equitable powers of the court. 

____________________________________________

3

 In its Memorandum Opinion denying Appellants’ motion, the trial court did 

not specifically address whether it met its obligation concerning the extent of 

the hearing it conducted on Appellants’ petition. The trial court, however, 

observed in a footnote that: 

‘in the context of a judgment confessed . . . the hearing required 

to comport with due process means simply an opportunity to be 

heard; it does not require a proceeding comparable to a full trial, 

but may be satisfied by other procedural opportunities to be 

heard, such as a petition to open judgment . . . .’ 

Trial Court Opinion, 7/24/14, at 5 n.17 (quoting Dollar Bank, Federal 

Savings Bank v. Northwood Cheese Co., Inc., 637 A.2d 309, 313 (Pa. 

Super. 1994)) (citation omitted).

4

 Rule 2959 provides generally that:

(Footnote Continued Next Page)
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Crum v. F.L. Shaffer Co., 693 A.2d 984, 986 (Pa. Super. 1997). As such, 

it is committed to the court’s sound discretion. PNC Bank v. Kerr, 802 

A.2d 634, 638 (Pa. Super. 2002). Relief may be granted only where the 

petitioner presents evidence of a meritorious defense that is “clear, direct, 

precise, and believable.” Germantown Savings Bank v. Talacki, 657 

A.2d 1285, 1289 (Pa. Super. 1985) (citation omitted). The burden rests on 

the party against whom judgment was confessed to disprove the facts 

contained within the confession of judgment. Davis v. Woxall Hotel, Inc, 

577 A.2d 636, 638 (Pa. Super. 1990). Ordinarily, an order denying the 

petition will not be disturbed absent a manifest abuse of the trial court’s 

discretion. Smith v. Friends Hospital, 928 A.2d 1072, 1074 (Pa. Super. 

2007).

Appellants contend that the confession of judgment entered should be 

opened under the principle of lis pendens in that the meritorious defenses 

presented in this action encompass the identical issues litigated in the Berks 

(Footnote Continued) _______________________

 (a)(1) Relief from a judgment by confession shall be sought 

by petition. Except as provided in subparagraph (2), all grounds 

for relief whether to strike off the judgment or to open it must 

be asserted in a single petition. The petition may be filed in the 

county in which the judgment was originally entered, in any 

county to which the judgment has been transferred or in any 

other county in which the sheriff has received a writ of execution 

directed to the sheriff to enforce the judgment.

Pa.R.C.P. 2959. 
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County action that Appellants initiated against Santander. These issues 

include: 1) the existence of a duty of good faith and fair dealing in the 

lender-borrower context; 2) whether Santander breached this duty; 3) 

Santander breached a contract when it revoked lines of credit; 4) breach of 

contract under reasonable expectations doctrine; 5) breach of contract under 

defense of impracticability; 6) breach of contract under defense of waiver or 

estoppel; 7) breach of contract under tort of civil conspiracy; 8) breach of 

contract under tort of defamation; and 9) breach of contract under tort of 

fraud. Appellants’ Brief at 5–6.

In Pennsylvania, “[w]hen two lawsuits are pending, the common law 

doctrine of lis pendens permits the dismissal of the newer suit if both suits 

involve the same parties, the same relief requested, the same causes of 

action, and the same rights asserted.” Barren v. Commonwealth, 74 A.3d 

250, 253 (Pa. Super. 2013). Additionally, “an abeyance may be appropriate 

even where the petitioner cannot strictly meet the above-referenced test if 

the two actions would ‘create a duplication of effort on the part of the parties 

and waste judicial resources by requiring two courts of common pleas to 

litigate a matter that in all likelihood could be fully addressed in one forum.’” 

PNC Bank, National Association v. Bluestream Technology, Inc., 14 

A.3d 831, 835 (Pa. Super. 2010) (quoting Norristown Automobile Co., 

Inc. v. Hand, 562 A.2d 902, 905 (Pa. Super. 1989)).
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Although we review a trial court’s order denying a petition to open for 

abuse of discretion, we review de novo whether lis pendens operates as a 

meritorious defense. Id., 14 A.3d at 835. The trial court determined that 

Appellants could not rely on lis pendens to open the judgment because the 

case before it did not involve two pending actions: “Santander’s instant 

judgment by confession is not a pending lawsuit but a mere ministerial act 

performed by the Office of the Prothonotary, whose duty is to merely enter 

the judgment by confession in accordance with the Pennsylvania Rules of 

Civil Procedure.” Trial Court Opinion, 7/24/14, at 11 (citation omitted). 

While on its face a judgment of confession is an administrative function, 

when Appellants filed a petition to open this judgment, the proceeding was 

converted into a lawsuit. Therefore, the trial court erred in its 

characterization of the entry of the judgment of confession as a clerical task 

and in rejecting Appellants’ lis pendens argument on this basis. 

Nevertheless, we conclude that Appellants’ lis pendens argument is 

unavailing because it is moot. On January 28, 2015, the panel in Appellants’ 

appeal of the Berks County case issued a decision affirming the trial court’s 

order sustaining Santander’s preliminary objections to Appellants’ complaint. 

Angino, et al. v. Santander, et al, No. 489 MDA 2014 (Pa. Super. filed 

January 28, 2015) (unpublished memorandum at 15). On April 2, 2015, 

Appellants’ petition for reargument before this Court en banc was denied. 
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Thus, there is no pending lawsuit implicating application of lis pendens

principles. 

An additional consideration is that the panel in Angino, et al. v. 

Santander, et al., addressed and rejected each of the defenses raised by 

Appellants in this appeal. Angino, slip op. at 7–15. Accordingly, it is not 

within our province to adjudicate the merits of the defenses raised by 

Appellants. It is beyond the power of a panel of the Superior Court to 

overrule a prior decision of the Superior Court. Commonwealth v. 

Hull, 705 A.2d 911, 912 (Pa. Super. 1998) (citations omitted).5

Accordingly, we affirm the order of the trial court, albeit for different 

reasons. Order affirmed. 

____________________________________________

5

 Appellants also presented a one-paragraph argument that venue in the 

Philadelphia County Court of Common Pleas was improper. This issue is 

waived because it was not put forth in Appellants’ statement of questions 

involved nor was it developed in any meaningful manner. See Pa.R.A.P. 

2116(a) (“No question will be considered unless it is stated in the statement 

of questions involved or is fairly suggested thereby”); Banfield v. 

Cortes, ___ A.3d ___, 2015 WL 668060, *18, 83 MAP 2013 (Pa. 2015) 

(filed February 17, 2015) (where appellate brief fails to develop issue in any 

meaningful fashion capable of review, claim is waived).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2015