J-S06018-17

2017 PA Super 168

ROBERT LECHOWICZ

v.

EDWARD MOSER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1889 EDA 2016

Appeal from the Order Entered May 24, 2016

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2007-01129

BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

OPINION BY RANSOM, J.: FILED MAY 31, 2017

Appellant, Edward Moser, appeals from the order entered May 24, 

2016, denying his petition to open and/or strike a confession of judgment 

entered against Appellant in favor of Appellee, Robert Lechowicz, pursuant 

to a judgment note arising out of legal services rendered to Appellant. We 

affirm.

The relevant facts and procedural history are as follows. Moser

retained Lechowicz to represent him in a variety of business litigation 

matters, including: Knox v. Moser, Mont. Cty. CCP No. 1998-01833; The 

Moser Group v. Staufer; Bucks Cty. CCP No. 1997-08307; The Moser 

Group v. David Cavalier; Mont. Cty. CCP No. 1997-21186; Moser 

Construction Company v. OCAL, Mont. Cty. CCP No. 1997-21179; and the 

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*

Former Justice specially assigned to the Superior Court.
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“Lynn Rose Plaza Matter.” See Petition to Open and/or Strike Judgment, 

9/12/2014, at ¶ 12 (hereinafter “Petition”). In addition, Moser engaged 

Lechowicz as defense counsel against allegations brought by Timoney Knox 

LLP to collect legal fees for services rendered by Attorney John Knox during 

Moser’s divorce (hereinafter “the Knox litigation”). See id. at ¶¶ 13-15. In 

February 2004, Moser executed a judgment note confessing $55,000.00 in 

favor of Lechowicz and an affidavit waiving any rights or defenses. See

Affidavit Accompanying Judgment Note, 2/9/2004. 

In February 2007, Lechowicz filed a complaint for confession of 

judgment in the Bucks County Court of Common Pleas. The court promptly 

entered judgment for $55,000.00 against Moser. In November 2013, 

Lechowicz filed a writ to revive the judgment. The court entered a judgment 

on the docket in the revived amount of $89,257.16. Thereafter, in 

September 2014, Moser filed a petition to open and/or strike the judgment 

that was accompanied by a memorandum of law. Following additional 

briefing and oral argument, the court denied and dismissed Moser’s petition 

to open and/or strike. See Order, 5/24/2016. Moser timely filed a notice of 

appeal and court-ordered 1925(b) statement. The court issued a responsive 

opinion.

On appeal, Moser raises the following issues:

1. Did the [court] err when it held that the issue of time was 

dispositive regarding the [p]etition to [o]pen/[s]trike 

[j]udgment?
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2. Did the [court] err when considering the consumer nature of the 

transaction when it held that [Appellant] failed to [show a defect 

on the face of the record or] a bona fide defense on the merits, 

namely that the use of judgment by confession was per se 

illegal?

3. Did the [court] err when it failed to open judgment to allow 

[Appellant] to contest the reasonableness and amount of claimed 

legal fees as it is a matter of law that the issues of 

reasonableness and amount of legal fees is always open to 

review[?]

Appellant's Br. at 7-8 (reordered for ease of analysis).1

Moser appeals from the order denying his petition to open and/or 

strike a confession of judgment. Our standard of review is as follows.

We review a trial court's order denying a petition to strike a 

confessed judgment to determine whether the record is sufficient 

to sustain the judgment. First Union National Bank v. 

Portside Refrigerated Services, 827 A.2d 1224, 1227 (Pa. 

Super. 2003). A petition to strike a judgment may be granted 

only if a fatal defect or irregularity appears on the face of the 

record. [First Union Nat’l Bank, 827 A.2d at 1227]. Similarly, 

we review the order denying Appellant's petition to open the 

confessed judgment for an abuse of discretion. Id.; PNC Bank 

v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002) (“A petition to 

open judgment is an appeal to the equitable powers of the court. 

As such, it is committed to the sound discretion of the hearing 

court and will not be disturbed absent a manifest abuse of 

discretion.”).

ESB Bank v. McDade, 2 A.3d 1236, 1239 (Pa. Super. 2010).

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1 Mr. Moser identified four issues, but presents a single argument with 

regard to whether the court erred in “considering the consumer nature of the 

transaction.” Accordingly, we address the issues together. See Pa.R.A.P. 

2119(a). 
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A confession of judgment action is a proceeding to enter a judgment 

by confession of money in which “[t]he rules requiring and establishing the 

form of notices to defend and to plead in ordinary civil complaints do not 

apply.” Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 625-26 

(Pa. Super. 2013) (quoting Pa.R.C.P. 2952(b) cmt.); see also Pa.R.C.P. 

1003 (“Rules relating to the manner of commencing an action or the time for 

serving process or for filing or serving pleadings may be waived by 

agreement of the parties.”). To enter a judgment of confession, the creditor 

files a complaint for confession of judgment along with the judgment note 

signed by the party to be bound pursuant to Pa.R.C.P. 2950 through 2967. 

Midwest, 78 A.3d at 626. According to Rule 2956, the prothonotary shall 

enter judgment in conformity with the confession and provide Rule 236 

notice to the debtor. Pa.R.C.P. 2956; Pa.R.C.P. 236. Though the entry of a 

confessed judgment lacks the hallmarks of an adversarial proceeding, “it has 

all the qualities of a judgment on a verdict.” Midwest, 78 A.3d at 626 

(quoting O’Hara v. Manley, 12 A.2d 820, 822 (Pa. Super. 1940)). 

A petition to strike operates as a demurrer to the record only if the 

petitioner can show a fatal defect or irregularity on the face of the record. 

Ferrick v. Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013) (citing 

Graystone Bank v. Grove Estates, 58 A.3d 1277 (Pa. Super. 2012); see 

also Resolution Trust Corp. v. Copley Qu-Wayne Assoc., 683 A.2d 269, 

273 (Pa. 1996). “If the record is self-sustaining, the judgment will not be 

stricken. However, if the truth of the factual averments contained in such 
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record are disputed, then the remedy is by a proceeding to open the 

judgment and not to strike.” Resolution Trust Corp., 683 A.2d at 273 

(internal citations omitted). 

First, Moser contends the court erred in finding the untimeliness of his 

petition dispositive to any arguments raised in his petition. See Appellant's 

Br. at 21. The court found Moser failed to act promptly to open the 

judgment and failed to provide any explanation to excuse the delay, 

rendering any defenses asserted in his petition untimely and subject to 

waiver. See Trial Ct. Op. (TCO), 8/17/2016, at 10-12 (citing in support

cases relevant to default judgment). 

Prior to amendments to the rule governing confession of judgments, a 

petition to open and/or strike a judgment by confession had to be filed 

promptly or within a reasonable time from the entry of judgment. See,

e.g., King Athletic Sporting Goods v. Redevelopment Auth., 393 A.2d 

18, 20 (Pa. 1978); B. Lipsitz Co. v. Walker, 522 A.2d 562, 564 (Pa. Super. 

1987); Bethlehem Steel Corp. v. Tri State Industries, Inc., 434 A.2d 

1236, 1239 (Pa. Super. 1981) (superseded by legislation). However, in 

1996, the rules relating to confession of judgment were substantially revised 

and now require the creditor to provide notice to the debtor prior to or

contemporaneous with the execution on a confessed judgment. Pa.R.C.P. 
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2950, cmt. (1996).2 As amended, the rule ties the common law requirement 

of promptness to notice of execution; a defendant must promptly file their 

petition to open and/or strike within thirty days from such notice. Thomas 

Assocs. Investigative & Consulting Services, Inc. v. GPI Ltd., Inc., 

711 A.2d 506, 508 (Pa. Super. 1998); see Pa.R.C.P. 2959(a)(3). 

The rule, as amended, states:

If written notice is served upon the petitioner pursuant to Rule 

2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within 

thirty days after such service. Unless the defendant can 

demonstrate that there were compelling reasons for the delay, a 

petition not timely filed shall be denied. 

Pa.R.C.P. 2959(a)(3) (emphasis added). As this Court explained,

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2 The change occurred in light of Jordan v. Fox, Rothschild, O'Brien & 

Frankel, 20 F.3d 1250, 1272 (3rd Cir. 1994), in which the Third Circuit 

recognized that “a court faced with a due process challenge to a confessed 

judgment should always inquire whether the judgment debtor's execution of 

a document permitting judgment by confession is a valid waiver of his 

constitutional right to pre-deprivation notice and hearing.” Thus, “the key 

event becomes execution not confession, the due process concerns behind 

adoption of the new rules seem equally valid in any case no matter how long 

the period between confession and execution.” PNC Bank v. Kerr, 802 

A.2d 634, 639-40 (Pa. Super. 2002); see also Great N.A. Funding Corp. 

v. Tara Enterprises, Inc., 814 A.2d 258, 261 (Pa. Super. 2002) 

(“Pennsylvania Rule of Civil Procedure 2959 now requires that a petition to 

strike and/or open a judgment be filed within thirty days of the notice of 

execution.”). 

Another key revision was that the use of a confession of judgment in 

consumer credit transactions was abolished. See Pa.R.C.P. 2950, cmt. 

(1996). For a further discussion of this prohibition, see also, infra

(discussing Appellant’s second argument). 
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The execution notice, however, has no timeliness requirement; 

the judgment creditor may delay execution until the judgment 

debtor acquires sufficient assets to satisfy the judgment. 

Therefore, under the revised rules, timely filing of the petition to 

strike and/or open means within thirty days from a notice of 

execution which need not be timely at all.

Thomas Assocs., 711 A.2d at 508; see also Pa.R.C.P. 2959.1(c)(2) 

(conditioning timeliness requirement of a petition to open and/or strike on 

service of notice of execution). 

Here, the prothonotary issued Rule 236 notice of judgment entered to 

Moser in February 2007. Lechowicz filed a praecipe to revive the judgment 

in November 2013 to account for interest on the unpaid balance. However, 

Lechowicz never served Moser with notice of execution. Pa.R.C.P. 236 

notice is insufficient to invoke the thirty-day requirement of Rule 2959.1, as 

this Court explained:

Rule 236 requires that the prothonotary give written notice to 

the defendant that a judgment has been confessed against him 

or her. To the contrary, Rule 2956.1(c)(2) requires the plaintiff 

to serve notice on the defendant that he or she intends to 

execute on the defendant's property. The latter situation 

employs the sheriff, a state actor, to take the defendant's 

property and thereby raises substantial due process concerns not 

implicated by the entry of judgment. 

Thomas Assocs., 711 A.2d at 508 (citing Jordan v. Fox, Rothschild, 

O'Brien & Frankel, 20 F.3d 1250, 1272 (3rd Cir. 1994)). 

Without notice of execution in either instance, the promptness 

requirement of Rule 2959 did not attach, and the clock did not begin to run. 

Thomas Assocs., 711 A.2d at 508. Thus, contrary to the trial court’s 

ruling, the former, common law timeliness requirement did not render any 
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arguments made in Moser’s petition waived. Id. Accordingly, we find 

Moser’s petition timely.

Although we conclude the trial court denied Moser’s petition for an 

incorrect reason, this Court may affirm a decision on any proper legal 

ground. Williams v. Wade, 704 A.2d 132, 135 (Pa. Super. 1997) (citing 

Schimp v. Allaman, 659 A.2d 1032 (Pa. Super. 1995)). Thus, we shall 

proceed to the merits of his petition.

In his second issue, Moser contends that the court erred in failing to 

strike the judgment as illegal because it arose out of a consumer credit 

transaction. According to Moser, at least a portion of the legal services 

rendered by Lechowicz in regard to the Knox litigation were personal in 

nature, as they related to his divorce. To the extent that Lechowicz 

rendered legal services and did not require Moser to pay in advance for 

these services, Moser asserts that the note and affidavit constituted an 

extension of credit by Lechowicz to Moser. See Appellant's Br. at 16-19 

(citing in support Pa.R.C.P. 2950).

Pennsylvania Rule of Civil Procedure 2950 precludes judgment by 

confession in connection with a consumer credit transaction. Willits v. 

Fryer, 734 A.2d 425, 428 (Pa. Super. 1999) (striking judgment where two 

natural persons entered into promissory note to finance closing costs to 

effect sale of a home); Pa.R.C.P. 2950. A “consumer credit transaction” is 

defined as:
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a credit transaction in which the party to whom credit is offered 

or extended is a natural person and the money, property or 

services which are the subject of the transaction are primarily for 

personal, family or household purposes.

Pa.R.C.P. No. 2950. 

Moser’s argument is without merit. On the face of the record, there is 

no evidence to support Moser’s contention that the note represented an 

extension of credit in exchange for legal services. To the contrary, 

Lechowicz attached to his complaint an affidavit in which he attested that 

the debt incurred by Moser was not the result of a consumer credit 

transaction. Thus, the record is self-sustaining. Resolution Trust Corp., 

683 A.2d at 273. Further, as Moser asserts no other fatal defect, the court 

did not err in denying Moser’s petition to strike. ESB Bank, 2 A.3d at 

1239.3

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3 On appeal, Moser does not seek opening the judgment based on 

allegations of a consumer credit transaction. See Appellant’s Br. at 19 

(concluding only that judgment should be stricken). Thus, he has 

abandoned that claim on appeal. Nevertheless, we note the following. 

Disputed evidence of a consumer credit transaction could support a 

meritorious defense. Moreover, in Willits, this Court suggested that, in 

some circumstances, legal fee arrangements could be interpreted as a 

consumer credit transaction. Willits, 734 A.2d at 428 (citing in support 

Dougherty v. Hoolihan, Neils, and Boland, Ltd., 531 F.Supp. 717, 721 

(D. Minn. 1982); see also Bochetto v. Piper Aircraft Co., 94 A.3d 1044, 

1050 (Pa. Super. 2014) (noting that we may rely on federal authority as 

persuasive). 

In Dougherty, clients signed a personal promissory note secured by a 

mortgage in exchange for continued legal services in an upcoming criminal 

matter. Interpreting the federal Truth in Lending Act broadly, the court 

(Footnote Continued Next Page)
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Finally, Moser contends that the court erred in denying his petition to 

open to contest the reasonableness of the legal fees incurred. Moser makes 

a series of bald assertions, proclaiming that his petition presented a “bona 

fide defense” and that it is his “unfettered right” to challenge the amount 

and reasonableness of counsel fees. Appellant's Br. at 20. 

Moser does not support this claim with any citation to pertinent legal 

authority.4 Further, Moser never actually claims that the legal fees incurred 

were unreasonable, and he has offered no evidence in support thereof. 

Rather, Moser merely claims that he retains the right to challenge them.

The Rules of Appellate Procedure require the argument section of an 

appellate brief to include “citation of authorities as are deemed pertinent.” 

Pa.R.A.P. 2119(a). It is not the role of this Court to develop an appellant’s 

argument where the brief provides mere cursory legal discussion. 

Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009), cert. denied, 

562 U.S. 906 (2010); see also In re C.R., 113 A.3d 328, 336 (Pa. Super. 

2015), appeal denied, 125 A.3d 1197 (Pa. 2015) (“This Court will not 

(Footnote Continued) _______________________

found that this transaction constituted a consumer credit transaction. Id. at 

721. The facts here are easily distinguishable, as there is no evidence that 

Lechowicz extended Moser credit, whether secured or not, in exchange for 

continued legal services. To the contrary, the amount confessed 

represented fees for services previously rendered.

4 The only case cited by Moser in this portion of his argument, Shaffer v. 

Smith, 648 A.2d 26 (Pa. Super. 1994), holds that “a criminal conviction 

collaterally estops the defendant from denying his acts in a subsequent civil 

trial.” It is, thus, completely inapposite here. 
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consider an argument where an appellant fails to cite to any legal authority 

or otherwise develop the issue.”).

Moser’s bald assertions cannot provide the basis for a meritorious 

defense. See Ferrick, 69 A.3d at 647 (noting that a judgment of confession 

will not be opened unless the court determines that the petitioner presents a 

meritorious defense upon which relief could be afforded if proven at trial and 

there is sufficient evidence to require submission of the issue to a jury). 

Accordingly, he has waived this claim on appeal. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/31/2017