J-A04022-19

*Retired Senior Judge specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENTON STUDENT HOUSING, LLC

v.

LION CONSTRUCTION, LLC LION 

CONSTRUCTION MANAGEMENT, LLC, 

SEAN SCHELLENGER, AND MICHAEL 

STILLWELL, 

Appellants.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1941 EDA 2018

Appeal from the Order Entered, May 25, 2018,

in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): August Term, 2016 No. 000749.

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MAY 29, 2019

Lion Construction, LLC, Lion Construction Management, LLC, Sean 

Schellenger, and Michael Stillwell (collectively, “Lion Construction” or 

“Defendants”) appeal from the trial court’s order denying their emergency 

petition to strike and/or open the $95,000 stipulated judgment following 

remand from this Court to determine whether Lion Construction had a right to 

cure an untimely payment under certain ambiguous provisions of the parties’ 

settlement agreement. Upon review, we affirm. 

This matter was previously before the Court on appeal from the trial 

court’s initial order denying Lion Construction’s emergency petition to strike 

and/or open the $95,000 stipulated judgment. We have restated below the 
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facts and procedural history from that case pertinent to the issues now before 

us:

Benton, a student-housing development company, entered into a 

construction contract with Streamline Solutions, LLC, for work on 

one of its student-housing developments. When Streamline 

breached its contract with Benton, Benton filed an action against 

Streamline that resulted in a $115,245.45 arbitrator's award in 

favor of Benton, dated October 16, 2015. On October 22, 2015, 

the owners of Streamline, Schellenger and Stillwell, formed Lion 

Construction, LLC and Lion Construction Management, LLC. The 

Streamline award was reduced to judgment on January 13, 2016; 

however, Benton was unsuccessful in collecting against it. As a 

result, on August 5, 2016, Benton instituted the “underlying 

action” against Lion Construction seeking to impose successor 

liability and to pierce Streamline's corporate veil with respect to 

Schellenger and Stillwell in order to recover its Streamline 

judgment.

In the midst of discovery in the underlying action, the parties 

agreed to settle the case. To that end, the parties executed a 

settlement agreement (the “Agreement”) on May 22, 2017, 

wherein they agreed to settle their respective claims relating to 

the Streamline judgment and to dismiss the Lion Litigation. The 

Agreement provided the following relevant terms:

• Lion Construction would pay Benton $65,000.00 as the 

settlement amount;

• Lion Construction would pay $35,000.00 as an initial payment, 

on or before the execution of the agreement or by May 19, 2017, 

whichever is earlier;

• The balance of $30,000.00 shall be payment in equal monthly 

installments of $6,000.00 on the 15th day of each month, 

commencing on June 15, 2017, and continuing until paid in full. 

No interest shall accrue on any such payments.

As security for payment of the settlement amount, Defendants 

executed and delivered a stipulated judgment in the amount of 

$130,000.00; the judgment would be filed in the event of an 

“uncured” default under the Settlement Agreement. 

In the event of a default, the Agreement provides that:
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[If the] Defendants fail to make any of the payments set forth in 

paragraph 2 above, on the date which payment is due (a 

“Default”), Benton may: (a) seek to enter the Stipulated 

Judgment in the face amount thereof, with a credit for any 

payments made thereunder; and/or (b) pursue any further rights 

and/or remedies against the Defendants under applicable law. No 

such Default shall have occurred if, prior to the due date of such 

payment, Defendants provide proof to Benton of the overnight 

delivery of such payment, together with a tracking number for 

said delivery. If such tracking number evidences that payment 

was picked up for delivery before the due date, then that shall 

constitute timeliness of delivery. If the Defendants' payment is 

either lost or not delivered, Defendants shall provide a 

replacement check upon notice from Benton, or its counsel, by the 

next business day following receipt of such notice. For purposes 

of this paragraph, notice shall be deemed proper if given by 

electronic mail, fax, or other form of mail producing a receipt of 

mailing, addressed to counsel for the Defendants[.]

Defendants made the initial $35,000.00 payment under the 

Agreement. However, Defendants defaulted on the first $6,000.00 

installment payment by failing to make the scheduled payment by 

June 15, 2017, or provide proof, pursuant to paragraph C(6) of 

the Agreement, that such payment was delivered. Accordingly, 

Benton filed a praecipe for a stipulated judgment. Thereafter, on 

June 19, 2017, Benton received a $6,000.00 check dated June 13, 

2017, from Lion Construction, LLC; the postage Lion used to mail 

the payment did not bear a postmark. Defendants also attempted 

to hand-deliver a check to Benton on June 20, 2017, but counsel 

for Benton refused the delivery.

On June 20, 2017, Lion's counsel received a notice, by email, from 

the trial court indicating that Benton had filed a “Praecipe to Enter 

Stipulated Judgment” in the amount of $95,000.00; the court 

entered judgment against Lion on that same date. On June 21, 

2017, Defendant filed a petition to open and/or strike the 

stipulated judgment alleging that it mailed the installment check 

on June 13, 2017, and that Benton's counsel did not contact them 

or their attorney to notify them that payment was not received. 

On July 17, 2017, the trial court denied Defendants' petition to 

strike and/or open the stipulated judgment. The Honorable Gary 

Glazer explained his reason for denying Lion Construction's 

petition as follows:
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“[C]ontrary to Defendants' assertions, the Settlement Agreement 

provides Defendants with no right to cure a default. The language 

in section 6 permits Defendants to replace a check that was timely 

picked up for overnight shipping if it went astray, if a tracking 

number and overnight shipping were provided. It is not argued 

that Defendants provided Plaintiffs with a tracking number for 

overnight shipping. There is no language in the Agreement 

requiring notice and opportunity to cure. Accordingly, the Petition 

is denied.”

Defendants filed a motion for reconsideration and request for an 

evidentiary hearing on July 21, 2017. The court denied the motion 

on July 28, 2017.

Benton Student Hous., LLC v. Lion Constr., LLC, No. 2609 EDA 

2017, 2018 WL 1386988, at 1–3 (Pa. Super. Mar. 20, 2018) (citations 

and footnotes omitted). Lion Construction appealed. 

On appeal, Lion Construction argued that it had asserted meritorious 

defenses, and therefore the judgment should be opened. First, Lion

Construction argued that under paragraph 6, of the Agreement titled “Default” 

had the right to a one day cure. Benton was required to notify Lion 

Construction that it had not received payment timely; within one day 

thereafter, Lion Construction had the opportunity to provide a replacement 

check. 

We agreed with the trial court that this “cure” provision applied only 

where Lion Construction sent payment by overnight delivery with tracking and 

not where Lion Construction sent it via regular mail, as Lion Construction had 

done. Therefore, we concluded that Lion Construction failed to establish that 

under the circumstances it had a right to cure under the Default paragraph of 
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the Agreement, and was in default under the Agreement for failure to timely 

pay.

Regarding Lion Construction’s alternative argument that “the default 

was cured by Benton’s possession of the check prior to [] Benton’s filing” of 

the stipulated judgment, we concluded that this was a meritorious issue. Id.

at 7. Paragraph 3 of the Agreement provided that “the Stipulated Judgment 

shall not be filed of record unless and until the occurrence of an uncured 

Default hereunder.” Paragraph 7 also referenced an “uncured Default”. 

Benton claimed that although a prior version of the Agreement had included 

a 10 day cure provision, it was removed in exchange for pushing back the due 

date for the monthly installments. However, we found that these “uncured 

Default” references in the Agreement were ambiguous, and “further discovery 

in the matter and/or testimony at a hearing [was] required to determine the 

true intent of the ‘uncured’ language in the Agreement.” Id. Thus, we 

reversed the trial court’s order denying Lion Construction’s petition to open 

and/or strike the stipulated judgment, and remanded for further proceedings. 

Id.

Upon remand the trial court ordered the deposition of Lion 

Construction’s attorney, and required the attorneys who drafted the 

Settlement Agreement to submit affidavits attesting to their interpretation of 

the “uncured Default” language in the Agreement. This information was 

sufficient for the trial court to render a decision without a hearing. By order 

dated May 25, 2018, the trial court reinstated its original order of July 17, 
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2017, denying Lion Construction’s emergency petition to strike and/or open. 

This timely appeal followed.

On appeal, Lion Construction raises the following single issue:

1. Whether the judgment should be opened because, in 

accordance with Pennsylvania Rule of Civil Procedure 2959, 

Lion Construction alleged a meritorious defense and provided 

sufficient evidence to create an issue for a jury that the 

technical default was cured by the delivery of Lion 

Construction’s payment to Benton prior to Benton’s filing of the 

stipulated judgment and/or Lion Construction’s tender of a 

replacement check within one day of receiving notice of a late 

payment from Benton?

See Lion Construction’s Brief at 4. 

Lion Construction argues that this Court should reverse the trial court 

and open the judgment because, as it alleged, it had a right to cure its default 

under the Agreement by tendering its replacement check to Benton prior to 

Benton’s filing of the stipulated judgment. The trial court concluded that 

based upon its interpretation of the Agreement’s “uncured Default” language, 

as clarified by deposition evidence and affidavits, Lion Construction did not 

establish that it had a right to cure. We agree.

We first note, as the trial court and Benton did, that Lion Construction 

again argues that the Agreement provided for a one-day cure period, 

regardless of the shipping method used. Lion Construction’s Brief at 18. This 

Court affirmed the trial court’s previous ruling on that issue, holding that Lion 

Construction could provide a replacement check within one day of being 

notified by Benton that it did not receive payment. However, this cure only 
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applied when Lion Construction sent payment using an overnight delivery 

service. We further observe that much of the deposition testimony from Lion 

Construction’s Chief Operating Officer at the time the Agreement was drafted 

primarily focused on this issue and the Agreement’s language providing for 

the one-day cure. Similarly, counsel for Lion Construction who negotiated the 

Agreement on its behalf, focused on the interpretation of the Default 

paragraph in his affidavit. We therefore agree with the trial court that Lion 

Construction failed to explain the intent behind the phrase “uncured Default” 

referenced in paragraphs 3 and 7 of the Agreement which was the purpose of 

our remand. The trial court further observed:

Conversely, counsel for [Benton] credibly attests that the inclusion 

of the words ‘uncured default’ was a scrivener’s error. In his 

affidavit he states,

We unfortunately overlooked the fact that paragraphs 3 and 

7 reference to an ‘uncured default.’ However that reference 

was in error and should have been removed from the 

settlement agreement once the parties agreed that [Lion 

Construction] had no right to cure the default, was clearly 

stated in paragraph 7.”

Trial Court Opinion, 5/25/18, at 2. The trial court found this explanation 

logical “given the many revisions the parties’ agreement underwent prior to 

its finalization.” Id. “Initially, the [A]greement provided for a ten day cure 

period, but that cure period was removed from the [A]greement’s final version 

in exchange for extending defendants’ monthly payment date from the 1st of 

the month to 15th of the month” with which Lion Construction’s counsel 

agreed. Id. Therefore, as the trial court found, the “uncured Default” 
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language in paragraphs 3 and 7 did not afford Lion Construction with another 

method for curing a default. Consequently, Lion Construction’s assertion that 

it could cure its technical default by giving Benton another check, so long as 

it was done prior to the filing of the Stipulated Judgment, is without merit. 

Thus, there was no basis upon which the trial court could open the judgment. 

Because Lion Construction did not comply with the terms of the settlement 

agreement, the trial court concluded the stipulated judgment filed by Benton 

was proper. We therefore conclude that the trial did not abuse its discretion 

or commit an error of law when it again denied Lion Construction’s emergency

petition to open and/or strike the stipulated judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19