J-A28021-14

2015 PA Super 114

THE DIME BANK IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PETER ANDREWS

Appellant No. 1129 EDA 2014

Appeal from the Order Entered on March 6, 2014

In the Court of Common Pleas of Monroe County

Civil Division at No.: 8939 CIVIL 2012

BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

OPINION BY WECHT, J.: FILED MAY 08, 2015

Peter Andrews appeals the trial court’s March 6, 2014 order denying 

his petition to strike a confessed judgment in favor of The Dime Bank 

(“Dime”) and allowing Dime to file a second amended complaint in 

confession of judgment. The question presented concerns infirmities in 

Dime’s first and first amended complaints in confession of judgment, which 

infirmities Andrews contends the trial court should have deemed fatal to the 

judgment. We reverse and remand for further proceedings.

On or about August 19, 2011, in tandem with obtaining a loan from 

Dime in the amount of $915,942, Samfivedom, LLC, and Thoren, Inc. 

(“Borrowers”), executed a note (“Note”) in favor of Dime that was secured 

by a guarantee and surety agreement that Andrews executed in his capacity 

as one of three personal guarantors. On or about March 2, 2012, the parties 
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to the Note entered into a note modification agreement that did not affect 

Andrews’ guarantee. 

The Guarantee and Suretyship Agreement (the “Guarantee”) at issue 

in this appeal contained a notice obligation on the part of Dime as follows: 

“The BANK hereby acknowledges and agrees that upon an event of default 

by the BORROWER under any of the LOAN DOCUMENTS, the BANK shall 

provide the GUARANTOR with written notice of said default at least ten (10) 

days prior to the commencement of any collection proceedings hereunder.” 

Guarantee and Suretyship Agreement at 2. It further contained the 

following provision regarding confession of judgment:

The GUARANTOR hereby irrevocably authorizes and empowers 

any attorney of record or the prothonotary or clerk of any court 

in the Commonwealth of Pennsylvania or elsewhere, to appear 

for the GUARANTOR at any time after the occurrence of an event 

of default under any of the LOAN DOCUMENTS in any such court 

in any action brought against the GUARANTOR by the BANK with 

respect to the GUARANTOR’s obligations under the GUARANTEE 

or under the LOAN DOCUMENTS and therein to confess or enter 

judgment against the GUARANTOR for all sums payable by the 

GUARANTOR to the BANK under this GUARANTEE or under the 

LOAN DOCUMENTS, as evidenced by an affidavit signed by a 

duly authorized designee of the BANK setting forth such amount 

then due from the GUARANTOR to the BANK, plus reasonable 

attorney’s fees and costs. In addition, the GUARANTOR hereby 

expressly authorizes any attorney of record on behalf of the 

BANK to commence execution immediately upon the entry upon 

[sic] the confession of judgment . . . .

* * * *

In support of the confession of judgment, it shall not be 

necessary to file the original debt instrument as a warrant of 

attorney. The GUARANTOR waives the right to any stay of 

execution and the benefit of any exemption laws now or 

hereafter in effect. No single exercise of the foregoing warrant 
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empowered [sic] to bring an action or to confess judgment shall 

be deemed to exhaust the power, but the power shall continue 

undiminished and may be exercised from time to time as often 

as the BANK shall elect until all amounts payable to the bank 

under the LOAN DOCUMENTS shall have been paid in full.

Id. at 4-5 (capitalization modified; emphasis removed). 

After Borrowers defaulted under the Note, on October 19, 2012, Dime 

filed a complaint in confession of judgment. Therein, Dime alleged that “[a] 

default occurred under the [N]ote in that the Borrowers failed to pay the 

money due and owing the Bank pursuant to the Note, whereupon the Bank 

demanded the entire balance of the Note immediately due and payable.” 

Complaint in Confession of Judgment (“First Complaint”), 10/19/2012, at 2 

¶ 6. To this complaint, Dime affixed several affidavits of no import to the 

instant appeal as well as copies of the Note, note modification, and 

Guarantee. 

On November 8, 2012, Andrews filed a petition to strike the confessed 

of judgment. On November 14, 2012, the trial court issued a rule to show 

cause why the petition should not be granted. On December 5, 2012, the 

parties entered into a stipulation. Therein, the parties agreed that Dime 

would be allowed to file an amended complaint in confession of judgment. 

As well, the parties agreed that Andrews would retain the prerogative to file 

a new petition to strike as though the amended complaint commenced a new 
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action.1 The parties also agreed in the stipulation that it rendered moot 

Andrews’ earlier petition to strike.

On December 19, 2012, Dime filed an amended complaint in 

confession of judgment (“First Amended Complaint”) that was materially 

identical to Dime’s First Complaint. On January 2, 2013, Andrews filed a 

petition to strike the First Amended Complaint. Therein, Andrews identified 

the following alleged deficiencies in Dime’s pleading:

7. Pursuant to Pennsylvania Rule[] of Civil 

Procedure [2952](b)(6) a complaint [in confession of judgment] 

shall contain the following: “[I]f [the] judgment may be entered 

only after default or the occurrence of [a] condition precedent, 

an averment of the default or [of the] occurrence of the 

condition precedent.”

[Quoting the Guarantee]: “(b) the BANK hereby acknowledges 

and agrees that upon an event of default by the BORROWER 

under any of the LOAN DOCUMENTS, the BANK shall provide the 

GUARANTOR with written notice of said default at least ten (10) 

days prior to the commencement of any collection proceedings 

hereunder.”

8. The requirement of giving notice ten (10) days before 

commencing an action to collect on [a] debt is a condition 

precedent and [Dime] has failed to aver [in] its [First Amended] 

Complaint with [sic] condition precedent required by 

Pennsylvania Rule[] of Civil Procedure 2952(b)(6).

Petition to Strike First Amended Complaint at 2 (unnumbered). 

____________________________________________

1

Presumably, this stipulation was entered to enable Dime to cure one or 

more of the strictly technical errors in Dime’s First Complaint that were 

identified by Andrews in his petition to strike confession of judgment.
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On January 3, 2013, the trial court issued a rule to show cause why 

Andrews’ petition should not be granted. On January 22, 2013, Dime filed 

its answer to Andrews’ petition to strike. In relevant part, Dime responded 

to Andrews’ averments as follows:

7. Denied. The averments set forth in paragraph 7 are 

conclusions of law to which no response is necessary. To the 

extent a response is necessary, the Guarant[ee] is a writing 

[that] speaks for itself.

8. Denied. The averments set forth in paragraph 8 are 

conclusions of law to which no response is necessary. To the 

extent a response is necessary, on or about September 22, 

2012, [Dime] demanded payment in full from the borrower and 

the guarantors. Additionally, in paragraph 6 of [Dime’s] [First 

A]mended [C]omplaint . . ., a default occurred and [Dime] 

averred as follows: “A default occurred under the Note in that 

[Borrowers] failed to pay the money due and owing [Dime] 

pursuant to the Note, whereupon [Dime] demanded the entire 

balance of the Note due and payable.”

Dime’s Answer to Andrews’ Petition to Strike Confession of Judgment Based 

on Amended Complaint in Confession of Judgment at 1-2 (unnumbered). 

Andrews and Dime filed briefs in support of their petitions on November 15 

and November 27, 2013, respectively.2 

____________________________________________

2 The record includes an October 30, 2013 praecipe directing the 

prothonotary to schedule this matter for oral argument on December 2, 

2013, or on the next available date. The record contains no evidence that 

such an argument occurred. However, Andrews indicates in his brief that 

oral argument occurred. Any uncertainty in this regard has no bearing upon 

our review, because we find the trial court pleadings, the trial court opinion, 

and the briefs now before us adequate to illuminate fully this case’s factual 

and legal context.
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On March 6, 2014, the trial court entered an opinion and order 

denying Andrews’ petition. Therein, it explained as follows:

[T]he [First] Amended Complaint attaches the Guarantee . . . 

entered into between [Dime] and [Andrews], accordingly it is 

part of the record. The [First] Amended Complaint alleges a 

default, however, it fails to aver that written notice of the default 

was provided to [Andrews] at least 10 days prior to the 

commencement of any collection proceedings as set forth in 

III(b) of the [Guarantee]. Since the warrant of attorney must be 

strictly construed, and the record indicates that written notice of 

the default is to be provided to [Andrews] at least 10 days prior 

to the commencement of any collection proceedings [sic]; we 

find this to be a fatal defect or irregularity appearing on the face 

of the record.

In its brief, [Dime] argues that Atlantic National Trust, LLC v. 

Stivala Investments, Inc., 922 A.2d 919 (Pa. Super. 2007), 

allows it to remedy the defect by amendment of record. In 

Stivala, after confessed judgment was entered and opened by 

the [c]ourt, the creditor filed a second complaint in confession of 

judgment. Thereafter, Stivala filed a . . . petition to strike or 

open the confessed judgment. Stivala argued that judgment 

was impermissibly confessed twice on the same warrant of 

attorney and that the second complaint in confession of 

judgment contain[ed] a fatal defect or irregularity since it [did] 

not contain the information required by Pa.R.C.P. 2952(a)(5).1 

In denying the petition to strike the confessed judgment, the 

Stivala [c]ourt held that if “the defect is one that can be 

remedied by an amendment of the record or other action,” then 

a motion to strike may not be granted. Id. at 923. However, 

the [c]ourt must determine if an error is technical or prejudicial. 

Id.

__________________________

1

Pa.R.C.P. 2952(a)(5) requires the complaint to contain 

either a statement that judgment has not been entered on 

the instrument in any jurisdiction or if it has been entered 

an identification of the proceedings.

Instantly, [Dime] was required to aver and provide [Andrews] 

with written notice of default at least 10 days prior to the 

commencement of any collection proceeding. [Dime] contends 
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that the cause of action has not changed and that the sending of 

a 10[-]day notice of default can easily be added to the [a]ffidavit 

of [Dime]. [Andrews] simply argues that the [First] Amended 

Complaint does not aver that 10[-]day notice of default was 

given to him and, therefore, [Dime] failed to comply with the 

condition precedent contained in the [Guarantee]. Although we 

agree with [Andrews] that [Dime] failed to aver that written 

notice of default was provided 10 days prior to the 

commencement of any collection proceeding, [Andrews] has 

failed to allege any prejudice.

* * * *

[W]e believe that [Dime’s] error can be corrected by amendment 

as the cause of action has not changed, the ends of justice 

require the allowance of such amendment, and the substantive 

right[s] of [Andrews] will not be prejudiced. It is difficult to 

foresee [Andrews] alleging that he is prejudiced when he was 

aware on October 19, 2012, that [Dime] sought a judgment 

against him under the [Guarantee]. There is no doubt that 

[Andrews] was aware of the previously filed confession of 

judgment since he stipulated to allowing [Dime] to file [a First 

Amended Complaint]. Since there has been no averment of 

prejudice, we will allow [Dime] to file a Second Amended 

Complaint in Confession of Judgment to correct the defect in the 

[First] Amended Complaint . . . .

Trial Court Opinion (“T.C.O.”), 3/6/2014, at 2-4 (citations modified).

On March 27, 2014, Dime filed a Second Amended Complaint in 

Confession of Judgment (“Second Amended Complaint”). In relevant part, 

Dime pleaded that “[a] default occurred under the Note in that the 

Borrowers failed to pay the money due and owing the bank pursuant to the 

Note.” Second Amended Complaint at 2 ¶ 6. With respect to the provision 

of notice, Dime pleaded as follows: “By way of letter dated March 11, 2014, 

[Dime] provided [Andrews] with written notice of [Borrowers’] aforesaid 
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default . . . .” Id. at 2 ¶ 13. Dime attached a copy of that letter to its 

Second Amended Complaint.

On April 4, 2014, Andrews timely filed a notice of appeal of the trial 

court’s order denying his petition and permitting Dime to file its Second 

Amended Complaint. On April 11, 2014, the trial court entered an order 

directing Andrews to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On April 16, 2014, Andrews filed a 

petition to strike Dime’s Second Amended Complaint. On April 28, 2014, 

Andrews filed his Rule 1925(b) statement. On April 29, 2014, the trial court 

entered an order holding in abeyance Andrews’ petition to strike Dime’s 

Second Amended Complaint until receiving our disposition of Andrews’ 

pending appeal. On May 14, 2014, the trial court filed a brief Rule 1925(a) 

opinion that, in essence, reiterated the reasoning offered in the trial court’s 

earlier opinion and order. The matter is now ripe for our review.3

____________________________________________

3 We note that this case arguably presents a question regarding our 

subject matter jurisdiction over this appeal. While it is true that the 

appealed trial court order is one declining to strike a judgment, which 

ordinarily is appealable under Pa.R.A.P. 311(a)(1), see Haggerty v. 

Fetner, 481 A.2d 641, 644 (Pa. Super. 1984), the trial court in the same 

order acknowledged that Dime’s First Amended Complaint was, on its face, 

fatally defective and granted Dime leave to file a Second Amended 

Complaint in support of the confessed judgment. By its plain terms, Rule 

311(a)(1) appears to authorize the instant appeal. However, as a practical 

matter, the trial court’s order permitting Dime to file an amended complaint 

in confession of judgment seems sub silentio to open or strike the earlier 

judgment. We have found no precedent squarely addressing this 

circumstance. Consequently, based upon the language of Rule 311(a)(1), 

and in an abundance of caution, we will assume without deciding that we 

(Footnote Continued Next Page)
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Andrews raises the following issues:

1. Whether the trial court erred by not finding Dime’s failure 

to comply with a condition precedent clearly stated in the . . . 

Agreement requiring Dime to give ten (10) days’ written notice 

of a default to Andrews before commencing its collection action 

was a fatal defect of record which requires the confession of 

judgment to be stricken without [Andrews] averring prejudice? 

See A. B. & F. Contr. Corp. v. Matthews Coal Co., 166 A.2d 

317 (Pa. Super. 1966) (hereinafter “ABF”).

2. Whether the trial court erred in stating that Andrews’ 

knowledge of the filing of the original complaint in confession of 

judgment met the required condition precedent of giving ten 

(10) days’ written notice of default before commencing a 

collection action since commencement of this action occurred on 

October 19, 2012, not December 12, 2012, when the First 

Amended Complaint was filed?

Brief for Andrews at 3-4 (modified for clarity).

We begin by reviewing the legal standards governing the underlying 

proceedings and our review thereof:

A petition to strike a judgment is a common[-]law proceeding 

[that] operates as a demurrer to the record. A petition to strike 

a judgment may be granted only for a fatal defect or irregularity 

appearing on the face of the record. . . . An order of the court 

striking a judgment annuls the original judgment and the parties 

are left as if no judgment had been entered.

Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 917 

(Pa. 1997) (quoting Resolution Trust Corp. v. Copley Qu-Wayne 

Assocs., 683 A.2d 269, 273 (Pa. 1996)). In assessing whether “there are 

(Footnote Continued) _______________________

have subject matter jurisdiction and address the merits of the issues 

Andrews presents.
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fatal defects on the face of the record . . ., a court may only look at what 

was in the record when the judgment was entered.” Id. Moreover, if any 

defect disclosed by the record “is one that can be remedied by an 

amendment of the record or other action, nunc pro tunc, the judgment 

should not be stricken off.” George H. Althof, Inc., v. Spartan Inns of 

Amer., Inc., 441 A.2d 1236, 1237 (Pa. Super. 1982). We will reverse a 

trial court’s denial of a petition to strike a judgment only if there is a 

manifest abuse of discretion or an error of law. Stivala, 922 A.2d at 922.

“When a proceeding to confess judgment is instituted by complaint, 

the complaint and confession of judgment clause must be read together to 

determine whether there are defects on the face of the record.” Manor 

Bldg. Corp. v. Manor Complex Assocs., Ltd., 645 A.2d 843, 846 

(Pa. Super. 1994). 

It is a firmly established rule of construction in the case of 

warrants of attorney to confess judgments that the authority 

thus given must be clear, explicit and strictly construed, that if 

doubt exists it must be resolved against the party in whose favor 

the warrant is given, and that all proceedings thereunder must 

be within the strict letter of the warrant. If the authority to 

enter judgment by confession on a warrant of attorney is not 

strictly followed, the judgment will be stricken.

ABF, 166 A.2d at 319 (internal quotation marks and citations omitted) 

(hereinafter “ABF”). Notably, we have observed that the rule of “strict 

construction may be constitutionally mandated in light of . . . due process 

attacks on cognovit clauses.” Solebury Nat’l Bank of New Hope v. 

Cairns, 380 A.2d 1273, 1275 (Pa. Super. 1977).
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It has always been held that formal defects, mistakes and 

omissions in confessions of judgment may be corrected by 

amendment where the cause of the action is not changed, where 

the ends of justice require the allowance of such amendment, 

and where the substantive rights of defendant or of any third 

persons will not be prejudiced thereby.

West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86 

(Pa. 1951) (emphasis added); see id. (citing cases). 

It is immediately clear to us that the proceedings below have muddied 

the waters relative to the standards governing our review of the trial court’s 

denial of a motion to strike. First, by the law’s letter, in reviewing the 

underlying confessed judgment in this matter, we may consider only the 

First Complaint, which was the complaint upon which judgment was entered. 

However, we find that the First Amended Complaint governs our review

because the parties’ stipulation appears to reflect their agreement that Dime 

would substitute its First Amended Complaint for the First Complaint as 

though the former had been filed in the first instance. However, we may 

reach no farther forward in time. In particular, we may not consider the 

timing, nature, or the contents of—or attachments to—the Second Amended 

Complaint. Although the Second Amended Complaint is part of the certified 

record before us, the trial court was, and we are, bound to evaluate the 

validity of the confessed judgment in light of the record at the time of its 

entry—here, by virtue of the stipulation, that which is contained in the First 

Amended Complaint and the attachments thereto. See Cintas Corp., 700 

A.2d at 917.
J-A28021-14

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The parties do not dispute that the Guarantee required ten days’ 

notice in advance of any exercise of the confession of judgment authority 

bestowed upon Dime. The parties also do not dispute that Dime did not aver 

that such notice had been given in its First Amended Complaint, which did 

not even touch upon the topic beyond alluding to a default followed by a 

demand for payment. Moreover, nowhere in its responses to Andrews’ 

motions to strike did Dime aver that it had provided such notice. 

Rather than review the parties’ arguments at length, we note that they 

hinge entirely upon a handful of prior precedents, from which we must 

derive whether the fatal defect found by the trial court may be remedied by 

amendment so as to preserve the previously entered judgment. If, as 

Andrews argues, we find that the defect may not be cured by amendment, 

we must reverse the trial court’s refusal to strike the confessed judgment. 

See ABF, supra. For its part, Dime maintains that, despite the materially 

undisputed facial defect on the record, under the circumstances of this case 

the judgment may be struck only if Andrews establishes that the defect had 

a prejudicial effect. See West Penn, supra.

Rule of Civil Procedure 2952 provides, in relevant part, that a 

complaint in confession of judgment based upon an agreement that subjects 

confession of judgment proceedings to a condition precedent must include 

“an averment of the default or of the occurrence of the condition precedent.” 

Pa.R.C.P. 2952(a)(6). At a minimum, our case law suggests strongly that a 

failure to aver the occurrence of a condition precedent, when, as here, the 
J-A28021-14

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agreement under which judgment is confessed establishes such a condition, 

is an irremediable defect, obviating any obligation of the party against whom 

judgment has been entered to establish prejudice. See ABF, 166 A.2d at 

317 (affirming striking of confessed judgment where a warrant of attorney 

required, as a condition precedent to its exercise, the provision of ten days’ 

notice and the complaint did not aver that such notice was provided); cf. 

Grady v. Schiffer, 121 A.2d 71, 73-74 (Pa. 1956) (holding that a lack of 

authority to confess judgment, as opposed to “mere irregularities” in the 

record, precludes enforcement of clause waiving the right to appeal 

confession of judgment); Triangle Bldg. Supplies & Lumber Co. v. 

Zerman, 363 A.2d 1287, 1290 (Pa. Super. 1976) (citing Kolf v. 

Lieberman, 128 A. 122 (Pa. 1925)) (noting in dicta that, if a warrant of 

attorney precludes the confession of judgment until default has occurred, “a 

judgment entered prior to default or without an averment of default is 

invalid”). In ABF, we explained that “the giving of . . . notice . . . is a 

condition precedent to the exercise of the warrant of attorney. It is a 

separate and independent requirement which it is necessary for 

[plaintiff/creditor] to perform following the default, and before it could 

invoke the use of the warrant of attorney.” 166 A.2d at 319. Thus, as in 

Grady, the provision of notice was a condition precedent to the authority of 

the party seeking a confession of judgment to do so.

Dime rests its arguments upon cases that at least arguably have 

liberalized the allowance of amendment of defective pleadings in confession 
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of judgment to an extent justifying a departure under the circumstances of 

this case. In West Penn Sand, for example, the debtor sought to strike a 

confession of judgment on the bases, inter alia, that the creditor, i.e., the 

plaintiff in confession of judgment, failed to attach to the complaint an 

affidavit of default averring any breach by the debtor of the relevant 

covenants, and that the affidavit of default was not made by an authorized 

party under the relevant rule of civil procedure. The creditor, in turn, 

petitioned the trial court for a rule allowing it to amend or supplement its 

pleading nunc pro tunc with a conforming affidavit and a proper copy of the 

notice served upon the debtor. See 80 A.2d at 86.

We disposed of the issue as follows:

It is, of course, true that where authority to enter a judgment by 

confession is dependent upon some default of the defendant 

there must be an averment of such default before a valid 

judgment can be entered. Here the affidavit of default 

incorporated by reference the written notice served upon 

defendant of the breaches of its covenants in the lease but failed 

to attach a copy of such notice to the affidavit of default itself. 

This could scarcely be said to have constituted an important 

omission in view of the fact that defendant had been thoroughly 

informed by that notice of the defaults of which it was alleged to 

have been guilty. It has always been held that formal defects, 

mistakes and omissions in confessions of judgment may be 

corrected by amendment where the cause of the action is not 

changed, where the ends of justice require the allowance of such 

amendment, and where the substantive rights of defendant or of 

any third persons will not be prejudiced thereby. Moreover, the 

lease in this case contained, as previously stated, a release of 

errors in the entry of judgment, and, while such release does not 

cure the defect of a lack of authority to confess the judgment, it 

does waive the right to attack mere irregularities in the 

proceeding apparent in the record.
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* * * *

It may not be amiss in this connection to say that courts should 

not be astute in enforcing technicalities to defeat apparently 

meritorious claims; if defendant has any real or substantive 

defense to the confessed judgment the way lies open to it to 

present it.

Id. (emphasis added; extensive historical citations omitted).

Notably, this Court in ABF explained in detail why we found the facts 

and circumstances in West Penn Sand distinguishable from ABF:

Appellant . . . takes the position that, even assuming that the 

failure to specifically aver in the affidavit of default that the 

notice was given constitutes a defect on the face of the record, it 

is not a fatal defect, but one [that] could have been corrected by 

amendment. Appellant quotes from West Penn as follows: “It 

has always been held that formal defects, mistakes and 

omissions in confessions of judgment may be corrected by 

amendment where the cause of action is not changed, where the 

ends of justice require the allowance of such amendment, and 

where the substantive rights of the defendant or of any third 

persons will not be prejudiced thereby.” 80 A.2d at 86. With 

this proposition we are in full accord. An examination of the 

West Penn case discloses that, as in the instant case, notice of 

the default was required prior to exercise of the warrant of 

attorney. However, when judgment in that case was confessed, 

“the affidavit of default incorporated by reference the written 

notice served upon defendant of the breaches of its covenants in 

the lease.” It was held that failure to attach a copy of such 

notice to the affidavit of default was an amendable defect. The 

obvious distinction between the West Penn case and the 

instant one is the fact that, in West Penn, the giving of 

notice was disclosed in the affidavit of default. Certainly, 

the failure to attach a copy of the notice itself was merely 

a formal defect. We do not so regard the complete failure 

to allege the giving of notice. The present record is devoid of 

one of the essential elements upon which lawful exercise 

of the warrant of attorney was predicated. Cf. Harwood v. 

Bruhn, 170 A. 144 (Pa. 1934).
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ABF, 166 A.2d at 319-20 (emphasis added; citations modified).

Dime’s well-reasoned and written brief is not unpersuasive, but its 

argument can prevail only if we adhere to one of two unstated premises: 

Either (1) that the failure of notice in this case somehow differs materially 

from that in ABF or (2) that subsequent cases have abrogated or otherwise 

confined ABF in such a way as to free us from adhering to its plain holding. 

Dime fails on both counts.

We find that ABF carries the day.4 It would be incredible not to 

interpret ABF as determining that precisely the defect at issue in this case is 

____________________________________________

4 Notably, the learned dissent is silent with regard to ABF’s close 

similarity to this case, or the clear import of the distinction it drew between 

matters going to a party’s authority to confess judgment, i.e., “the 

essential elements upon which lawful exercise of the warrant of attorney [is] 

predicated,” and merely “formal defects.” 166 A.2d at 320. The dissent also 

pays no regard to the fact that, in ABF, this Court identified the averment 

that proper notice had been rendered as one of those “essential elements 

upon which lawful exercise the warrant of attorney is predicated,” 

and held in the clearest terms that the failure to aver such notice in a 

complaint in confession of judgment required that the confession of 

judgment be struck. Id. (emphasis added); see Citizens Nat’l Bank of 

Evans City v. Rose Hill Cemetery Ass’n of Butler, 281 A.2d 73, 75 

(Pa. Super. 1971) (identifying compliance with the confession authority’s 

notice requirement as unwaivable and fatal to a confessed judgment). As 

set forth herein, there is not one Pennsylvania case that rebuts this holding 

relative to the circumstances presented in this case, and none of the few 

cases cited by the dissent is more clearly on-point with the case sub judice

than ABF. Implicitly, the dissent would depart from ABF in this case solely 

because the creditor “demanded the entire balance of the Note 

immediately.” Dissenting Op. at 4 (quoting Amended Complaint in 

Confession of Judgment, 12/19/12, at 2). However, to give Dime Bank the 

benefit of the doubt as to the adequacy of this at best ambiguous averment 

relative to the issue of notice is patently at odds with the broad and time-

(Footnote Continued Next Page)
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not a “formal defect, mistake, or admission,” but rather involves an 

“essential element upon which lawful exercise of the warrant of attorney was 

predicated.” AFB, 166 A.2d at 19-20. ABF plainly is the most on-point case 

cited by either party, and our research discloses none that is more so. 

The first premise is unsound because it is plainly the case that the 

issue in ABF was materially the same as it is in this case. There, as in this 

case, authority to exercise the warrant of attorney hinged by the terms of 

the instrument upon the provision of ten days’ notice by the party seeking to 

exercise the warrant. Dime offers no effective argument to the contrary. 

The second premise, too, is unsound. While Dime makes much of our 

allowance-of-amendment caselaw, none of the cases are as on-point as 

ABF. See Brief of Dime at 11-13; Atl. Nat’l Trust, 922 A.2d at 921, 923 

(affirming trial court’s refusal to strike judgment based upon creditor’s 

failure to aver in complaint that it had previously sought to enforce warrant 

of authority where prior stipulation attested to debtor’s knowledge of prior 

confession of judgment action); Courtney v. Ryan Homes, 497 A.2d 938, 

941 (Pa. Super. 1985) (affirming trial court refusal to strike or open 

judgment on the basis that the complaint and confession of judgment were 

(Footnote Continued) _______________________

honored principle that warrants to confess judgment must be “strictly 

construed” in favor of the debtor, that “if doubt exists it must be resolved 

against the party in whose favor the warrant is given,” and that a failure to 

“strictly follow” the letter of the warrant will require the judgment to be 

stricken.” ABF, 166 A.2d at 319. 
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combined in one document rather than entered separately, and noting that 

due notice had been provided under the terms of the confession clause); 

George Althof Inc., 441 A.2d at 1238 (reversing trial court order striking 

judgment and allowing amendment to cure improper verification of 

complaint). None of these cases so much as hints that ABF has been 

abrogated in any way material to this case.

Reinforcing the durability of ABF’s cautionary tone, in 1971, we made 

the following observations:

The Pennsylvania Supreme Court has observed that ‘(a) warrant 

of attorney authorizing judgment is perhaps the most powerful 

and drastic document known to civil law. The signer deprives 

himself of every defense and every delay of execution, he waives 

exemption of personal property from levy and sale under the 

exemption laws, he places his cause in the hands of a hostile 

defender.’ Cutler Corp. v. Latshaw, 97 A.2d 234, 236 

(Pa. 1953). The use of this ‘most powerful and drastic 

document’ has been eliminated or severely restricted in the vast 

majority of jurisdictions in the United States. See 16 Vill. 

L. Rev. 571, 573 n. 9 (1971) and accompanying text. The 

Pennsylvania Rules of Civil Procedure pertaining to confessions 

of judgment were written to give a debtor additional protection 

by prescribing requirements such as the detailed sworn 

complaint, the notice procedure, and improvements in the 

procedure for relief from confessed judgments. 3 GoodrichAmram 331 (Supp. 1970) (Commentary to Rules 2950-2962 of 

the Pennsylvania Rules of Civil Procedure). We can see no 

reason in law or policy for permitting a court to abrogate 

these protections by waiving the mandatory provisions of 

the Rules and allowing a plaintiff to file a complaint nunc 

pro tunc.

Citizens Nat’l Bank of Evans City v. Rose Hill Cemetery Ass’n of 

Butler, 281 A.2d 73, 75 (Pa. Super. 1971) (footnote omitted; emphasis 
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added); see First Union Nat’l Bank v. Portside Refrigerated Sys., Inc., 

827 A.2d 1224, 1231 (Pa. Super. 2003) (“The validity of a confession of 

judgment requires strict compliance with the Rules of Civil Procedure as well 

as rigid adherence to the provisions of the warrant of attorney. Absence 

such compliance, a confession of judgment cannot stand.” (citation and 

internal quotation marks omitted)).

For the foregoing reasons, our case law compels us to reverse the trial 

court’s order to the extent it refused to strike the judgment in this case. 

However, our discussion does not end there. As noted, supra, in this case, 

Dime’s Second Amended Complaint remains pending, and is not directly 

affected by this case. Moreover, because the trial court held it in abeyance 

pending the disposition of this appeal, we need not, nor should we, address 

its validity in the wake of this ruling, especially because Andrews has not 

directly contested the Second Amended Complaint’s validity in this appeal. 

Ameliorating the practical effect of ABF in this case, however, is that 

the warrant of authority in this case purports to authorize Dime to confess 

judgment as many times as is necessary to fully satisfy Andrews’ and the 

Borrowers’ concurrent obligations under the Note and Guarantee and 

Suretyship Agreements. See Guarantee at 5 (“No single exercise of the 

foregoing warrant empowered [sic] to bring an action or to confess 

judgment shall be deemed to exhaust the power, but the power shall 

continue undiminished and may be exercised from time to time as often as 

[Dime] shall elect until all amounts payable to [Dime] under the LOAN 
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DOCUMENTS shall have been paid in full.” (capitalization modified)). Absent 

a contrary agreement, Pennsylvania law precludes repeated exercises of a 

warrant of authority to confess judgment. See TCPF Ltd. P’ship v. 

Skatell, 976 A.2d 571, 576 (Pa. Super. 2009) (quoting Continental Bank 

v. Tuteur, 450 A.2d 32, 35 (Pa. Super. 1982)) (“[O]nce a judgment has 

been entered under a warrant of attorney, the authority to use the warrant 

vanishes and the warrant cannot again be exercised.”). However, under 

certain circumstances, and to certain extents, parties to a note may waive 

this rule, allowing for multiple exercises of a warrant of authority to confess 

judgment. See Atl. Nat’l Trust, 922 A.2d at 924 (“A warrant of attorney is 

a contractual agreement between the parties and the parties are free to 

determine the manner in which the warrant may be exercised.”).

Accordingly, while the judgment before us presently must be stricken 

under controlling case law, our ruling is without prejudice to any remaining 

avenues for relief that Dime may have. Whether the Second Amended 

Complaint remains valid and sufficient to enable Dime to confess judgment 

anew, whether an entirely new proceeding may and must be commenced, or 

whether there is any reason under the law that Dime may not twice exercise 

its warrant of authority as specified in the Guarantee,5is a matter for the 

trial court to determine upon remand.6

____________________________________________

5 See, e.g., TCPF, 976 A.2d at 576 (noting that Pa.R.C.P. 2953 allows 

for successive exercises of a single warrant of authority where the 

(Footnote Continued Next Page)
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Order reversed. Case remanded. Jurisdiction relinquished.

Judge Jenkins joins the opinion.

President Judge Gantman files a dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2015

(Footnote Continued) _______________________

underlying agreement so provides for several portions of a debt as they 

come due, but distinguishing separate sums with a similar exercise for the 

“same sum” of money); Ferrick v. Bianchini, 69 A.3d 642, 653-54 

(Pa. Super. 2013) (upholding successive exercises by agreement where 

lease provided that landlord could do so to collect “separate and distinct 

debts”). We need not decide at this time whether Rule 2953 or any other 

provision precludes enforcement of the instant Guarantee as written.

6 Because striking the standing judgment in this case does not clearly 

preclude Dime from proceeding anew, the dissent’s willingness to cloud or 

diminish, albeit sub silentio, the nearly fifty-year-old holding in ABF seems 

quite unnecessary.