J

- A20023

- 23

2023 PA Super 179

SAMUEL A. AND SUSAN J.

STOLTZFUS, H/W

Appellants

v.

GREEN LINE LABS, LLC :

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1323 MDA 2022

Appeal from the Order Entered August 22, 2022

In the Court of Common Pleas of Lancaster County

Civil Division at CI

- 21

- 05354

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E. *

OPINION BY MURRAY, J.: FILED SEPTEMBER 25, 2023

Samuel A. and Susan J. Stoltzfus, husband and wife (Appellants), appeal

from the order striking the confessed judgment against their tenant, Green

Line Labs, LLC (GLL). We affirm.

On June 1, 2020, GLL leased from Appellants a 10,000 square

- foot

space

, known as “ The Greenhouse

, ” and four p arking spaces ( with one space

at the loading dock ) (the Property )

. 1 Lease, 6/1/20, P re amble , ¶ 1

. U nder

the Lease, GLL agreed to pay Appellants $55,000 per year, with mo nthly

payments of $4,583.33. Id. ¶ 2. GLL leased the Property for use as a “ hemp

genetics cultivation facility. ” Id. ¶ 5.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 The Property is located at 5541 Old Philadelphia Pike, Gap, P ennsylvania.

Lease, 6/1/20

.J

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- 2

-

The trial court explained what next transpired:

This case commenced on August 6, 2021, when Appellants

filed [a] Complaint for Confession of Judgment for Money and in

Ejectment for Possession of Real Property ( “ Complaint ” ) against

[GLL ] .... See Complaint. Therein, Appellants assert [ed] the

following: failure to pay rent whe n due, using leased premises

beyond the uses permitted in the lease, altering the leased

premises without approval, unauthorized storage, engaging in

activities not permitted in the lease, and failure to provide proof

of liability insurance. Complaint [, 8/6/21,] at 2.

Trial Court Opinion, 11/15/22, at 2. Appellants claimed past rent, accelerated

rent, and counsel fees totaling $110,766.17. Complaint, 8/6/21, at 2.

At the same time, Appellants confessed judgment for past

- due rent,

accelerated rent

, and possession of the Property. Confession and Ejectment,

8/6/21 , at 1. Appellants additionally filed Pa.R.C.P. 2958.1 Notice of

Judgment and Execution Thereon. On October 12, 2021,

Appellants filed [a] Praecipe for Writ of Possession Upon a

Confessed Judgment, declaring that notice required under

Pa.R.C.P. 2973.3 was served more than thirty days prior; a Writ

of Possession was filed in tandem with the praecipe

. On November

11 , 2021, [GLL] contacted [c] ounsel for Appellants [(Counsel)] in

an attempt to settle the matter. [GLL] asserts that Counsel

responded on November 16, 2021, with the following conditions:

[GLL] must pay all past due rent and rent through the end of the

year totaling $23,291.65 [;] [G LL] must pay legal fees and costs

totaling $10,750.00 [;] all storage must by cleaned up and

removed [;] and [Appellants] provided a “ less than 24

- hour

deadline ” to do so. [GLL] states [it] was unable to secure the

amount of money requested on such short notice and offered to

pay $10,000.00 the following day in good faith, with the remaining

funds to be tendered to Appellants on November 24, 2021 [.]

Counsel for Appellants refused the counte roffer.

Trial Court Opinion, 11/15/22, at 3

- 4 (citations omitted)

.

O n November 17, 2021, Appellants ejected GLL from the Property :J

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- 3

-

Appellants filed [a] Praecipe for Writ of Execution

. On November

23, 2021, and December 16, 2021, [GLL] contacted Counsel for

Appellants to request access to the [Property] so [ GLL ] could

remove rented equipment which needed to be returned to its

owner, Plant Productions. [GLL] state [d] both requests were

denied

, and as a result, Plant Productions filed criminal charges

for theft. On March 23, 2022, Appellants brought [GLL ’ s] goods,

inventory, equipment, fixtures, and other assets to public auction

, where, according to [GLL] , neither th e auction company nor

Appellants verified ownership of the assets.

Id. at 4

- 5 (citations omitted)

.

Relevant to this appeal,

[o] n June 17, 2022, [GLL] filed [ a ] Petition to Strike and/or Open

Judgment Entered by Confession [,] alleging the record in this

matter is fatally flawed and has irregularities on its face [;] the

docket does not reflect proper service [;] there is no relation

between the cognovit clause in the Lease and [GLL ’ s] signature [;]

and Appellants are attempting double recovery for a single wrong

. In response, Appellants countered, inter alia , t hat a revised

Sheriffs Notice of Service, attached to their answer, showed all

documents were served on [GLL] as required [;] [GLL ’ s] Petition

was time [

- ] barred and did not provide any explanation for the

delay [;] and [GLL] admitted to default in their Petition and action

was taken pursuant to the Lease

.

Thereafter, [GLL] filed a reply alleging the Sheriff ’ s Notice of

Service from filed [ sic ] September 10, 2021, and the Sheriff ’ s

Notice of Service provided by Appellants in the Answer/New

Matter [,] significantly differ, and that the matter of effective

service is unclear. Moreover, [GLL] assert [ed] Appellants

improperly entered judgment for possession and accelerated rent

simultaneously

, and failed to address this issue in the Answer/New

Matter, beyond [stating the issue i s] a conclusion of law. As a

result, [GLL] contends, App ellants have waived [] any possible

defense or objection pursuant to Pa.R.C.P

. 2959(c).

Id. at 5

- 6 (emphasis added , citations omitted )

. In i ts reply, GLL requested

only that the court grant its petition to strike. GLL ’ s Sur Reply to Appellant s’

Answer in Opposition, 8/2/22, at 3 (unnumbered).J

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On August 22 , 2022, the trial court granted GLL ’ s petition to strike the

confessed judgment. Order, 8/ 22 /22. Thereafter, Appellants filed the instant

timely appeal. Appellants and the trial court have complied with Pa.R.A.P.

1925.

Before we consider Appellants ’ substantive issues , we address whether

this appeal is properly before us. “ The appealability of an order directly

implicates the jurisdiction of the court asked to review the o rder. ” Estate of

Considine v. Wachovia Bank

, 966 A.2d 1148, 1151 (Pa. Super.

2009). “ [T]his Court has the power to inquire at any time, sua sponte

,

whether an order is appealable. ” 2 Id.

Under Pa.R.A.P. 341, a final order disposes of all parties and all claims,

is expressly defined as a final order by statute, or is entered as a final order

pursuant to the trial court ’ s determination under Rule 341(c). Pa.R.A.P.

341(b)(1)

- (3).

[W] here an order is issued that grants a motion to strike a

judgment, such an order is generally not appealable, i.e.

, it is not

an interlocutory order from which an appeal as of right may lie.

Such an order anticipates further litigation because the parties are

placed back in the position they were in prior to the entry of the

judgment.

... [However, when] the order striking the

judgment ends the litigation as to all parties and all

claims[, it is] a final order as defined in Pa.R.A.P. 341(b)

and an appeal may be taken as of right.

_________________ __________ ______ ____ _______

2 On October 21, 2022, this Court issued a rule to show cause why the appeal

should not be quashed for lack of jurisdiction. Rule

, 10/21/22. Appellants

filed a response to the rule on November 2, 2022. T his Court discharged the

rule, but advised Appellants t he issue might be revisited by the merits panel.

Order, 12/27/22.J

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United Parcel Serv. v. Hohider

, 954 A.2d 13, 16 (Pa. Super. 2008)

(emphasis added)

. Thus, we consider whether the trial court ’ s order striking

the confessed judgment ends all litigation between Appellants and GLL

. See

id.

Our review discloses that Appellants ’ C omplaint sought the following

relief:

Judgment in ejectment in [Appellants ’ ] favor and against [GLL] for

property located at 5541 Old Philadelphia Pike, Gap,

Pennsylvania[,] 17527; and Judgment for $110,766.17.

Complaint, 8/6/21, at 3. Appellants confessed judgment against GLL for

$110

, 766.17 and “ ejectment in favor of [Appellants] for [the Property]. ”

Confession and Ejectment, 8/6/21.

On August 22, 2022, the trial court entered the order granting GLL ’ s

petition to strike

, stat ing

, “ The judgment previous ly entered in this matter on

behalf of [Appellants] is stricken. ” Order, 8/22/22. Thus, t he trial court ’ s

order struck the confessed judgment in its entirety. See id. Although the

trial court ’ s order is not marked as “ final, ” it neither direct s n or suggest s

further p roceedings. Our review discloses no pending action before the trial

court. No further proceedings are scheduled. Under these circumstances, we

conclude the order is final and therefore appealable. See id.

Appellants present the following issues:

A. If it is determined that Appellants are not entitled to judgments

for both possession and accelerated rent, did the trial court

commit an error of law and/or abuse its discretion in strikingJ

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- both judgments

, as [Appellants] are entitled to some remedy

where [GLL] admitted to defaulting under the lease between

the parties?

B. Whether the trial court committed an error of law and/or

abused its discretion in not denying [GLL’s] Petition to Strike

Judgment, which was untimely filed, and where [GLL] gave no

compelling reason for its delay?

C. Whether the trial court committed an error o f law and/or

abused its discretion in ruling that it lacked personal

jurisdiction over [GLL] to enter confessed judgments for

possession and money damages

, w here [GLL] submitted to the

trial court ’ s jurisdiction to enter such judgments in the lease

between the parties?

D. Whether the warrant of attorney to confess judgment is

sufficient where it is in writing in bold, capital letters in the

lease between the parties, signed by the person bound by it,

and such signature bears a direct relation to the warrant?

Appellants ’ B rief at 3

- 4 (issues re ord ered , punctuation modified ).

We review a trial court ’ s ruling on a petition to strike a confessed

judgment for an abuse of discretion or error of law. Ferrick v. Bianchini

, 69

A.3d 642, 647 (Pa. Super. 2013).

Appellants first challenge the trial court ’ s order striking both the

confessed judgment for money damages and for possession of the property.

Appellants ’ Brief at 22. Appellants claim they “ should have been permitted to

pursue at least a judgment of possession with a jud gment for rent and other

sums due to date or a judgment for accelerated rent. ” Id. Quoting this

Court ’ s decision in Homart Dev. Co. v. Sgrenci , 662 A.2d 1092 (Pa. Super.

1995), Appellants asser t , “W hen the judgment is entered for possession, the

landlord is ... entitled to recover ... those losses which he suffers in at temptingJ

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-

to relet the premises for the term of the lease. ” Appellants ’ Brief at 22

- 23

(quoting Homart

, 662 A.2d at 1101). Appellants claim,

[t]o the extent it is determined [Appellants] could not obtain both

a confessed judgment for possession and accelerated rent, [they]

should be permitted judgment for possession and for money

damages for past

- due rent and for other damages resulting from

[G LL ’ s] breach. Striking both judgments deprived [Appellants] of

all their remedies.

Id. at 23 (footnote omitted).

Appellant s additionally rely on our decision in Pops PCE TT, LP . V. R &

R Rest. Group, LLC , 208 A.3d 79 , 89 (Pa. Super. 2019) . Appellants claim

that in Pops

, this Court concluded the trial court had erred in opening a

confessed judgment . Appellants ’ Brief at 23. According to Appellants

, the

landlord in Pops confessed judgment for accelerated rent and possession, and

the lease allowed judgment for both. Id. (citing Pops , 208 A.3d at 89, 90

n.1). Appellant s assert,

if this Court determines that [Appellants] could not confess

judgment for both possession and accelerated rent, ... the

judgment for possession should be maintained and the judgment

for accelerated rent should be opened to determine the

appropriate amount due to [Appellants] for [GLL ’ s] breach.

Id. at 24.

In addressing Appellants ’ issue, we are cognizant of the following :

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 irregular ity 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.J

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Cintas Corp. v. Lee ’ s Cleaning Servs., Inc. , 549 Pa. 84, 700

A.2d 915, 917 (Pa . 1997) (quoting Resolution Trust Corp. v.

Copley Qu

- Wayne Assocs. , 546 Pa. 98, 683 A.2d 269, 273 (Pa.

1996)). In assessing whether “ there are 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 Am er., Inc.

, ... 441 A.2d 1236, 1237 (Pa.

Super. 1982).

...

Dime Bank v. Andrews , 115 A.3d 358, 364 (Pa. Super. 2015).

In contrast, “ [a] judgment by confession will be opened if the petitioner

acts promptly, alleges a meritorious defense, and presents sufficient evidence

in support of the defense to require the submission of the issues to a jury.”

9795 Perry Highway Mgmt., LLC v. Bernard

, 273 A.3d 1098, 1102 (Pa.

Super. 2022). Thus,

the petition to strike a confessed judgment must focus on any

defects or irregularities appearing on the face of the record, as

filed by the party in whose favor the warrant was given, which

affect the validit y of the judgment and entitle the petitioner to

relief as a matter of law. [T]he record must be sufficient to sustain

the judgment. The original record that is subject to review in a

motion to strike a confessed judgment consists of the complaint

in conf ession of judgment and the attached exhibits.

In contrast, if the truth of the factual averments contained in [the

complaint in confession of judgment and attached exhibits] is

disputed, then the remedy is by proceeding to open the judgment

, not to strike it. A petition to strike a confessed judgment

and a petition to open a confessed judgment are distinct

remedies; they are not interchangeable.

Id. (citations and quotation marks omitted

, emphasis added ).J

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Upon review, we conclude that Appellants ’ reliance on our decisions in

Homart and Pops is misplaced. In Ho m art

, the landlord confessed judgment

against the appellant/tenant for past

- due rent, accelerated rent, and

possession of the property. Homart

, 662 A.2d at 1096

- 97. The

appellant/tenant petitioned to open the judgments, arguing that he had not

breached the lease, “ but rather that [landlord] had breached the lease and

rendered [tenant ’ s] performance impossible .... ” Id. at 1097. The trial court

de nied the petition to open , finding that landlord had not breached the lease

.

Id.

On appeal, this Court reversed and remanded. Id. First, w e observed

that the tenant had presented an equitable defense , which should be resolved

by the factfinder. Id. at 1100. We further found an independent basis for

opening the judgment :

A landlord must elect whether to confess judgment for possession

and for all monies then due, or to confess judgment for all monies

due for the entire term. When the judgment is entered for

possession, the landlord is, of course, entitled to recover, as

damages in a civil action, those losses which he suffers in

attempting to re[

- ]let the premises f or the term of the lease....

The landlord, however, cannot

... enter judgment for

possession and for all moneys which would otherwise be

due as rents through the end of the term.

Id. at 1101 (emphasis added). This Court concluded that

the money judgment, which included accelerated rent and

possession, was “ entered for an amount which was grossly

excessive ” , in light of the entry of the judgment for possession []

and is subject to a motion to strike. [ The tenant, ] however, did

not file a motion to strike and, thus, has waived his right to

this relief. See [] Pa.R.Civ.P. 2959. The judgment should,J

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however, have been opened, in response to the petition to open

filed by [the tenant] , so as to resolve the issue of the amount of

the money judgment, where [the landlord] had also confessed

judgment for possession, even if the trial court believed that there

was not sufficient evidence of a breach of the lease by appellee to

warrant submission of that issue to a jury.

Id. at 110 1

- 02.

Similarly, in Pops

, t he landlord filed a landlord

- tenant complaint against

the tenant

, seeking only possession of the leased premises. Pops , 208 A.3d

at 83. The Magisterial District Judge (MDJ) entered judgment finding tenant

in default of the lease and granting possession to landlord. Id. No damages

were awarded, and tenant did not appeal the MDJ ’ s decision. Id.

Subsequently, the landlord confessed judgment for money damages against

tenant, including accelerated rent due under the lease. Id. The tenant filed

a petition to strike/ open the confessed judgment. Id. The tenant alleg ed that

(a) it did not breach the lease ; (b) it had properly terminated the lease by

letter; and (c) the landlord was not entitled to accelerated rent

, as it had

possession of the leased premises. Id. The trial court denied the requests to

strike and open the confessed judgment. Id. at 84.

On appeal, the tenant challenged only the trial court ’ s refusal to open

the confessed judgment. Id. at 85. T his Court reversed the denial of the

petition to open :

[T]he record indicates [the landlord] obtained a judgment for

possession of the leased premises on January 29, 2015, and

remained in possession o f the premises at the time it filed its

complaint in confession of judgment in June of 2015, in which it

sought monetary damages including accelerated rent throughJ

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October of 2023. Under Pennsylvania law, however, [the

landlord] was limited to seeking act ual monetary damages

as of the date it took possession, and it was legally

precluded from seeking accelerated damages against [the

tenant]

. Based on the foregoing, we deem the trial court ’ s

refusal to open the confessed judgment to be a clear error of law

.

Id. at 89 (citations omitted, emphasis added).

In both Homart and Pops , this Court recognized the impropriety of

confessing judgment for both accelerated rent and possession. Homart , 662

A.2d at 1101; Pops , 208 A.3d at 89. We concluded in both cases that opening

the judgment was appropriate, where that was the only remedy sought.

Homart , 662 A.2d at 1101

- 02; Pops , 208 A.3d at 85, 89. Neither Homart

nor Pops require a trial court to open a confessed judgment , where a petition

to strike was filed.

This Court has long held that “where the lessor terminates the lease and

enters into possession[,] he may not have possession of the premises and

also judgment for rent for the unexpired period of the lease.” H. A. Steen

Indus

. , Inc. v. Richer Comm c’n

, In c.

, 314 A.2d 319, 322 (Pa. Super.

1973). As this Court recognized in both Homart and Pops

, a landlord “ cannot

... enter judgment for possession and for all moneys which would otherwise

be due as rents through the end of the term.” Pops

, 208 A.2d at 89 (quoting

Homart

, 662 A.2d at 1100).

H ere, Appellant s confessed judgment for both accelerated rent and

possession

, and GLL filed a petition to strike. Under these circumstances, theJ

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trial court did not err in striking, rather than opening, the confessed

judgment. 3 Appellants ’ claim merits no relief.

Appellant s next argue the trial court erred in granting the petition to

strike, because it was untimely filed with no compelling reason for the delay.

Appellants ’ Brief at 18. According to Appellant s

,

[p]ursuant to Rule 2959 of the Pennsylvania Rules of Civil

Procedure, if written notice is served on a petitioner pursuant to

Rule 2956.1(c)(2) (which provides for serving notice under Rule

2958.1) or Rule 2973.1(c) (which provides for serving notice

under Rule 2973.2), a petition to strike off or open judg ment shall

be filed within thirty days of such service. Pa.R.C.P. No.

2959(a)(3); 2956.1(c)(2); 2973.1(c). A petition to open or strike

a confessed judgment not timely filed shall be denied unless the

defendant can demonstrate compelling reasons for the delay.

Pa.R.C.P. No. 2959(a)(3).

Appellants ’ Brief at 19. Appellant s claim GLL was served with Notice of the

judgment and execution under Rule 2958.1, and provided notice of the

judgment and execution on September 8, 2021, in accordance with Rule

2973.2

. Id. Appellant s assert GLL had no compelling reason for its eight

month delay in filing the petition to strike. Id. at 20.

As this Court explained,

[a] petition to strike is aimed at defects that affect the validity of

the judgment and that entitle the petitioner, as a matter of law,

to relief . A fatal defect on the face of the record denies the

prothonotary the authority to enter judgment . When a

_________________ __________ ______ ____ _______

3 T he trial court explained it granted the petition to strike because “written

notice of execution has not been served upon [GLL].” Trial Court Opinion,

11/15/22, at 11. We are not bou nd by the rationale of the trial court and may

affirm on any basis. In Re Jacobs

, 15 A.3d 509, 509 n.1 (Pa. Super. 2011);

accord Perelman v. Perelman

, 259 A.3d 1000, 1010 n.4 (Pa. Super. 2021).J

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prothonotary enters judgment without authority, that judgment

is void ab initio

....

Grady v. Nelson

, 286 A.3d 259, 264 (Pa. Super. 2022). A void judgment

cannot be made valid by the passage of time. M & P Mgmt., L.P. v.

Williams

, 937 A.2d 398, 401 (Pa. 2007)

.

Here, a landlord “ cannot

... enter judgment for possession and for all

moneys which would otherwise be due as rents through the end of the term.”

Pops

, 208 A.2d at 89 (quoting Homart

, 662 A.2d at 1100). R ecovery for

both accelerated rent and possession is prohibited. H. A. Steen Indus

. , 314

A.2d at 322. Consequently, Appellants’ confessed judgment, for both

accelerated rent and possession, is defective on its face and void, not voidable.

See id. ; see also Pops

, 208 A.2d at 89; Homart

, 662 A.2d at 1100.

Appellants ’ issue merits no rel ief.

In light of our disposition, we need not address Appellants’ remaining

issues.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/25/2023