J-A35002-14

2014 PA Super 290

THE HUNTINGTON NATIONAL BANK, SUCCESSOR IN INTEREST TO SKY BANK, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. K-COR, INC., Appellant No. 1265 WDA 2013

Appeal from the Order Entered July 12, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD13-009199

BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J. OPINION BY BENDER, P.J.E.: FILED DECEMBER 31, 2014 K-Cor, Inc. (Appellant) appeals from the order ente red on July 12, 2013, denying its petition to strike or open judgme nt entered by confession.

We affirm. The following facts are not in dispute. This case involves guarantees on two commercial loans. In November 2000, Hunting don National Bank’s predecessor, Sky Bank, entered into a loan agreemen t with Rock Airport of Pittsburgh, LLC (Airport LLC), pursuant to which th e bank loaned $3,000,000 to Airport LLC. Appellant guaranteed the loan. Th e guaranty provides for judgment by confession in the event of a default on the loan.J-A35002-14

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In June 2002, the bank and Airport LLC entered into a second loan agreement, pursuant to which the bank loaned an add itional $370,000 to Airport LLC. Appellant guaranteed the loan. The g uaranty provides for judgment by confession in the event of a default on the loan. Following default and notice, Huntingdon National B ank (hereinafter, the Bank) initiated this action in May 2013, filing a complaint in confession of judgment. Thereafter, judgment was entered in the total amount of $3,282,049.77. See Notice of Judgment, 05/22/2013. In June 2013, Appellant filed a petition to strike or open the judgment, comprised of a single paragraph averring that it ha d not voluntarily, intelligently, and knowingly given up its right to notice and a hearing prior to the entry of judgment. In July 2013, following arg ument, the trial court denied Appellant’s petition, concluding that Appell ant had failed to raise a meritorious defense to the confessed judgment. The trial court further denied Appellant’s oral motion to amend its petitio n, concluding that the general rule permitting liberal amendment of pleadi ngs does not apply to a petition to strike or open. Appellant filed a moti on for reconsideration, attaching proposed amendments to its petition, whic h was denied thereafter by the trial court. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court submi tted a responsive opinion, addressing both the defect in Appellant’s initial petition as well as the substantive merit of Appellant’s proposed amend ments.J-A35002-14

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Appellant raises the following issues on appeal: [1.] Whether or not the [trial] [c]ourt abused its discretion in failing to grant the motion for amendment of a peti tion, when good and cognizable defenses are presented at the t ime of the presentment of the petition and request for amendme nt and incorporation of allegations at related cases? [2.] Whether or not the [trial] [c]ourt abused its discretion in failing to grant reconsideration of the denial of t he motion for amendment of a petition? Appellant’s Brief at “vi.” In its first issue, Appellant contends that the tri al court should have permitted Appellant to amend its original petition and that its proposed amendments support opening the confessed judgment. 1 We review a court’s order denying a petition to open a confessed judgme nt for an abuse of

discretion. PNC Bank, Nat’l Ass’n v. Bluestream Tech., Inc. , 14 A.3d 831, 835 (Pa. Super. 2010). However, to the extent that Appellant challenges the lower court’s interpretation of the Pennsylvania Rules of Civil Procedure, our standard of review is de novo , and our scope of review is plenary. See Midwest Fin. Acceptance Corp. v. Lopez , 78 A.3d 614, 624 (Pa. Super. 2013) (citing Boatin v. Miller , 955 A.2d 424, 427 (Pa. Super. 2008)); see also Pa.R.C.P. 127 (describing the manner in which we interpret rules of court); Pa.R.C.P. 129 (same).

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1 Appellant does not challenge the trial court’s dec ision to deny its petition to strike. In addition, Appellant concedes that its p etition to open, as originally filed, is deficient. See Appellant’s Brief, at 2.J-A35002-14

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Petitions to strike or open judgment by confession are governed by Pennsylvania Rules of Civil Procedure 2959 and 2960

. Relief from a judgment by confession shall be sough t by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition

. Pa.R.C.P. 2959(a)(1) (emphasis added); see also Pa.R.C.P. 2959(a)(2) (permitting a further, limited request for a stay o f execution on due process grounds); Pa.R.C.P. 2959(c) (“A party waives all de fenses and objections which are not included in the petition or answer.”) ; Pa.R.C.P. 2960 (limiting the scope of proceedings upon opening of judgment). Appellant does not dispute the plain language of Ru le 2959. Rather, Appellant maintains that there are meritorious defe nses to the Bank’s complaint and that the absence of either factual al legations or defenses in its petition was merely an “administrative oversight,” easily cured through amendment. Appellant’s Brief, at 9. Appellant sug gests its error became apparent at the outset of the hearing, prior to any determination by the trial court, notes the liberal policy of amendment that p revails in Pennsylvania, and argues that the Bank would have suffered no pre judice if Appellant had been permitted to amend. Id. at 11-12 (citing, inter alia , Pa.R.C.P. 126). Thus, Appellant concludes, the trial court erred. In contrast, the Bank contends that no amendment is permitted under the rules. The Bank notes that a party waives all defenses and objections that are not included in the petition, citing in su pport Pa.R.C.P. 2959(c), andJ-A35002-14

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asserts that Pennsylvania courts have consistently applied our procedural rules to prohibit defendants from amending petition s to strike or open. For its part, the trial court concluded that Appell ant’s petition could not be amended. In its opinion, the court stated it co uld not “ignor[e] the clear and unambiguous language of the [r]ules of [c]ourt. ” Trial Court Opinion (TCO), May 14, 2014, at 5. The court offered no pr ecedent in support of its decision, rejected Appellant’s plea to the equitabl e powers of the court, and found irrelevant the question whether amendment wou ld prejudice the Bank.

Id. at 6. To the extent the trial court determined it was pow erless to permit amendment, we disagree. The language employed in R ule 2959 is not unlike that found in Rule 1028 governing preliminar y objections. That Rule states, in relevant part: All preliminary objections shall be raised at one t ime. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections m ay be raised in one pleading. Pa.R.C.P. 1028(b) (emphasis added); see also Pa.R.C.P. 1032(a) (providing that objections not properly raised by preliminary objection are waived). The purpose of the requirement that a party raise a ll objections at one time is “to reduce the number of dilatory steps [av ailable to a party] ... and thus expedite the reasonable disposition of the lit igation.” Yentzer v. Taylor Wine Co. , 186 A.2d 396, 398 (Pa. 1962); see also Wagner v. Wagner , 768 A.2d 1112, 1120 n.3 (Pa. 2001); Bowman v. MeadowJ-A35002-14

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Ridge, Inc. , 615 A.2d 755, 757 (Pa. Super. 1992). The single- petition requirement in Rule 2959 fulfills the same purpose. See generally Pa.R.C.P. 206.1 (Explanatory Comment – 2013). However, this Court has previously permitted amendm ent of preliminary objections. See Bowman , 615 A.2d at 757 (declining to find the trial court erred in ruling on amended prelimin ary objections, despite failure to secure the consent of the adverse party or leave court, where no action had been taken on the original preliminary o bjections and the amended motion did not delay the proceedings); see also Dep’t of Transp.

v. Schodde , 433 A.2d 143, 145 (Pa. Cmwlth. 1981) (“[A] court has the discretion to allow an amendment of preliminary obj ections in the absence of an error of law or prejudice to the adverse party.” ). More generally, the purpose of our procedural rules is to facilitate the administration of justice, and our courts should ap ply them with that purpose in mind. The rules shall be liberally construed to secure th e just, speedy and inexpensive determination of every action or pr oceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or def ect of procedure which does not affect the substantial rig hts of the parties. Pa.R.C.P. 126; see also In re Larsen , 812 A.2d 640, 650 (Pa. 2002) (“Pennsylvania law is well-settled that procedural rules are not ends in themselves, and are not to be exalted to the status of substantiveJ-A35002-14

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objectives.”) (citing McKay v. Beatty , 35 A.2d 264, 275 (Pa. 1944)); Yentzer v. Taylor Wine Co. , 186 A.2d 396, 398 (Pa. 1962). Finally, we conclude that the appellate decisions c ited by the Bank are distinguishable from the matter currently before th is Court. See, e.g., Davis v. Woxall Hotel, Inc. , 577 A.2d 636, 638-39 (Pa. Super. 1990) (declining to address a defense raised on appeal, b ut not pleaded in appellant’s petition to open or strike); C-Rich Co. v. Davis , 556 A.2d 413, 417-18 (Pa. 1989) (quashing as interlocutory an app eal from an order denying Appellant’s motion to amend its petition to open or strike); Mellon Bank v. Rafsky , 535 A.2d 1090, 1091-94 (Pa. Super. 1987) (affirmi ng the trial court’s finding of waiver where petitioner in a related matter raised additional grounds to open a confessed judgment “du ring the course of the hearing,” testimony was adduced over several days, and no motion to amend was considered); J. M. Korn & Son, Inc. v. Fleet-Air Corp , 446 A.2d 945, 947 (Pa. Super. 1982) (reversing the tria l court’s decision granting leave to amend “ after judgment had been opened ”) (emphasis added). None of these cases addresses precisely a petitioner’s motion to

amend prior

to the adjudication of the original petition, and we are aware of no appellate decision that does so. Accordingly, we hold that no strict prohibition of amendments is warranted. In our view, the decision whether to pe rmit a petitioner to amend a petition to open or strike a confessed judg ment, presented prior toJ-A35002-14

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adjudication of the merits of the original petition , is best left to the discretion of the trial court. In exercising this discretion, a trial court should examine the proposed amendments and consider whether amendm ent will unduly prejudice the opposing party. See, e.g., Horowitz v. Universal

Underwriters Ins. , 580 A.2d 395, 398-400 (Pa. Super. 1990) (discussi ng undue prejudice). That does not end our analysis, however, for we may affirm the trial court on any ground. See, e.g., Commonwealth v. Price , 876 A.2d 988, 994 (Pa. Super. 2005). It is not clear from the re cord when the trial court considered the substance of Appellant’s proposed am endments. There is no transcript of the argument, and Appellant did not s ubmit written, proposed amendments until July 18, 2013, nearly a week after the court denied its initial petition. 2 Nevertheless, it is clear that the court consider ed and rejected them. See TCO, at 7-9 (concluding that Appellant’s allegatio ns of conspiracy and fraud were of questionable relevance , devoid of merit, and, at least in part, previously rejected by the court in a different case). We have reviewed the content of Appellant’s allegation s and agree with the trial court. Accordingly, we discern no abuse of the cou rt’s discretion in denying Appellant’s motion to amend its petition.

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2 Appellant attached its proposed amendments to its motion for reconsideration.J-A35002-14

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Appellant also contends that the Court should have granted its motion for reconsideration. “Pennsylvania case law is abs olutely clear that the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is not reviewable on appeal.” Provident Nat’l Bank v. Rooklin , 378 A.2d 893, 897 (Pa. Super. 1977) (citing McCready v. Gans , 89 A. 459 (Pa. 1913)). Accordingly, the issue is not properl y before this Court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/31/2014