J-A06026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FLEETWAY CAPITAL CORPORATION, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SH&T EXPRESS, LLC, SHUKRI TEMIROV, 

GUARANTOR, KHALIDA TEMIROV, 

GUARANTOR, SHUHRAT TEMIROV, 

GUARANTOR, TRANSPORT CARRIER 

HOUSE, LLC, GUARANTOR, SEVILA 

TRUCKING, INC., GUARANTOR AND 

TEMUR TRUCKING, INC., GUARANTOR,

Appellants No. 1853 EDA 2016

Appeal from the Order Entered May 10, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 04827 Feb. Term, 2016

BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.

MEMORANDUM BY SHOGAN, J.: FILED MAY 15, 2017

Appellants, SH&T Express, LLC (“SH&T”), Shukri Temirov, Khalida 

Temirov, Shuhrat Temirov, Transport Carrier House, LLC, Sevila Trucking, 

Inc., and Temur Trucking, Inc., appeal from the May 10, 2016 order denying 

their petition to open a confessed judgment arising from a commercial 

property lease with Appellee, Fleetway Capital Corporation (“Fleetway”). 

After careful review, we affirm.

The underlying facts and procedural history are as follows: On 

February 24, 2012, SH&T and Fleetway entered into a Master Lease 

Agreement (“Master Lease”) that provided for future monthly payments to 
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be made by Appellants pursuant to future Equipment Schedules that would 

become part of the Master Lease. Complaint, 3/3/16, at ¶¶ 10, 13–18. The 

complaint in confession of judgment asserts that Appellants Shukri Temirov, 

Khalida Temirov, and Shuhrat Temirov each executed personal guaranties of 

SH&T’s obligations under the Master Lease; the other business-entity 

defendants executed either a limited liability company guaranty or a 

corporate guaranty. Id. at ¶¶ 11–12. The Master Lease contained a 

Warrant of Attorney with a confession-of-judgment clause, initialed by SH&T, 

in the event that Appellants breached any of the leases. Id. at Exhibit 1 

(Master Lease), ¶ 6. The individual and corporate guarantees also contained 

Warrant of Attorney clauses that were initialed by Appellants. Id. at Exhibits 

1–9. Fleetway leased three trucks and three trailers to Appellants between 

February of 2012 and July of 2015. Id. at ¶¶ 16–18. SH&T informed 

Fleetway that it could no longer maintain monthly lease payments for the 

three trailers and three trucks, and it ultimately returned the trucks and 

trailers. Id. at ¶ 17, 23.

On March 3, 2016, Fleetway filed a confession of judgment against 

Appellants. On April 11, 2016, Appellants petitioned the trial court to open 

the confessed judgment claiming, inter alia, defenses of Fleetway’s bad 

faith/unclean hands and failure to mitigate damages. Petition to Open 

Judgment by Confession, 4/11/16. By order dated May 9, 2016, and 

docketed May 10, 2016, the trial court denied the petition to open. 
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Appellant filed a timely notice of appeal to this Court on June 9, 2016.1 The 

trial court did not order the filing of a Pa.R.A.P. 1925(b) statement, and 

none was filed. The trial court utilized its memorandum opinion in support 

of its order denying the petition to open filed May 10, 2016 as its Rule 

1925(a) opinion.

Appellants raise the following issues on appeal to this Court:

1. Did the lower court err by denying Appellants’ petition to 

open the confessed judgment on the basis that no evidence 

existed to support the petition where the court decided the 

petition on the initial pleadings only and did not allow for an 

actual evidentiary record to be developed th[r]ough discovery?

2. Did the lower court err by denying Appellants’ [sic] petition to 

open the confessed judgment where Appellants could have 

presented a meritorious defense in the form of Appellee’s duty to 

mitigate its damages?

Appellants’ Brief at 4. We address these issues in tandem.

We review the trial court’s order for an abuse of discretion. Neducsin 

v. Caplan, 121 A.3d 498, 506 (Pa. Super. 2015), appeal denied, 131 A.3d 

492 (Pa. 2016). “[T]he court abuses its discretion if, in resolving the issue 

for decision, it misapplies the law or exercises its discretion in a manner 

lacking reason.” Id.

____________________________________________

1

 The appeal period ran from the order’s filing date of May 10, 2016. 

Moreover, denial of a petition to open a default judgment is an appealable 

order. See Keller v. Mey, 67 A.3d 1, 3 (Pa. Super. 2013) (“Although 

orders of court denying motions to strike or petitions to open default 

judgments are interlocutory, Pennsylvania Rule of Appellate Procedure 311 

provides that ‘[a]n appeal may be taken as of right . . . from:. . . [a]n order 

refusing to open, vacate or strike off a judgment.’”).
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“Historically, Pennsylvania law has recognized and permitted entry of 

confessed judgments pursuant to the authority of a warrant of attorney 

contained in a written agreement.” Neducsin, 121 A.3d at 505. In 

adjudicating a petition to open a confessed judgment, the trial court is 

charged with “determining whether the petitioner presented sufficient 

evidence of a meritorious defense to require submission of that issue to a 

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

Homart Development Co. v. Sgrenci, 662 A.2d 1092 (1995)). “When 

determining a petition to open a judgment, matters dehors the record filed 

by the party in whose favor the warrant is given, i.e., testimony, 

depositions, admissions, and other evidence, may be considered by the 

court.” Graystone Bank v. Grove Estates, LP, 58 A.3d 1277, 1282 (Pa. 

Super. 2012).

A petition to open a confessed judgment is governed by Pa.R.C.P. 

2959 and is an appeal to the trial court’s equitable powers:

It is committed to the sound discretion of the hearing court and 

will not be disturbed absent a manifest abuse of that discretion. 

Ordinarily, if a petition to open a judgment is to be successful, it 

must meet the following test: (1) the petition to open must be 

promptly filed; (2) the failure to appear or file a timely answer 

must be excused; and (3) the party seeking to open the 

judgment must show a meritorious defense....

Century Surety Co. v. Essington Auto Center, LLC, 140 A.3d 46, 53 (Pa. 

Super. 2016). There is no challenge herein to the first two provisions of the 

test; rather, Appellants focus on the trial court’s determination that they did 
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not present a meritorious defense. A meritorious defense is one upon which 

relief could be afforded if proven at trial. Ferrick, 69 A.3d at 647. 

Moreover:

Pa.R.[C.]P. 2959(e) sets forth the standard by which a court 

determines whether a moving party has properly averred a 

meritorious defense. If evidence is produced which in a jury 

trial would require the issues to be submitted to the jury the

court shall open the judgment. Furthermore, the court must 

view the evidence presented in the light most favorable to the 

moving party, while rejecting contrary evidence of the nonmoving party. The petitioner need not produce evidence proving 

that if the judgment is opened, the petitioner will prevail. 

Moreover, we must accept as true the petitioner’s evidence and 

all reasonable and proper inferences flowing therefrom.

In other words, a judgment of confession will be opened if 

a petitioner seeking relief therefrom produces evidence which in 

a jury trial would require issues to be submitted to a jury. The 

standard of sufficiency here is similar to the standard for a 

directed verdict, in that we must view the facts most favorably 

to the moving party, we must accept as true all the evidence and 

proper inferences in support of the defense raised, and we must 

reject all adverse allegations.

Neducsin, 121 A.3d at 506–507 (internal citations and quotation marks 

omitted) (emphasis added).

Referencing Pa.R.C.P. 2959(e), Appellants complain the trial court 

faulted them for not producing evidence of their defenses, and it disposed of 

Appellants’ petition to open based solely on the initial pleadings without 

“affording” Appellants the opportunity to develop any evidence. Appellants’ 

Brief at 9. Pa.R.C.P. 2959(e) provides as follows:

Rule 2959. Striking Off or Opening Judgment; Pleadings; 

Procedure
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* * *

(e) The court shall dispose of the rule on petition and answer, 

and on any testimony, depositions, admissions and other 

evidence. The court for cause shown may stay proceedings on 

the petition insofar as it seeks to open the judgment pending 

disposition of the application to strike off the judgment. If 

evidence is produced which in a jury trial would require the 

issues to be submitted to the jury the court shall open the 

judgment.

Pa.R.C.P. 2959(e) (emphasis added). Appellants suggest their averment in 

the petition to open that they could present proof of their defenses, Petition 

to Open, 4/11/16, at ¶¶ 12, 21, “should have triggered the lower court’s 

action in allowing for discovery.” Appellants’ Brief at 9. Thus, in conclusory 

fashion, Appellants assert that this case should be reversed and remanded 

for discovery. Id. at 10.

Initially, we respond to Fleetway’s waiver argument. Fleetway asserts 

that the petition to open was properly denied because it was verified through 

Appellants’ attorney of record, not by one of the parties. Fleetway’s Brief at 

13–14. We agree with Appellants that because Fleetway did not file 

preliminary objections below, it has waived any argument concerning 

Appellants’ counsel’s verification. Appellants’ Reply Brief at 1–2. See 

Roberts v. Estate of Pursley, 700 A.2d 475, 479 (Pa. Super. 1997) 

(objection to form of pleading waived by failure to raise preliminary 

objections in response to the Amended Complaint); see also Pa.R.C.P. 

1028(a)(2) (failure of pleading to conform to law or rule of court is to be 

raised by preliminary objection); Pa.R.C.P. 1032 (failure to raise such an 
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objection by preliminary objection results in waiver). Thus, Fleetway has 

waived any objection to counsel’s verification.

Regarding the merits, Fleetway maintains that Appellants’ reliance on 

Pa.R.C.P. 2959(e) is misplaced, contending that the trial court was not 

required to provide Appellants’ discovery “to enable them to prove their 

alleged meritorious defense to the judgment confessed against them.” 

Fleetway’s Brief at 12–13. Fleetway asserts that subsection (e) is triggered 

only upon the satisfaction of subsection (b), which provides, in pertinent 

part: “If the petition states prima facie grounds for relief the court shall 

issue a rule to show cause . . . .” Pa.R.C.P. 2959 (b) (emphasis added). 

Fleetway maintains that the trial court never issued a rule to show cause 

because it determined that Appellants failed to state prima facie grounds for 

relief. Fleetway’s Brief at 13. We agree.

Appellants cite multiple cases in their brief, see, e.g., Ecumenical 

Enterprises, Inc. v. NADCO Construction Co., 385 A.2d 392 (Pa. Super. 

1974), for the proposition that the trial court must consider not only the 

petition to open, but it must also credit depositions and other evidence. 

Appellants’ Brief at 8. There is no controversy that this provision is true and 

accurate. Appellants do not assert that the trial court failed to consider 

evidence they produced in support of their pleading, nor do they contend the 

court improperly denied Appellants’ request for discovery. Indeed, as 

Fleetway points out, Appellants never raised the issue of discovery to the 
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trial court. Rather, Appellants maintain that this case must be reversed and 

remanded, relying upon Liazis v. Kostka, Inc., 618 A.2d 450 (Pa. Super. 

1992), because the trial court did not order discovery. In Liazis, because 

we determined that the trial court abused its discretion in concluding that 

the petition to open therein did not allege prima facie grounds for relief, we 

reversed and remanded to the trial court. Id. at 452. Herein, we likewise 

must evaluate whether the trial court abused its discretion; therefore, we 

consider Appellants’ second issue, whether they raised a meritorious 

defense.

Appellants maintain that the trial court erred in concluding that 

Appellants failed to plead a meritorious defense. Appellants’ Brief at 10. 

They contend that their petition to open “was rife with factual allegations 

that demonstrated that Fleetway made no attempt to mitigate its damages.” 

Id. Specifically, Appellants aver that because “Fleetway knew all along that 

[Appellants] would likely breach the lease agreements,” Appellants 

presented “a valid defense in the form of Fleetway’s failure to mitigate its 

damages.” Id. at 11–12.

In this regard, Appellants first aver that they requested a letter of 

confirmation from Fleetway to solidify business relationships, and that letter 

would have allowed Appellants to generate income to pay the lease 

payments. Appellants’ Brief at 11. Second, when Appellants apprised 

Fleetway that they had lost business as a result of Fleetway’s failure to 
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provide the requested reference letter, Appellants “proactively provided two 

potential lessees who were willing to step into [Appellants’] shoes and take 

over the lease payments.” Id. Instead, Appellants contend that Fleetway 

demanded that Appellants return the trucks and trailers. Id. Third, after 

having received its property, Fleetway allegedly told Appellants it would sell 

the trucks and trailers at a private sale to off-set the future rental payments, 

but instead, Fleetway confessed judgment against Appellants. Id. 

Appellants submit that these factors support that Appellants averred a valid 

defense “in the form of Fleetway’s failure to mitigate its damages.” Id. at 

12. Moreover, Appellants maintain that because the trucks and trailers were 

returned to Fleetway, the trial court’s refusal to open the confessed 

judgment “effectively allows for Fleetway to obtain a double recovery.” Id.

Fleetway responds that Appellants’ factual allegations do not establish 

a basis upon which to open the confessed judgment. Instead, it maintains 

that Appellants’ unverified factual allegations set forth only counterclaims or 

claims for set-off, neither of which can properly serve as the basis for 

opening a judgment by confession. Fleetway’s Brief at 17–18. Further, 

Fleetway submits that even if it were required to consider the two individuals 

allegedly willing to assume the leases, Appellants were required to remain 

compliant with the Master Lease. Id. at 18.
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Fleetway refers to Newton v. First Union Nat. Bank, 316 F.Supp.2d 

225 (E.D.Pa. 2004),2to explain the difference between a defense and a 

counterclaim, and it cites the case for support of its position that Appellants 

failed to establish a meritorious defense. Newton stated:

Distinguishing between “counterclaims” and “defenses,” 

the Third Circuit [Court of Appeals] has held that while “a 

counterclaim may entitle the defendant in the original action to 

some amount of affirmative relief, a defense merely precludes or 

diminishes the plaintiff’s recovery” and “although the facts 

underlying some defenses might also support a counterclaim, 

not all counterclaims are valid defenses.” [Riverside Mem’l 

Mausoleum, Inc. v. Umet Trust,] 581 F.2d [62, 68 (3d Cir. 

1978)]. Further elucidating the distinction, the Pennsylvania 

Supreme Court has held that, in the context of petitions to open 

confessed judgments, “a set-off is a ‘counter-claim demand 

which defendant holds against plaintiff, arising out of a 

transaction extrinsic of plaintiff’s cause of action.’” M.N.C. 

Corp. v. Mount Lebanon Medical Center, Inc., 510 Pa. 490, 

509 A.2d 1256, 1259 (1986) (quoting BLACK’S LAW 

DICTIONARY 1230 (rev. 5th ed. 1979) (emphasis added)).

Id. at 239. Fleetway thus counters that the allegations of Appellants’ 

petition to open “are counterclaims and/or claims for set-off which cannot 

serve as grounds for opening a confessed judgment under Pennsylvania case 

law.” Fleetway’s Brief at 18; see also J.M. Korn & Son, Inc. v. Fleet-Air 

Corporation, 446 A.2d 945, 947 (Pa. Super. 1982) (“In the absence of 

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2

 While federal court decisions do not control the determinations of this 

Court absent a United States Supreme Court pronouncement, whenever 

possible “Pennsylvania state courts follow the Third Circuit [Court of 

Appeals] so that litigants do not improperly ‘walk across the street’ to 

achieve a different result in federal court than would be obtained in state 

court.” McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 106 

n.13 (Pa. Super. 2015), appeal denied, 130 A.3d 1291 (Pa. 2015).
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fraud, an unliquidated counterclaim or set-off is not grounds for opening a 

judgment confessed under a warrant of attorney.”)

The allegations in the petition are that 1) the guarantor Appellants, for 

whom “English is not [their] first . . . language, did not understand the 

Warrant of Attorney language;” 2) those Appellants indicated they would 

“take over” the leases; and 3) Fleetway had informed Appellants it would sell 

the trucks and trailers, and it did not do so. Petition to Open Judgment by 

Confession, 4/11/16, at ¶¶ 6–10, 16–18, 24–26.

In denying the petition to open and concluding that Appellants failed to 

raise any meritorious defense, the trial court addressed Appellants’ assertion 

that they did not knowingly and intelligently waive their due process rights. 

Appellants alleged in the petition that when they executed the pertinent 

documents, they relied on a Russian-speaking translator who failed to 

apprise them of the significance and implications of the warrant of attorney 

clause incorporated in the Master Lease. The trial court rejected this 

argument, asserting that in Pennsylvania “there is no merit to [Appellants’] 

assertion that their purported lack of knowledge and/or understanding of the 

warrant of attorney provisions . . . requires . . . the judgment [to] be . . . 

opened.” Trial Court Opinion, 5/10/16, at 2. The trial court held that the 

failure to read a confession of judgment clause will not justify avoidance of 

it. See Dollar Bank v. Northwood Cheese Co., 637 A.2d 309, 313 (Pa. 

Super. 1994) (rejecting assertion that lack of understanding of warrant of 
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attorney provisions requires judgment to be opened and concluding that 

failure to read a confession of judgment clause will not justify avoidance of 

it).

The trial court also rejected Appellants’ claim regarding the two 

individuals purportedly ready to assume the leases. The trial court held that 

Appellants did not provide any evidence that Fleetway was contractually 

obligated to allow new parties to assume the obligations of Appellants or 

obligated to issue the certificate of ongoing business relationships which may 

have enabled Appellants to obtain new investors. Trial Court Opinion, 

5/10/16, at 3.

Finally, the trial court rejected Appellants’ assertions regarding the 

alleged sale of the trucks and trailers. It referenced Appellants’ claim in the 

petition to open that Fleetway, in a letter dated February 29, 2016, stated 

that the trucks would be sold at a private sale. The court noted that 

Appellants failed to provide the letter. Trial Court Opinion, 5/10/16, at 3–4. 

Moreover, Appellants failed to offer any evidence that Fleetway had a duty to 

mitigate Appellants’ default. Id. at 4.

We agree that Appellants failed to present a meritorious defense. 

Appellants have not shown that the trial court manifestly abused its 

discretion. Dollar Bank, 637 A.2d at 311. Furthermore, because the 

petition failed to state prima facie grounds for relief, the trial court was not 

required to issue a rule to show cause. Pa.R.C.P. 2959(b).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/15/2017