J-A01002-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENTON STUDENT HOUSING, LLC

v.

LION CONSTRUCTION, LLC, LION 

CONSTRUCTION MANAGEMENT, 

LLC, SEAN SCHELLENGER, AND 

MICHAEL STILLWELL 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2609 EDA 2017

Appeal from the Order Entered July 17, 2017

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): August Term, 2016 No. 000749

BEFORE: LAZARUS, J., OTT, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 20, 2018

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

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

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

petition to strike and/or open the $95,000.00 stipulated judgment entered 

against them in the underlying action.

1

 After careful review, we reverse and 

remand.

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

construction contract with Streamline Solutions, LLC, for work on one of its 

student-housing developments. When Streamline breached its contract with 

Benton, Benton filed an action against Streamline that resulted in a

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1 Pursuant to Pa.R.A.P. 311(a)(1), an appeal may be taken as of right from an 

order refusing to open, vacate, or strike off a judgment.
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$115,245.45 arbitrator’s award in favor of Benton, dated October 16, 2015. 

On October 22, 2015, the owners of Streamline, Schellenger and Stillwell, 

formed Lion Construction, LLC and Lion Construction Management, LLC. The

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

Benton was unsuccessful in collecting against it. As a result, on August 5, 

2016, Benton instituted the “underlying action” against Lion Construction 

seeking to impose successor liability and to pierce Streamline’s corporate veil

with respect to Schellenger and Stillwell in order to recover its Streamline 

judgment. 

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

settle the case. To that end, the parties executed a settlement agreement

(the “Agreement”) on May 22, 2017, wherein they agreed to settle their 

respective claims relating to the Streamline judgment and to dismiss the Lion 

Litigation. The Agreement provided the following relevant terms:

 Lion Construction would pay Benton $65,000.00 as the settlement 

amount;

 Lion Construction would pay $35,000.00 as an initial payment, on or 

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

is earlier;

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

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

commencing on June 15, 2017, and continuing until paid in full. No 

interest shall accrue on any such payments. 

Parties’ Settlement Agreement, 5/22/17, at ¶¶ C(2)(a) & (b) (emphasis 

added). As security for payment of the settlement amount, Defendants 

executed and delivered a stipulated judgment in the amount of $130,000.00; 
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the judgment would be filed in the event of an “uncured” default under the 

Settlement Agreement. Id. at ¶ C(3).

In the event of a default, the Agreement provides that: 

[If the] Defendants fail to make any of the payments set forth in 

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

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

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

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

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

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

payment, Defendants provide proof to Benton of the overnight 

delivery of such payment, together with a tracking number for 

said delivery. If such tracking number evidences that payment 

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

constitute timeliness of delivery. If the Defendants’ payment is 

either lost or not delivered, Defendants shall provide a 

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

next business day following receipt of such notice. For purposes

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

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

mailing, addressed to counsel for the Defendants[.]

Id. at ¶ C(6).

Defendants made the initial $35,000.00 payment under the Agreement. 

However, Defendants defaulted on the first $6,000.00 installment payment by 

failing to make the scheduled payment by June 15, 2017, or provide proof, 

pursuant to paragraph C(6) of the Agreement, that such payment was 

delivered. Accordingly, Benton filed a praecipe for a stipulated judgment. 

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

13, 2017, from Lion Construction, LLC; the postage Lion used to mail the 

payment did not bear a postmark. Defendants also attempted to hand-deliver 
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a check to Benton on June 20, 2017, but counsel for Benton refused the 

delivery. 

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

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

Judgment” in the amount of $95,000.00;2the court entered judgment against 

Lion on that same date. On June 21, 2017, Defendant filed a petition to open

and/or strike3the stipulated judgment alleging that it mailed the installment 

check on June 13, 2017, and that Benton’s counsel did not contact them or 

their attorney to notify them that payment was not received. Defendants’ 

Petition to Open and/or Strike Off Judgment, 6/21/17, at ¶¶ 8, 12.

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

and/or open the stipulated judgment. The Honorable Gary Glazer explained 

his reason for denying Lion Construction’s petition as follows:

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2 This accounted for a credit of $35,000.00, the initial payment Defendants 

made as per paragraph C(2)(a) of the Agreement.

3 A petition to strike a judgment differs from a petition to open a judgment. 

A petition to strike operates as a demurrer to the record and will not be 

granted unless a fatal defect in the judgment appears on the face of the 

record. Matters dehors the record will not be considered, and if the record is 

self-sustaining, the judgment will not be stricken. Kophazy v. Kophazy, 421 

A.2d 246, 247 (Pa. Super. 1980), citing Cameron v. Great Atlantic and 

Pacific Tea Co., 266 A.3d 715 (Pa. 1970). A petition to open, on the other 

hand, appeals to the court’s equitable powers and is a matter of judicial 

discretion. McCoy v. Public Acceptance Corp., 305 A.2d 698 (Pa. 1973). 

Although Defendants titled their petition in the alternative, on appeal they 

only argue the standard for a petition to open. Thus, we will confine our 

review to that standard as well.
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[C]ontrary to Defendants’ assertions, the Settlement Agreement 

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

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

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

number and overnight shipping were provided. It is not argued 

that Defendants provided Plaintiffs with a tracking number for 

overnight shipping. There is no language in the Agreement 

requiring notice and opportunity to cure. Accordingly, the Petition 

is denied.

Trial Court Rule 1925(a) Order, 7/17/17, at 1 n.1.

Defendants filed a motion for reconsideration and request for an 

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

28, 2017.4 This timely appeal follows,5in which Defendants present the 

following issues for our consideration:

(1) Whether the trial court abused its discretion and/or erred as 

a matter of law in finding that the judgment should not have 

been stricken and/or opened because Benton filed the 

judgment after the default was cured.

(2) Whether the trial court abused its discretion and/or erred as 

a matter of law in finding that the judgment entered should 

not have been stricken and/or opened where Benton 

Student Housing, LLC was in possession of the payment 

due.

(3) Whether the trial court abused its discretion and/or erred as 

a matter of law in finding that there was no right to cure a 

default under the settlement agreement.

(4) Whether the trial court abused its discretion and/or erred as 

a matter of law in finding the parties did not intend to 

include a right to cure a default.

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4 On August 3, 2017, the trial court denied Benton’s ex parte Emergency 

Petition to Stay Execution of the judgment. 

5 The trial court did not order Defendants to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal.
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(5) Whether the trial court abused its discretion and/or erred as 

a matter of law by denying Lion the discovery it requested 

of Benton in its Petition[.]

(6) Whether the trial court abused its discretion and/or erred as 

a matter of law by denying Lion’s request for [a] hearing 

and/or trial to present evidence and testimony in violation 

of its due process rights.

(7) Whether the trial court abused its discretion and/or erred as 

a matter of law in finding that the “uncured default” was an 

unambiguous term.

(8) Whether the trial court abused its discretion and/or erred as 

a matter of law by relying on settlement communications 

prohibited by Pa.R.[E.]. 408.

Appellant’s Brief, at 3-4.

Defendants argue that since Benton received the check, dated June 13, 

2017, before Benton filed its praecipe for a stipulated judgment, it was 

required to notify them that it had not received the check by the June 15, 

2017 due date and give them an attempt to cure the default under the 

Agreement by accepting a replacement check.

Our review of an order denying a petition to open a default judgment is 

well-settled:

A petition to open a default judgment is an appeal to the equitable 

powers of the court. The decision to grant or deny a petition to 

open a default judgment is within the sound discretion of the trial 

court, and we will not overturn that decision absent a manifest 

abuse of discretion or error of law.

Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1270 (Pa. 

Super. 2015) (quotation omitted). Generally, a trial court will open a default 

judgment if the defendant has:

(1) promptly filed a petition to open the default judgment, (2) 

provided a reasonable excuse or explanation for failing to file a 
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responsive pleading, and (3) pleaded a meritorious defense to the 

allegations contained in the complaint.

US Bank N.A. v. Mallory, 982 A.2d 986, 994-95 (Pa. Super. 2009). “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.” 

Resolution Trust Corp. v. Copley Qu-Wayne Assocs., 683 A.2d 269, 273 

(Pa. 1996).

Here, Defendants unquestionably timely filed their petition. Thus, we 

must next turn our analysis as to whether Defendants set forth a meritorious 

defense. 

First, we note that Benton was not required under the Agreement to 

accept the Defendants’ replacement check or to notify Benton that it received 

the check after the due date. The language in the default paragraph of the 

Agreement does not require Benton to either accept a replacement check 

under the facts of the case or require it to notify Defendants that it did not 

receive the check by the due date.

Specifically, the Agreement provides that: 

[If the] Defendants fail to make any of the payments set forth in 

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

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

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

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

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

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

such payment, Defendants provide proof to Benton of the 

overnight delivery of such payment, together with a 

tracking number for said delivery. If such tracking number 

evidences that payment was picked up for delivery before 
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the due date, then that shall constitute timeliness of 

delivery. If the Defendants’ payment is either lost or not 

delivered, Defendants shall provide a replacement check 

upon notice from Benton, or its counsel, by the next 

business day following receipt of such notice. For purpose 

of this paragraph, notice shall be deemed proper if given 

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

receipt of mailing, addressed to counsel for the 

Defendants[.]

Parties’ Settlement Agreement, 5/22/17, at ¶ C(6) (emphasis added). The 

language clearly states that a default is defined as failing to make any of the 

installment payments “on the date which payment is due.” In addition the 

Agreement will excuse a payment picked up for delivery before the due date, 

only if Defendants provide Benton proof of overnight delivery of that 

payment, together with a tracking number for the delivery. Moreover, in the 

event that that overnight delivery is either lost or not delivered, Defendants 

may provide a replacement check by the next business day upon notice from 

Benton (based on the proof of payment and tracking number) that said 

delivery was lost or stolen. Under the latter circumstance, i.e., overnight 

delivery, it is not considered a default under the Agreement.

The following email exchange, which occurred just prior to execution of 

the Agreement, also supports the conclusion that Benton was not required to 

notify Defendants that it did not receive the check and permit them to issue a 

replacement check:

This shall confirm that we’ll make the following changes to the 

agreement, which I will circulate either today or over the 

weekend.

1. Section 2(b) will be revised to read “The balance of Thirty 

Thousand Dollars ($30,000.00) (the “Balance”) shall be 

payable in equal monthly installments of Six Thousand 
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Dollars ($6,000) on the fifteenth day of each month, 

commencing on June 15, 2017, and continuing until paid 

in full. No interest shall accrue on any such payments. 

For purposes of this paragraph, in the event that the due 

date of a payments falls on a Saturday, Sunday, or legal 

holiday, then such payment shall be due on the next 

business day following such due date.

2. Paragraph 6, entitled “Default” will be revised to read “in 

the event that Defendants fail to make any of the 

payments set forth in paragraph 2, above, on the date 

which payment is due (a “Default”), Benton may: (a) 

seek to enter the Stipulated Judgment in the face amount 

thereof, with a credit for any payments made hereunder; 

and/or (b) pursue any further rights and/or remedies 

against the Defendants under applicable law. No such 

default shall have occurred if, prior to the due date 

of such payment, Defendants provide proof to 

Benton of the overnight delivery of such payment, 

together with a tracking number for said delivery.

As we agreed, Benton will hold the $35,000 check and not deposit 

it until after the agreement is signed on Monday.

Email from Harry J. Giacometti, Esquire, to Paul Bucco, Esquire (May 19, 2017, 

4:24 PM) (emphasis added). In response to these revised sections of the 

Agreement, Anthony E. Maras, Esquire, attorney for Streamline Group LLC, 

sent the following email approving the Agreement, further clarifying 

paragraph 6:

This is approved subject to:

If we send it via FedEx, and provide you a tracking number, 

which tracking number sho[w]s pickup on or before the due 

date, then that shall constitute compliance. If the package 

is lost or not delivered we will provide a replacement 

check upon notice from you the next business day.

Email from Anthony E. Maras, Esquire, to Harry Giacometti, Esquire (May 19, 

2017, 5:00 PM) (emphasis added). 
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Based on the above-quoted email exchanges, which we may consider in 

a petition to open, Resolution Trust, supra, the parties intended a 

replacement check to apply only to situations where Defendants chose to use 

an overnight delivery service (such as FedEx) and where that package is 

subsequently lost or stolen. This is supported by the fact that the way Benton 

would be able to notify Defendants that a package had not arrived as 

scheduled (i.e., late or stolen) would have been after it received Defendant’s 

proof of payment for overnight delivery, with an accompanying tracking 

number. 

Under such circumstances, Defendants have not shown a meritorious 

defense where their payment, sent via regular mail, did not arrive by the due 

date and where they did not use an overnight delivery service and provide 

Benton with proof of payment and an accompanying tracking number. Only 

under the latter circumstances would a lost or stolen check have triggered the 

option of sending a timely replacement check. It was not Benton’s duty to 

notify Defendants that their check was received late under the facts of this 

case.

There is no question that Defendants defaulted under the Agreement 

where, under the terms of the Agreement, Benton was not required to accept 

Defendants’ check, dated July 13, 2017, if it received it prior to filing a 

praecipe for a stipulated judgment. Rather, paragraph 2 of the parties’ 

Agreement clearly specified that the balance of $30,000.00 “shall be payable 

. . . on the fifteenth day of each month,” Agreement, 5/22/17, at ¶ C(2)(b) 
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(emphasis added), and that it is considered a default under the Agreement 

“[i]n the event that Defendants fail to make any of the payments set forth in 

paragraph 2 . . on the date which payment is due.” Id. at ¶ (C)(6) 

(emphasis added). Thus, despite the fact that Defendants may have dated 

and mailed the check prior to the payment due date, the check was never 

alleged nor proven to have been received by Benton prior to or on the actual 

due date. In fact, Defendants aver in their motion for reconsideration that 

Benton received their check on June 19, 2017—four days after the due date. 

Defendants’ Motion for Reconsideration/Request for Hearing, 7/21/17, at ¶ 8. 

Thus, Defendants technically defaulted under the parties’ Agreement.

We note that:

“The enforceability of settlement agreements is determined 

according to principles of contract law. Because contract 

interpretation is a question of law, this Court is not bound by the 

trial court’s interpretation. Our standard of review over questions 

of law is de novo and to the extent necessary, the scope of our 

review is plenary as [the appellate] court may review the entire 

record in making its decision.” Mastroni-Mucker v. Allstate 

Ins. Co., [] 976 A.2d 510, 517-18 ([Pa. Super.] 2009)[.] “With 

respect to factual conclusions, we may reverse the trial court only 

if its findings of fact are predicated on an error of law or are 

unsupported by competent evidence in the record.” Id. at 518.

Step Plan Servs. v. Koresko, 12 A.3d 401, 408 (Pa. Super. 2010). 

Moreover, 

The fundamental rule in interpreting the meaning of a contract is 

to ascertain and give effect to the intent of the contracting parties. 

The intent of the parties to a written agreement is to be regarded 

as being embodied in the writing itself. The whole instrument must 

be taken together in arriving at contractual intent. Courts do not 

assume that a contract’s language was chosen carelessly, nor do 

they assume that the parties were ignorant of the meaning of the 
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language they employed. “When a writing is clear and 

unequivocal, its meaning must be determined by its contents 

alone.”

Only where a contract’s language is ambiguous may extrinsic or 

parol evidence be considered to determine the intent of the 

parties. A contract contains an ambiguity “if it is reasonably 

susceptible of different constructions and capable of being 

understood in more than one sense.” This question, however, is 

not resolved in a vacuum. Instead, “contractual terms are 

ambiguous if they are subject to more than one reasonable 

interpretation when applied to a particular set of facts.” In the 

absence of an ambiguity, the plain meaning of an agreement will 

be enforced. The meaning of an unambiguous written instrument 

presents a question of law for resolution by the court.

Ferrer v. Trs. Of the Univ. of Pa., 825 A.2d 591, 608 (Pa. 2002) (citation 

omitted). 

Defendants next contend that their “default was cured by Benton’s 

possession of the check prior to [] Benton’s filing of the Praecipe.” Appellant’s 

Brief, at 10. To support this argument, Defendants refer to a sentence in 

paragraph 3 of the Agreement, which states, “The Stipulated Judgment shall 

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

hereunder.” See Parties’ Agreement, 5/22/17, at ¶ C(3) (emphasis added). 

On April 20, 2107, the parties put the material terms of the settlement 

agreement on the record. At that meeting, Benson’s counsel indicated that 

the parties agreed “to a reasonable cure period in the event of a late payment. 

We said ten days. The judgment would not be filed of record until default.” 

Settlement Meeting, 4/20/17, at 5. While prior versions of the Agreement 

included this 10-day right to cure provision in the default paragraph, the 

parties final May 22, 2017 Agreement did not contain such a provision. 
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Benton maintains that the parties removed the “cure period” in prior 

versions of the Agreement in exchange for changing the due date of the initial 

monthly payment from June 1st to June 15th.

6

 However, we find that further 

discovery in the matter and/or testimony at a hearing is required to determine 

the true intent of the “uncured” language in the Agreement.7 Without a 

hearing or additional evidence, the “uncured Default” language is ambiguous 

in the context of the entire Agreement and, specifically, the default provision. 

See also Ragnar Benson, Inc. v. Hempfield Tp. Mun. Authority, 916 A.2d 

1183, 1189 (Pa. Super. 2007) (where parties, without any fraud or mistake, 

deliberately put engagements in writing, law declares the writing to be not 

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6 See Tony Maras Email to Harry Giacometti, Esquire (May 19, 2017 at 2:27 

PM) (“I told everyone when you put the outside date that I didn’t want a 2[-

]week window between the initial check and the first payment, and everyone 

nodded.”). Compare Agreement, Exhibit G to Plaintiff’s Memorandum of Law 

in Opposition to Defendant’s Petition to Open and/or Strike off Judgment, 

5/18/17, at ¶ C(6) (“In the event that Defendants fail to make any of the 

payments set forth in paragraph 2, above, which failure is not cured within 

ten (10) days of notice thereof as provided below (a “Default”), . . . Benton 

may seek to enter the Stipulated Judgment . . . and/or pursue any further 

rights and/or remedies[.]”) with Parties’ Settlement Agreement, 5/22/17, at 

¶ C(6) (“[If the] Defendants fail to make any of the payments set forth in 

paragraph 2, above, on the date which payment is due (a “Default”), Benton 

may: (a) seek to enter the Stipulated Judgment in the face amount thereof, 

with a credit for any payments made thereunder; and/or (b) pursue any 

further rights and/or remedies against the Defendants under applicable law.”).

7 Paragraph C(3) is not the only portion of the Agreement that contains the 

“uncured Default” language. See Parties’ Agreement (Transfer of Interests), 

¶ (7) (“Upon the occurrence of an uncured Default, in the event . . . Lion 

Construction or Lion Management, or either of them, ceases operations, 

and/or transfers any of their assets outside the ordinary course of business, 

such actions shall be deemed to be presumptively fraudulent as to 

Benton[.]”).
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only best, but only evidence of their agreement; however, court may consider 

extrinsic or parole evidence to determine parties’ intent where language of 

agreement is ambiguous). 

Defendants raise a meritorious issue regarding whether their default 

was cured by the delivery of the check prior to Benton filing the stipulated 

judgment. US Bank N.A., supra. Accordingly, we reverse the court’s order 

denying Defendants’ petition to open and/or strike the stipulated judgment 

and remand for further proceedings consistent with the dictates of this 

memorandum. See Willits v. Fryer, 734 A.2d 425 (Pa. Super. 1999) (where 

Court found language of promissory note was unclear, Appellants alleged 

meritorious defense and reversed court’s order denying their petition to open 

and/or strike judgment).

Order reversed. Case remanded. Jurisdiction relinquished.

8

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/18

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8 Defendants list several issues in their statement of questions involved. 

However, they have abandoned them on appeal by failing to argue them in 

the argument section of their brief. Specifically, we find issues five, six and 

eight have been waived on appeal. Purple Orchid, Inc. v. Pa. State Police, 

813 A.2d 801, 804 (Pa. 2002) (issue included in “statement of questions”

waived by failure to address and develop in appellate brief).