J-A04028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

* Retired Senior Judge assigned to the Superior Court.

THE ESTATE OF SYLVESTER H. COOK

v.

DIANNE NOWICKI AND 

ALLAN J. NOWICKI,

Appellants

: IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

:

:

: No. 1677 EDA 2019

Appeal from the Order Entered May 9, 2019

in the Court of Common Pleas of Bucks County

Civil Division at No(s): 2018-03455

BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.: Filed: June 18, 2020

Dianne Nowicki and Allan J. Nowicki (collectively, Appellants), pro se

appeal from the May 9, 2019 order denying their petition to strike/open a 

confessed judgment. We affirm.

The trial court provided the following factual and procedural history, 

derived from the complaint of the Estate of Sylvester H. Cook (the Estate)1.

This matter involves a mortgage loan by [the Estate] to 

RRQ, LLC,[a] for fifty-six acres of property in Tinicum Township, 

Bucks County. The mortgage was for $375,000[] at an interest 

rate of 4% annum. ... The mortgage contained a confession of 

judgment and suretyship and guaranty clause personally binding 

 

1 The personal representative of the Estate of Sylvester H. Cook in his/her

capacity as executor/executrix or administrator of the estate should have been 

named as a party, not the Estate. Myers v. Estate of Wilks, 655 A.2d 176, 

178 (Pa. Super. 1995) (stating estate of decedent is not proper party to suit 

commenced after decedent’s death; rather, it is the personal representative 

of decedent’s estate); see also 20 Pa.C.S. § 3373 (“An action or proceeding 

to enforce any right or liability which survives a decedent may be brought by 

or against his personal representative alone or with other parties as though 

the decedent were alive.”).
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[Appellants] to the mortgage. A mortgage note was executed on 

May 7, 2013. [Appellants] both signed [guaranty and suretyship 

agreements (GSA) and] disclosures for confession of judgment 

indicating their understanding that a default on the mortgage note 

would make them personally responsible for the loan.

_____

[a] RRQ, LLC is a Pennsylvania LLC[.] The Nowicki[]s are the 

only two members of RRQ[, LLC].

On May 6, 2015, [RRQ, LLC and the Estate] agreed to a note 

and mortgage modification agreement changing the terms of 

payment and maturity of the initial mortgage note. Aside from 

these changes, no other changes were made to the terms of the 

note. At this time, [Appellants each] signed another [GSA and] 

disclosure for confession of judgment. 

RRQ, LLC[] did not make a required payment on the 

mortgage of $75,000[] on May 7, 2016, and while an interest 

payment of $12,000[] was made on June 3, 2016, no other 

payments have been made since that date. [Appellants] were the 

personal guarantors on the mortgage, and since RRQ, LLC 

defaulted on the mortgage, the obligations of [Appellants] under 

the [GSAs] became due.

On October 10, 2017, the Estate filed a complaint in 

confession of judgment against RRQ, LLC. On June 12, 2018, the 

Estate filed a complaint in confession of judgment against 

[Appellants] seeking payment in the sum of $364,501.85[, which 

is the subject of this appeal]. On July 12, 2018, [Appellants] filed 

a petition to strike/open judgment. The Estate filed [a] response 

to [an] order to show cause on [Appellants’] petition to open 

judgment. [Appellants] filed their memorandum of law to 

strike/open judgment on March 25, 2019. Oral argument was 

heard on the petition to strike/open judgment on May 9, 2019. On 

that same day, the petition was denied. 

On May 15, 2019, [Appellants] filed a motion for 

reconsideration. On May 16, 2019, [Appellants] filed a motion for 

recusal.

Trial Court Opinion, 9/6/2019, at 1-3 (citations to record omitted; 

unnecessary capitalization removed).
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This timely-filed appeal followed.2 Both Appellants and the trial court 

complied with Pa.R.A.P. 1925.

On appeal, Appellants raise one issue for our review: whether the trial 

court erred in denying their motion to strike/open judgment. Appellants’ Brief 

at 6. In their brief, Appellants only address the denial of their petition to open 

the confessed judgment. 

We review a challenge to an order denying a petition to open a confessed 

judgment for an abuse of discretion.3 PNC Bank v. Bluestream Tech., Inc.

14 A.3d 831, 835 (Pa. Super. 2010) (citations omitted). “A petition to open 

judgment is an appeal to the equitable powers of the court. As such, it is 

committed to the sound discretion of the [trial] court and will not be disturbed 

absent a manifest abuse of discretion.” Id., quoting PNC Bank v. Kerr, 802 

A.2d 634, 638 (Pa. Super. 2002). A “petition to open rests within the discretion 

 

2 On August 8, 2019, the trial court deemed the motions for reconsideration 

and recusal moot. See Valley Forge Ctr. Associates v. Rib-It/K.P., Inc., 

693 A.2d 242, 245 (Pa. Super. 1997) (“Generally, either the lapse of 30 days 

beyond the date of entry of an original order, or the filing of a notice of appeal 

will vitiate the jurisdiction of the trial court to modify, alter, or otherwise 

proceed further in the matter. Pa.R.A.P. 1701(a). Rule 1701, however, allows 

the trial court to view its order for up to thirty days, even after an appeal has 

been filed, if a party files a petition for reconsideration within the 30-day 

appeal period and the trial court files an order ‘expressly granting’ 

reconsideration within the same period. Pa.R.A.P. 1701(b)(3)(i), (ii). ... If a

trial court fails to grant reconsideration expressly within the prescribed 30

days, it loses the power to act upon both the petition [for reconsideration] and 

the original order.”) (some citations omitted).

3 As the Estate points out in its brief, Appellants incorrectly state the standard 

of review in their brief. Estate’s Brief at 11-13; Appellants’ Brief at 5.
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of the trial court, and may be granted if the petitioner (1) acts promptly, (2) 

alleges a meritorious defense, and (3) can produce sufficient evidence to 

require submission of the case to a jury.” Id. at 836 (citations omitted).

Preliminarily, we observe that in its brief, the Estate attempts to present 

its arguments via incorporation by reference to other documents and does not 

set forth any argument on the merits. Rather it incorporates the arguments 

set forth in its response, and memorandum of law in support thereof, to 

Appellants’ petition to strike/open the judgment filed in the trial court, and 

“defers to the determinations made by the trial court.”4 See Estate’s Brief at 

6-7. 

Incorporation by reference is not proper development of an issue raised 

in a brief. Our Supreme Court has 

previously held that such “incorporation by reference” is an 

unacceptable manner of appellate advocacy for the proper 

presentation of a claim for relief to our Court. Our rules of 

appellate procedure specifically require a party to set forth in his 

or her brief, in relation to the points of his argument or arguments, 

“discussion and citation of authorities as are deemed pertinent,”

as well as citations to statutes and opinions of appellate courts 

 

4

In its brief, the Estate also asks us to dismiss Appellants’ appeal for failure 

to comply with our rules of appellate procedure relating to the reproduced 

record. Estate’s Brief at 7-11. Specifically, it argues Appellants’ failure to file 

a reproduced record designation or to include relevant documents in the 

reproduced record requires dismissal of the appeal. Id. While we do not 

condone Appellants’ failure to comply fully, the documents cited by the Estate 

as missing are part of the certified record. Thus, we do not believe the defects 

are so substantial as to warrant dismissal as in Rosselli v. Rosselli, 750 A.2d 

355 (Pa. Super. 2000), cited by the Estate, and we decline to dismiss the 

appeal on this basis. See Booher v. Olczak, 797 A.2d 342, 344 (Pa. Super. 

2002).
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and “the principle for which they are cited.” Pa.R.A.P. 2119(a), 

(b). Therefore[,] our appellate rules do not allow incorporation by

reference of arguments contained in briefs filed with other 

tribunals, or briefs attached as appendices, as a substitute for the 

proper presentation of arguments in the body of the appellate 

brief.

Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011) (citations 

omitted) (finding Briggs’ claim waived where he incorporated by reference the 

argument set forth in a separate brief). “[C]ompliance with these rules by 

appellate advocates who have any business before our Court is mandatory.” 

Id. at 343. Thus, we decline to consider the Estate’s arguments. See id.; 

Commonwealth v. Dodge, 77 A.3d 1263, 1274-75 (Pa. Super. 2013)

(noting with disapproval the Commonwealth’s attempt to incorporate by 

reference its previous briefs and declining to consider the Commonwealth’s 

arguments).

We now turn to the issue on appeal. By way of background, on February 

27, 2018, Allan Nowicki filed, in Bucks County Court of Common Pleas at 

docket number 2018-01221, a complaint against the Estate, which alleged 

counts of fraud, fraudulent misrepresentation, and unjust enrichment in 

connection with the sale of the aforementioned property (Fraud Action). The 

Estate filed preliminary objections to the Fraud Action on May 23, 2018, which 

were overruled on February 6, 2019. See Nowicki’s Memorandum of Law to 

Strike/Open Judgment, 4/8/2019, at Ex. A (Fraud Action, Order, 2/6/2019).

In their petition to open the confessed judgment, Appellants 

incorporated by reference the Fraud Action by attaching the docket entries 
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and a copy of the first amended complaint from the Fraud Action to their 

petition. Petition to Strike/Open Judgment, 7/12/2018, at Exs. C, D. This 

Court has held that incorporation of a complaint from a prior action within a

petitioner’s petition to open a confessed judgment is sufficient to plead the 

petitioner’s defenses. Bluestream Tech., Inc., 14 A.3d at 840; see also

Pa.R.C.P. 1019(g) (“Any part of a pleading may be incorporated by reference 

in another part of the same pleading or in another pleading in the same action. 

A party may incorporate by reference any matter of record in any State or 

Federal court of record whose records are within the county in which the action 

is pending, or any matter which is recorded or transcribed verbatim in the 

office of the prothonotary, clerk of any court of record, recorder of deeds or 

register of wills of such county.”). Thus, Appellants sufficiently pleaded their 

defenses.

Appellants’ argument in their brief is underdeveloped and not clearly 

articulated. Nonetheless, we glean that it centers on their assertion that the 

doctrine of lis pendens,

5 and their incorporation of Allan Nowicki’s claims of 

fraud and fraudulent misrepresentation against the Estate in the Fraud Action, 

permit opening of the confessed judgment. Appellants’ Brief at 9-12.

 

5 “Pursuant to the doctrine of lis pendens, dismissal of a later cause of action 

may be appropriate when the same parties are involved, the same rights are 

asserted, and identical relief is sought in each action.” Bluestream Tech.,

Inc., 14 A.3d at 835.
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The Estate did not challenge the promptness of Appellants’ petition.

Therefore, we begin by examining whether Appellants have alleged a 

meritorious defense. The doctrine of lis pendens can present a meritorious 

defense to support a petition to open a confessed judgment. Bluestream 

Tech., Inc., 14 A.3d at 836. “We review de novo whether lis pendens operates 

as a meritorious defense.” Id. at 836. 

In order to determine if [an appellant] presented a meritorious 

defense based on the doctrine of lis pendens, we examine if both 

suits involved the same parties (acting in the same legal capacity), 

the same causes of action (with due regard for the common law 

distinctions between contract, trespass, and equity actions), the 

same rights asserted, and the same relief requested.

Id. (citations and quotation marks omitted).

Here, the trial court rejected Appellants’ lis pendens argument, 

explaining that the instant action and the Fraud Action involve “a different 

configuration” of parties and “different rights are being asserted.” Trial Court 

Opinion, 9/6/2019, at 10.

We first review whether the same parties are involved. We start by 

noting that, as is the case here, the fact that a party is a plaintiff in a prior 

action, but a defendant in the later action, is not dispositive of the identity of 

party issue.6 Bluestream Tech., Inc., 14 A.3d at 837. However, as the trial 

court pointed out, the Fraud Action was brought by Allan Nowicki against the 

 

6 Allan Nowicki is the plaintiff in the Fraud Action and a defendant in the instant 

action. Conversely, the Estate is the plaintiff in the instant action and a 

defendant in the Fraud Action.
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Estate and its co-executors, Herbert Cook and Stuart Cook. Dianne Nowicki is 

not a party to the Fraud Action. Because all the parties in this case are not 

parties to the Fraud Action, Appellants have not established this aspect of the 

doctrine of lis pendens. See id.

Additionally, Appellants have not established that the same causes of 

action are present in both matters for the doctrine of lis pendens to apply. 

“[T]he case/cause of action/controversy must be the same. ...[I]n deciding 

whether the controversy in each case is the same, one is ordinarily required 

to examine the nature of the relief sought and the rights asserted by the 

parties.” Id.

First, although the rights asserted by Allan Nowicki in the case sub 

judice, i.e., avoidance of payment on the loan, are subsumed by the rights he 

asserted against the Estate in the Fraud Action, Dianne Nowicki’s rights in this 

case were not implicated in the Fraud Action because she was not a party to 

that action. See id. at 838. Further, the Estate’s “rights in each case differ 

since it is declaring a right to collect in the current matter,” but there is nothing 

in the record before us to show that the Estate was “asserting a right to collect 

in the prior action.” Id. Second, the relief that the Estate “could receive in the 

two actions is distinct since it would not be entitled to enforcement of the 

loan[] in the [Fraud Action] unless it filed a counterclaim.” Id. at 839. There 

is nothing in the record to indicate the Estate filed a counterclaim in the Fraud 

Action. Accordingly, Appellants have not presented a meritorious defense 
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based on the doctrine of lis pendens and are not entitled to the opening of the 

judgment on this basis. See id.

We next consider whether Appellants’ incorporation of Allan Nowicki’s

claims of fraud and fraudulent misrepresentation against the Estate in the 

Fraud Action entitles Appellants to the judgment being opened.

Fraud and misrepresentation are meritorious defenses that can support 

the opening of a confessed judgment. Id. at 840. However, as we have 

explained, 

the mere pleading of those defenses is insufficient. [An appellant] 

must also establish that it set forth sufficient evidence in support 

of those defenses to give rise to a question that would require 

submission of the case to a jury. In deciding if sufficient evidence 

has been pled to compel presentation of the question to a jury, 

this Court must view all of the evidence in a light most favorable 

to the petitioner and must accept as true all evidence and proper 

inferences therefrom that support such a defense.

Id. (citation omitted).

The trial court found that Appellants’ attempt to incorporate other prior 

pending actions to establish fraud was insufficient to “meet their burden to 

show any clear, direct, precise and believable evidence of a meritorious 

defense, sufficient to present any issue to a jury.” Trial Court Opinion, 

9/6/2019, at 8.

In the Fraud Action, Allan Nowicki averred that the Estate’s co-executors 

fraudulently induced him to enter into the agreement of sale of the 

aforementioned property, which he later assigned to RRQ, LLC. See Petition 

to Strike/Open Judgment, 7/12/2018, at Ex. D (Fraud Action, First Amended 
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Complaint, 4/4/2018). Specifically, Allan Nowicki averred that the Estate’s coexecutors made misrepresentations relating to a right-of-way to access the 

property, and the rental of a mobile home, garage, and shed on the property.

Id. According to Allan Nowicki, he “would have never assigned his agreement 

to purchase the 56 acre parcel to RRQ, LLC ... if he was made aware of this 

information” or “knew there was not a perfected legal right-of-way.” Id.

Likewise, Allan Nowicki averred he “would have never agreed to the personal 

guarantee of the loan and the confession of judgment ... if he knew that there 

was not a perfected legal right-of-way.” Id.

In deciding whether sufficient evidence has been pleaded to compel 

presentation of the question to a jury, we examine whether the parol evidence 

rule bars Appellants from introducing evidence of misrepresentation. Our 

Supreme Court has explained the parol evidence rule as follows.

Where the parties, without any fraud or mistake, have 

deliberately put their engagements in writing, the law declares the 

writing to be not only the best, but the only, evidence of their 

agreement. All preliminary negotiations, conversations and verbal 

agreements are merged in and superseded by the subsequent 

written contract and unless fraud, accident or mistake be averred, 

the writing constitutes the agreement between the parties, and its 

terms and agreements cannot be added to nor subtracted from by 

parol evidence.

Therefore, for the parol evidence rule to apply, there must 

be a writing that represents the entire contract between the 

parties. To determine whether or not a writing is the parties’ entire 

contract, the writing must be looked at and if it appears to be a 

contract complete within itself, couched in such terms as import a 

complete legal obligation without any uncertainty as to the object 

or extent of the parties’ engagement, it is conclusively presumed 

that the writing represents the whole engagement of the parties.
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Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)

(citations, quotations marks, brackets, and ellipses omitted). “An integration 

clause which states that a writing is meant to represent the parties’ entire 

agreement is [] a clear sign that the writing is meant to be just that and 

thereby expresses all of the parties’ negotiations, conversations, and 

agreements made prior to its execution.” Id. (citations omitted); see also

Hart v. Arnold, 884 A.2d 316, 341 (Pa. Super. 2005) (stating the “effect of 

an integration clause is to make the parol evidence rule particularly applicable”

and “parol evidence of prior representations is inadmissible as to a matter 

covered by the written agreement with an integration clause”) (citations 

omitted). “Once a writing is determined to be the parties’ entire contract, the 

parol evidence rule applies and evidence of any previous oral or written 

negotiations or agreements involving the same subject matter as the contract 

is almost always inadmissible to explain or vary the terms of the contract.” 

Yocca, 854 A.2d at 437 (citations omitted). Exceptions to this rule are 

recognized where the writing is found to be ambiguous, and where a party 

avers that a term was omitted from the contract because of fraud, accident, 

or mistake. Id.

With respect to the agreement of sale of the property between Allan 

Nowicki and the Estate, even though the first amended complaint in the Fraud 
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Action states that such agreement was attached as an exhibit,

7 we are unable 

to locate it in the certified record before us, and it is not contained in the 

reproduced record. 

This Court cannot meaningfully review claims raised on appeal 

unless we are provided with a full and complete certified record. 

This requirement is not a mere “technicality” nor is this a question 

of whether we are empowered to complain sua sponte of lacunae

in the record. In the absence of an adequate certified record, there 

is no support for an appellant’s arguments and, thus, there is no 

basis on which relief could be granted.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc) 

(some citations omitted). “Our law is unequivocal that the responsibility rests 

upon the appellant to ensure that the record certified on appeal is complete 

in the sense that it contains all of the materials necessary for the reviewing 

court to perform its duty.” Id.; see also Pa.R.A.P. 1931. Because Appellants 

have failed to comply with relevant procedural rules, we are unable to look at 

the writing to determine whether the agreement of sale formed the entire

contract between Allan Nowicki and the Estate such that it cannot be added 

to or subtracted from by parol evidence. See Yocca, 854 A.2d at 436-37. 

Thus, this claim is waived. See Preston, 904 A.2d at 8.

Next, to the extent Appellants are attempting to assert the Estate

committed fraud and fraudulent misrepresentation upon them to enter into

the GSAs, which form the basis of the confessed judgment against them in 

 

7 See Petition to Strike/Open Judgment, 7/12/2018, at Ex. D (Fraud Action, 

First Amended Complaint, 4/4/2018, at ¶ 12).
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the instant matter, the parol evidence rule bars Appellants from introducing 

such evidence. The GSAs, each signed by both Appellants, contained 

integration clauses. See Complaint in Confession of Judgment on Guaranty 

and Suretyship Agreement, 6/12/2018, at Exs. 4 (GSA, 5/7/2013, at ¶ 4) 

(“Guarantor agrees that no promises, representations, agreements, conditions 

or covenants have been made relating to this Guaranty other than those 

contained herein, and that no modification of the terms hereof shall be binding 

on Lender unless in writing signed by Lender.”), 8 (GSA, 5/6/2015, at ¶ 4) 

(same). Thus, the GSAs represent the entire contract between Appellants and 

the Estate and the parol evidence rule applies.

Appellants do not invoke any of the exceptions to the parol evidence 

rule with respect to the GSAs. As discussed supra, Allan Nowicki averred fraud 

in the inducement in the Fraud Action. Such an averment cannot be supported 

by parol evidence. As our Supreme Court explained, 

while parol evidence may be introduced based on a party’s claim 

that there was a fraud in the execution of the contract, i.e., that 

a term was fraudulently omitted from the contract, parol evidence 

may not be admitted based on a claim that there was fraud in the 

inducement of the contract, i.e., that an opposing party made 

false representations that induced the complaining party to agree 

to the contract.

Yocca, 854 A.2d at 437 n.26. Appellants make no assertion of fraud in the 

execution of the GSAs. Because the GSAs constitute the entire contract, to 

the extent Appellants attempt to rely on extrinsic evidence to show that the 

Estate made fraudulent misrepresentations that induced them to agree to the
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GSAs, it is barred by the parol evidence rule and negates Appellants’ alleged 

meritorious defense. Accordingly, viewing the evidence in a light most 

favorable to Appellants and accepting as true all evidence and proper 

inferences therefrom, Appellants have failed to set forth sufficient evidence in 

support of their defenses of fraud and misrepresentation in connection with 

the GSAs to give rise to a question that would require submission of the case 

to a jury.

Based upon the foregoing, we discern no abuse of discretion by the trial 

court in denying Appellants’ petition to strike/open the confessed judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/20