J-S19020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICK BETHEL

v.

PATRICK HELLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 282 EDA 2022

Appeal from the Judgment Entered January 5, 2022

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

No(s): 2018-07211

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

MEMORANDUM BY OLSON, J.: FILED AUGUST 30, 2022

Appellant, Patrick Heller, appeals from January 5, 2022 judgment 

entered against him, and in favor of Patrick Bethel (“Bethel”). The judgment, 

entered after the conclusion of a non-jury trial,1 held Appellant liable for the 

sum of $100,000.00, plus pre-judgment interest at the rate of six per centum 

per annum to be calculated starting on April 12, 2018. We vacate the January 

5, 2022 judgment together with an order entered November 3, 2021, as more 

fully described herein, and reverse the September 15, 2021 non-jury verdict.

On April 12, 2018, Bethel filed a complaint against Appellant, seeking 

judgment in the amount of $125,000.00 after Appellant failed to repay a loan

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 At the non-jury trial, the trial court concluded that Appellant owed a 

contractual duty to execute a confession of judgment agreement favoring 

Bethel. See Trial Court Decision, 9/15/21, at 5; see also Trial Court Opinion, 

3/7/22, at 6.
J-S19020-22

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($100,000.00) plus interest ($25,000.00) pursuant to a promissory note 

entered into by the parties on May 30, 2010. Appellant filed preliminary 

objections, which the trial court subsequently overruled. On October 8, 2018, 

Appellant filed an answer to the complaint, as well as new matter.

On August 26, 2021, the trial court, after concluding a one-day, non-jury

trial, held the matter under advisement pending the preparation of the notes 

of testimony. On September 15, 2021, the trial court rendered a non-jury 

verdict in favor of Bethel and against Appellant in the amount of $100,000.00. 

In entering its non-jury verdict, the trial court made the following findings of 

fact:

Findings of Fact

1. [Bethel] and [Appellant] are long-time friends.

2. On May 30, 2010, [Bethel] advanced [Appellant] the sum of 

$100,000[.00], in exchange for a written promissory note 

signed by [Appellant]. The promissory note recited a 

principal amount of $100,000[.00] and an annual interest 

rate of 25% and provided that [the note became] payable 

in one year, on May 30, 2011, by a single lump-sum 

payment of $125,000[.00].

3. The promissory note provided that it "may not be amended 

or modified unless in writing signed by" both parties.

4. [Bethel] advanced the $100,000[.00] for use by [Appellant]

in connection with a pending real estate development. 

Although [the parties referred to Bethel] as an "investor" in 

the [real estate] development, the nature of the 

"investment" was a debt obligation, not an equity interest, 

and there was no agreement that repayment of the debt 

would be contingent on the financial success of the [real 

estate] development.
J-S19020-22

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5. Prior to the maturity date of May 30, 2011, [Appellant]

notified [Bethel] that because of problems with the [real 

estate] development, he lacked the funds to pay the amount 

due.

6. In the fall of 2013, with no payment by [Appellant], the

parties explored alternative arrangements for payment. In 

their discussions, [Bethel] stated his willingness to waive 

the interest and accept $100,000[.00] in full payment, but 

he wanted [Appellant] to agree to the entry of judgment 

against him in that amount. [Bethel's] counsel prepared a 

[draft] of [a] confession of judgment [agreement] for 

[Appellant’s] signature.[2]

7. In an email [dated] November 11, 2013, at 4:56 p.m., 

[Appellant] proposed to [Bethel] that the confession of

judgment be accompanied by a "forbearance agreement 

with the outside date of [June 1, 2015]." [Appellant]

explained that while the original real estate development 

was not doing well, he was now involved with a "shopping 

center deal" that would generate the needed funds [to 

satisfy the debt obligation] by that date.

8. On November 12, 2013, at 10:06 a.m., [Bethel] replied 

(with copy to his counsel) that he was agreeable to [the 

inclusion of] forbearance language "in return for 6% interest 

applying to the [promissory] note from the date of the

judgment."

9. On November 12, 2013, at 10:19 a.m., [Appellant] replied 

(with copy to [Bethel’s] counsel)[,] "Please proceed." [The 

trial court determined that t]his email constituted an 

acceptance by [Appellant] of the offer conveyed in [Bethel's

prior email sent that same day at] 10:06 a.m.

10. Thus, as of November 12, 2013, the parties had an 

agreement that[:] (a) judgment [by confession] would be 

____________________________________________

2 The trial court’s finding that Bethel’s counsel prepared a confession of 

judgment agreement for Appellant’s signature is supported only by what is 

represented in, and the inferences which may be draw from, the electronic 

mail (“email”) exchange between the parties, as discussed in greater detail 

infra. The certified record does not contain a written draft of a confession of 

judgment agreement.
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entered in favor of [Bethel] and against [Appellant] for 

$100,000[.00]; (b) interest would accrue on the judgment 

at the rate of 6% per annum from the date of judgment; 

and (c) [Bethel] would forbear on enforcing the judgment 

until June 1, 2015.

11. On November 14, 2013, at 9:28 a.m., [Appellant sent an 

email to Bethel asking,] "Are you sure you really need to 

enter this judgment? I'll only ask once, can we forego this 

exercise and still rely on the covenant we've agreed to?"

12. The "covenant" that [Appellant] referred to was the original 

promissory note.

13. On November 14, 2013, at 10:02 a.m., [Bethel] replied[,]

"I would consider not filing the judgment if you can provide 

me with a full report on the [real estate] development 

projects in place and agree to continue updating me on set 

dates as we move forward."

14. On November 14, 2013, at 10:16 a.m., [Appellant] 

replied[,] "[Capeesh]!!! Let's stipulate that we have 

monthly updates. Commencing in December [2013], I will 

be doing monthly updates and will make you part of the 

conversation."

15. After an exchange of emails on the specific schedule for 

updates, on November 15, 2013, at 10:44 a.m., [Bethel]

stated[,] "I will defer decision on filing the judgment until

after the December 15[, 2013 update] and I have a clear 

understanding of what is going on. Let me know if that 

works."

16. On November 29, 2013, at 12:41 p.m., [Bethel's] counsel 

sent an email [to both Bethel and Appellant,] asking

[Appellant] for "the status of the [confession of] judgment

document."[

3

 Bethel] replied [to his counsel and to 

Appellant that] "I have agreed with [Appellant] to hold off 

____________________________________________

3 To reiterate, a written draft of the “confession of judgment document” was 

not introduced as evidence during the non-jury trial. Similarly, no evidence 

was introduced during the non-jury trial showing that such a document was 

sent to Appellant via email as an attachment.
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for now and contingent upon him providing monthly updates 

regarding project progress."

17. By the emails from [Bethel] on November 14[, 2013,] and 

[November] 29, 2013 - stating that he would "defer decision 

on filing the [confession of] judgment" and would “hold off 

for now" – [Bethel] did not accept [Appellant’s] proposal to 

“forego" the entry of [a confession of] judgment and to rely 

on the original promissory note and did not abrogate 

[Appellant’s] obligation to provide a signed confession of

judgment [document] under the November 12[, 2013]

agreement. Instead, [Bethel] agreed only to defer 

[Appellant’s] performance of that obligation pending the 

submission of updates on the shopping center deal.

18. On December 16, 2013, [Appellant sent Bethel an email 

containing] a description of the shopping center deal and its 

status. [Bethel] responded that it "sounds promising."

19. In an exchange of emails in late January 2014, [Bethel]

agreed that the updates from [Appellant] would be made 

quarterly rather than monthly.

20. [Appellant] did not adhere to the quarterly update schedule.

21. At some point in time, the parties met at [a] restaurant []

in King of Prussia[, Pennsylvania] and discussed the status 

of repayment and [] the shopping center deal. No 

agreement on any change in the terms of entry of judgment 

or forbearance was reached at that meeting.

22. [Appellant] never [] signed [a] confession of judgment

[agreement], nor did he make any repayment to [Bethel].

23. On April 12, 2018, [Bethel] commenced [a cause of] action 

against [Appellant] by [] filing [] a complaint [containing] a 

single count, seeking judgment in the amount of 

$125,000[.00].

24. [A] non[-]jury trial was held on August 26, 2021. Prior to 

and during [the non-jury] trial, [Appellant’s] counsel argued 

that any claim for enforcement of the promissory note was 

barred by the four-year statute of limitations, 42 Pa.C.S.[A.]

§ 5525(a)(7), since the action was commenced more than

four years after the maturity date of the [promissory] note. 

[Bethel's] counsel asserted that this argument was 
J-S19020-22

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irrelevant because [Bethel] was not suing on the 

[promissory] note but, rather, was suing to enforce a new 

agreement reached between the parties in [November]

2013. His counsel did acknowledge that he was seeking a

judgment for $100,000[.00], not $125,000[.00, as well as

interest from June 1, 2015].

Trial Court Decision, 9/15/21, at 1-4 (record citations, ellipsis, original 

brackets, footnotes, and extraneous capitalization omitted).

On September 15, 2021, the trial court returned a verdict in favor of 

Bethel, and against Appellant, finding Appellant in breach of a contractual 

obligation formed on November 12, 2013. On October 8, 2021, Bethel filed a 

motion to mold the non-jury verdict to include an award of pre-judgment 

interest. On October 29, 2021, Appellant filed an answer to Bethel’s motion 

to mold the non-jury verdict, as well as a motion requesting permission to file 

a post-trial motion or motion for reconsideration nunc pro tunc.

On November 3, 2021, the trial court granted, in part, Bethel’s motion 

to mold the non-jury verdict. The trial court amended the non-jury verdict to 

include an award of pre-judgment interest at the rate of six per centum per 

annum to be calculated starting on April 12, 2018, the date Bethel commenced 

his breach of contract action against Appellant. On November 3, 2021, the 

trial court also granted Appellant permission to file a post-trial motion nunc 

pro tunc within ten days. On November 15, 2021, Appellant filed a post-trial 

motion nunc pro tunc, requesting the trial court reconsider its non-jury 
J-S19020-22

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verdict.4 On December 27, 2021, the trial court denied Appellant’s post-trial 

motion. Pursuant to Appellant’s praecipe to enter judgment, judgment in the 

amount of $100,000.00 plus pre-judgment interest at a rate of six per centum 

per annum from April 12, 2018, was entered against Appellant and in favor of 

Bethel. This appeal followed.5

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4 Pennsylvania Rule of Civil Procedure 227.1(c)(1) requires a post-trial motion 

to be filed within ten days after entry of a non-jury verdict. Pa.R.Civ.P. 

227.1(c)(1). “Pennsylvania courts have consistently held that trial court[s]

have wide latitude in considering whether to address the merits of post-trial 

motions that are filed outside the 10-day period required by Rule 227.1.” D.L. 

Forrey & Assocs., Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915, 920 

(Pa. Super. 2013). “So long as the [trial] court has jurisdiction, it can exercise 

its equitable powers to hear untimely post-trial motions” because “the 10–day 

time period under Rule 227.1 is not a jurisdictional requirement, but merely a 

procedural rule[.]” Id. It is well-settled, however, that the filing of a post-trial 

motion “is mandatory if a litigant wishes to preserve issues for appellate 

review.” Lenhart v. Cigna Cos., 824 A.2d 1193, 1196 (Pa. Super. 2003), 

citing L.B. Foster Co. v. Lane Enters., Inc., 710 A.2d 55 (Pa. 1998).

Here, Appellant did not file a post-trial motion within ten days of the 

September 15, 2021 non-jury verdict. Rather, on October 29, 2021, Appellant 

filed a request for permission to file a post-trial motion nunc pro tunc. Bethel 

did not file an objection to Appellant’s request, and, on November 3, 2021, 

the trial court granted Appellant permission to file a post-trial motion nunc pro 

tunc within ten days thereafter. We note that November 13, 2021, ten days 

after the entry of the trial court order granting Appellant permission to file a 

post-trial motion nunc pro tunc within ten days, fell on Saturday. Therefore, 

Appellant’s post-trial motion was timely filed on Monday, November 15, 2021. 

See 1 Pa.C.S.A. § 1908 (stating that, whenever the last day of any period of 

time “shall fall on Saturday or Sunday, or on any day made a legal holiday by 

the laws of this Commonwealth or of the United States, such day shall be 

omitted from the computation”). Therefore, Appellant preserved his issues 

for Appellate review by first raising them in a post-trial motion. Lenhart, 824 

A.2d at 1196.

5 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant raises the following issues for our review:

1. Whether the [trial] court committed an error of law in 

finding that the alleged November 12, 2013 agreement was 

valid and enforceable and was not an amendment of[,] or 

modification to[,] the promissory note[] but[,] rather[,] a 

compromise agreement on enforcement of the [promissory] 

note, when[,] in fact[,] the terms of the promissory note 

provided that it could not be amended or modified unless in 

a writing signed by both parties[?]

2. Whether the [trial] court committed an abuse of discretion 

[or] error of law in finding that [Bethel] and Appellant 

entered into a subsequent contract on November 12, 

2013[,] when the parties never had a meeting of the minds 

regarding the material terms of any alleged subsequent 

contract, specifically the amount of the payment, the date 

payment was due, and the date of performance[?]

3. [W]hether the [trial] court committed an error of law in 

finding that Appellant breached the alleged [November 12, 

2013] agreement [] by failing to provide a signed confession 

of judgment [document] when the only evidence produced 

at trial regarding this issue was that: [(a)] Appellant wanted 

to review any confession of judgment [document] drafted 

by [Bethel’s] attorney before signing any confession of 

judgment [document]; [(b)] after the parties entered into 

the alleged November 12, 2013 agreement, [Bethel] told his 

attorney to "hold off for now" regarding the draft document; 

[(c)] Appellant never received a draft [copy of the]

confession of judgment [document]; and [(d)] the alleged 

November 12, 2013 agreement did not contain a term 

regarding the time for performance [in which] Appellant

[was] to provide a signed confession of judgment

[document?]

4. Whether the [trial] court committed an abuse of discretion 

[or] error of law in finding that Appellant's email dated 

November 12, 2013[,] at 10:19 a.m. [and] stating[,]

"please proceed[,]" constituted an acceptance by Appellant 

of an offer allegedly made by [Bethel,] when[,] in fact[,]

Appellant was asking [Bethel’s] attorney to proceed with 

drafting a formal [confession of judgment] document for 
J-S19020-22

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Appellant to review and sign before he would agree to any 

subsequent contract [or] judgment[?]

5. Whether the [trial] court committed an error of law in 

awarding pre[-]judgment interest as of the date the 

complaint was filed when the facts of this case and the law 

do not support an award of pre[-]judgment interest?

Appellant’s Brief at 5-6 (extraneous capitalization omitted).

Our standard and scope of review in an appeal from a judgment entered 

on a non-jury verdict

is to determine whether the findings of the trial court are 

supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of fact 

of the trial [court] must be given the same weight and effect on 

appeal as the verdict of a jury. We consider the evidence in a light 

most favorable to the verdict winner. We will reverse the trial 

court only if its findings of fact are not supported by competent 

evidence in the record or if its findings are premised on an error 

of law.

J.J. DeLuca, Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super. 

2012) (citation omitted).

Appellant’s first, second, and fourth issues, in toto, challenge the trial 

court’s determination that the November 12, 2013 email correspondence 

between the parties constituted a valid and enforceable contract. Appellant’s 

Brief at 20-38, 44-52. Appellant asserts, instead, that the November 12, 2013

exchange between the parties, even if found to give rise to an agreement, 

amounted to an agreement to amend or modify the May 30, 2010 promissory 

note. Id. at 18-20. Such an amendment or modification agreement, 

Appellant contends, would be invalid and unenforceable because it was not 
J-S19020-22

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reduced to a writing signed by both parties as required by the terms of the 

promissory note. Id. at 20.

“A contract is formed when the parties to it 1) reach a mutual 

understanding, 2) exchange consideration, and 3) delineate the terms of their 

bargain with sufficient clarity.” Company Image Knitware, Ltd. v. Mothers 

Work, Inc., 909 A.2d 324, 330 (Pa. Super. 2006) (citation and original 

quotation marks omitted), appeal denied, 929 A.2d 645 (Pa. 2007).

Where the existence of an informal contract is alleged, it is 

essential to the enforcement of such an informal contract that the 

minds of the parties should meet on all the terms[,] as well as the 

subject matter. If anything is left open for future negotiation, the

informal paper cannot form the basis of a binding contract.

GMH Assocs., Inc. v. Prudential Realty Group, 752 A.2d 889, 900 

(Pa. Super. 2000) (citation and quotation marks omitted), appeal denied, 795 

A.2d 976 (Pa. 2000). “[I]n order for an enforceable agreement to exist, there 

must be a ‘meeting of the minds,’ whereby both parties mutually assent to 

the same thing, as evidenced by an offer and its acceptance.” Prieto Corp. 

v. Gambone Constr. Co., 100 A.3d 602, 609 (Pa. Super. 2014) (citation 

omitted).

“Where the parties have agreed on the essential terms of a contract, the 

fact that they intend to formalize their agreement in writing but have not yet 

done so does not prevent enforcement of such agreement.” Mazzella v. 

Koken, 739 A.2d 531, 536 (Pa. 1999). “Even the inability of the parties to 

an oral agreement to reduce such agreement to writing after several attempts 
J-S19020-22

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does not necessarily preclude a finding that the oral agreement was 

enforceable.” Id. In the absence of a written agreement, however, verbal 

discussions must give rise to a valid and binding oral agreement to become

enforceable. Mastroni-Mucker v Allstate Insur. Co., 976 A.2d 510, 522 

(Pa. Super. 2009), appeal denied, 991 A.2d 313 (Pa. 2010).

It is well-established that “[written] agreements authorizing a 

confession of judgment [(also known as a warrant of attorney or a cognovit 

clause)] require a clearer manifestation of consent than do some other types 

of contract provisions.” Centric Bank v. Sciore, 263 A.3d 31, 39-40 

(Pa. Super. 2021), citing Scott v. 1523 Walnut Corp., 447 A.2d 951 

(Pa. Super. 1982). “The language contained in the [written] agreement must 

be specific enough to demonstrate that the signing party has consented to the 

entry of the judgment by confession.” Sciore, 263 A.3d at 40. The 

requirements and governing standards that establish a valid written 

agreement authorizing a confession of judgment must be strictly construed

“because a warrant of attorney to confess judgment confers such plenary 

powers on the donee in respect of the adjudication of his[ or her] own 

claims[.]” Graystone Bank v. Grove Estates. LP, 58 A.3d 1277, 1282 

(Pa. Super 2012); see also Dime Bank v. Andrews, 115 A.3d 358, 368 

(Pa. Super. 2015) (reiterating our Supreme Court’s observation that a warrant 

of attorney authorizing a confession of judgment “is perhaps the most 

powerful and drastic document known to civil law”).
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Accordingly, a Pennsylvania warrant of attorney must be 

signed. And it will be construed strictly against the party to be 

benefited by it, rather than against the party having drafted it. A 

warrant of attorney to confess judgment must be self-sustaining 

and to be self-sustaining the warrant must be in writing and 

signed by the person to be bound by it. The requisite 

signature must bear a direct relation to the warrant of attorney 

and may not be implied.

Graystone, 58 A.3d at 1282 (citations, quotation marks, and brackets 

omitted; emphasis added). By way of an example, the Graystone Court 

noted that the requirements for a valid and enforceable warrant of attorney 

were satisfied by a “warrant of attorney appear[ing] conspicuously in all caps 

at the bottom of the penultimate page of the agreement and immediately 

preced[ing the signature,]” as compared to an invalid and unenforceable

warrant of attorney “located either altogether outside the body of the 

agreement, too remote from the signature, or on pages subsequent to the 

signature.” Id. (emphasis omitted).

In finding that Bethel and Appellant entered into an agreement, 

separate from, and subsequent to, the promissory note, the trial court 

explained:

On the basis of the email exchange between the parties on 

November 12, 2013, the [trial] court found that the parties had 

made an agreement that [a confessed] judgment would be 

entered against [Appellant] and in favor of [Bethel] for

$100,000[.00]. Notably, the [trial] court did not find an 

agreement that [Appellant] would pay $100,000[.00] but[,] 

rather[,] that a [confessed] judgment would be entered in that 

amount. The parties' agreement further provided that interest on 

the [confessed] judgment would run from the date of judgment 

and that [Bethel] would forbear on enforcing the [confessed] 

judgment until June 1, 2015. Thus, the agreement did not require
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[Appellant] to pay anything[] but[,] rather[,] to consent to entry 

of a [confessed] judgment. [Bethel] would then have his 

remedies for enforcement of the [confessed] judgment, provided 

that he would not seek such enforcement before June 1, 2015.

. . .

As early as October [] 2013, the parties were already discussing 

the possibility of a confession of judgment. On October 18, 2013, 

at 11:27 a.m., [Bethel’s] attorney wrote to [Appellant,] “We can 

either agree on entry of a judgment in [Court of Common Pleas of 

Montgomery County, Pennsylvania] in favor of [Bethel and]

against you for $125[,000.00] or we[ would] have to file a 

complaint and seek the $125[,000.00] plus interest from May 30,

2011[, as well as] counsel fees, which[, in total,] would run in the 

$145[,000.00] neighborhood.” [Appellant] replied at 2:58[ p.m.]

that [same day,] “I would certainly enter a confession of 

judgment, because all that does is solidify what I have been telling 

[Bethel] all along. However, we did in fact agree on the return of 

the [$100,000.00] investment, so I would be inclined to enter [the 

confessed judgment] for that amount.” A few minutes later, at 

3:18 p.m., [Bethel’s] attorney replied[,] “[Bethel] will agree to a

judgment of [$100,000.00] - I'll [send] you a document[, via

email,] to look over and sign.”

The record does not show any emails [having been sent by either 

party or by Bethel’s counsel] between October 18[, 2013,] and 

November 11[, 2013]. On November 11, 2013, at 4:56 p.m., 

[Appellant] wrote to [Bethel] as follows:

I would like to attach something known as a forbearance 

agreement to this which puts a time frame on this. As it 

stands, if I execute this it can be acted upon immediately 

and that certainly doesn't do us any good.

So, if your lawyer would add the forbearance agreement 

with the outside date of [June 1, 2015,] I will execute and 

we can call it a day on this one.

If not, this will have to go deep in to lawyer[-]land and that 

will rack up the costs for both of us.

The next morning, November 12, 2013, at 10:06 a.m., [Bethel] 

replied (with copy to his attorney)[,] “I am agreeable to adding 

the forbearance wording to the agreement in return for 6%

interest applying to the note from the date of the judgment. Let 
J-S19020-22

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me know if this works and I will have my attorney incorporate the 

necessary changes.” [Appellant] replied (with copy to [Bethel’s]

attorney) at 10:19 a.m.[,] “Please proceed.”

In context, this email exchange reflected a classic creation of a 

contract through offer and acceptance. The October [2013]

emails set the context for discussion[ - ]the entry of a [confessed]

judgment against [Appellant] for $100,000[.00]. On November 

11[, 2013,] and [November] 12, [2013, Appellant] proposed that 

the agreement include [a] forbearance [of] execution on the 

judgment until June 1, 2015. [Bethel] countered that he would 

agree to [a] forbearance in exchange for [an] agreement that 

interest at 6% [per annum] would [accrue] on the judgment from 

the date of entry. [Appellant] accepted the counteroffer. A 

contract was formed.

[Appellant] argues that there was no meeting of the minds on “the 

terms of the amount of the payment and the date that payment 

was due.” As emphasized above, however, the agreement found 

by the [trial] court was not an agreement for any “payment.”

Instead, the agreement was for entry of a [confessed] judgment 

in a specified amount, $100,000[.00]. Because the agreement 

was not for payment of money, there was no agreement on “the

date that payment was due.” [Appellant] can argue that the 

evidence did not show an agreement only by mischaracterizing 

the agreement as one for payment of money rather than for entry 

of [a confessed] judgment.

Likewise, [Appellant’s] argument [] - that the response “Please 

proceed” was not an acceptance by [Appellant] but merely a 

request to [Bethel’s] attorney to prepare a document for his 

review - is not supported by the evidence. In the context of the 

back-and-forth between the parties, the [trial] court found by a 

preponderance of the evidence that “Please proceed” constituted 

an acceptance. By contrast, [Appellant’s] alternative 

interpretation that “Please proceed” was simply an invitation to 

prepare a legal document for further review was not persuasive, 

for several reasons.

First, [Appellant’s] testimony on the issue was inconsistent. In 

the context of [Bethel’s] counteroffer to forbear on enforcement 

of the [confessed] judgment in exchange for the accrual of interest 

on the judgment, [Appellant] testified on direct examination as 

follow:
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[Bethel’s Counsel:] And did you agree to [Bethel’s] 

counteroffer here to add 6% 

interest?

[Appellant:] I'm not sure that I agreed at that 

particular time.

[Bethel’s Counsel:] So meaning that he would agree to 

add the forbearance wording to the

agreement in return for 6[%]

interest applying?

[Appellant:] Yeah.

[Bethel’s Counsel:] Did you agree -

[Appellant:] I agreed to that.

[Bethel’s Counsel:] Did you agree to that term?

[Appellant:] Yes.

On further examination, [Appellant] backed off of his testimony 

that he [] accepted [Bethel’s] counteroffer, but the [trial] court 

found [Appellant’s initial] testimony to be accurate. It is notable 

that [Appellant’s] testimony did not include any explanation of his 

intention in stating “Please proceed.”

[Appellant’s] interpretation of “Please proceed” is further 

undermined by evidence that at the time of the email exchange 

on November 12, 2013, [Appellant] already had a proposed form

of confession of judgment [agreement] for his review. [O]n 

October 18, 2013, after the parties [] settled on $100,000[.00] as 

the amount of the agreed judgment, [Bethel’s] counsel stated, “I'll 

[send you, via email,] a document to look over and sign.” It is 

true that the record does not show a subsequent email 

transmitting a proposed document. But[,] on November 11, 

2013, [Appellant] emailed, “I would like to attach something 

known as a forbearance agreement to this . . . .” The most likely 

interpretation is that the “this” to which a forbearance agreement 

was to be “attached’ was the [] confession of judgment 

[agreement] that [Bethel’s] counsel [] said he would provide a 

month earlier. On the next day, [Bethel] replied, “I am agreeable 

to adding the forbearance wording to the agreement”, reflecting 

that there was already an “agreement” document before the 

parties.
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In light of the above evidence, the [trial] court considered that the 

meaning of “Please proceed” in [Appellant’s] email was not 

“Please have your attorney prepare a document so that I can 

review it,” but rather, “Please have your attorney revise the 

existing document to reflect the additional forbearance and 

interest terms that we have now agreed on.” That acceptance of 

[Bethel’s] counteroffer was sufficient to create a binding 

agreement between the parties, even if a revised written form of 

[confession of] judgment [agreement] had not yet been prepared. 

It is elementary that “so long as the parties agree on essential 

terms which they intend to be binding, a contract is formed even

though they intend to adopt a formal document with additional 

terms at a later date.”

Trial Court Opinion, 3/7/22, at 6, 8-12 (citations, footnotes, original brackets, 

emphasis, and extraneous capitalization omitted).

The record reveals that Appellant executed a promissory note dated May 

30, 2010, in which Appellant promised to pay Bethel $125,000.00 on or before 

May 30, 2011.6 N.T., 8/26/21, at Bethel’s Exhibit 1. Appellant testified that 

he did not make payment as due pursuant to the promissory note. Id. at 15. 

Despite Appellant’s failure to make the required payment, Bethel, in an email 

dated June 3, 2011, stated that he would “sit tight for while” in reference to 

his pursuit of payment. Id. at Bethel’s Exhibit 2. In September 2013, Bethel 

inquired, via email, about the status of Appellant’s business dealings and his 

ability to make payment on the promissory note. Id. at 35-36 and Bethel’s 

Exhibits 5. In an attempt to resolve the outstanding debt, Bethel’s counsel 

presented Appellant with an offer to, inter alia, enter into an agreement for a 

____________________________________________

6 We note that only Bethel’s exhibits numbered 1, 2, 5, 7, 9, and 10 - 13 were 

admitted as evidence at the non-jury trial. N.T., 8/26/21, at 55.
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confessed judgment in the amount of the outstanding debt under the 

promissory note ($125,000.00). Id. at 37. Appellant agreed to the entry of 

a confessed judgment but presented Bethel with a counteroffer that the 

confessed judgment be entered for $100,000.00. Id. at 18. Bethel’s counsel 

responded, via email, that Bethel “will agree to a judgment of 

[$100,000.00] – I’ll [send you, via email,] a document to look over and sign.” 

Id.

On November 11, 2013, in an email having the subject line 

“Agreement,” Appellant sent Bethel the following message:

I would like to attach something known as a forbearance 

agreement to this which puts a time frame on this. As it stands, 

if I execute this it can be acted upon immediately and that 

certainly doesn’t do us any good.

So, if your lawyer would add the forbearance agreement with the 

outside date of [June 1, 2015,] I will execute and we can call it a 

day on this one.

Id. at Bethel’s Exhibit 7 (email dated November 11, 2013, 4:56 p.m.)

(emphasis added).

7

 Although Appellant did not specifically explain, in the 

email, what he referred to by the word “this,” the record supports the trial 

court’s finding that the use of the word “this” referred to a draft of the 

confession of judgment agreement as previously referenced by Bethel’s 

____________________________________________

7 We note that this email does not indicate that a draft of the confession of 

judgment agreement was attached to the email when it was sent to Appellant.
J-S19020-22

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counsel in the email dated October 18, 2013, at 3:18 p.m.8 The trial court’s 

inference is further supported by the use of the word “Agreement” in the 

subject line of the November 11, 2013 email.

The following day, Bethel responded to Appellant’s email referencing the 

addition of the forbearance agreement, with a copy of his response sent to his 

counsel, as follows:

I am agreeable to adding the forbearance wording to the 

agreement in return for 6% interest applying to the [promissory] 

note from the date of the [confessed] judgment. Let me know if 

this works and I will have my attorney incorporate the necessary 

changes.

____________________________________________

8 While we agree that the record supports a finding that the word “this” refers 

to a draft of the confession of judgment agreement previously referenced by 

Bethel’s counsel, it is by no means clear that this inference is the only one 

supported by the facts. As the trial court determined, the word “this” could 

refer to a draft agreement that included a confession of judgment clause. It 

could also refer, however, to a conceptual agreement which the parties shared 

but which had not been drafted at this time. In this connection, we note that 

neither a copy of the proposed confession of judgment agreement nor a copy 

of the proposed confession of judgment agreement that included the 

forbearance language were presented as evidence at the non-jury trial. So, 

while the parties, at trial, appear to refer to an existing confession of judgment 

agreement (or circulating draft) when using the definitive pronoun “this,” it is 

also possible – in the absence of documentary evidence – that the parties 

referred to a shared conceptual draft which had been discussed but not yet 

reduced to written form. As we explain infra, in either scenario (i.e., the 

failure to introduce an existing confession of judgment agreement signed by 

Appellant or to establish the nonexistence of a written confession of judgment 

agreement) no enforceable agreement can be found on the record developed 

in this case.
J-S19020-22

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Id. (email dated November 12, 2013, 10:06 a.m.). Appellant replied to both 

Bethel and Bethel’s counsel, via email, “Please proceed.” Id. at Bethel’s 

Exhibit 9 (email dated November 12, 2013, 10:19 a.m.).

On November 14, 2013, in an email directed to Bethel but without a 

copy sent to Bethel’s counsel, Appellant inquired,

Are you sure you really need to enter this judgment? I have never 

wavered on my pledge to you and this is still the same agreement 

we have, it just adds a blemish on my public record. I stood up 

for you and guided you in the right direction out of the gates, or 

this wouldn’t even be available for discussion. I took care of you 

as a friend. I’ll only ask once, can we [forgo] this exercise and 

still rely on the covenant we’ve agreed to?

Id. at Bethel’s Exhibit 7 (email dated November 14, 2013, 9:28 a.m.) 

(paragraph formatting omitted). Bethel replied,

When we initially spoke about doing business together, you came 

and picked me up, took me to your office, reviewed the [real 

estate development] plans[,] and took me to the proposed site. 

Since you advised that you couldn’t meet the obligation by the 

agreed date, you have given me next to no information. What 

little I got was in response to my inquires on a quarterly basis. 

When I asked for details recently, you said I would get them and 

I didn’t. I followed up and you said you forgot. You then still 

didn’t give me the details. All I asked for was a copy of the 

townhouse listing. How hard is that? [Although] I know you, I 

really don’t know you all that well – at least from a business 

standpoint. What am I supposed to do when a person who owes 

me significant dollars doesn’t appear interested in giving me the 

slightest bit of information? If the roles were reversed, I’d have 

you with me every step of the way just to make sure you knew 

what was going on and could see the effort I was making to get 

you paid. I think I have been more than fair along the way and 

have kept our business together private. Even if you give me 

[$100,000.00,] I will have lost money on the deal – no 

[$25,000.00] return as well as normal interest on the 
J-S19020-22

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[$100,000.00] or the [$125,000.00] post original due date as 

stipulated in the agreement.

Notwithstanding the above, I would consider not filing the 

judgment if you can provide me a full report on the projects in 

place and agree to continue updating me on set dates as we move 

forward.

Id. (email dated November 14, 2013, 10:02 a.m.). Appellant agreed, stating 

“[l]et’s stipulate that we have monthly updates.” Id. (email dated November 

14, 2013, 10:16 a.m.). After the parties agreed that Appellant would provide 

the first update on December 15, 2013, Bethel informed Appellant, “I will defer 

decision on filing judgment until after the December 15[, 2013 update] and I 

have a clear understanding of what is going on.” Id. (email dated November 

15, 2013, 10:44 a.m.).

On November 29, 2013, Bethel’s counsel, with a copy sent to Bethel, 

sent Appellant an email asking, “Can you let me know the status of the 

[confession of] judgment document?” Id. at Bethel’s Exhibit 9 (email dated 

November 29, 2013, 12:41 p.m.). Bethel responded to both his counsel and 

Appellant, “I have agreed with [Appellant] to hold off for now and contingent 

upon him providing me monthly updates regarding project progress.” Id.

(email dated November 29, 2013, 12:49 p.m.). Appellant provided Bethel 

with an update in December 2013, and, in January 2014, Bethel suggested 

that the updates be provided quarterly. Id. at Bethel’s Exhibits 10-13. 

Thereafter, Appellant failed to provide Bethel with periodic updates on his 

business projects and, in April 2018, Bethel commenced an action against 

Appellant for breach of contract.
J-S19020-22

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The record supports the trial court’s finding that, in October 2013, in an 

effort to obtain repayment of the monies due under the terms of the 

promissory note and to avoid prolonged litigation of the matter, Bethel offered 

to forgo attempts to collect under the promissory note in exchange for 

Appellant agreeing to enter into a confession of judgment agreement for 

judgment in the amount of $125,000.00. Appellant agreed to enter into a 

confession of judgment agreement but counteroffered that the judgment 

should be $100,000.00. Bethel accepted Appellant’s counteroffer of a 

$100,000.00 confessed judgment, and Appellant allegedly received a draft of 

the confession of judgment agreement.

In November 2013, Appellant requested modification of the confession 

of judgment agreement to include forbearance language in which Bethel would 

agree not to commence an action to collect on the judgment, once entered, 

until June 1, 2015. Bethel agreed to the forbearance language, but only if 

Appellant agreed to an accrual of interest on the confessed judgment at a rate 

of six per centum per annum from the time the judgment was entered. 

Appellant accepted Bethel’s counteroffer and a revised draft of a confession of 

judgment agreement was presumably provided to Appellant.9 Appellant did 

not execute this agreement, as demonstrated by Bethel’s counsel’s

subsequent email inquiry directed to Appellant. Rather, counsel’s inquiry 

sought the status of the written confession of judgment agreement. On 

____________________________________________

9 We reiterate that the record does not contain a written draft of the confession 

of judgment agreement signed by Appellant.
J-S19020-22

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November 29, 2013, Bethel, in response to his counsel’s inquiry of Appellant, 

responded, “I have agreed to hold off for now and contingent upon [Appellant] 

providing updates regarding project progress.” Id. at Bethel’s Exhibit 9 (email 

dated November 29, 2013, 12:49 P.M.). As a result of Bethel agreeing to 

“hold off for now,” the revised confession of judgment agreement was not 

executed by the parties.

We concur with the trial court that the parties entered into an oral 

agreement, via email correspondence, by which Appellant agreed to execute 

a confession of judgment agreement the terms of which included: (1) entry of 

a confessed judgment in favor of Bethel and against Appellant in the amount 

of $100,000.00; (2) the accrual of interest at a rate of six per centum per 

annum beginning on the date of entry of the confessed judgment; and (3)

Bethel would forgo attempts to collect on the confessed judgment until June 

1, 2015. The trial court erred as a matter of law, however, in finding that the 

oral agreement to execute a confession of judgment agreement was an 

enforceable contract such that a confessed judgment in the amount of 

$100,000.00 plus interest could be entered against Appellant for his failure to 

execute the revised confession of judgment agreement.10

____________________________________________

10 We concur with the trial court that the oral agreement was, inter alia, an 

agreement for entry of a confessed judgment and not an oral agreement for 

payment of a sum certain plus interest. See Trial Court Opinion, 3/7/22, at 

6.
J-S19020-22

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It is well-established, as the trial court noted, that “the inability of the 

parties to an oral agreement to reduce such agreement to writing after several 

attempts does not necessarily preclude a finding that the oral agreement was 

enforceable.” Mazzella, 739 A.2d at 536, citing Woodbridge v. Hall, 76 

A.2d 205, 206 (Pa. 1950); see also Mastroni-Mucker, 976 A.2d at 522;

Trial Court Opinion, 3/7/22, at 12, citing Courier Times, Inc. v. United 

Feature Syndicate, Inc., 445 A.2d 1288, 1295 (Pa. Super. 1982). Such is 

not the case, however, when the oral agreement, which has not been reduced 

to a signed written agreement, involves a confession of judgment agreement, 

particularly in view of the heightened formalities Pennsylvania law imposes 

upon confession of judgment agreements. See Graystone, 58 A.3d at 1282. 

Even if the parties orally contract to enter into a confession of judgment 

agreement, we cannot know – in the absence of documentary proof reflecting 

a fully executed written agreement – whether the confession of judgment 

agreement meets the applicable formalities imposed under Pennsylvania law. 

Thus, if we were to permit entry of judgment by confession based upon an 

oral agreement, as in the case sub judice, we would disavow the long-standing 

principle that confession of judgment agreements must be in writing signed 

by the person to be bound by it and must be self-sustaining with the 

requisite signature bearing a direct relation to the agreement to 

confess judgment. Id.; see also Egyptian Sands Real Estate, Inc. v. 

Polony, 294 A.2d 799, 803 (Pa. Super. 1972). Therefore, because a written 

agreement to confess judgment was not executed by Appellant, Bethel was 
J-S19020-22

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not permitted, as a matter of law, to obtain a confessed judgment based upon 

the enforcement of an oral agreement to execute a written confession of 

judgment agreement.11

Consequently, we are constrained to vacate the January 5, 2022 

judgment. We are further constrained to vacate the November 3, 2021 Order

that amended the non-jury verdict and awarded pre-judgment interest and to 

reverse the September 15, 2021 non-jury verdict finding judgment in favor of 

Bethel and against Appellant in the amount of $100,000.00.12

Judgment vacated. November 3, 2021 Order vacated. September 15, 

2021 non-jury verdict reversed. Case remanded. Jurisdiction relinquished.

____________________________________________

11 Our decision is further supported by the fact that, although the parties 

agreed to execute a written confession of judgment agreement that included 

a forbearance agreement, when Appellant was asked about the status of his 

execution of the written agreement, Bethel replied to both his counsel and 

Appellant that he agreed “to hold off for now” on the parties’ agreement.

12 In light of our disposition of this matter, we do not address Appellant’s 

remaining issues. We note, however, that the November 2013 oral agreement 

to enter into a confession of judgment agreement containing forbearance 

language was not a modification or amendment of the promissory note. 

Moreover, even if the oral agreement was construed as a modification or 

amendment of the promissory note, the oral agreement would not be 

enforceable for the reasons set forth herein and because the promissory note 

required an amendment or modification agreement to be in writing and signed 

by the parties.
J-S19020-22

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2022