J-A07036-20

2020 PA Super 144

SDO FUND II D32, LLC

v.

GERARD T. DONAHUE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 889 MDA 2019

Appeal from the Order Entered May 3, 2019

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

No(s): 2017 CV 4574

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.: FILED JUNE 17, 2020

Gerard T. Donahue (“Donahue”) appeals from the order entered in the 

Lackawanna County Court of Common Pleas, denying his petition to strike 

and/or open the confessed judgment entered in favor of SDO Fund II D32, 

LLC (“SDO”). The key issue is whether the subject confessed judgment was 

infirm because the warrant of attorney was “exhausted” by a previous use of 

the warrant to confess judgment against Donahue. Because the warrant of 

attorney contained explicit language permitting the lender to confess 

judgment against Donahue multiple times without exhausting the warrant, we 

affirm.

This case arises out of the purchase and development of a large 

commercial office building in Scranton, Pennsylvania, pursuant to a 

commercial real estate loan. Donahue is a commercial real estate investor. In 

July 2008, he entered into a Guaranty and Surety Agreement (the “Guaranty”) 
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with SDO’s predecessor-in-interest, PNC Bank, N.A. (“PNC”). The Guaranty

rendered Donahue an “absolute, unconditional, irrevocable and continuing”

guarantor and surety of a debt of 417 Lackawanna Avenue, LLC (“417 

Lackawanna”). Guaranty, 7/1/08, at ¶ 2. Donahue is 417 Lackawanna’s 

president. The debt was in the original principal amount of $5.4 million, as

evidenced by a note (“Term Note”). 

The Guaranty contained a warrant of attorney that authorized the lender 

to confess judgment for the total amount due, upon an event of default. It 

provided that “[n]o single exercise” of the warrant, “or a series of judgments,” 

would exhaust the warrant of attorney:

Power to Confess Judgment. The Guarantor hereby 

empowers any attorney of any court of record, after the 

occurrence of any Event of Default hereunder, to appear for 

the Guarantor and, with or without complaint filed, confess 

judgment, or a series of judgments, against the 

Guarantor in favor of the Bank for the amount of the 

Obligations[.]...

No single exercise of the foregoing power to confess 

judgment, or a series of judgments, shall be deemed 

to exhaust the power, whether or not any such exercise 

shall be held by any court to be invalid, voidable, or void, 

but the power shall continue undiminished and it may be 

exercised from time to time as often as the Bank shall elect 

until such time as the Bank shall have received payment in 

full of the Obligations and costs.

Guaranty, at 7/1/08, at ¶ 9 (emphasis added).

Approximately three years after entering into the Guaranty, in June 

2011, Donahue, acting in his capacity as president of 417 Lackawanna,

executed an amendment to the Term Note (the “First Amendment”). First 
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Amendment to Loan Documents, 6/30/11. Included within the First 

Amendment, he also executed, acting in his individual capacity, a Consent of 

Guarantor, which provided that all of the terms in the Guaranty remained 

“unaltered and in full force and effect.” Id. at 7. It also stated that “[t]he 

Guarantor ratifies and confirms the indemnification, confession of 

judgment (if applicable) and waiver of jury trial provisions contained 

in the Guaranty.” Id. (emphasis in original). 

Approximately seven months later, in January 2012, PNC confessed 

judgment against Donahue for $5,671,904.74 (the “PNC Judgment”). 

However, it did not execute on the judgment.

Subsequently, in September 2012, Donahue – acting in his capacity as 

president of 417 Lackawanna – executed a second amendment to the Term 

Note (“Second Amendment”), again altering the payment terms. The Second 

Amendment contained a warrant of attorney authorizing the confession of 

judgment against both 417 Lackawanna and Donahue. It also permitted the 

entry of multiple successive judgments until the debt was paid in full. Second 

Amendment to Loan Documents, 9/21/12, at ¶ 9. As part of the Second 

Amendment, Donahue also executed – in his individual capacity – a second 

Consent of Guarantor, in which he again “ratifie[d] and confirm[ed] the 

indemnification, confession of judgment and waiver of jury trial 

provisions contained in its Guaranty.” Id. at p. 7 (emphasis in original).

In October 2012, PNC voluntarily discontinued the PNC Judgment 

without prejudice. 
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There was a third amendment to the Term Note (“Third Amendment”), 

which Donahue also signed in his capacity as president of 417 Lackawanna.

The Third Amendment changed the payment terms of the Term Note to require 

final payment under the Term Note on March 31, 2014. Like the Second 

Amendment, the Third Amendment contained a warrant of attorney 

authorizing the confession of judgment not only against 417 Lackawanna, as 

principal, but also against Donahue, as guarantor. It also permitted the entry 

of multiple successive judgments until the debt was paid in full. Third 

Amendment to Loan Documents, 11/21/13, at ¶ 9. Donahue executed a third 

Consent of Guarantor, in which he again “ratifie[d] and confirm[ed]” the 

confession of judgment provision contained in the Guaranty. Id. at p. 7

(emphasis in original). 

417 Lackawanna defaulted on the Term Note by failing to pay all sums 

due by March 31, 2014. 

On March 11, 2016, PNC assigned its rights under the Term Note and 

Guaranty, as amended, to SDO. SDO and 417 Lackawanna then entered into 

a Forbearance Agreement, whereby SDO agreed not to take any action on the 

default under the Term Note until December 31, 2016. Forbearance 

Agreement, 5/20/16, at ¶ 6.2. The Forbearance Agreement contained a 

warrant of attorney authorizing the confession of judgment against 417 

Lackawanna including the entry of “a series of judgments” until the debt was 

paid in full. Id. at ¶ 22. As part of the Forbearance Agreement, Donahue 

executed in his personal capacity another Consent of Guarantor, in which he 
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again “ratifie[d] and confirm[ed]” the confession of judgment provision in the 

Guaranty. Id. at unpaginated p. 13. 

When December 31, 2016 arrived, SDO and 417 Lackawanna entered 

into an Amendment to Forbearance Agreement in which SDO agreed not to 

take action on the default under the Term Note until March 31, 2017.

Amendment to Forbearance Agreement, 12/31/16, at ¶ 2(b).

The debt remained unsatisfied on March 31, 2017. As a result, SDO filed 

a Complaint in Confession of Judgment on August 23, 2017, and entered 

judgment for $5,689,780.41, against Donahue. Donahue then filed a petition 

to strike/open the judgment, which the trial court denied on May 3, 2019. This

timely appeal followed. 

Donahue raises one issue for our review:

Whether the hearing judge erred and abused its discretion 

in not striking/opening the judgment confessed by assignee 

SDO on the basis that PNC’s prior use of the warrant of 

attorney to confess judgment exhausted the warrant which 

merged into the confessed judgment and which could not be 

revivified by any language in the amendments to loan and 

forbearance agreements, including “ratify and confirm”

thereby rendering SDO’s second confession of judgment a

nullity[?]

Donahue’s Br. at 4.

“[W]e review the order denying Appellant’s petition to open the 

confessed judgment for an abuse of discretion.” Neducsin v. Caplan, 121

A.3d 498, 506 (Pa.Super. 2015) (citation omitted). Our scope of review on 

appeal is “very narrow” and we will overturn the trial court decision only if the 
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trial court has abused its discretion or committed manifest error. Atlantic 

Nat'l Trust, LLC v. Stivala Invs., Inc., 922 A.2d 919, 925 (Pa.Super. 2007)

(citation omitted).

Opening and striking a judgment are different remedies subject to 

different standards. “A petition to strike a judgment is a common law 

proceeding which operates as a demurrer to the record.” Resolution Trust 

Corp. v. Copley Qu-Wayne Assocs., 683 A.2d 269, 273 (Pa. 1996) (citation 

omitted). “A petition to strike a judgment may be granted only for a fatal 

defect or irregularity appearing on the face of the record.” Id. (citation 

omitted).

“A petition to open a confessed judgment is an appeal to the equitable 

powers of the court.” Neducsin, 121 A.3d at 504. The court may open a 

confessed judgment “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 506 (citation and emphasis omitted).

“[I]f the truth of the factual averments contained in the complaint in 

confession of judgment and attached exhibits are disputed, then the remedy 

is by proceeding to open the judgment, not to strike it.” Id. at 504 (internal 

quotation marks, citation, and brackets omitted).

Donahue argues the trial court erred by not striking or opening the 

confessed judgment. Specifically, he contends that the entry of a judgment 

on a warrant of attorney has the effect of exhausting the warrant, and a 

second confessed judgment based on the same warrant of attorney is invalid. 
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Donahue’s Br. at 17. He cites Scott Factors, Inc. v. Hartley, 228 A.2d 887 

(Pa. 1967), and TCPF, Ltd. P’ship v. Skatell, 976 A.2d 571 (Pa.Super. 

2009), to argue that a judgment may be confessed but once for the same debt 

and the law precludes repeated exercises of a warrant of attorney to confess 

judgment. Donahue’s Br. at 17. Donahue contends that since PNC had 

previously confessed judgment against him on the same debt, the warrant of 

attorney in the Guaranty had been exhausted when SDO most recently 

exercised it against him, such that SDO could not use the warrant. Id. at 9.

Donahue further asserts that he never signed a new confession of 

judgment with a fresh warrant and that the Consents of Guarantor that he 

signed in conjunction with the amendments to the Guaranty contained no new 

confession of judgment provisions. Rather, according to Donahue, the 

Consents of Guarantor merely ratified and confirmed a confession of judgment 

with the original warrant of attorney exhausted. Id. at 9, 22-23. He argues 

that there is no authority holding that the words “ratify and confirm” in 

amendments to a loan agreement have the effect of revitalizing an exhausted 

warrant. Id. at 10.

SDO agrees with Donahue that the general rule is that a warrant of 

attorney may not be used to confess judgment for the same debt more than

once. However, SDO contends that several recent cases from this Court allow 

the parties to waive the general rule by agreement and permit multiple 

exercises of a warrant of attorney for the same debt. SDO’s Br. at 14 (citing 

Dominic’s Inc. v. Tony’s Famous Tomato Pie Bar & Restaurant, Inc., 
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214 A.3d 259, 274 (Pa.Super. 2019), Dime Bank v. Andrews, 115 A.3d 358, 

369 (Pa.Super. 2015), and Atlantic Nat’l Trust, 922 A.2d at 924).

SDO argues that the Guaranty plainly permitted multiple exercises of 

the warrant of attorney and, after the PNC Judgment was withdrawn without 

prejudice, Donahue admits that he repeatedly executed Consents of 

Guarantor that ratified and confirmed that the provisions of the Guaranty, 

including the warrant of attorney, remained “unaltered and in full force and 

effect.” Id. at 16, 18. SDO further contends that Donahue submitted himself 

to new warrants of attorney in the Second and Third Amendments to the Term 

Note, each of which authorized SDO to confess judgment against “any 

Guarantor,” including Donahue. Id. at 16, 21-22.

A warrant of attorney “constitutes a grant of authority by one 

contracting party to the other, upon the happening of a certain event, i.e., a 

breach of the terms of the agreement wherein the warrant is contained, to 

enter that which results ordinarily only after a trial of the issue between the 

parties, i.e., a judgment.” TCPF Ltd. P’ship, 976 A.2d at 575, n.5 (quoting

Scott Factors, 228 A.2d at 888). The general rule in Pennsylvania is that “a 

warrant of attorney to confess judgment may not be exercised twice for the 

same debt.” Id. at 575 (citations omitted). 

However, we recognized in Dime Bank that “under certain 

circumstances, and to certain extents, parties to a note may waive this rule, 

allowing for multiple exercises of a warrant of authority to confess judgment.” 

115 A.3d at 369 (citations omitted). This is because a warrant of attorney is 
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a contractual agreement and the parties to the contract are free to determine 

the extent of the power the warrant confers, including the number of times 

the holder of the warrant may exercise it. Id. (citing Atlantic Nat’l Trust,

922 A.2d at 924). See also Dominic’s Inc., 214 A.3d at 274 (finding that 

although appellee did not properly aver notice of nonpayment and cure period, 

note allowed appellee “to confess judgment as many times as necessary until 

payment in full of all amounts due; so, [a]ppellee did not exhaust the warrant 

of attorney in this flawed attempt to confess judgment”).

Here, acknowledging our decision in Dime Bank, the trial court 

observed that parties to a note may waive the general rule that precludes 

repeated exercises of a warrant of attorney to confess judgment by contract.

The court stated:

What Defendant Donohue essentially alleges is that the 

Warrant of Attorney had been exhausted when it was most 

recently exercised against him, which he maintains is a 

meritorious defense to the judgment and evidences a 

material or prejudicial defect in the record, necessitating the 

striking of the judgment. We disagree. In his Petition, 

[Donahue] admits execution of the Guaranty and Surety 

Agreement (the “Guaranty”) containing the Warrant of 

Attorney clause upon which this particular judgment was 

entered and admits as well that he subsequently executed 

several Consents of Grantor, each of which expressly ratified 

and confirmed the validity of the original loan obligations 

and the Guaranty, including the Warrant of Attorney. 

Further, Donahue ratified and submitted himself to separate 

Warrants of Attorney in the First, Second, and Third 

Amendments to the loan documents and the Forbearance 

Agreement, each of which authorized Plaintiff SDO to 

confess judgment against [Donahue] for the default under 

the Guaranty. [Donahue] has not denied that he and his coobligors defaulted on the loan obligations, therefore taking 
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that away as a potential meritorious defense. Donohue has 

admitted to signing the Guaranty and the Consents, and he 

has not denied default on the loan obligations he 

guaranteed, without condition.

Trial Ct. Op., 10/8/19, at 5.

Upon review, we find no abuse of discretion by the trial court. The plain 

language of the Guaranty empowered SDO to confess judgment as many 

times as necessary until it received payment in full. Donahue thereafter

executed multiple agreements that ratified and confirmed the confession of 

judgment provision contained in the original Guaranty. In essence, the parties, 

through their own contracts, agreed to allow for multiple exercises of the

warrant of attorney to confess judgment, which is plainly permissible. Dime 

Bank, 115 A.3d at 369. 

Therefore, we agree with the trial court that the PNC Judgment did not 

exhaust the warrant of attorney. Donahue’s exhaustion argument is neither a 

fatal defect on the face of the record that would permit the striking of the 

confessed judgment nor a meritorious defense such that the trial court should 

have opened the judgment. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/17/2020