J-A13013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TRACY D. KIMMEL AND CHERYL A. 

KIMMEL, HUSBAND AND WIFE,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

III TOMATO INC., A CORPORATION,

Appellant No. 1016 WDA 2015

Appeal from the Order Entered May 29, 2015

In the Court of Common Pleas of Lawrence County

Civil Division at No(s): 10878 of 2014

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.: FILED OCTOBER 18, 2016

Appellant, III Tomato Inc., a corporation, appeals from the order 

entered on May 29, 2015, denying its petition to open a confessed judgment 

filed by Tracy D. Kimmel and Cheryl Kimmel (the Kimmels) pursuant to a 

commercial lease. Upon review, we affirm. 

The trial court summarized the facts and procedural history of this 

appeal as follows:

The subject of [this appeal] is a confessed judgment that 

was entered against [Appellant] by [the Kimmels] pursuant 

to a confession of judgment clause contained in a 

commercial lease in which [the Kimmels] are the lessors 

and [Appellant] the lessee.

On February 28, 2011, [Appellant] and the [Kimmels] 

entered into the subject Commercial Lease Agreement 

(hereinafter “Lease”). The leased premises are comprised 
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of part of a multi-tenant building and parking lot located in 

Neshannock Township, Lawrence County, Pennsylvania, 

consisting of a storefront containing approximately 3500 

square feet, having a street address of 2710 Wilmington 

Road, New Castle, Pennsylvania along with a parking lot, to 

be used in common with other occupants of the building. 

The Lease ha[d] an initial term of five years, beginning 

March 1, 2011 and ending February 28, 2016. 

[...T]he confessed judgment [was] in the amount of 

$52,347.35, consisting of late rent charges for the period of 

May 2014 through February 2016, an amount for 

reimbursement for air conditioning repairs, and attorneys’ 

fees. [The] Kimmels’ notice of default alleged that 

[Appellant] was in default for (1) failure to obtain insurance, 

and provide proof of insurance to [the] Kimmels, (2) 

installing an unsafe and hazardous brick oven inconsistent 

with the requirements of applicable law, (3) failure to keep 

the premises in good condition and repair, including the roof 

and air conditioning unit, (5) failure to maintain and repair 

the roof and air conditioning unit, (6) failure to make timely 

payments of rent, and (7) failure to promptly pay expenses 

and repair of the air conditioning unit.

* * *

In support of its [p]etition to [o]pen, [Appellant] allege[d], 

inter alia, that [the] Kimmels themselves breached the 

Lease by failing to perform their obligations under the Lease 

to maintain the common parking lot area serving the leased 

premises[,] by not repairing potholes and a light pole, 

refusing to repair the leaking roof on the building [that 

housed] the leased premises, and refusing to maintain and 

repair the air conditioning unit servicing the leased 

premises[. Appellant also alleged] that as a result of [the] 

Kimmels’ breaches of the Lease, [Appellant] suffered 

damages to its leasehold improvements in an amount 

greater than $5,000.00, lost revenues, increased cost, 

overall reduction in the value of its business, and losses in 

excess of $50,000.00. For a time in 2013, [Appellant] paid 

the rent into escrow in protest of [the] Kimmels’ failure to 

address [Appellant’s] complaints. The dispute was resolved 

and [Appellant] resumed making payments of rent directly 
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to [the] Kimmels. However, [Appellant] again began 

escrowing its rental payments beginning in May 2014. 

[The] Kimmels’ notice of default was sent to [Appellant] by 

letter dated August 8, 2014, asserting that [Appellant] was 

in default under the Lease for the reasons described above. 

On August 27, 2014, [the] Kimmels filed their [c]omplaint 

for [c]onfession of [j]udgment for [m]oney, claiming, inter 

alia, rent past due as well as accelerated rent due in the 

future during the remainder of the Lease’s term. On 

September 26, 2014, [Appellant] filed its [p]etition to 

[s]trike and/or [o]pen [j]udgment, and execution on [the] 

Kimmels’ confessed judgment was stayed pending 

resolution of [Appellant’s] [p]etition. [Appellant] continued 

to pay the rental [sum] into escrow, but in October 2014, 

vacated the leased premises, and ceased paying rent. [On 

May 29, 2015, the trial court filed an order and 

accompanying memorandum denying Appellant relief.] 

Trial Court Opinion, 5/29/2015, at 1-3 (record citations and footnote 

omitted). This timely appeal resulted.1

On appeal, Appellant presents the following issue for our review:

1. Did the trial court err in denying Appellant[’]s petition to 

open judgment?2

____________________________________________

1

 Appellant filed a notice of appeal on June 29, 2015. On July 9, 2015, the 

trial court directed Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on 

July 30, 2015. The trial court relied upon its earlier memorandum issued on 

May 29, 2015 in support of its denial of relief.

2

 We note that Appellant filed a petition to strike/and or open judgment. In 

its Rule 1925(b) statement, Appellant challenged the trial court’s refusal to 

strike the judgment. On appeal, however, Appellant does not challenge the 

trial court’s decision on the petition to strike judgment. Accordingly, 

Appellant has waived this issue for failure to develop an argument. See

Pa.R.A.P. 2119(b); Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 

2009) (“[W]here an appellate brief fails to provide any discussion of a claim 

(Footnote Continued Next Page)
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Appellant’s Brief at 4 (superfluous capitalization omitted).

Appellant contends the trial court erred by denying its petition to open 

judgment because it provided meritorious defenses to the confessed 

judgment. Appellant argues the trial court erred by denying its petition to 

open judgment when the trial court “concluded that [Appellant] did not 

allege, nor did counsel argue, constructive eviction or a breach of quiet 

enjoyment.” Id. at 9. Appellant contends that although it did not “explicitly 

say the words ‘constructive eviction,’ Appellant more than adequately argued 

that it was entitled to withhold rent as a result of [the Kimmels’] breaches –

i.e. that the Kimmels’ actions resulted in a constructive eviction.” Id. at 9-

10. More specifically, Appellant argues it “was only required to state that 

rent was not owed due to the Kimmels’ breach of the Lease.” Id. at 10. 

Next, Appellant asserts the trial court erred by treating its loss of business 

claims, in excess of the judgment amount, as set-offs “because they arose 

as direct result of the Kimmels’ breach of the Lease.” Id. at 12. As a result, 

Appellant maintains that its claims “must be characterized as a failure of 

consideration.” Id. Finally, Appellant argues “[t]he [t]rial [c]ourt 

erroneously determined that [Appellant] was responsible for the repair and 

replacement of the air conditioning” system. Id. at 13. At a minimum, 

Appellant contends, “the Lease is ambiguous” because it states that 

(Footnote Continued) _______________________

with citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived.”). 
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Appellant “shall be responsible for all maintenance and repairs” but provides 

that the Kimmels “shall furnish the existing equipment for maintaining 

heating and air conditioning for the leased premises.” Id. 

Our standard of review is well settled:

 

We review the order denying Appellant's petition to open 

the confessed judgment for an abuse of discretion. Judicial 

discretion requires action in conformity with law on facts 

and circumstances before the trial court after hearing and 

consideration. Consequently, the court abuses its discretion 

if, in resolving the issue for decision, it misapplies the law or 

exercises its discretion in a manner lacking reason.

The trial 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. Generally, the court will 

dispose of the rule on petition and answer, along with other 

discovery and admissions.

When determining if the petitioner acted promptly, the 

courts are not bound by an inflexible time frame. The crucial 

factor in determining whether a petition is timely is not the 

specific time which has elapsed but rather the 

reasonableness of the explanation given for delay. 

A meritorious defense is one upon which relief could be 

afforded if proven at trial. Pa.R.Civ.P. 2959(e) sets forth the 

standard by which a court determines whether a moving 

party has properly averred a meritorious defense. If 

evidence is produced which in a jury trial would require the 

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

judgment. Furthermore, the court must view the evidence 

presented in the light most favorable to the moving party, 

while rejecting contrary evidence of the non-moving party. 

The petitioner need not produce evidence proving that if the 
J-A13013-16

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judgment is opened, the petitioner will prevail.[3] Moreover, 

we must accept as true the petitioner's evidence and all 

reasonable and proper inferences flowing therefrom. 

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

petitioner seeking relief therefrom produces evidence which 

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

The standard of sufficiency here is similar to the standard 

for a directed verdict, in that we must view the facts most 

favorably to the moving party, we must accept as true all 

the evidence and proper inferences in support of the 

defense raised, and we must reject all adverse allegations. 

The trial court can make this decision as a matter of law 

when the defense presented is without adequate substance, 

because contract construction and interpretation is 

generally a question of law for the court to decide. 

A contract's language is unambiguous if it can be 

determined without any other guide than knowledge of the 

simple facts on which its meaning depends. When the 

contract is clear and unambiguous, the meaning of the 

____________________________________________

3 On presenting a meritorious defense, we have further clarified:

The [defendant] does not have to prove every element of its 

defense; however, it must set forth the defense in precise, 

specific and clear terms.

Merely asserting in a petition to open default judgment that 

one has a meritorious defense is insufficient. The moving 

party must set forth its meritorious defense. If any one of 

the alleged defenses would provide relief from liability, the 

moving party will have pled a meritorious defense and will 

have satisfied the third requirement to open the default 

judgment.

Seeger v. First Union Nat. Bank, 836 A.2d 163, 166 (Pa. Super. 2003); 

see also Ecumenical Enterprises, Inc. v. NADCO Const., Inc., 385 A.2d 

392, 395 (Pa. Super. 1978) (“It is clear that the petition to open must set 

forth its defenses in precise, specific, clear and unmistaken terms and must 

set forth the facts on which the defense is based.”) (internal citation and 

quotations omitted).
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contract is ascertained from the writing alone. A court must 

not distort the meaning of the language or resort to a 

strained contrivance to find an ambiguity. Additionally, a 

mere disagreement between the parties regarding the 

proper construction of the language does not render the 

contract ambiguous. In the context of a petition to open a 

confessed judgment, the function of our Court is not to 

weigh the evidence in support of the defense, but merely to 

determine whether there was sufficient evidence to go to 

the jury.

Whether a judge has correctly interpreted a writing and 

properly determined the legal duties which arise therefrom 

is a question of law for the appellate court. The legal effect 

or enforceability of a contract provision presents a question 

of law accorded full appellate review and is not limited to an 

abuse of discretion standard. Likewise, if the matter under 

review involves the interpretation of the Pennsylvania Rules 

of Civil Procedure, we have before us a question of law, 

where our standard of review is de novo and our scope of 

review is plenary. 

Neducsin v. Caplan, 121 A.3d 498, 506–507 (Pa. Super. 2015) (internal 

citations and quotations omitted).

In this case, the lease provided, inter alia:

* * *

5. PARKING. [Appellant’s] customers, invitees, and 

licensees shall have the right, during the term of this Lease, 

to use in common with [the Kimmels’] other tenants, their 

agents, licensees and other tenants, the parking lot owned 

by [the Kimmels] and located adjacent to the Leased 

Premises. [...] [Appellant] shall not be responsible for any 

repairs required of the subject parking area.

* * *

12. INDEMNITY AND RELEASE. [...] [Appellant] agrees 

that the Leased Premises and appurtenances are delivered 

in good repair and in a safe and tenable condition and 

accepted in an “AS IS” condition. Without limiting the 
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foregoing, [the Kimmels] shall not be responsible or in any 

manner liable to [Appellant] or any other person 

whomsoever for any loss, damage or injury occasioned by 

rain, snow or the elements[.] 

13. CONDITION OF PREMISES. It shall be the sole 

responsibility of [Appellant] to keep the Leased Premises 

and every part thereof in good condition and repair and in a 

clean, safe and sanitary condition and, upon the expiration 

or sooner termination of this lease, or any extension 

thereof, to promptly surrender the Leased Premises back to 

the [Kimmels] in as good condition as received by 

[Appellant] except for reasonable wear and tear. All 

damages resulting from the installation and removal of any 

property by [Appellant] shall be fully repaired by [Appellant] 

prior to the surrender of possession.

14. [APPELLANT’S] RESPONSIBILITIES. [Appellant] 

shall be responsible for all maintenance and repairs, except 

for those for which the [Kimmels] [are] responsible, 

including but not limited to, maintenance and repair of plate 

glass windows, glass doors and frames thereof.

* * *

15. [THE KIMMELS’] RESPONSIBILITIES.

A. [The Kimmels] shall maintain in good condition 

the exterior of the building, the roof, and structural 

members of the building of which the Leased 

Premises form a part, and any water, gas, or 

electrical lines or conduits permanently imbedded in 

walls or floors.

* * *

B. [The Kimmels] shall furnish the existing 

equipment for maintaining heating and air 

conditioning for the Leased Premises.

* * *

D. The [Kimmels] at all times shall be solely 

responsible for and shall keep and maintain the 

sidewalks, parking lot, driveway and pavement of 
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the Leased Premises in a safe and clean condition 

and free from all hazards, ice and snow. [The 

Kimmels] shall be responsible for all repairs to and 

replacement of all sidewalks, driveways and parking 

lots located on the Leased Premises.

* * *

21. SURRENDER. No act or conduct of [the Kimmels], 

whether consisting of the acceptance of keys to the Leased 

Premises, or otherwise, shall be deemed to be or constitute 

an acceptance or the surrender of the Leased Premises by 

[Appellant] prior to the expiration of the term hereof and 

such acceptance by [the Kimmels] of surrender by 

[Appellant] shall only occur and must be evidenced by a 

written acknowledgment of acceptance of surrender signed 

by [the Kimmels].

* * *

27.RESPONSIBILITIES OF [THE KIMMELS].

* * *

D. Damage for Interruption of Use.

[The Kimmels] shall not be liable for any damage, 

compensation or claim by reason of inconvenience or 

annoyance arising from the necessity of repairing 

any portion the building, the interruption in the use 

of the Leased Premises, or the termination of this 

lease by reason of damage or for any reason 

whatsoever.

* * *

F. Representation of Condition of Leased 

Premises

Except as set forth herein, the [Kimmels] have not 

made and do not make any warranties and/or 

representations, express or implied, as to the 

physical condition, habitability, layout, footage, 

income, expense, operation, compliance with moving 

and building laws, or other matter or thing 
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whatsoever affecting or in any manner related to the 

Leased Premises and this lease. [Appellant] accepts 

the premises in an “AS IS” condition. The [Kimmels] 

have let the Leased Premises in [its] present 

condition and without any warranties or 

representations, express or implied, on the part of 

the [Kimmels], their employees, servants, and/or 

agents. It is understood and agreed that [the 

Kimmels] are under no duty to make alterations or 

repairs at the time of letting or at any time 

thereafter.

Commercial Lease Agreement, 2/28/2011, at 2-12. 

In support of its petition to open, Appellant averred, in pertinent part:

* * *

6. It was not [Appellant] but the [Kimmels] that 

breached the lease agreement attached to the 

complaint.

7. Paragraph 5 of said lease agreement states that the 

[Kimmels] will be responsible for the repair of the 

parking lot at the premises.

8. [Appellant] had informed [the Kimmels] that as a 

result of the severe weather during the past winter 

(2013-2014), the parking lot had developed several 

deep and dangerous potholes.

9. [The Kimmels] on several occasions had stated that 

they would repair the damage to the parking lot but 

ha[d] continually refused to make the necessary 

repairs.

10. The roof of said premises leased to [Appellant] has 

been leaking for more than a year. The [Kimmels] 

have refused to repair the leak in the roof and to 

date [Appellant’s] leasehold improvements have 

been damaged in an amount greater than $5,000.00.

11. An outside light pole in the parking lot of the 

premises was struck by a vehicle and had fallen to 
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the ground in 2013. To date the light pole and lamp 

have not been replaced causing the parking lot to be 

unsafe and poorly lit at night.

12. In May 2014, the roof top air[-]conditioning unit 

stopped working.

13. The lease agreement requires the [Kimmels] to 

maintain the air conditioning units that were in place 

at the time the lease agreement was executed.

14. This roof top unit was in place at the time of the 

execution of the lease agreement and the [Kimmels] 

have failed to repair, fix or replace the unit.

15. [Appellant’s] business income [h]as decreased 

significantly as a result of [the Kimmels’] breach of 

the lease agreement.

16. As a result of [the Kimmels’] breach of the lease 

agreement, [Appellant] has lost revenues, increased 

its cost and seen an overhaul [sic] reduction in the 

value of its business.

17. [Appellant’s] business has suffered losses in excess 

of $50,000.00 as a result of [the Kimmels’] breach of 

the lease agreement.

18. As a result of [the Kimmels’] breach of the lease 

agreement, [Appellant] does not owe the [Kimmels] 

the sums set forth in the [c]onfession of [j]udgment 

for [m]oney filed in this matter.

* * *

Appellant’s Petition to Strike and/or Open Judgment, 9/26/2014, at 2-3 

(unpaginated). 

Initially, we will examine Appellant’s claims pertaining to the 

air-conditioning system. The Kimmels agreed to “furnish the existing 

equipment for maintaining heating and air conditioning for the Leased 
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Premises.” Commercial Lease Agreement, 2/28/2011, at 6, ¶ 15B. 

Appellant agreed that the property “and appurtenances [we]re delivered in 

good repair and in a safe and tenable condition and accepted in an ‘AS IS’ 

condition.” Id. at 4, ¶ 12. The Kimmels had no duty “to make alterations or 

repairs at the time of letting or at any time thereafter.” Id. at 12, ¶ 27F. 

Appellant agreed to be responsible for all maintenance and repairs to the 

premises, unless expressly delineated to the Kimmels under a specific 

provision of the lease. Id. at 5, ¶ 14. Appellant has not pointed to, and our 

review of the lease has not revealed, a specific provision of the lease that 

holds the Kimmels responsible for air conditioner maintenance. 

Based upon the foregoing, we discern no ambiguity in the lease. 

Initially, we reject Appellant’s proposition that the use of the word 

“maintain” in paragraph 15B of the lease suggests the Kimmels are 

responsible for maintaining the heating and air conditioning equipment. The 

plain contractual language states that the Kimmels “shall furnish the existing 

equipment for maintaining heating and air conditioning for the Leased 

Premises.” Commercial Lease Agreement, 2/28/2011, at 6. The Kimmels 

were only required to “furnish” the “existing” equipment. The word 

“maintaining” is in reference to the equipment, not the Kimmels. The plain 

meaning of the lease provided that the “existing equipment” was “for

maintaining” or providing temperature control. The provision is wholly 

silent regarding repairs. It simply does not state that the Kimmels shall 
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furnish the existing equipment and bear responsibility for maintaining that 

equipment. Moreover, Appellant agreed that at the time of the contract, in 

February 2011, the equipment was in good repair and accepted the premises 

“as is.” Appellant averred, in its petition to open judgment, the air 

conditioning unit stopped working in May 2014. However, under the lease, 

the Kimmels simply had no duty to make repairs more than three years 

later. Thus, Appellant failed to provide a meritorious defense regarding the 

air conditioning system that supported its petition to open the confessed 

judgment in this regard. 

Next, we examine Appellant’s claims regarding repairs to the roof and 

parking lot. There is no dispute that pursuant to paragraph 15(a) and (d), 

the Kimmels were responsible for those repairs. Commercial Lease 

Agreement, 2/28/2011, at 5-6.

Our Pennsylvania Supreme Court has stated, “[n]othing is better 

settled in Pennsylvania than that a tenant for years cannot relieve himself 

from his liability under his covenant to pay rent by vacating the demised 

premises during the term, and sending the key to his landlord.” 

Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 715 

A.2d 1082, 1084 (Pa. 1998). Our Supreme Court determined, “where the 

landlord materially breaches express covenants to repair or to maintain the 

leasehold in a habitable state[,]” it is analogous to a breach of the implied 

warranty of habitability. Pugh v. Holmes, 405 A.2d 897, 907 (Pa. 1979). 
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“The covenants and warranties in the lease are mutually dependent, the 

tenant’s obligation to pay rent and the landlord’s obligation imposed by the 

implied warranty of habitability to provide and maintain habitable premises 

are, therefore, dependent and a material breach of one of these obligations 

will relieve the obligation of the other so long as the breach continues.” 

Pawco, Inc. v. Bergman Knitting Mills, Inc., 424 A.2d 891, 894 (Pa. 

Super. 1980) (en banc), citing Pugh, 405 A.2d at 903. 

In cases involving a breach of habitability, a tenant may: (1) 

surrender possession of the premises; (2) remain in possession subject to 

rent abatement; or (3) repair the defects and deduct the cost of repairs from 

the rent. Echeverria v. Holley, 2016 WL 3268695, at *4 (Pa. Super. 

2016), citing Pugh, 405 A.2d at 907–908. To relieve the tenant from 

further liability under the lease, the burden is on the tenant to show by clear 

and convincing evidence that the landlord accepted the tenant's surrender. 

Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 685 

A.2d 1019, 1023 (Pa. Super. 1996), affirmed, 715 A.2d 1082 (Pa. 1998). 

Moreover, unlike a mutual surrender, this Court recently examined the 

defense of constructive eviction, stating:

constructive eviction is one species of a violation of the 

lessee's right to quiet enjoyment. While one might gain 

relief for such a violation without being constructively 

evicted, one cannot be constructively evicted absent such a 

violation. In effect, constructive eviction occurs when a 

lessor's violation of a lessee's entitlement to quiet 

enjoyment is so extreme as to interfere seriously with the 

lessee's ability to use the leasehold as it was intended to be 
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used, and the violation prompts the tenant to abandon the 

property within a reasonable amount of time.

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 

973 (Pa. Super. 2015).

In this case, upon review, we conclude Appellant did not plead a 

defense of constructive eviction in its petition to open. Appellant alleged 

that its business income “decreased significantly” and it “lost revenues.” It 

further claimed its costs increased and its business value was reduced “in 

excess of $50,000.00” as a result of the Kimmels’ purported breach of the 

lease agreement. Appellant’s Petition to Strike and/or Open Judgment, 

9/26/2014, at 2-3 (unpaginated). Appellant concedes it never specifically 

alleged constructive eviction, but argues the aforementioned allegations 

were sufficient to assert that no rent was due because the Kimmels 

breached the lease. Appellant’ Brief at 9-10. However, Appellant was 

required to set forth its defenses in precise, specific, clear and unmistakable 

terms. Ecumenical Enterprises, Inc., 385 A.2d at 395. Appellant did not 

aver that the damages were so extreme as to interfere seriously with its 

ability to use the leasehold as it was intended to be used or that the 

violation prompted Appellant to abandon the property. Sears, Roebuck & 

Co., 126 A.3d at 973. While Appellant now argues the maintenance 

problems were sufficient to constitute a complete breach that justified 

terminating the lease, we simply cannot address issues raised for the first 
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time on appeal. See Pa.R.A.P. 302(a). Thus, we conclude Appellant did not 

sufficiently set forth a constructive eviction defense in its petition to open. 

Moreover, upon review of the record, Appellant did not employ any of 

the three options available to address a breach of habitability. Under 

paragraph 21 of the lease, if Appellant intended to surrender the property, it 

was required to obtain “written acknowledgement of surrender signed by” 

the Kimmels. Commercial Lease Agreement, 2/28/2011, at 9. The burden is 

on Appellant to show by clear and convincing evidence that the landlord 

accepted a tenant's surrender. Stonehedge Square Ltd. Partnership, 685 

A.2d at 1023. Here, there is no evidence of surrender. Appellant may have 

unilaterally and voluntarily abandoned the premises, but it was not relieved 

of its obligation to continue paying rent under the lease. Further, Appellant 

did not aver in its petition to open that it remained in possession of the 

leasehold subject to rent abatement or that it repaired the defects and 

deducted the cost of repairs from the rent. 

Finally, we reject Appellant’s contention that the trial court erred by 

characterizing its claims as set-offs or unliquidated counterclaims. For its 

proposition, Appellant relies on our Supreme Court’s 1963 decision in 

Nadolny v. Scoratow, 195 A.2d 87 (Pa. 1963). See Appellant’s Brief at 

11-12. A brief recitation of that case reveals distinctions. In Nadolny, 

Nadolny leased a two-story building to Scoratow specifically for the storage 

of pre-cast stone. When the second floor buckled under the weight of the 
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stored material, Scoratow abandoned the property. Nadolny confessed 

judgment under the lease for unpaid rent. Scoratow subsequently filed a 

petition to open the judgment arguing the damage to the premises was the 

result of Nadolny's misrepresentation that the second floor could support the 

weight of the pre-cast stone. Scoratow also argued that such 

misrepresentation entitled him to rescind the lease and avoid liability for the 

remaining unpaid rent. The Supreme Court agreed, noting that if the 

alleged misrepresentation was proven to a jury, the agreement would be 

disaffirmed. Stated differently, the property owner’s misrepresentation of 

the premises fraudulently led to the lease formation and amounted to a lack 

of consideration.

4

 Accordingly, if a jury determined as such, the lease would 

be invalidated in its entirety. Thus, the Nadolny Court determined that 

opening the confessed judgment in that case was proper. 

By contrast, in this case, there was a five-year commercial lease. 

Both parties largely performed under the lease for the better part of four 

years (i.e., occupancy, rental payments, receipt of rent, and some repairs). 

Hence, it is difficult to say there was a complete failure of consideration and, 

therefore, no contract in place. Appellant does not allege that the Kimmels 

made misrepresentations requiring a complete invalidation of the lease, 

____________________________________________

4

 Our Rules of Civil Procedure offer additional support for our conclusion. 

Specifically, Pa.R.C.P. 1030 provides that “fraud” and “failure of 

consideration” constitute affirmative defenses; whereas, “set-offs” arising 

from breach of contract are not considered as such. See Pa.R.C.P. 1030(a). 
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outright barring their right to recover the unpaid rent. Instead, Appellant 

contends the Kimmels’ breached the lease. Appellant’s Brief at 12. Such 

assertion amounts to a counterclaim, which is not proper in a petition to 

open judgment. 

Based upon all of the foregoing, we conclude Appellant did not allege a 

meritorious defense requiring submission to a jury. Accordingly, the trial 

court properly denied Appellant’s petition to open.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2016