J-A18016-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 TREK DEVELOPMENT GROUP, INC. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MANOMAY, LLC : : Appellant : No. 1694 WDA 2019 Appeal from the Order Entered November 12, 2019 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-19-001793

BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.: FILED: September 20, 2021 Appellant Manomay, LLC, appeals from the November 12, 2019 order that denied Appellant’s petition to strike or, alternatively, open judgment by confession and for stay of execution, entered in favor of Appellee Trek Development Group, Inc.1 Appellant contends that the trial court erred in denying the petition to open or strike because Appellant presented a meritorious defense, there was a dispute as to the amount Appellant owed, the judgment was defective on its face, the warrant of attorney was exhausted by a prior confession of judgment, Appellee failed to provide Appellant notice and an opportunity to cure the alleged default, and Appellant had in fact cured

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1 An order denying a motion to open or strike off a judgment is immediately appealable. See Pa.R.A.P. 311(a)(1) (interlocutory appeals as of right).

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the alleged default. Following our review, we affirm on the basis of the trial court’s January 2, 2020 opinion.2 The trial court briefly summarized the relevant facts and procedural history of this matter as follows: [Appellee] is the owner of the Century Building at 130 7 th Street in downtown Pittsburgh. [Appellee] is individually owned and operated by William Gatti (Gatti).

On September 7, 2011, [Appellee] entered into a written lease agreement (Lease) with Nilesh Mehta (Mehta) for commercial space located on the first floor of the Century Building. The Lease did not permit an assignment without [Appellee’s] prior written consent unless the assignment was to an entity solely owned by Mehta. The Lease also contained a confession of judgment clause giving rise to the underlying action.

Mehta subsequently gained permission to assign the Lease to Seven on Seven, LLC (Seven on Seven). [Appellee] then consented to another assignment of the Lease from Seven on Seven to [Appellant] in a December 14, 2016 agreement, which was attached to the complaint. The record shows that [Appellant] is solely owned by Kanan Shah (Shah) who is married to Mehta. ____________________________________________

2 In an appeal involving the same parties and property filed at 1693 WDA 2019, Appellant filed an application to dismiss on January 14, 2021. In the application, Appellant asserted that the appeal involved a judgment for possession entered against Appellant and in favor of Appellee and that the appeal became moot once Appellee took possession of the property.

Application to Discontinue, 1/14/21, at ¶¶ 1-2. However, Appellant also argued that the discontinuance was not intended to affect the instant appeal.

Id. at ¶4. This Court granted Appellant’s application to discontinue the appeal at 1693 WDA 2019. Order, 1/20/21. In the instant appeal, Appellee avers that the appeal should be quashed for the same reason that the appeal at 1693 WDA 2019 was discontinued and references an agreement and consent order whereby Appellant surrendered possession of the property to Appellee.

Appellee’s Brief at 11-12. However, because the certified record in the instant appeal does not contain the above-mentioned agreement and consent order or other documentation rendering the appeal moot, we will not quash the instant appeal for mootness.

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According to Gatti’s deposition testimony, his consent to the assignment was conditioned on Shah being the sole member of [Appellee].

* * * On September 13, 2018, [Appellee] obtained a confession of judgment against [Appellant] in a separate cause of action. In response, [Appellant] filed a petition to strike/open the judgement. The Honorable Judge Hertzberg issued a rule to show cause and directed [Appellee] to file an answer. Instead, the parties entered into an agreement to forbear execution (forbearance agreement) and [Appellee] allegedly withdrew its Complaint. [Appellee] asserted that [Appellant] subsequently breached the lease and forbearance agreement and, accordingly, filed the underlying complaint on February 4, 2019. [Appellant] responded with an emergency petition to strike/open the judgement, which the trial court denied in its November 12, 2019 orders.

Trial Ct. Op., 1/2/20, at 1-2 (some formatting altered).

Appellant filed a timely appeal on November 15, 2019, and on that same date, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on December 6, 2019, and the trial court filed its Rule 1925(a) opinion on January 2, 2020.

On appeal, Appellant raises the following issues: 1. The trial court erred in denying the petition to open/strike given the prima facie evidence of a meritorious defense.

2. The trial court erred in denying the petition to open/strike given the valid dispute regarding the amount, if any, that was due.

3. The trial court erred in denying the petition to open/strike when the judgment was defective on its face.

4. The trial court erred in denying the petition to open/strike when the warrant of attorney was exhausted by a prior confession of judgment.

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5. The trial court erred in denying the petition to open/strike when the evidence showed that no notice and opportunity to cure was given and there was a prior action pending.

6. The trial court erred in denying the petition to open/strike when no default occurred, or to the extent there was a default, any alleged default had been cured.

Appellant’s Brief at 4 (some formatting altered).

We review Appellant’s claims pursuant to the following standards: We review [an] order denying [a] petition to open the confessed judgment for an abuse of discretion. Our scope of review on appeal is very narrow and we will overturn the trial court decision only if the trial court has abused its discretion or committed manifest error.

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. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.

A petition to open a confessed judgment is an appeal to the equitable powers of the court. 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. If 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.

SDO Fund II D32, LLC v. Donahue, 234 A.3d 738, 742 (Pa. Super. 2020) (citations omitted and some formatting altered).

Following our review of the record, the parties’ briefs, and the trial court’s well-reasoned analysis, we discern no error of law or abuse of discretion by the trial court. See id. Therefore, we affirm the November 12,

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2019 order on the basis of the trial court’s opinion. See Trial Ct. Op., 1/2/20, at 1-8.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2021

-5- Circulated 09/08/2021 12:17 PM

Allegheny County - Department of Court Records Civil Division - Filings Information

County caseID:GD-19-001793 Case Description:Trek Development Group Inc. vs Manomay LLC Official Docket Entry, Sort By Document Number Ascending Document Filed Date Title/Entry Entry Classification Filed By Number 1 01/02/2020 Opinion Official Docket Entry Donald RWalko Jr.

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