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J. A11027/03
2003 PA Super 244
FIRST UNION NATIONAL BANK, FLEET
:
IN THE SUPERIOR COURT OF
NATIONAL BANK, WILMINGTON TRUST :
PENNSYLVANIA
OF PENNSYLVANIA AND MBC LEASING
:
CORP.,
:
:

Appellee :

:

v. :

:

PORTSIDE REFRIGERATED SERVICES,
:
INC., ORCHARD HILL DEVELOPMENT
:
CORPORATION, SLS SERVICES, INC.,
:
T/D/B/A, HOLT OVERSIGHT AND
:
LOGISTICAL TECHNOLOGIES, RAIL
:
DISTRIBUTION CENTER, INC.,
:
DOCKSIDE REFRIGERATED
:
WAREHOUSE OF PHILADELPHIA, INC.,
:
TRIPLE SEVERN WAREHOUSING, INC., :
T/D/B/A SOUTHERN MAINTENANCE
:
AND REPAIR, TRANS OCEAN MARITIME :
SERVICES, INC., GLOUCESTER MARINE :
TERMINAL, INC., EXPRESS EQUIPMENT :
RENTAL CO., GLOUCESTER
:
REFRIGERATED WAREHOUSE, INC.
:
AND OAE, INC.,
:

:
APPEAL OF: ORCHARD HILL
:
DEVELOPMENT CORPORATION,
:
:

Appellant
:
No. 2841 EDA 2002

Appeal from the Order entered July 17, 2002
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 001485 March Term 2002.

FIRST UNION NATIONAL BANK, FLEET
:
IN THE SUPERIOR COURT OF
NATIONAL BANK, WILMINGTON TRUST :
PENNSYLVANIA
OF PENNSYLVANIA AND MBC LEASING
:
CORP.,
:
:

Appellee :

:

v. :

J. A11027/03
:

PORTSIDE REFRIGERATED SERVICES,
:
INC., ORCHARD HILL DEVELOPMENT
:
CORPORATION, SLS SERVICES, INC.,
:
T/D/B/A, HOLT OVERSIGHT AND
:
LOGISTICAL TECHNOLOGIES, RAIL
:
DISTRIBUTION CENTER, INC.,
:
DOCKSIDE REFRIGERATED
:
WAREHOUSE OF PHILADELPHIA, INC.,
:
TRIPLE SEVERN WAREHOUSING, INC., :
T/D/B/A SOUTHERN MAINTENANCE
:
AND REPAIR, TRANS OCEAN MARITIME :
SERVICES, INC., GLOUCESTER MARINE :
TERMINAL, INC., EXPRESS EQUIPMENT :
RENTAL CO., GLOUCESTER
:
REFRIGERATED WAREHOUSE, INC.
:
AND OAE, INC.,
:

:
APPEAL OF: PORTSIDE REFRIGERATED :
SERVICES, INC., SLS SERVICES, INC., :
T/D/B/A, HOLT OVERSIGHT AND
:
LOGISTICAL TECHNOLOGIES, RAIL
:
DISTRIBUTION CENTER, INC.,
:
DOCKSIDE REFRIGERATED
:
WAREHOUSE OF PHILADELPHIA, INC.,
:
TRIPLE SEVERN WAREHOUSING, INC., :
T/D/B/A SOUTHERN MAINTENANCE
:
AND REPAIR, TRANS OCEAN MARITIME :
SERVICES, INC., GLOUCESTER MARINE :
TERMINAL, INC., EXPRESS EQUIPMENT :
RENTAL CO., GLOUCESTER
:
REFRIGERATED WAREHOUSE, INC.
:
AND OAE, INC.,
:

:

Appellants
:
No. 2842 EDA 2002

Appeal from the Order entered July 17, 2002
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 001485 March Term 2002.

- 2 -

J. A11027/03
FIRST UNION NATIONAL BANK, FLEET
:
IN THE SUPERIOR COURT OF
NATIONAL BANK, WILMINGTON TRUST :
PENNSYLVANIA
OF PENNSYLVANIA AND MBC LEASING
:
CORP.,
:
:

Appellee :

:

v.
:

:
THOMAS J. HOLT, SR.
:

:
Appellant
:
No. 2843 EDA 2002

Appeal from the Order entered July 17, 2002
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 001496 March Term 2002.

BEFORE: JOYCE, ORIE MELVIN and BECK, JJ.

OPINION BY ORIE MELVIN, J.:

Filed: June 24, 2003

¶1
This matter involves three consolidated appeals from an order of the
trial court denying Appellants' petitions to strike or open a judgment entered
by confession. Appellants raise numerous claims of trial court error and/or
abuse of discretion in denying relief. After careful review, we conclude the
judgment must be stricken, and, accordingly, we reverse.
¶2 The facts and procedural history may be summarized as follows.
Appellants are Thomas J. Holt, Sr. and a number of corporations owned and
operated by Mr. Holt and his sons. On April 11, 2001, Appellants executed a
Guaranty in favor of the Appellee Banks for several loans to certain other
affiliated companies which were involved in bankruptcy proceedings. The
Guaranty included a confession of judgment clause.

- 3 -

J. A11027/03
¶3
On March 4, 2002, Appellees gave notice to Appellants of default by
the original borrowers (the bankrupt companies) and demanded immediate
payment in full of a sum in excess of $62 million plus interests, fees and
costs. Appellees then filed complaints in confession of judgment against
Appellants on March 12, 2002. In response, on April 11, 2002, Appellants
filed petitions to strike or open the judgment in which they asserted
numerous grounds for granting relief. After oral argument, the trial court
denied the petitions,1 and this timely appeal followed.
¶4
Appellants raise the following issues for our review:
1. Did the [trial] court commit an error in denying the
petition to strike or, in the alternative, to open, and to stay
execution proceedings?

2. Did the [trial] court commit an error of law by finding
that the statutory confession of judgment notice
requirements were met in this case?

3. Did the [trial] court commit an error of law when it failed
to strike the judgment despite the fact that the Complaint
for Confession did not contain an allegation that all
conditions precedent had occurred?

4. Did the [trial] court commit an error of law when it failed
to strike the judgment even though the judgment included
an inaccurate and inappropriate amount of principal?

5. Did the [trial] court commit an error of law when it failed
to strike the judgment despite the fact that a proper
demand as required by Pennsylvania Rules of Civil
Procedure 2952(a) had not been made?

1 The trial court did strike the portion of the confessed judgment which
represented interest accruing prior to the date of the default notice. That
portion of the order is not challenged on appeal.

- 4 -

J. A11027/03
6. Did the [trial] court commit an error of law when it failed
to strike the judgment despite the fact that the Complaint
for Confession did not include a copy of all documents
material to the parties' dispute?

7. Did the [trial] court commit an error of law when it failed
to strike the judgment despite the fact that [Appellees]
failed to give notice to certain non-parties?

8. Did the [trial] court commit an error of law when it failed
to strike the judgment even though the Guaranty sued upon
is unconscionable and, therefore, unenforceable?

9. Did the [trial] court commit an error of law when it failed
to open the judgment despite the fact that [Appellants] had
meritorious defenses, including the failure of consideration,
the failure to act in a reasonable commercial manner, and
the breach of obligations to the guarantor?

10. Did the [trial] court abuse its discretion in limiting the
rule to show cause hearing to only two grounds stated in
the petitions to strike or, in the alternative open confessed
judgment and to stay execution proceedings?

Brief for Appellants Orchard Hill Development Corporation and Thomas J.
Holt, Sr., at 3-4.2
¶5
This Court's review of a trial court order denying a petition to strike is
limited to a determination of whether the record as filed by the party
confessing judgment is sufficient to sustain the judgment. Germantown
Savings Bank v. Talacki, 657 A.2d 1285 (Pa. Super. 1995). By contrast, a
trial court order denying a petition to open will be reversed only where there
has been a manifest abuse of discretion or error of law. Id.

2 The remaining Appellants filed a separate brief which sets forth the
identical issues numbered 1 through 9.

- 5 -

J. A11027/03
¶6
We begin with the contentions relative to the denial of the petition to
strike. "A petition to strike a judgment operates as a demurrer to the
record, and must be granted whenever some fatal defect appears on the
face of the record." PNC Bank v. Bolus, 655 A.2d 997, 999 (Pa. Super.
1995). "In considering the merits of a petition to strike, the court will be
limited to a review of only the record as filed by the party in whose favor the
warrant is given....Matters dehors the record [] will not be considered."
Resolution Trust Corp. v. Copley Qu-Wayne Assoc., 546 Pa. 98, 106,
683 A.2d 269, 273 (1996). Appellants first argue that a fatal defect exists
because Appellees failed to comply with the notice required by 42 Pa.C.S.A.
§ 2737.1, which is a section of the Judicial Code found in the chapter
specifying the powers and duties of prothonotaries. See 42 Pa.C.S.A. §
2701(a). The pertinent section regarding notice provides as follows.
§ 2737.1. Incorrect debtor identified

At the time a creditor files for a judgment by confession
under section 2737(3) (relating to powers and duties of the
prothonotary), the creditor filing the judgment shall provide
the debtor with written instructions regarding the procedure
to follow to strike the judgment. A debtor who has been
incorrectly identified and had a confession or judgment
entered against him shall be entitled to costs and
reasonable attorney fees as determined by the court. The
instructions provided to the debtor shall explain to the
debtor that under this section he is entitled to costs and
reasonable attorney fees as determined by the court if he
was incorrectly identified.

- 6 -

J. A11027/03
42 Pa.C.S.A. § 2737.1. The trial court concluded that Appellees' compliance
with Pa.R.C.P. 2958.1 was sufficient to meet the requirements of Section
2737.1. That Rule requires, in relevant part, as follows.
Rule 2958.1. Notice Served Prior to Execution

(a) A written notice substantially in the form prescribed by
Rule 2964 shall be served on the defendant at least thirty
days prior to the filing of the praecipe for writ of execution.

Pa.R.C.P. 2958.1, 42 Pa.C.S.A.
¶7 Each of the Appellants was served with a Notice which was
substantially in the form required by Rule 2964 and provided as follows.
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON

NOTICE OF DEFENDANT'S RIGHTS

TO: [INDIVIDUAL APPELLANT]

A judgment in the amount of $63,690,820.52 plus costs, additional
interest and attorneys' fees has been entered against you and in favor of the
[Appellees] without any prior notice or hearing based on a confession of
judgment contained in a written agreement or other paper allegedly signed
by you. The sheriff may take your money or other property to pay the
judgment at any time after thirty (30) days after the date on which this
notice is served on you.

You may have legal rights to defeat the judgment or to prevent your
money or property from being taken. YOU MUST FILE A PETITION SEEKING
RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY
(30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU
OR YOU MAY LOSE YOUR RIGHTS.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE

- 7 -

J. A11027/03
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
PHILADELPHIA BAR ASSOCIATION
Lawyer Referral and Information Service
1101 Market Street, 11th Floor
Philadelphia, PA 19107-2911
(215) 238-6333

¶8
The trial court noted that Rule 2958.1 is specific as to the contents of
the required notice to the debtor while Section 2737.1 is not. Because both
provisions require information on seeking relief from a confessed judgment,
the trial court concluded that compliance with the notice requirements of
Rule 2958.1 is sufficient to satisfy Section 2737.1.
¶9 There is no question that the two provisions contain similar subject
matter regarding notice given when a judgment by confession is entered.
Rule 2958.1 was last amended effective July 1, 1999; the statute was
enacted effective February 2001. In order to determine the relationship
between the two provisions, we find that a review of the general principles of
statutory construction is appropriate. We have recently explained our
approach to statutory construction as follows.
When construing a statute, our objective is to ascertain and
effectuate the legislative intent. 1 Pa.C.S.A. § 1921(a); see
also Berger v. Rinaldi, 438 Pa. Super. 78, 651 A.2d 553,
557 (Pa. Super. 1994). In so doing, we must begin with a
presumption that our legislature did not intent any statutory
language to exist as mere surplusage. Id. Accordingly,
"whenever possible, courts must construe a statute so as to
give effect to every word contained therein."

Wiernik, v. PHH U.S. Mortgage Co., 736 A.2d 616, 620 (Pa. Super.
1999), appeal denied, 561 Pa. 700, 757 A.2d 193 (2000).

- 8 -

J. A11027/03
¶10 Accordingly, we must presume that the legislature did not consider its
enactment of Section 2737.1 to be unnecessary. If possible, the statute
must be construed to give effect to each and every word. In order to
determine what is meant by the requirement of "instructions regarding the
procedure to follow to strike the judgment," we look to Pa.R.C.P. 2959 which
provides the procedure for striking or opening a judgment entered by
confession:
Rule 2959. Striking Off or Opening Judgment;
Pleadings; Procedure

(a)(1) Relief from a judgment by confession shall be sought
by petition. Except as provided in subparagraph (2), all
grounds for relief whether to strike off the judgment or to
open it must be asserted in a single petition. The petition
may be filed in the county in which the judgment was
originally entered, in any county to which the judgment has
been transferred or in any other county in which the sheriff
has received a writ of execution directed to the sheriff to
enforce the judgment.

(2) The ground that the waiver of the due process rights of
notice and hearing was not voluntary, intelligent and
knowing shall be raised only

(i) in support of a further request for a stay of
execution[.]

* * *
(3) If written notice is served upon the petitioner pursuant
to Rule 2956.1 or Rule 2973.1(c), the petition shall be filed
within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the
delay, a petition not timely filed shall be denied.

(b) If the petition states prima facie grounds for relief the
court shall issue a rule to show cause and may grant a stay
of proceedings. After being served with a copy of the

- 9 -

J. A11027/03
petition the plaintiff shall file an answer on or before the
return day of the rule. The return day of the rule shall be
fixed by the court by local rule or special order.

(c) A party waives all defenses and objections which are not
included in the petition or answer.

(d) The petition and the rule to show cause and the answer
shall be served as provided in Rule 440.

(e) The court shall dispose of the rule on petition and
answer, and on any testimony, depositions, admissions and
other evidence. The court for cause shown may stay
proceedings on the petition insofar as it seeks to open the
judgment pending disposition of the application to strike off
the judgment. 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.

(f) The lien of the judgment or of any levy or attachment
shall be preserved while the proceedings to strike off or
open the judgment are pending.

Pa.R.C.P. 2959, 42 Pa.C.S.A.
¶11 The trial court concluded that the notice given pursuant to Pa.R.C.P.
2958.1 was sufficient to explain the procedure for seeking to strike a
judgment entered by confession. However, review of Pa.R.C.P. 2959 reveals
several specific procedural instructions for seeking relief from a judgment
entered by confession. Among other things, that Rule directs that all
possible grounds for relief must be included within a single petition, provides
that a petition must ordinarily be filed within thirty days of service, and
specifies the manner of service of the petition. Additionally, Rule 2959
explains the permissive counties where the petition may be filed as well as
what actions are to be taken by the trial court in ruling on such a petition.

- 10 -

J. A11027/03
¶12 We find that the instructions described by Section 2737.1 clearly
require more than the notice set forth in Pa.R.C.P. 2958.1. Section 2737.1
refers to the actual procedure for striking off the judgment. The Rule
2958.1 notice simply advises a debtor that he or she has 30 days to take
some action with respect to the judgment but does not explain what a
petition must contain, where it may be filed, and how it must be served.
Additionally, the Rule 2958.1 notice does not inform a debtor of his
entitlement to attorney fees and costs for misidentification. In order to give
effect to Section 2737.1 in its entirety, we must conclude that more than
Rule 2958.1 notice is required when a judgment is entered by confession,
particularly since the last amendment to Rule 2958.1 was made in 1999,
prior to the enactment of 42 Pa.C.S.A. § 2737.1.
¶13 Appellees cite Duffy v. Gerst, 429 A.2d 645 (Pa. Super. 1981), in
support of their argument that a judgment should not be stricken for failure
of the prothonotary to comply with a notice provision. In Duffy, the
appellants argued that a default judgment entered against them should be
stricken because the prothonotary failed to give them notice of the final
decree as required by Pa.R.C.P. 236(a)(2). We concluded that this failure on
the part of the prothonotary did not provide a ground for striking judgment
because the appellant was able to and did file a petition for relief from the
judgment prior to the entry of the final decree.

- 11 -

J. A11027/03
¶14 By contrast in the instant matter, we are not concerned with a lack of
notice of a final decree. Additionally, unlike a default judgment such as that
in Duffy, a party confessing judgment is required by Rule 236 to "provide
the prothonotary with the required notice and documents for filing[.]" Thus
we are not simply reviewing a failure by a public official to perform a
ministerial task. Instead, we must determine whether Appellees failed to
provide a mandated notice and whether that omission constitutes a fatal
defect. We, therefore, find Duffy to be distinguishable and not controlling.3
¶15 A review of the complaints in confession of judgment and the
accompanying affidavits makes clear that Appellees only provided the notice
required by Rule 2958.1, set forth above. There can be no question that the
specific instructions required by Section 2737.1 were not set forth ("the
creditor filing the judgment shall provide the debtor with written
instructions regarding the procedure to follow to strike the judgment" and
"[t]he instructions provided to the debtor shall explain to the debtor that
under this section he is entitled to costs and reasonable attorney fees as
determined by the court if he was incorrectly identified.") We are mindful of

3 We also find unpersuasive Appellees' argument that Appellants waived any
and all defects in a confession of judgment proceeding simply because the
Guaranty included language that judgment could be confessed "with release
of errors." See Guaranty ¶ 10. Unlike the clear language in Courtney v.
Ryan Homes, Inc., 497 A.2d 938, 941 (Pa. Super. 1985), where the debtor
expressly agreed that it "forever waives and releases all errors in said
proceedings," the Guaranty at issue in this case falls far short of an absolute
waiver.

- 12 -

J. A11027/03
the mandatory connotation which is usually attributed to the word "shall."
Zimmerman v. O'Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982).
Additionally, we note that Rule 236 places an affirmative duty on a party
confessing judgment to provide the appropriate notices to the debtor to the
prothonotary.
¶16 The validity of a confession of judgment requires strict compliance with
the Rules of Civil Procedure as well as "rigid adherence to the provisions of
the warrant of attorney." Citizens National Bank v. Rose Hill Cemetery
Association, 281 A.2d 73, 74 (Pa. Super. 1971). Absent such compliance,
a confession of judgment cannot stand. For all of the foregoing reasons, we
hold that Appellees' failure to provide the requisite instructions set forth in
Section 2737.1 of the Judicial Code constitutes a fatal defect apparent on the
face of this record. The remedy for such a defect or irregularity on the face
of the record is a striking of the judgment. Resolution Trust, supra.
Accordingly, the order denying Appellants' motion to strike must be reversed
and the judgment stricken.4
¶17 Order reversed and judgment stricken. Jurisdiction relinquished.

4 In light of our disposition we find it unnecessary to address Appellants'
remaining claims.

- 13 -