Constitution v. Constitution Drive Partners, L.P. (memorandum)

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J-S02020-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 CONSTITUTION DRIVE LOAN BUYER ASSOCIATES, L.P. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. CONSTITUTION DRIVE PARTNERS, L.P. Appellant No. 1141 EDA 2013 Appeal from the Order Entered March 22, 2013 In the Court of Common Pleas of Chester County Civil Division at No(s): 11-01386-JD BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED APRIL 21, 2014 Appellant, Constitution Drive Partners, L.P., appeals from the order On March 17, 2005, -in-interest (Madison Bank) extended a business loan to Appellant, in the principal amount of $1,650,000.00.1 The loan was evidenced by a Loan Agreement (hereinafter ____________________________________________ 1 While this appeal was pending, VIST Bank sold its right, title, and interest in the subject loan to Appellee, Constitution Drive Loan Buyer Associates, Appellate Procedure 502(b), VIST Bank and CDLBA filed an unopposed application to substitute CDLBA for VIST Bank as the Appellee in this case. Unopposed Application for Substitution of Party, 11/8/13, at 1-2. We granted the application and CDLBA is now the Appellee in this case. However, for simplicity, we will not differentiate between CDLBA and VIST (Footnote Continued Next Page) *Retired Senior Judge assigned to the Superior Court. J-S02020-14 2005. The March 17, 2005 Loan Agreement and the March 17, 2005 Note contain identical warrants of attorney to confess judgment. The warrants declare: BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF RECORD, OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR FOR THE BORROWER AT ANY TIME OR TIMES, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT AND EXPIRATION OF ANY APPLICABLE CURE PERIODS WITH RESPECT THERETO UNDER ANY OF THE LOAN DOCUMENTS, IN ANY SUCH COURT IN ANY ACTION BROUGHT AGAINST BORROWER BY LENDER WITH RESPECT TO THE AGGREGATE AMOUNTS PAYABLE UNDER THE LOAN DOCUMENTS, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR ALL SUMS PAYABLE BY BORROWER TO LENDER UNDER THE LOAN DOCUMENTS, AS EVIDENCED BY AN AFFIDAVIT SIGNED BY A DULY AUTHORIZED DESIGNEE OF LENDER SETTING FORTH SUCH AMOUNT THEN DUE FROM BORROWER TO LENDER, WITH COSTS OF SUIT, (5%) PERCENT OF THE AGGREGATE OF SUCH SUMS, FEES ARE STATED TO BE FIVE (5%) PERCENT SOLELY FOR PURPOSES OF FIXING A SUM CERTAIN FOR (Footnote Continued) _______________________ Bank in this memorandum. Instead, we will refer to both CDLBA and VIST -2- J-S02020-14 WHICH JUDGMENT CAN BE ENTERED BY CONFESSION AND AGREES THAT IN ENFORCING ANY SUCH JUDGMENT, LENDER SHALL NOT DEMAND, SOLELY LENDER IN CONNECTION WITH SUCH INDEBTEDNESS AFTER SUCH JUDGMENT IS RENDERED, ANY AMOUNTS IN EXCESS OF THE ACTUAL AMOUNT OF REASONABLE (WHICH L BE CHARGED OR BILLED TO THE LENDER AT THE STANDARD HOURLY RATES), WITH RELEASE OF PROCEDURAL ERRORS AND WITHOUT RIGHT OF APPEAL. IF A COPY OF THIS NOTE, VERIFIED BY AN AFFIDAVIT SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. BORROWER WAIVES THE RIGHT TO ANY STAY OF EXECUTION AND THE BENEFIT OF ALL EXEMPTION LAWS NOW OR HEREAFTER IN EFFECT. NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWER TO BRING ANY ACTION OR CONFESS JUDGMENT THEREIN SHALL BE DEEMED TO EXHAUST THE POWER, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT UNTIL ALL AMOUNTS PAYABLE TO LENDER UNDER THE LOAN DOCUMENTS HAVE BEEN PAID IN FULL. Loan Agreement, dated 3/17/05, at ¶ 11 (emphasis in original); Secured Line of Credit Note, dated 3/17/05, at ¶ 18 (emphasis in original). The Loan Agreem Agreement, Note, Security Agreement, Mortgage, Surety Agreement, or any other document heretofore, now or hereafter executed by Borrower to Bank in connection with the Loan, together with all modifications, extensions 1.7. The See Secured -3- J-S02020-14 Line of Credit Note, dated 3/17/05, at ¶ 4. Further, the Note specifically declares: FOR VALUE RECEIVED, [Appellant] promises to pay to the order of MADISON BANK . . . the principal sum of up to [$1,650,000.00] . . . ... [2(b)] Unless due earlier by virtue of an Event of Default, the entire unpaid principal sum then outstanding together with all accrued and unpaid interest and other charges shall become due and payable without further notice or demand on February 28, 2007 Secured Line of Credit Note, dated 3/17/05, at 1 (internal emphasis omitted). From April 1, 2008 to September 1, 2010, the parties executed ten modifications to the Note and, within these modifications, the parties extended the Maturity Date of the loan. The last modification was titled Specifically, the Allonge declared: Extension of Term contained in Section 2(b) of the Note (as the same was most recently extended to July 1, 2010) is hereby deleted Allonge to Note, dated 9/1/10, at ¶ 1 (emphasis in original). Further, and as was true with the prior nine modifications to the Note, the September 1, 2010 Allonge contained the same warrant of attorney to -4- J-S02020-14 confess judgment that was found in the original, March 17, 2005 Note. Id. at ¶ 6. Also on September 1, 2010, VIST Bank and Appellant executed an -page Amendment to the Loan Agreement simply amended the March 17, 2005 Loan Agreement in accordance with its terms. Amendment and Modification to Loan Agreement, dated 9/1/10, at ¶ 3. Further, the Amendment to the Loan Agreement declared: 2. Allonge. Currently with the execution of this Agreement, Borrower will execute an Allonge to the Note evidencing, inter alia, the new Maturity Date. 3. Amendment/References. The Loan Agreement and the Loan Documents are hereby amended to be consistent with the terms of this Amendment. All references in the Note Modifications, this Amendment, the Allonge and all other instruments or agreements executed or delivered pursuant to or in connection with the terms hereof. ... 9. Inconsistencies. To the extent of any inconsistencies between the terms and conditions of this Amendment and the terms and conditions of the Loan Agreement or the other Loan Documents, the terms and conditions of this Amendment shall prevail. All terms and conditions of the Loan Agreement and other Loan Documents not inconsistent herewith shall remain in full force and effect and are hereby ratified and confirmed by Borrower. -5- J-S02020-14 Amendment and Modification to Loan Agreement, dated 9/1/10, at ¶ 2-3 and 9. The Amendment to the Loan Agreement did not contain a warrant of attorney to confess judgment. However, the Amendment to the Loan Agreement also did not contain any language that renounced, eliminated, or otherwise altered the warrant of attorney to confess judgment that was contained in the March 17, 2005 Loan Agreement. Moreover, within the Amendment to the Loan Agreement, Appellant confirmed . . . [a]ll terms and conditions of the Loan Agreement and other Agreement. Amendment and Modification to Loan Agreement, dated 9/1/10, at ¶ 9. On Februa pay all sums due and owing under the Note upon its maturity on January 1, 9. the Note, as authorized by the warrant of attorney contained in the Note and ex Id. at ¶ 11. VIST Bank calculated the total amount due in the following manner: Principal (as of 1/24/2011) $1,645,063.18 Interest Due (as of 1/24/2011) $29,105.55 -6- J-S02020-14 Late Charge (as of 1/24/2011) $2,099.24 Attorneys Fees (the 5% of the Amounts due under the Loan Documents) $83,813.40 ____________ Total $1,760,081.37 Id. at ¶ 10. On February 8, 2011, the prothonotary entered judgment in favor of VIST Bank and against Appellant in the amount of $1,760,081.37. Judgment by Confession, 2/8/11, at 1. [Pennsylvania Rule of Civil Procedure] 2958.1 of Judgment and Execution ule 2958.1 Notice substantially tracked the form notice, as stated in Pennsylvania Rule of Civil Procedure 2964.2 See ____________________________________________ 2 Amongst other things, the Rule 2958.1 Notice informed Appellant that: 1) [Appellant] in favor of [VIST Bank] without any prior notice or hearing based on a confession of judgment contained in a written agreement or other thirty (30) d present it to a judge within [30] days after the date on which this notice is served on [Appellant] or [Appellan Notice, 2/14/11, at 1 (some internal capitalization omitted). -7- J-S02020-14 n to Strike Off and/or 3 that the trial court must strike the February 8, 2011 judgment because: 1) re is no self-sustaining warrant of attorney . . . in an agreement relied warrant of attorney clauses whe confession of judgment clauses in the agreements between the parties are a Judgment, 3/28/11, at 2. In the alternative, Appellant claimed that, if any Id. On March 29, 2011, the trial court issued a rule to show cause upon VIST Bank, as to why Appellant was not entitled to the requested relief. The ____________________________________________ 3 to Strike or Open Judgment was timely filed. Trial Court Opinion, 6/28/13, at 7-8; see also Pa.R.C.P. 2959(a)(3). We will not disturb this factual conclusion, especially since the successor-in-interest to VIST Bank has failed to file a brief in this case and, thus, has not made any argument as to how conclusion could be considered incorrect. -8- J-S02020-14 parties must complete depositions on the issues; and, all execution proceedings relating to the confessed judgment were stayed pending the February 15, 2012, the trial court issued a further order in the matter and, within this order, the trial court declared that the parties were entitled to engage in other forms of discovery and that such discovery must be completed within 45 days of the date of the order. Trial Court Order, 2/15/12, at 1. directed VIST Bank to produce a number of documents, including documentation on various bases, including that the documents were privileged. VIST Documents, dated 3/26/12, at 7. The certified record does not contain any See Documents, dated 2/23/12, at 8. -9- J-S02020-14 discovery. Within the motion, Appellant demanded that the trial court order VIST Bank to comply with the discovery requests. The trial court denied at 1. Therefore, the certified record contains no document or other evidence that would demons incurred in this case. Petition and then denied Ap 2013. Appellant filed a timely notice of appeal and the trial court ordered Appellant to file and serve a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). In 1. The trial court committed reversible error by failing to determine in a proceeding that was instituted by confession of judgment the validity, propriety, enforceability, ambiguity and meaning of the warrant of court erred by, among other things, failing to grant the Petition to Strike when the [trial c]ourt determined that [VIST Bank] can (and did) properly confess judgment on a Bank] can simply assure the [trial c]ourt in an opposition rea judgment proceeding. - 10 - J-S02020-14 2. The trial court committed reversible error by finding that and presented sufficient evidence to require a factual issue among other things, failing to grant the Petition to Open and Modification to Loan Agreement, dated September 1, 2010 []: (i) does not contain a warrant of attorney unambiguously permitting judgment by confession; (ii) with it; and (iii) expressly stated that the terms and conditions of any inconsistencies between the Amendment and the 3. The trial court committed reversible error by determining without hearing testimony the following disputed facts: (i) whether [VIST Bank] established an unbroken chain to a warrant of attorney clause; (ii) whether [VIST Bank] satisfied certain loan conditions e.g., that [VIST Bank] made a demand for reasonable cos and [Appellant] failed to promptly pay after such demand before [VIST Bank] confessed judgment for any such alleged amounts; that [VIST Bank] made a when it sought the grossly excessive amount of confession of judgment complaint; and that [VIST Bank] ensured any applicable cure periods had expired prior to Bank] confessed judgment for was actually then due and payable as [VIST Bank] represented; and (iv) whether [VIST Bank] confessed judgment by relying on . . . the [September 1, 2010 Amendment to Loan Ag - 11 - J-S02020-14 -3 (internal citations and corrections omitted) (emphasis in original). Appellant now raises the following four claims on appeal: [1.] Must a confessed judgment be stricken where [VIST Bank] failed to plead the occurrence of the express conditions precedent to exercise of the warrant of attorney? [2.] Must a confessed judgment be stricken where the loan documents are ambiguous as to whether a warrant of attorney is present? [3.] Must a confessed judgment be stricken where [VIST not then due to [it] in the judgment obtained by confession? [4.] Should a confessed judgment be opened where [Appellant] has timely raised the defenses that the amount of the confessed judgment is grossly inflated by inclusion of sums [Appellant] does not owe to [VIST Bank] and that the instrument relied upon by [VIST Bank] is ambiguous as to whether a warrant of attorney is included at all, and [Appellant] has produced sufficient evidence of each such defense to raise a jury question and/or was denied access to such evidence? 4 Our Supreme Court has explained the differences between a petition to strike a judgment and a petition to open a judgment: ____________________________________________ 4 For ease of discussion, we have re- - 12 - J-S02020-14 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. 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, i.e., the complaint and the documents which contain confession of judgment clauses. Matters dehors the record filed by the party in whose favor the warrant is given will not be considered. If the record is self-sustaining, the judgment will not be stricken. However, if the truth of the factual averments contained in such record are disputed, then the remedy is by a proceeding to open the judgment and not to strike. An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. A petition to open a confessed judgment is governed by Pa.R.C.P. 2959. A party is entitled to have a judgment entered by confession opened if evidence is produced which in a jury trial would require the issues to be submitted to the jury. When determining a petition to open a judgment, matters dehors the record filed by the party in whose favor the warrant is given, i.e., testimony, depositions, admissions, and other evidence, may be considered by the court. An order of the court opening a judgment does not impair the lien of the judgment or any execution issued on it. Resolution Trust Corp. v. Copley Qu-Wayne Assocs., 683 A.2d 269, 273 (Pa. 1996) (internal citations omitted). reviewing an appeal from a denial of a petition to strike[,] we are limited to determining whether the record as filed by the confessing party is adequate to sustain the judgment Germantown Sav. Bank v. Talacki, 657 A.2d 1285, 1288 (Pa. Super. 1995). With respect to an appeal from the may not disturb the - 13 - J-S02020-14 order] unless there was a manifest abuse of discretion or error Id. at 1289. warrant of attorney authorizing judgment is perhaps the most powerful and drastic document known to civil law. . . . The signing of a warrant of attorney is equivalent to a warrior of old entering a combat by discarding his shield and breaking his sword. For that reason the law jealously insists on proof that this helplessness and impoverishment was voluntarily accepted and consciously a Cutler Corp. v. Latshaw, 97 A.2d 234, 236 (Pa. 1953). Moreover (and because a warrant of attorney to confess judgment is such a powerful and drastic tool), these special rule construed strictly against the party to be benefited by it, rather than against Egyptian Sands Real Estate, Inc. v. Polony, 294 A.2d 799, 803 (Pa. Super. 1972) (en banc). ambiguities [must be] resolved against the party in whose favor the warrant Dollar Bank, Fed. Sav. Bank v. Northwood Cheese Co., 637 A.2d 309, 311-312 (Pa. Super. 1994). Notwithstanding the above, Pennsylvania has historically and permitted entry of confessed judgments pursuant to the authority of a Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 623 (Pa. Super. 2013). Our warrant of attorney is a contractual - 14 - J-S02020-14 agreement between the parties and [that] the parties are free to determine v. Stivala Invs., Inc., 922 A.2d 919, 924 (Pa. Super. 2007). On appeal, Appellant first claims that trial court erred when it refused occurrence of the express conditions precedent to exercise of the warrant of -16. Appellant did not include this claim in its court-ordered Rule 1925(b) Statement. Therefore, Appellant has waived second claim on appeal, Appellant contends that the Within A March 17, 2005 Note and the ten modifications to the Note September 1, 2010 Allonge including the contain a valid warrant of attorney to confess judgment. See reover, Appellant acknowledges that the March 17, 2005 Loan Agreement contains a valid warrant of attorney to confess judgment. See id. at 24. Appellant, however, claims that, since the September 1, 2010 Amendment to the Loan Agreement does not restate the warrant of attorney that is contained in the original - 15 - J-S02020-14 [Bank] contains no warrant of attorney and the [c]onfessed [j]udgment Id. at 25. , as VIST Bank did not confess judgment upon the warrant of attorney contained in the Loan Agreement. Rather, on the Note, as authorized by the warrant of attorney contained in the Note 11 (emphasis added). Moreover, the warrant of attorney to confess judgment contained in the Note was triggered when Appellant breached its obligations under the cipal sum Secured Line of Credit Note, dated 3/17/05, at 1; Allonge to Note, dated 9/1/10, at ¶ 1. Therefore, since the instrument upon which VIST Bank confessed judgment does, in fact, contain a valid warrant of attorney to confess judgment and since the confession of judgment clause contained in the - 16 - J-S02020-14 5 We will co claims, Appellant contends that the trial court erred in refusing to either strike or open the judgment, as the judgment improperly includes claims that the trial court erred in refusing to strike the judgment because the amount of 6 Appellant also claims that the trial ____________________________________________ 5 As has already been explained, even though the September 1, 2010 Amendment to the Loan Agreement did not contain a warrant of attorney to confess judgment, the Amendment to the Loan agreement also did not contain any language that renounced, eliminated, or otherwise altered the warrant of attorney to confess judgment that was contained in the March 17, 2005 Loan Agreement. Moreover, the Amendment to the Loan Agreement essentially amended only the maturity date on the original Loan Agreement confirmed . . . [a]ll terms and conditions of the Loan Agreement and other Agreement. Amendment and Modification to Loan Agreement, dated 9/1/10, at ¶ 9. We observe (without holding) that, under these circumstances, it appears as though VIST Bank could have also confessed judgment under the warrant of attorney contained in the Loan Agreement. See Graystone Bank v. Grove Estates, L.P., 58 A.3d 1277 (Pa. Super. 2012), 81 A.3d 880 (Pa. 2013). 6 tute an -20. This claim was See waives all defenses and objections which are not contained in the petition [to strike or open a confessed judgment] or - 17 - J-S02020-14 court erred in refusing to open the judgment, as Appellant produced evidence that VIST by the instrument . . . a A.2d at 1291. However, Talacki, 657 challenge to the accuracy of the amounts allegedly due under the instrument, or an error in computation, should be Id. Here, Appellant agreed that, if it defaulted upon the Loan Documents, it authorized and empowered: any attorney of record, or the prothonotary . . . to confess or enter judgment against [Appellant] for all sums payable by [Appellant] to [VIST Bank] under the Loan Documents, as evidenced by an affidavit signed by a duly authorized designee of [VIST Bank] setting forth such amount then due from [Appellant] to [VIST Bank], with costs of suit, plus aggregate of such sums, and [Appellant] acknowledges that purposes of fixing a sum certain for which judgment can be entered by confession and agrees that in enforcing any such judgment, [VIST Bank] shall not demand, solely with connection with such indebtedness after such judgment is rendered, any amounts in excess of the actual amount of hall be charged or billed to the [VIST Bank] at the standard hourly rates), with release of procedural errors and without right of appeal. - 18 - J-S02020-14 Allonge to Note, dated 9/1/10, at ¶ 6 (internal emphasis and some internal capitalization omitted). Under this clause, Appellant agreed that in the event of a default it al to five (5%) percent of Id. fees are stated to be five (5%) percent solely for purposes of fixing a sum certain for which judgment can be entered by confession in enforcing any such judgment Id. (emphasis added). fees judgme Id. Indeed, the clause contemplates the following procedure: 1) the Lender confesses judgment against the Borrower and includes, in the confessed judgment, the Borrower with a Rule 2958.1 Notice and thus begins to attempt to he judgment; 3) after being served with the Rule 2958.1 Notice, the Borrower may either do nothing - 19 - and trust that the Lender will not J-S02020-14 or the Borrower may file a petition to open see Allonge to Note, dated 9/1/10, at ¶ ground petition to open should not be granted, Pa.R.C.P. 2959(b) (stating the procedure to be followed after a petition to is produced which in a jury trial would require the issues to be submitted to With respect to the denial of its petition to strike the confessed judgment, Appellant does not dispute the fact that $1,676,267.97 ppellant] to [VIST Bank] under the Loan $1,676,267.97. See -31; Allonge to Note, dated 9/1/10, at ¶ 6. Rather, Appellant simply claims that confessed judgment excessive. - 20 - J-S02020-14 record as filed by the party in whose favor the warrant is given, i.e., the complaint and the documents which contain 7 confession of judgment clauses Resolution Trust Corp., 683 A.2d at 273. Indeed, this Court has 15% of the amount due was not grossly excessive and that the inclusion of such an amount in the confessed judgment did not require that the judgment be stricken. Rait Partnership, L.P. v. E Pointe Properties I, Ltd., 957 A.2d 1275 (Pa. Super. 2008); see also Dollar Bank, Fed. Sav. Bank, 637 A.2d at 313-314 (also holding that not grossly excessive). Therefore, the trial court did not err in refusing to strike the judgment. Appellant also claims that the trial court erred in refusing to open the not and will not remotely approach the $83,813.40 included in the ____________________________________________ 7 s brief to this Court, Appellant argues that in excessive in relation to the legal services reasonably need Brief at 18. This argument fails on its face, as it demands that this Court to the warrant [was] given, i.e., the complaint and the documents which contain confession of judgment clauses Resolution Trust Corp., 683 A.2d at 273. As stated above, our scope of review simply does not permit this Court to consider any such evidence. Id. fails. - 21 - J-S02020-14 8 This claim fails because the certified record contains no evidence, whatsoever, of the amount of We have explained: A petition to open [a confessed judgment] rests within the discretion of the trial court, and may be granted 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. Hazer v. Zabala, 26 A.3d 1166, 1169 (Pa. Super. 2011) (internal quotations, citations, and corrections omitted) (emphasis added). Moreover, Pennsylvania Rule of Civil Procedure 2959 sets forth the procedure for striking off or opening a confessed judgment. With respect to ____________________________________________ 8 On appeal, Appellant also claims that the trial court erred in refusing to unambiguously agree to the inclusion of a warrant of attorney to confess Appe for Confession of Judgment, 2/8/11, at ¶ 11. Moreover, VIST Bank confessed judgment on the Note because Appellant defaulted upon the terms of the Note. Since the Note clearly contains a warrant of attorney to confess judgment, the agreement is not ambiguous and, therefore, Appellant could not introduce parol evidence to contradict the plain terms of the Note. Frank v. Frank attempting to create an ambiguity by parol evidence where the agreement is not ambiguous on its face, an effort b (internal quotations and citations omitted). The trial court thus did not abuse its discretion when it refused to open the judgment on this basis. - 22 - J-S02020-14 a petition to open a confessed judgment, Rule 2959 provides in relevant part: (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. . . . ... (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 petition the plaintiff shall file an answer on or before the return day of the rule. . . . ... (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. Pa.R.C.P. 2959. In the case at bar, after Appellant filed its Petition to Strike or Open Judgment, the trial court issued a rule to show cause upon VIST Bank and [d]ocuments Production of Documents, dated 2/23/12, at 8. However, VIST Bank no - 23 - J-S02020-14 evidence that VIST Bank ever produced any document relating to the 9 Moreover, even though Appellant filed a motion to compel discovery with the trial court, the trial 2012.10 Therefore, as the record now stands, there is no evidence as to the ____________________________________________ 9 Bank -judgment - Brief at 29. However, the certified record does not contain these alleged monthly invoices. As such, we must consider the alleged invoices to be nonexistent. Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. certified record: [a]ny document which is not part of the official certified record is considered to be nonomitted); Bryant v. Glazier Supermarkets, Inc., 823 A.2d 154, 156 (Pa. Super. 2003) ( record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on . 10 s brief to this Should any doubt exist as to the sufficiency of the evidence [Appellant] has produced, [Appellant] must point out to this Court that [Appellant] requested all such time and expenses, but VIST [Bank] refused to produce them, and the trial court declined to compel VIST [Bank] to do so. Appellan The above statement is a factual declaration; it does not assert any claim See Commonwealth v. Hallman (Footnote Continued Next Page) - 24 - J-S02020-14 e less than the $83,813.40 contained Pa.R.C.P. 2959(e); see also Hazer petition to open . . . may be granted 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 Appellant was thus not entitled to have the confessed judgment opened and the trial court was within its discretion when it denied Order affirmed. (Footnote Continued) _______________________ Court may not act as counsel for an appellant and develop arguments on declaration could be read as asserting a claim of trial court error, the claim would be waived because Appellant did not include the claim in its Rule - 25 - J-S02020-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/21/2014 - 26 -

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