King, M. v. Hochendoner, K.

• Court: Superior Court of Pennsylvania
• Decided: March 26, 2024
• Docket: 781 WDA 2023
• Status: Unpublished

Opinion

J-S05004-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MICHAEL J. KING, EXECUTOR OF : IN THE SUPERIOR COURT OF THE ESTATE OF JAMES E. KING : PENNSYLVANIA : : v. : : : KRISTOPHER PAUL HOCHENDONER : : No. 781 WDA 2023 Appellant :

Appeal from the Order Entered June 7, 2023 In the Court of Common Pleas of Westmoreland County Civil Division at No(s): No. 536 of 2022

BEFORE: PANELLA, P.J.E., KING, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED: March 26, 2024

Kristopher Paul Hochendoner brings this appeal from the order denying

his petition to set aside sheriff’s sale in this confession of judgment action

initiated by Michael J. King, Executor of the Estate of James E. King. Upon

careful review, we affirm.

On October 12, 2020, Hochendoner secured a $90,000.00 loan from

King. The purpose of the loan was to assist Hochendoner in the purchase of

commercial real property from King, which contained a one-story building

used as a restaurant. The note executed by Hochendoner contains a five-

paragraph confession of judgment provision. In addition, on October 12, 2020,

Hochendoner also executed a separate disclosure for confession of judgment.

After execution of the note, King conveyed the property to Hochendoner. J-S05004-24

Due to Hochendoner’s default for failure to make monthly payments

under the terms of the note, King filed a complaint in confession of judgment

on February 16, 2022. The complaint indicated that, as of January 30, 2022,

the amount due and owing by Hochendoner was $89,855.26, plus interest at

the default rate, costs, and attorney’s fees. On February 16, 2022, the

Westmoreland County Prothonotary entered judgment in favor of King and

sent notice of the entry of judgment to Hochendoner.

On September 12, 2022, King filed a writ of execution and notice of

judgment of execution. On November 10, 2022, a process server/constable

personally served Hochendoner with notice of judgment and execution and of

the scheduled sheriff’s sale. In addition, the Westmoreland County Sheriff

posted notice of the sheriff’s sale on the front door or the property on

November 15, 2022.

On January 3, 2023, the sheriff sold the property to King for costs and

taxes. Hochendoner filed a petition to set aside the sheriff sale on January 24,

2023. The trial court entered an order directing King to show cause why relief

should not be granted and setting a hearing date. King filed a timely answer.

On June 7, 2023, the trial court received oral argument and denied

Hochendoner’s petition to set aside the sheriff’s sale. This timely appeal

followed. Both Hochendoner and the trial court complied with Pa.R.A.P. 1925.

In his sole issue, Hochendoner argues that he was not given proper

notice and was denied due process. See Appellant’s Brief, at 11-12. He

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contends that King failed to provide him with a default notice prior to seeking

confession of judgment. See id. at 12. Hochendoner posits that “[t]he failure

to serve [him] notice deprives [the] court of personal and subject matter

jurisdiction and any subsequent execution should be set aside.” Id.

Generally, we observe that Pennsylvania Rule of Civil Procedure 3132

governs petitions to set aside sheriff’s sales, and provides as follows:

Upon petition of any party in interest before delivery of the personal property or of the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132.

Our Supreme Court has long held that petitions to set aside sheriff’s sale

are governed by equitable principles. See Doherty v. Adal Corp., 261 A.2d

311, 313 (Pa. 1970). Equitable principles are applied to sheriff’s sales because

“[t]he purpose of a sheriff’s sale in mortgage foreclosure proceedings is to

realize out of the land, the debt, interest, and costs which are due, or have

accrued to, the judgment creditor.” Kaib v. Smith, 684 A.2d 630, 632 (Pa.

Super. 1996). Moreover, we are mindful that the petitioner has the burden of

proving circumstances warranting the exercise of the trial court’s equitable

powers. See Bornman v. Gordon, 527 A.2d 109, 111 (Pa. Super. 1987). As

a general rule, the burden of proving circumstances warranting the exercise

of the court’s equitable powers is on the applicant, and the application to set

aside a sheriff’s sale may be refused because of the insufficiency of proof to

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support the material allegations of the application, which are generally

required to be established by clear evidence. See id. This Court will not

reverse the trial court’s decision absent an abuse of discretion. See id. An

abuse of discretion occurs where, for example, the trial court misapplies the

law. See Bank of America, N.A. v. Estate of Hood, 47 A.3d 1208, 1211

(Pa. Super. 2012).

We are mindful that Pa.R.C.P. 2959 provides, in part, that “[r]elief from

a judgment by confession shall be sought by petition,” and “all grounds for

relief whether to strike off the judgment or to open it must be asserted in a

single petition.” Pa.R.C.P. 2959(a)(1). If written notice of the entry of the

confession of judgment is sent to the defendant, the petition to open or strike

must be filed within thirty days of the entry of the judgment. 1 See Pa.R.C.P.

2959(a)(3). “A party waives all defenses and objections which are not included

in the petition or answer.” Pa.R.C.P. 2959(c).

Here, regarding the confession of judgment, the trial court observed,

“Pa.R.C.P. states that the action is commence by filing a complaint that

conforms with Pa.R.C.P. 2952. [King’s] complaint did conform with this rule.

As a result, the Westmoreland County Prothonotary’s Office was required to

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1 We note our courts have held the thirty-day deadline for filing a petition to

strike or open a confessed judgment does not run from the date that the judgment or writ of execution is filed. See Magee v. J.G. Wentworth & Co., 761 A.2d 159, 161 (Pa. Super. 2000). Rather, it begins to run when the defendant is served with written notice of execution. See Pa.R.C.P. 2959(a)(3); Magee, 761 A.2d at 161.

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‘enter judgment in conformity with the confession.’ Pa.R.C.P. 2956.” Trial

Court Opinion, 8/17/23, at 2-3. Concerning notice to Hochendoner, the trial

court further explained, “As to the Complaint to Confess Judgment, the rules

do not set forth a notice requirement [prior to filing of the complaint or entry

of judgment], except for loans that are more than twenty years old, which this

loan was not.” Id. at 3. The court then expounded, “unlike in regular civil

actions, the rules do not allow a plaintiff to attach to the complaint a notice to

defend or a notice to plead, and a responsive pleading is not required.

Pa.R.C.P. 2952(b).” Id. The trial court correctly noted that “[o]nce judgment

is entered, the Prothonotary’s Office must then give notice of entry of

judgment pursuant to Pa.R.C.P. 236, which was done in this case and

evidenced by a document signed by Gina O. Barto of the Westmoreland

County Protonotary’s Office.” Id.

Our review reflects the trial court accurately summarized the state of

the certified record before us. King commenced this action with the filing of a

complaint in confession of judgment on February 16, 2022, in compliance with

Rule 2952. See Complaint, 2/16/22. Attached to the complaint was a copy of

the note executed by Hochendoner. See id. at Exhibit A. In addition, King

attached a disclosure for confession of judgment, which was executed by

Hochendoner the same day as the note and also bears his initials at the end

of multiple paragraphs. See id. at Exhibit B. Finally, attached to the complaint

is a “notice of order, decree or judgment,” which is dated February 16, 2022,

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addressed to Hochendoner, and signed by the Westmoreland County

Prothonotary. See id.

The record also establishes that on September 12, 2022, King filed a

praecipe for writ of execution upon the confession of judgment in the form of

a sheriff’s sale of the real property. See Praecipe, 9/12/22. Attached to the

praecipe and dated September 12, 2022, is a notice of judgment and

execution addressed to Hochendoner and alerting him that a sheriff’s sale has

been scheduled for January 3, 2023. See id. Importantly, the record contains

a notarized affidavit of service reflecting that a process server/constable

personally served Hochendoner with a notice of execution of the judgment

and sheriff’s sale on November 10, 2023, at 6:23 p.m. See Affidavit of

Service, 11/21/23, at 2.

Accordingly, because written notice of the entry of the confession of

judgment was sent to Hochendoner by the prothonotary and notice of

execution of the confession of judgment and scheduled sheriff’s sale was

personally delivered to Hochendoner, a petition to open or strike the

confession of judgment needed to be filed within thirty days. See Pa.R.C.P.

2959(a)(3). Nevertheless, the record reflects, and it is undisputed that,

Hochendoner never filed a petition to open or strike. Having failed to do so,

Hochendoner has waived all defenses and objections to the confession of

judgment. See Pa.R.C.P. 2959(c). Therefore, Hochendoner cannot now attack

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the propriety of the confession of judgment, and we conclude that his issue is

waived.

Even if we were to address Hochendoner’s allegation that “[n]owhere in

the [c]omplaint does it state that notice of default was sent [and therefore,

King] has no authority to confess judgment,” Appellant’s Brief at 12, we would

conclude the claim lacks merit. As mentioned above, our Rules of Civil

Procedure do not set forth a notice requirement. See Pa.R.C.P. 2952.

Moreover, to the extent Hochendoner relies upon language in the note

executed by the parties suggesting written notice of a default would portend

a confession of judgment, we agree with the trial court’s conclusion that

additional provisions in the note and the disclosure signed by the parties

supports the determination that Hochendoner waived any right to prior notice.

As the trial court aptly stated, “[Hochendoner] knew he signed a note with a

confession of judgment clause and a separate disclosure addressing a

confession of judgment, both of which waived all forms of notice.” 2 Trial Court

2 Paragraph 9 of the note, titled “Confession of Judgment,” contains five paragraphs, in bold capital letters. The first sentence acknowledges an agreement between the parties that “[Hochendoner] unconditionally waives any and all rights [he] has or may have to prior notice[.]” Complaint, 2/16/22, Exhibit A, at ¶ 9 (full capitalization removed). The disclosure of confession of judgment contains the following language, also in capital lettering, expressing Hochendoner’s acquiescence to confession of judgment upon default without prior notice:

[HOCHENDONER] UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT (Footnote Continued Next Page)

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Opinion, 8/17/23, at 4. We agree with the trial court’s conclusion that

Hochendoner’s claim lacks merit and discern no abuse of discretion by the trial

court in denying the request to set aside the sheriff’s sale.

Order affirmed.

3/26/2024

[KING] TO ENTER A JOINT AND SEVERAL JUDGMENT AGAINST [HOCHENDONER] IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO [HOCHENDONER] AND WITHOUT OFFERING [HOCHENDONER] AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT.

Id., Exhibit B, at ¶ A (capitalization in original).

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