Manor Building Corp. v. Manor Complex Associates, Ltd.

645 A.2d 843, 435 Pa. Super. 246, 1994 Pa. Super. LEXIS 2231
CourtSuperior Court of Pennsylvania
DecidedJuly 18, 1994
Docket0979
StatusPublished
Cited by46 cases

This text of 645 A.2d 843 (Manor Building Corp. v. Manor Complex Associates, Ltd.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manor Building Corp. v. Manor Complex Associates, Ltd., 645 A.2d 843, 435 Pa. Super. 246, 1994 Pa. Super. LEXIS 2231 (Pa. Ct. App. 1994).

Opinions

CIRILLO, Judge:

Appellant Manor Complex Associates, Ltd. (Manor) appeals from an order of the Court of Common Pleas of Allegheny County denying its motion to strike the confessed judgment entered against it on a second mortgage security agreement. The judgment was in the amount of $4,832,572.82. We affirm.

On April 28, 1988, Manor executed a security agreement granting a second mortgage to ComFed Savings Bank1 as security for a $5,500,000.00 note. Manor also executed an assignment of rents and leases to ComFed in connection with that second mortgage. The following year, ComFed assigned its interest in the mortgage to appellee Continental Realty Credit, Inc. (Continental). Continental then assigned the [250]*250mortgage and rents and leases to appellee Westinghouse Credit Corporation (Westinghouse). In its complaint in confession of judgment, Continental averred that it retained an ownership interest in the mortgage. The language in the assignment, however, reads as follows:

Continental Realty Credit, Inc., ... holder and owner by Assignment of even date recorded herewith of: (a) a Mortgage-Security Agreement to it from Manor Complex Associates, Ltd., ... and (b) an Assignment of Rents and Leases executed in connection therewith ... hereby assigns and transfers all of Continental’s right, title and interest in the Mortgage and Assignment to Westinghouse Credit Corporation ..., without recourse.

Assignment of Mortgage and Assignment of Rents and Leases, R.28a.

On December 27, 1990, Manor defaulted on the second mortgage and, pursuant to the terms of the mortgage which included a confession of judgment/warrant of attorney clause, Continental and Westinghouse filed a complaint in confession of judgment against Manor on April 8, 1991. Judgment was entered that same day.

On April 11, 1991, Manor filed for Chapter 11 bankruptcy, but on January 29, 1992, the case was dismissed effective March 16, 1992. Thereafter, on March 16, 1992, Continental and Westinghouse assigned the rents and leases as well as the April 8, 1991 judgment to appellee Manor Building Corporation [hereinafter referred to as MBC]. On April 20, 1992, appellant Manor filed a petition to strike the judgment.

In its petition, Manor alleged that the judgment failed to comply with Pennsylvania Rules of Civil Procedure 2002(a) (pertaining to real party in interest) and 2954 (providing that judgment be entered in the name of the holder, assignee, or other transferee). Manor argued, therefore, that there existed a defect on the record and that the judgment should be stricken. The trial court disagreed and denied the petition. Manor filed this appeal, and now presents the following claims:

[251]*2511. Whether Plaintiffs Continental and Westinghouse properly confessed judgment against Defendant Manor in accordance with Pa.R.C.P. 2954?

2. Whether Plaintiffs Continental and Westinghouse carried their burden of proving their interest in the note and mortgage?

3. Whether the inclusion in the record of contradictory averments constitutes a defect on the face of the record?

4. Does an assignment attached to a complaint constitute part of the record?

5. Whether contradictory averments of fact introduced into a record must all be accepted as true by the court?

As the trial court noted, Manor decided to forego a petition to open2 and proceeded solely on a motion to strike. See Parkview Consumer Discount Co. v. Goss, 231 Pa.Super. 50, 332 A.2d 827 (1974). We, therefore, confine our review accordingly.

A motion to strike a judgment operates as a demurrer to the record and will only be granted if a fatal defect or irregularity appears on the face of the record or judgment. DeCoatsworth v. Jones, 536 Pa. 414, 639 A.2d 792 (1994); Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 511 A.2d 761 (1986); Commonwealth National Bank v. Boetzelen, 338 Pa.Super. 237, 487 A.2d 943 (1985). [252]*252The defect which is a matter of record or which appears from the face of the judgment must be alleged in the application. Albert Einstein Medical Center v. Forman, 212 Pa.Super. 450, 243 A.2d 181 (1968). Further, “being in derogation of important rights on behalf of the debtor, any ambiguity in the warrant of attorney authorizing confession of judgment must be resolved against the party in whose favor the warrant is given.” Kline v. Marianne Germantown Corp., 438 Pa. 41, 263 A.2d 362 (1970).

A judgment entered by confession must be self-sustaining and may not be entered when the court must consider matters outside the instrument in order to support the judgment. Colony Federal Savings & Loan Assoc, v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 361 A.2d 343 (1976). When a proceeding to confess judgment is instituted by complaint, the complaint and confession of judgment clause must be read together to determine whether there are defects on the face of the record. Parliament Industries, Inc. v. Wm. H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983). See generally Goodrich-Amram 2d §§ 2951-2954. The facts averred in the complaint are to be taken as true; if the factual averments are disputed, the remedy is by a proceeding to open the judgment and not by a motion to strike. Van Arkel & Moss Properties, Inc. v. Kendor, Ltd., 276 Pa.Super. 547, 551, 419 A.2d 593, 595 (1980).

Manor argues that judgment in favor of both Continental and Westinghouse was improper and contrary to Pa.R.C.P. 2954 as Continental did not retain an interest in the mortgage when it assigned the instrument to Westinghouse. We disagree.

A negotiable instrument is an instrument capable of transfer by endorsement or delivery. Negotiability provides a means of passing on to the transferee the rights of the holder, including the right to sue in his or her own name, and the right to take free of equities as against the assignor/payee. See Fischbach & Moore v. Philadelphia National Bank, 134 Pa.Super. 84, 3 A.2d 1011 (1939). The purpose of the Com[253]*253mereial Code is to enhance the marketability of negotiable instruments and to allow bankers, brokers, and the general public to trade in confidence. See Uniform Commercial Code, Article 3, Negotiable Instruments, 13 Pa.C.S. §§ 3101 et seq. See also First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377 (1941). As a matter of sound economic policy, the Commercial Code encourages the free transfer and negotiability of commercial paper to stimulate financial interdependence.

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Bluebook (online)
645 A.2d 843, 435 Pa. Super. 246, 1994 Pa. Super. LEXIS 2231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manor-building-corp-v-manor-complex-associates-ltd-pasuperct-1994.