The Petition

THE READING PARKING AUTHORITY, COURT OF COMMON PLEAS
OF BERKS COUNTY, PENNSYLVANIA

Plaintiff,
CIVIL ACTION – LAW
v.
NO. 18-427
OUR CITY-READING, INC. and
GOGGLE WORKS SHOPS, LLC,
Received County of Berks Prothonotary’s Office on 04/30/2018 1:47 PM Prothonotary Docket No. 18-00427
Defendants
RULE TO SHOW CAUSE
AND NOW, this _______ day of _______, _____, upon consideration of the foregoing
petition, it is hereby ordered that:
(1) a rule is issued upon the Respondent to show cause why the Petitioners are not
entitled to the relief requested;
(2) the Respondent shall file an answer to the petition within __ days of this date;
(3) the petition shall be decided under Pa.R.C.P. 206.7;
(4) an evidentiary hearing on disputed issues of material fact shall be held on
___________ at ____ before the undersigned Judge in the Berks County Courthouse/Services
Center;
(5) argument shall be held on __________ at ____ before the undersigned Judge in
the Berks County Courthouse/Services Center;
(6) all proceedings are hereby stayed pending disposition of the Petition to Strike
and/or Open Confessed Judgment and to Stay Proceedings;
(7) notice of the entry of this Order shall be provided to all parties by the Petitioners.
BY THE COURT:
_________________________J.
REED SMITH LLP Attorney for Plaintiffs
BY: Scott Esterbrook (PA. I.D. 88113) Our City-Reading, Inc. and Google Works
Three Logan Square Shops, LLC
1717 Arch Street, Suite 3100
Philadelphia, PA 19103
(215) 851-8146
(215) 851-1420 (facsimile)
sesterbrook@reedsmith.com
THE READING PARKING AUTHORITY, COURT OF COMMON PLEAS

OF BERKS COUNTY, PENNSYLVANIA

Plaintiff,
CIVIL ACTION – LAW
v.
NO. 18-427
OUR CITY-READING, INC. and
GOGGLE WORKS SHOPS, LLC,
Defendants
DEFENDANTS’ PETITION TO STRIKE AND/OR OPEN CONFESSED JUDGMENT

AND TO STAY PROCEEDINGS
This is a Petition by Defendants Goggle Works Shops, LLC (“GWS”) and Our City
Reading, Inc. (“OCR”; together with GWS, the “Defendants”) to Strike and/or Open the
Confessed Judgment by the Reading Parking Authority (the “RPA”) for possession of real
property located at 27 North 2nd Street, Reading, PA 19606 (the “Premises”) in the above-
referenced matter, and for a stay of all proceedings.
1. Petitioner GWS is a defendant in this action and maintains a place of business at
4500 Perkiomen Avenue, Reading, PA 19606.
2. Petitioner OCR is a defendant in this action and maintains a place of business at
4500 Perkiomen Avenue, Reading, PA 19606.
3. Respondent, the RPA, is the plaintiff in this matter and maintains a place of
business at 613 Franklin Street, Reading, PA 19602.
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I. OVERVIEW
4. The RPA seeks to terminate the Lease and take possession and control of the
Leased Premises from GWS by confession of judgment. Defendants have collectively invested
almost $2,000,000 in tenant improvements into the leased property since the tenancy
commenced, and confession of judgment against GWS is not authorized by the provisions
contained in the Lease. The alleged default relates to a water bill that (a) is not GWS’s
obligation; and (b) is more than 11 years old. In fact, on March 20, 2010, the RPA provided an
affidavit to GWS confirming that there were no known defaults or events of default under the
Lease. In 2017, for the first time, RPA requested that GWS pay the amounts in arrears under the
water bill. Despite the fact that neither OCR nor GWS had any legal obligation to pay the bill,
GWS tried to pay such amounts to the Reading Water Authority in an attempt to resolve these
issues with the RPA. While an amount was agreed to by the RAWA, the payment was not
accepted, upon information and belief, due to the RPA’s interference. Given the foregoing, the
RPA’s alleged claim is not being sought in good faith and is a thinly-veiled attempt of the RPA
to unjustly evict GWS from the Leased Premises and obtain both a windfall in value and
possession over the Leased Premises.
5. Notwithstanding OCR’s and GWS’s good faith attempt to resolve the confusion
relating to this alleged liability, the RPA and its counsel have demonstrated their unwillingness
and inability to honor their agreements. As described below, the parties negotiated a standstill
agreement to stay this litigation to allow the parties time and an opportunity to resolve their
issues. In consideration of this standstill agreement, the Defendants (through an affiliate) agreed
to pay over $54,000 to RPA. After the money was paid, the Defendants’ counsel attempted to
reach RPA to resolve the dispute on the merits. Despite Defendants’ repeated attempts to
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negotiate, and without any notice from the RPA that it considered the standstill period to have
terminated, the RPA and its counsel filed a writ of possession which deprived the GWS of its
right to access the Leased Premises and resulted in other damages. Coincidentally, the writ was
obtained around the same time that Defendants reached an agreement and attempted to pay the
alleged liability to RAWA, thereby eliminating the original grounds for the RPA’s alleged
default under the Lease. Given the foregoing, the RPA’s claims fail on their merits.
6. Furthermore, notwithstanding the reckless and bad faith actions of the RPA and
its counsel as described above, the Complaint and Confession of Judgment have fatal defects and
should be stricken for a number of reasons including, without limitation, (a) the current tenant of
the Leased Premises, GWS, never executed a confession of judgment or knowingly agreed to
waive its Constitutional right of due process; and (b) there was no default under the Lease. For
these reasons, and as detailed more fully below, GWS and OCR are entitled to the entry of an
order striking the confessed judgment entered against them.
II. BACKGROUND
7. OCR is a Pennsylvania non-profit corporation whose mission includes
redevelopment of the City of Reading and bringing economic growth and new job opportunities
to the area.
8. One of OCR’s primary objectives is to rehabilitate and revitalize the property
located at and around Second and Washington Streets in the City of Reading.
9. OCR is responsible for developing the Goggleworks Apartments, the
Goggleworks Shoppes, the Reading IMAX Theater and other commercial economic projects
located in the vicinity of Second and Washington Streets in the City of Reading.
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10. All of it would not have been possible without the charitable endeavors of its
deceased chairman Albert R. Boscov (“Mr. Boscov”), who donated millions of dollars into OCR
and other charitable organizations for the improvement and revitalization of the City of Reading.
A. The Lease Agreement
11. On or about April 25, 2007, the RPA and OCR entered into a Lease Agreement,
whereby OCR leased approximately 17,500 square feet of the ground floor of the Premises,
equivalent to 64 parking spaces (the “Leased Premises”). A true and correct copy of the Lease
Agreement is attached hereto as Exhibit A.
12. On August 22, 2007, the RPA and OCR executed an addendum to the Lease
Agreement (“Addendum”) that increased the total square footage of the Leased Premises to
approximately 21,600 square feet, equivalent to 72 parking spaces. A true and correct copy of
the Addendum is attached hereto as Exhibit B. The Addendum, unlike the Lease Agreement
itself, does not contain a warrant of attorney provision.
13. On February 28, 2008, the RPA, OCR, and GWS executed an assignment of the
Lease Agreement (“Assignment”), whereby OCR assigned all of its rights, title and interest in
the Lease Agreement to GWS. A true and correct copy of the Assignment is attached hereto as
Exhibit C. The Assignment does not contain a warrant of attorney provision.
14. Section 18.08 of the Lease Agreement contains a warrant of attorney to confess
judgment for possession, which permits the RPA to eject GWS from the Premises and take
possession upon an event of a default and termination of the Lease Agreement by GWS. See
Lease Agreement, Ex. A, at § 18.08(a).
15. Section 18.01 of the Lease Agreement makes it clear that it is an automatic
default only in the event that (1) the Tenant fails to pay rent when due upon written notice from
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the Landlord or (2) the Tenant fails to maintain required insurance. See Lease Agreement, Ex.
A, § 18.01 (a)(b).
16. All other failures of performance under the Lease Agreement are events of default
only in the event that the failure to perform is not cured within thirty (30) days after Tenant
receives written notice from the Landlord. See Lease Agreement, Ex. A, § 18.01 (c).
17. After execution of the Lease and through the date hereof, OCR and GWS have
spent and incurred almost $2,000,000 in the development of the Leased Premises.
18. Some of those amounts invested in the Lease Premises were proceeds from loans,
including a loan made by the Greater Berks Development Fund which was assigned to
Commonwealth Financing Authority (the “CFA Lender”) in the original principal amount of
$1,000,000 (the “CFA Loan”). The CFA Loan was secured by, among other things, a first
priority lien and security interest in the personal property of GWS located at the Leased Premises
(the “CFA Collateral”).
19. In connection with the CFA Loan, the RPA executed a Landlord Estoppel and
Certificate Agreement Regarding Lease (the “Estoppel”). A true and correct copy of the
Estoppel is attached hereto as Exhibit D.
20. The Estoppel requires the RPA to, among other things, provide notice to the CFA
Lender of any default and not seek to terminate the Lease until it has delivered notice to the CFA
Lender. See Estoppel, Ex. D, ¶¶ (c) and (d).
21. On information and belief, the RPA never gave any notice to the CFA Lender of
any alleged default or intent to terminate the Lease. See Affidavit of Brian Eckert, attached
hereto as Exhibit E.
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22. The RPA’s actions are not only a breach of its contractual obligations under the
Estoppel, but also may have constituted a default by GWS under its loan obligations to the CFA
Lender and resulted in damages to GWS.
23. The Leased Premises is now subleased to commercial tenants including Panevino
Restaurant and Channel 69 News.
B. The City Of Reading Seeks Return Of The Leased Premises

24. In January 2016, Mayor Wally Scott became the Mayor of the City of Reading.
25. Immediately after taking office, Mayor Scott met with Mr. Boscov and other
representatives from the Defendants and told them he wanted GWS to terminate the Lease and
give control of the Leased Premises “back to the people of the City of Reading.”
26. GWS explained that (a) it had invested a significant amount of money and that its
intentions were to continue to develop the Leased Premises; (b) its interests and those of the
people of the City of Reading were aligned; and (c) GWS is in a better position to further
develop and manage the Leased Premises and did not want to abandon its efforts.
27. Mayor Scott appointed the executive director of the RPA, Thomas MacDougal, in
September 2017.
28. In approximately March of 2017, Mr. William Murray, who has the dual role of
serving as the executive director of the Reading Area Water Authority (“RAWA”) and as a board
member for the board of directors of the RPA, approached the Defendants to discuss certain
outstanding amounts allegedly owed under the Lease to RAWA relating to unpaid tapping fees
and water and sewer usage.
29. The Defendants had never received an invoice or itemization of the amounts
allegedly due but agreed to meet.
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30. While the Defendants did not agree that all amounts allegedly owed were actually
due to RAWA, the Defendants were willing to pay an amount equal to approximately $75,000 to
resolve any issues regarding past due amounts and would pay all invoiced amounts going
forward.
31. To date since the March 2017 meeting, GWS has paid all invoices sent by RAWA
to GWS regarding water and sewer services.

32. With respect to the historic balance owed, the Defendants left the meeting with
the understanding that RAWA was going to have their counsel draft a settlement agreement with
terms and amounts for GWS to consider.
33. GWS did not hear further from RAWA regarding these amounts or a settlement
agreement until it received the Complaint in January 2018.
C. RPA Confesses Judgment For Possession Of The Leased Premises
34. On or about January 12, 2018, RPA confessed judgment for possession against
GWS and OCR1 under the terms of the Lease Agreement.
35. The Complaint for Confession of Judgment alleged that GWS was in default
under § 22.01 of the Lease Agreement, which requires GWS to pay charges for utilities
consumed on the Leased Premises prior to delinquency. See Compl. ¶ 11; Lease Agreement, Ex.
A, § 22.01.
36. Specifically, the Complaint alleges that GWS failed to make payments totaling
$60,024.00 to RAWA. See Compl. ¶¶ 12-13; Lease Agreement, Ex. A, § 22.01.
1
Though Our City-Reading, Inc. (“OCR”) is also a named Defendant in this matter, GWS is the sole petitioner
because OCR assigned all of its rights, title and interest in the Lease Agreement to GWS. See Exhibit C, infra.
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37. The Complaint attaches no invoices, no detail or explanation as to what the
liability is or when it was incurred, and it is the understanding of GWS that no such invoices or
itemizations exist.
38. Until receiving the Complaint, GWS had no notice or any indication that the RPA
believed that there were any amounts outstanding relating to any obligation owed with respect to
water bills under the Lease Agreement other than the single conversation with Mr. Murray.
39. Though the Complaint is not clear on its face, GWS believes that the $60,024.00
allegedly owed constitutes tap-in fees for water usage for the Leased Premises imposed by
RAWA when new water utilities were connected to the Leased Premises in 2007.
40. When GWS took possession of the Leased Premises, the tap-in fees had already
been resolved between the RPA and RAWA, and GWS was assured on numerous occasions that
such obligations had been waived and were not owed by GWS. See 06/28/2007 Email and
01/08/2009 Email, attached hereto as Exhibit F.
41. Furthermore, until the meeting with Mr. Murray in May 2017, GWS had received
no notice during the eleven years since the charges were allegedly incurred that that any amounts
were outstanding.
D. Agreement To Standstill Period And Payment Of Alleged Outstanding Fees
42. After receiving the Complaint, on or about February 8, 2018, the Defendants and
the RPA met to discuss the issues raised in the Complaint together with other issues that
affiliated entities have with the RPA.
43. During that meeting, the Defendants and the RPA verbally agreed to a standstill
period where the parties and related affiliates would cease any further litigation relating to this
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action and other projects and issues unrelated to this litigation between the RPA and the
Defendants and its affiliates (the “Standstill Period”).
44. As part of the agreement to effectuate the Standstill Period to this action, Reading
Hospitality, LLC (“Reading Hospitality”) (an affiliate of OCR) agreed to pay to the RPA certain
amounts that the RPA alleged Reading Hospitality owed, but which Reading Hospitality
disputed, which exceeded $54,000. True and correct copies of such payments are set forth hereto
as Exhibit G.
45. The Defendants through counsel reached out numerous times to the RPA and its
counsel to arrange further discussions and meetings but never received a response. The RPA
did, however, accept the payments from Reading Hospitality that were agreed to and paid as
partial consideration for the Standstill Period.
46. Notwithstanding the RPA’s failure and refusal to respond to GWS’s
communications, GWS continued to work to resolve the alleged arrearage with RAWA. On or
about April 6, 2018, GWS reached an agreement with Mr. Murray, to pay $79,552.48 (the
“Payment”) as final and full payment on all tapping fees (domestic and fire), sewer and water
usage fees and expenses, owed directly or indirectly by GWS to RAWA with respect to the
Leased Premises. The Payment consisted of both the alleged outstanding tap-in fees, which were
to be paid for an agreed amount of $2,630.00 (the amount GWS believe is the amount used as the
default in the Complaint) together with outstanding usage amounts equal to $76,922.48.
47. Mr. Murray is both a director of the RPA and the executive director of RAWA.
48. As recently as April 6, 2018, Mr. Murray acknowledged the understanding of the
agreed Payment amount. See 03/16/2018 Email and 04/06/2018 Email, attached hereto as
Exhibit H.
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49. Even though GWS does not believe it owed the full amount of the Payment, it
was willing to pay it for the benefit of RAWA and to resolve all open issues in the above-
referenced litigation without the cost of litigation.
50. On April 3, 2018 without notice or further discussion, the RPA filed a Writ of
Possession for the Leased Premises (the “Writ”). A true and correct copy of the Writ is attached
hereto as Exhibit I.
51. Thereafter, Mr. Murray made clear that he was not willing to resolve the matter or
have the Complaint dismissed even though it was clear an agreement to the alleged outstanding
amount has been reached.
52. The Defendants remain willing and able to make the Payment if RAWA will
accept it. Alternatively, the Defendants are willing to interplead such amount with this Court.
53. Based on the circumstances, it appears the RPA is not interested in the Payment
or the outstanding obligation, and is, instead, improperly attempting to abuse the confession of
judgment provision it claims to have under the Lease Agreement in bad faith to take ownership
and control of the Leased Premises and obtain a windfall of the Defendants’ investment of
approximately $2,000,000 of value in the process.
III. PETITION TO STRIKE CONFESSED JUDGMENT
54. Pennsylvania Rule of Civil Procedure 2959 allows a defendant to petition to
strike off or open a judgment by confession. A motion to strike a judgment operates as a
demurrer to the record, providing the defendant with relief when a fatal defect or irregularity
appears on the face of the record or judgment. See Manor Building Corp. v. Manor Complex
Assocs. Ltd., 645 A.2d 843, 846 (Pa.Super. 1994).
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55. An order striking a judgment annuls the original judgment and the parties are left
as if no judgment had been entered. See Resolution Trust Corp. v. Copley Qu-Wayne Assocs.,
683 A.2d 269, 273 (Pa. 1996)
56. Further, in the context of a petition to strike, well pleaded facts averred in a
complaint to confess judgment are to be taken as true, but if factual averments are disputed, a
proceeding to open a judgment is appropriate. Manor Building, 645 A.2d at 846.

A. Standard For Striking Confessed Judgments
57. In order to be valid, a confession of judgment requires strict compliance with
applicable procedural rules as well as strict adherence to the provisions of the underlying warrant
of attorney. See Citizens National Bank v. Rosehill Cemetery Association, 218 Pa. Super. 366,
281 A.2d 73 (1971).
58. It has long been recognized that the “warrant of attorney authorizing [confession
of] judgment is perhaps the most powerful and drastic document known to civil law.” Cutler
Corp. v. Latshaw, 374 Pa. 1, 4, 97 A.2d 234, 236 (1953). Thus, among other things, the warrant
of attorney “will be construed strictly against the party to be benefitted by it.” Egyptian Sands
Real Estate v. Polony, 222 Pa. Super. 315, 321, 294 A.2d 799, 803 (1972).
B. The RPA’s Judgment Must Be Stricken As Void Because It Was Confessed

Absent A Surviving Warrant Of Attorney Authorizing Confession Of
Judgment
59. As set forth above, the Lease Agreement was amended on or around August 22,
2007, through the Addendum, without sufficiently incorporating the warrant of attorney.
60. Additionally, on or around February 28, 2008, the RPA, OCR, and GWS executed
an Assignment of the Lease Agreement. The Assignment also failed to sufficiently incorporate
the warrant of attorney.
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61. As the Lease Agreement was amended and assigned without preserving the
warrant of attorney, the RPA’s judgment is void.
62. Under Pennsylvania law, “[a] judgment by confession must be entered on a
written instrument in which judgment is confessed or that contains a warrant of attorney to
confess judgment.” 11 Standard Pennsylvania Practice 2d § 67:26. Indeed, “[t]he warrant of
attorney to confess the judgment is the very essence of the judgment, not a minor part of the
clerical process. Without it, the judgment is void.” Wells v. Cahan, 1988 WL 185889, *1, 1 Pa.
D. & C.4th 394 (Pa.Com.Pl. Mar 22, 1988).
63. “[A] warrant of attorney to confess judgment must be self-sustaining; to be self-
sustaining, the warrant must be in writing and signed by the person to be bound by it; and the
requisite signature must bear a direct relation to the warrant and may not be implied
extrinsically nor imputed from assignment of the instrument containing the warrant.” Greiber v.
Kennedy, 26 Pa. D. & C.3d 140, 1983 WL 287, *2 (Pa.Com.Pl. Mar 18, 1983) (emphasis added).
64. What follows from this is that when an instrument containing a warrant of
attorney is amended or assigned, the amendment or assignment must specifically incorporate the
warrant of authority in order to preserve it.
65. General provisions confirming or incorporating the terms of the original
instrument by general reference are not sufficient. See, e.g., Ferrick v. Bianchini, 2013 PA Super
116, 69 A.3d 642, 651 (2013) (quoting L.B. Foster Co. v. Tri–W Constr. Co., 409 Pa. 318, 186
A.2d 18, 19–20 (1962)) (“[A] warrant of attorney to confess judgment is not to be foisted upon
anyone by implication or by general and nonspecific reference….”)2; Scott v. 1523 Walnut
2
In Ferrick, the Superior Court found that the warrant of attorney at issue did survive subsequent amendment
because while the amendment did not re-state the warrant, it nevertheless specifically incorporated the warrant.
Ferrick, 69 A.3d at 652 (the amendment stated: “the confession of judgment provisions contained in [prior
agreements and assignments] are hereby republished and both Tenant and Assignee agree to be bound thereby in
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Corp., 301 Pa. Super. 248, 258-59, 447 A.2d 951, 956 (1982) (finding that a warrant of attorney
in a lease agreement would not support a confession of judgment where a subsequent amendment
to the agreement did not specifically incorporate the warrant of attorney, even though the
amendment stated that the terms of the original agreement “shall remain in full force and
effect.”); Dungan Heights Assocs., LLP v. Fox Chase Senior Ctr., Inc., 2017 Phila. Ct. Com. Pl.
LEXIS 102, at *2-3 (Mar. 21, 2017) (granting petition to strike judgment and holding that a
general reference in a lease amendment to “all other terms and conditions of the lease” is
insufficient and “[a] clear manifestation with specific acknowledgment that the tenant consented
to the warrant is necessary in order to find the confessed judgment valid.”); 2300 Chestnut
Assocs., L.P. v. Saxby’s Coffee, Inc., 2017 Phila. Ct. Com. Pl. LEXIS 174, at *3 (June 27, 2017)
(same).
66. In the instant case, when the Lease Agreement was amended through the
Addendum and then later assigned, neither of these subsequent documents specifically
incorporated by reference the warrant of attorney provision.
67. The Addendum merely states generally that, “[a]ll other terms and conditions not
modified by this Addendum to Lease Agreement shall remain in full force and effect.” As
specifically set forth in Dungan, this general language is not sufficient to incorporate the warrant
of attorney from the Lease Agreement. Addendum, Ex. B, ¶ 3.
68. Similarly, the Assignment states only that, “Assignee desires to accept such
assignment and assume the obligations of Assignor under the Lease which is incorporated herein
by reference and made part hereof.” Assignment, Ex. C, ¶ B.
accordance with the terms thereof.”). As set forth infra, neither the amendment nor the assignment in the instant
matter contain a similar specific incorporation of the warrant.
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69. The rule announced in Scott and Ferrick is clear that general incorporation
statements like those contained in the Addendum and assignment are not sufficient to confess a
judgment and instead act to foist the warrant of attorney upon GWS by general and non-specific
reference. Therefore, prevailing case law requires a finding here that the confessed judgment
filed by the RPA is void and invalid.
C. The RPA’s Judgment Must Be Stricken Because The Confession Of

Judgment Does Not Comply With The Warrant Of Attorney
70. Even if this Court finds that the warrant of attorney contained in the Lease
Agreement survived the subsequent amendment and assignment, the RPA’s judgment should
nevertheless be stricken because the RPA has failed to comply with the plain language of the
warrant of attorney.
71. The warrant contained in section 18.08 expressly requires both an event of default
and termination of the Lease before a confession of judgment may be filed. See Lease
Agreement, Ex. A, at § 18.08(a) (“When this lease shall be terminated by reason of an event of
default. . . .”).
72. The warrant further requires that in an action of ejectment, as in the instant case,
the RPA must file with the Court an affidavit setting forth the facts necessary to authorize the
entry of judgment. See Lease Agreement, Ex. A, at § 18.08(b).
73. The RPA’s Complaint fails to allege both an event of default and a termination of
the Lease, because neither occurred in the instant matter.
74. The RPA’s Complaint alleges a “default,” but fails to properly allege an “event of
default” as required by the warrant. This is important because for an alleged default under
section 22.01 to constitute an “event of default” under section 18.01(c), the Lease Agreement
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requires the RPA to provide written notice of the default and allow a 30-day cure period. See
Lease Agreement, Ex. A, at § 18.01(c).
75. There is no allegation in the Complaint that the RPA provided the requisite
written notice, nor is there an allegation of the passing of the 30-day cure period.
76. Furthermore, the Complaint fails to allege termination of the Lease following an
event of default as required by section 18.08(a).

77. In order for the RPA to terminate the Lease following an event of default, the
Lease Agreement requires the RPA to provide written notice of such termination. See Lease
Agreement, Ex. A, at § 18.02(b). The RPA fails to allege such written notice and its judgment
should therefore be stricken.
D. This Court Should Strike The Judgment Because The Complaint Does Not
Contain The Statement Required by Pennsylvania Rule of Civil Procedure
2952(a)(5)
78. Pennsylvania Rule of Civil Procedure 2952(a)(5) requires that a complaint for
confession of judgment include “either a statement that judgment has not been entered on the
instrument in any jurisdiction or if it has been entered an identification of the proceedings.”
79. The RPA’s Complaint does not contain such a statement or identification of
proceedings and therefore a fatal defect appears on the face of the Complaint and the judgment
should therefore be stricken.
WHEREFORE, the Defendants respectfully request that this Honorable Court enter an
Order granting its Petition and striking any judgment entered on the RPA’s Complaint for
Confession of Judgment, and granting such other relief that the Court deems just and proper. A
proposed form of Order is attached hereto.
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IV. PETITION TO OPEN CONFESSED JUDGMENT
A. Standard For Opening Confessed Judgments
80. The Defendants repeat and incorporate Paragraphs 1-79 herein as set forth at
length.
81. A petition to open a confessed judgment is “an appeal to the court’s equitable
powers, and is addressed to the sound discretion of the court.” M.H. David Estate Oil Co. v.
Sure Way Oil Co., 266 Pa. Super. 64, 67, 403 A.2d 95, 96 (1979).
82. A confession of judgment must be opened where 1) the petitioner acts promptly, 2)
alleges a meritorious defense and 3) presents sufficient evidence supporting the defense to require
submission of the issue to a jury. Homart Development Co. v. Sgrenci, 443 Pa. Super. 538, 550, 662
A.2d 1092, 1097 (Pa. Super. 1995).
83. The Court must view the facts alleged in support of the petition in the light most
favorable to petitioner while rejecting adverse allegations of the party obtaining the judgment, and
should focus on whether or not the offered defenses are “sufficient to justify relief if proven.”
Greenwood v. Kadoich, 239 Pa. Super. 372,376,357 A.2d 604, 606 (1976); Southeastern
Pennsylvania Transp. Auth. v. DiAntonio, 618 A.2d 1182, 1184 (Pa. Commw. 1992).
84. In this case, the Defendants have acted promptly, alleged meritorious defenses, and
have clear, direct, and precise evidence sufficient to justify relief. Accordingly, as a matter of law, if
the judgments are not stricken, the judgments should be opened.
i. Meritorious Defense: There Was No Event Of Default Under The

Terms Of The Lease Agreement
85. On or around January 12, 2018, the RPA confessed judgment for possession
against the Defendants alleging that it had defaulted under the terms of the Lease Agreement by
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failing to make a payment of $60,024.00 to RAWA for, upon information and belief, tap-in fees
for water usage.
86. As set forth above, however, the Defendants received assurances, after taking
possession of the Leased Premises, that those fees had already been resolved between the RPA
and RAWA and the Defendants’ obligations had been waived. See Emails, Ex. F.
87. Additionally, GWS never received any notice that any amounts were outstanding
from the time it took possession of the Leased Property forward, whether from RAWA, the RPA,
the City of Reading, or any other source until May 2017 which was eleven years after the Lease
was entered into and the alleged liabilities arose.
88. In fact, on March 20, 2010, the RPA provided an affidavit to GWS confirming
that there were no known defaults or events of default under the Lease.
89. In any event, any amounts owed that are more than four years old are no longer
collectable because the statute of limitations has passed with respect to such amounts. See 42 Pa.
C.S. 5525(a)) (establishing a four year statute of limitations for actions upon an express
contract).
90. Further, even if the $60,024.00 was owed by GWS, the failure to pay this amount
for utilities is not an “event of default” under the Lease Agreement because the RPA failed to
provide written notice of the failure to perform and thirty (30) days with which to cure that
failure.
91. The Lease Agreement makes it clear that, outside of a failure to pay rent or obtain
and maintain insurance, a failure of performance under the contract is not an event of default
unless the RPA provides written notice and an opportunity to cure. See Lease Agreement, Ex. A,
§ 18.01(a) - (c).
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92. Though the RPA alleges in its Complaint that it demanded the outstanding
amount from GWS, the RPA fails to attach any document, or produce any other evidence of the
delivery of written notice and an opportunity to cure. See Compl. ¶ 13.
93. Thus, no event of default occurred and this Court should therefore open the
judgment.
ii. Meritorious Defense: GWS Disputed The Water Bill Charges And
Later Tried to Make Payment To Settle The Dispute
94. As set forth above, there was no event of default under the Lease Agreement
because the claimed outstanding payment was not owed and, even if it was, failure to pay was
not an event of default because the RPA did not provide written notice and a chance to cure as
required by the Lease Agreement.
95. Furthermore, GWS disputed the outstanding charges in good faith and the Lease
Agreement cannot be read to require GWS to pay disputed charges.
96. GWS, at all times, disputed in good faith the amounts the RPA alleged were due
to RAWA.
97. Section 22.01 of the Lease Agreement speaks only to requiring payment “before
delinquency” and cannot be read to require the Tenant to pay utility charges that it disputes in
good faith and which do not have a set due date. See Lease Agreement, Ex. A, at § 18.02(b).
98. Despite this, in an effort to be a good corporate citizen, the Defendants reached out
to the RPA to discuss the issues raised in the Complaint and subsequently agreed with RAWA to
pay the liability. See Emails, Ex. H.
99. GWS continues to be willing to pay the amount agreed to by Mr. Murray to
resolve this alleged outstanding payment; however, the RPA and RAWA refuse to accept it.
- 20 -
100. Accordingly, as a matter of law, if the judgments are not stricken, the judgments
should be opened.
iii. The Defendants Have Several Additional Meritorious Defenses To

The RPA’s Claims
101. GWS’s other meritorious defenses to the RPA’s claims include the following:
a. The confession of judgment clause is vague, general and confusing, and

otherwise fails to constitute a valid authority and waiver to confess
judgment for possession;
b. The Complaint fails to state a claim upon which relief may be granted; and
c. The RPA’s claims are barred in whole, or in part, by the statute of
limitations, doctrines of accord and satisfaction, laches, release, and/or
waiver.
102. In addition to the facial invalidity of the confessed judgment and the presence of
meritorious defenses to it, the Court should also open the judgment based on principles of equity.
See M.H. David Estate, 266 Pa. Super. at 67, 403 A.2d at 96 (1979) (A petition to open a
confessed judgment is “an appeal to the court’s equitable powers, and is addressed to the sound
discretion of the court.”).
103. The RPA is abusing the warrant of attorney contained in the Lease Agreement to
inappropriately take possession and control of the Leased Premises.
104. Equitably, the confessed judgment, if not opened, will cause GWS to suffer
immediate and irreparable harm by ejecting GWS from the Leased Premises, which GWS
requires to sufficiently run its business.
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105. The Defendants invested almost $2,000,000 in the Leased Premises and the
RPA’s confessed judgment seeks to gain a windfall by taking possession and control of the
Leased Premises without any consideration to the Defendants.
106. Furthermore, GWS is obligated under the CFA Loan to the CFA Lender. The
RPA unauthorized and inappropriate actions have tortuously interfered with the CFA Loan and
have caused GWS damages.

107. The RPA entered into the Estoppel with the CFA Lender. The RPA’s failure to
provide notice to the CFA Lender of any alleged default or intent to terminate the Lease
constitutes a breach of the Estoppel. See Estoppel, Ex. D, ¶¶ (c) and (d). The RPA is estopped
from pursuing the confession of judgment in violation of the terms of the Estoppel.3
108. Given the strong showing of the Defendants’ likely success on the merits, the
immediate and irreparable harm that could befall the Defendants, and the absence of prejudice to
the RPA, particularly now that the alleged deficiency has been paid, this Court should exercise
its discretion to open the confessed judgment.
WHEREFORE, the Defendants respectfully request that this Honorable Court enter an
Order granting its Petition and Open the Judgment entered in favor of the RPA and against the
Defendants on January 12, 2018, and granting such other relief the Court deems just and proper.
A proposed form of Order is attached.
V. STAY OF PROCEEDINGS
109. The Defendants repeat and incorporate Paragraphs 1-108 herein as set forth at
length.
3
Based on information and belief the RPA Lender did not provide the CFA Lender with any notice of the Complaint
in Confession of Judgment or the Writ of Possession. The CFA Lender is entitled to due process and if the
judgment is not stricken should be given notice and an opportunity to be heard.
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110. Pennsylvania Rule of Civil Procedure 2959(b) authorizes the Court to issue a rule
to show cause and stay the proceedings on a judgment of confession, provided the Petition to
Open “states prima facie grounds for relief. . . .”
111. As set forth above, the RPA and the Defendants agreed to a Standstill Period on or
about February 8, 2018, in order to discuss and potentially resolve the issues related to the
Complaint.
112. The Defendants and the RPA verbally agreed to cease any further litigation
relating to this action and other unrelated projects and issues between the RPA and the
Defendants.
113. Despite that agreement to cease litigation, the RPA nevertheless has continued to
pursue possession of the Leased Premises, most notably through the filing of a Writ of
Possession on April 3, 2018. See Writ, Ex. I.
114. Without an immediate stay of the proceedings, the Defendants will be irreparably
harmed by an erroneous and invalid judgment.
115. The RPA would not be prejudiced by a stay of the proceedings.
116. A stay will not adversely affect, but instead will serve, the public interest and/or
policy.
117. Due to the drastic nature of a warrant of attorney, courts must conduct a careful
review to ensure that it is not improperly used.
118. Accordingly, the proceedings on the confessed judgment against the Defendants
should be stayed in this case because: (a) the Petition to Open states prima facie grounds for
relief; (b) the harm to the Defendants from denying a stay would be severe and irreparable; and
(c) the only “harm” to the RPA from granting a stay would be a short delay in enforcement
pending a proper judicial determination of whether such enforcement is justified.
- 23 -
WHEREFORE, the Defendants requests that this Honorable Court stay all proceedings
pending disposition of this Petition, and upon disposition, strike, or in the alternative, open the
judgment and provide such further relief as the court deems just and proper.
Dated: April 30, 2018 Respectfully submitted,
REED SMITH LLP

BY: s/ Scott Esterbrook

Scott M. Esterbrook (PA. I.D. 88113)
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, PA 19103
(215) 851-8146
(215) 851-1420 (facsimile)
sesterbrook@reedsmith.com
- 24 -
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition To Strike And/Or
Open Confessed Judgment And To Stay Proceedings, was served via ECF and overnight mail on
April 30, 2018 upon the following:
Mahlon J. Boyer, Esquire

Bingaman Hess
Treeview Corporate Center, Suite 100

2 Meridian Boulevard
Wyomissing, PA 19610
610.374.8377
610.376.3105 (fax)
610.370.8223 (direct dial)
mjboyer@bingamanhess.com
s/ Scott Esterbrook
Scott M. Esterbrook

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The Petition

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THE READING PARKING AUTHORITY, COURT OF COMMON PLEAS

OF BERKS COUNTY, PENNSYLVANIA

RULE TO SHOW CAUSE

petition, it is hereby ordered that:

entitled to the relief requested;

(3) the petition shall be decided under Pa.R.C.P. 206.7;

(4) an evidentiary hearing on disputed issues of material fact shall be held on

the Berks County Courthouse/Services Center;

and/or Open Confessed Judgment and to Stay Proceedings;

THE READING PARKING AUTHORITY, COURT OF COMMON PLEAS

OF BERKS COUNTY, PENNSYLVANIA

DEFENDANTS’ PETITION TO STRIKE AND/OR OPEN CONFESSED JUDGMENT

referenced matter, and for a stay of all proceedings.

1. Petitioner GWS is a defendant in this action and maintains a place of business at

4500 Perkiomen Avenue, Reading, PA 19606.

2. Petitioner OCR is a defendant in this action and maintains a place of business at

4500 Perkiomen Avenue, Reading, PA 19606.

business at 613 Franklin Street, Reading, PA 19602.

possession over the Leased Premises.

order striking the confessed judgment entered against them.

7. OCR is a Pennsylvania non-profit corporation whose mission includes

8. One of OCR’s primary objectives is to rehabilitate and revitalize the property

9. OCR is responsible for developing the Goggleworks Apartments, the

A. The Lease Agreement

Agreement is attached hereto as Exhibit A.

itself, does not contain a warrant of attorney provision.

Exhibit C. The Assignment does not contain a warrant of attorney provision.

Lease Agreement, Ex. A, at § 18.08(a).

(the “CFA Collateral”).

Estoppel is attached hereto as Exhibit D.

Lender. See Estoppel, Ex. D, ¶¶ (c) and (d).

Lender and resulted in damages to GWS.

Restaurant and Channel 69 News.

B. The City Of Reading Seeks Return Of The Leased Premises

and water and sewer usage.

allegedly due but agreed to meet.

to GWS regarding water and sewer services.

terms and amounts for GWS to consider.

agreement until it received the Complaint in January 2018.

C. RPA Confesses Judgment For Possession Of The Leased Premises

GWS and OCR1 under the terms of the Lease Agreement.

$60,024.00 to RAWA. See Compl. ¶¶ 12-13; Lease Agreement, Ex. A, § 22.01.

01/08/2009 Email, attached hereto as Exhibit F.

D. Agreement To Standstill Period And Payment Of Alleged Outstanding Fees

affiliated entities have with the RPA.

Defendants and its affiliates (the “Standstill Period”).

partial consideration for the Standstill Period.

46. Notwithstanding the RPA’s failure and refusal to respond to GWS’s

referenced litigation without the cost of litigation.

amount has been reached.

approximately $2,000,000 of value in the process.

III. PETITION TO STRIKE CONFESSED JUDGMENT

54. Pennsylvania Rule of Civil Procedure 2959 allows a defendant to petition to

strike off or open a judgment by confession. A motion to strike a judgment operates as a

Assocs. Ltd., 645 A.2d 843, 846 (Pa.Super. 1994).

683 A.2d 269, 273 (Pa. 1996)

proceeding to open a judgment is appropriate. Manor Building, 645 A.2d at 846.

A. Standard For Striking Confessed Judgments

57. In order to be valid, a confession of judgment requires strict compliance with

281 A.2d 73 (1971).

B. The RPA’s Judgment Must Be Stricken As Void Because It Was Confessed

the warrant of attorney.

warrant of attorney, the RPA’s judgment is void.

62. Under Pennsylvania law, “[a] judgment by confession must be entered on a