J-S14006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. : IN THE SUPERIOR COURT OF
SUCCESSOR BY MERGER TO : PENNSYLVANIA
WACHOVIA BANK, N.A. :
:
:
v. :
:
:
PATRICK F. COSTANTINO, A/K/A :
PASQUALE F. COSTANTINO, A/K/A :
PATRICK COSTANTINO, KAREN E. :
COSTANTINO, A/K/A KAREN ANN :
KARBOSKI AND THE UNITED STATES :
OF AMERICA :
:
:
APPEAL OF: PATRICK F. :
COSTANTINO, A/K/A PASQUALE F. :
COSTANTINO, A/K/A PATRICK :
COSTANTINO : No. 607 MDA 2016
Appeal from the Order Entered March 14, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2014-06640
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017
Appellant, Patrick F. Constantino a/k/a Pasquale F. Constantino a/k/a
Patrick Constantino, appeals from the order of the Luzerne County Court of
Common Pleas, which entered summary judgment in favor of Appellee, Wells
Fargo Bank, N.A., in this mortgage foreclosure action. We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S14006-17
restate them.1
Appellant raises two issues for our review:
DID THE [TRIAL] COURT…ERR AS A MATTER OF LAW IN
DISMISSING [APPELLANT]’S NEW MATTER ASSERTING
THAT [APPELLEE]’S MORTGAGE WAS UNLAWFUL AND IN
CONTRAVENTION OF BANKING REGULATIONS?
DID THE [TRIAL] COURT ERR AS A MATTER OF LAW IN
GRANTING [APPELLEE]’S MOTION FOR SUMMARY
JUDGMENT?
(Appellant’s Brief at 4).
With respect to Appellant’s first argument challenging “the dismissal of
his new matter,” we observe that appellate briefs must conform in all
material respects to the briefing requirements set forth in the Pennsylvania
Rules of Appellate Procedure. Rosselli v. Rosselli, 750 A.2d 355
(Pa.Super. 2000), appeal denied, 564 Pa. 696, 764 A.2d 50 (2000) (citing
Pa.R.A.P. 2101). See also Pa.R.A.P. 2114-2119 (addressing specific
requirements of each subsection of brief on appeal). Regarding the
argument section of an appellate brief, Rule 2119(a) provides:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
____________________________________________
1
We make the following additions to the trial court’s Rule 1925(a)(1)
opinion: Appellant and then-wife, Karen Constantino a/k/a Karen Ann
Karboski, executed the residential mortgage and promissory note in favor of
Wachovia Bank, N.A. on May 5, 2007. Appellant has not made a single
payment since he defaulted on the mortgage on January 26, 2012, and the
last payment he made was on December 28, 2011.
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J-S14006-17
have at the head of each part―in distinctive type or in
type distinctively displayed―the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). Importantly:
The argument portion of an appellate brief must include a
pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
Court will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal
denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation
marks omitted). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super.
2006) (explaining appellant’s arguments must adhere to rules of appellate
procedure, and arguments which are not appropriately developed are waived
on appeal; arguments not appropriately developed include those where
party has failed to cite any authority in support of contention); Estate of
Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of
appellate procedure make clear appellant must support each question raised
by discussion and analysis of pertinent authority; absent reasoned
discussion of law in appellate brief, this Court’s ability to provide appellate
review is hampered, necessitating waiver of issue on appeal).
Instantly, Appellant fails to cite relevant legal authority to support his
argument that the mortgage was unlawful. Instead, he merely cites the
legal standard for summary judgment. Appellant baldly states that the
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mortgage was unlawful and violated banking regulations because “the cross-
collateralization of the loan with the loan of…Appellant’s former wife was
done after the parties were divorced.” Appellant’s argument is incoherent
and unsupported by relevant legal authority. Appellant’s failure to develop
his claim on appeal precludes meaningful review and arguably constitutes
waiver of his first issue on appeal. See Pa.R.A.P. 2119(a); Pa.R.A.P. 2101;
Whitley, supra; Lackner, supra; Haiko, supra.
Moreover, with respect to both issues on appeal, after a thorough
review of the record, the briefs of the parties, the applicable law, and the
well-reasoned opinion of the Honorable Lesa S. Gelb, we agree Appellant’s
issues merit no relief. The trial court opinion comprehensively discusses and
properly disposes of the questions presented. (See Trial Court Opinion, filed
June 3, 2016 at 7-16) (finding: preliminarily, Appellant filed 14-issue Rule
1925(b) statement; this case is straightforward mortgage foreclosure action
where all relevant facts were presented to court; case does not factually or
procedurally justify identification of 14 issues for appellate review;
Appellant’s Rule 1925(b) statement includes issues, which are entirely
misplaced and not intended to be addressed with Superior Court; Appellant’s
Rule 1925(b) statement is nothing more than attempt to delay final
determination in this matter; Appellant waived all issues on appeal for filing
unnecessarily complex, incoherent, and lengthy Rule 1925(b) statement;
moreover, (1) Appellant’s new matter did not raise any material issues of
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J-S14006-17
fact but merely stated conclusions of law irrelevant to this foreclosure
action; in Appellant’s response to Appellee’s summary judgment motion,
Appellant failed to identify relevant facts in dispute or point to contradictions
in record; specifically, Appellant failed to: (a) attach to his response
supporting documents; (b) make factual allegations related to other loans
and guaranties; and (c) properly identify any cross-collateralization
provision; information related to other loans and guaranties are not in
record; Appellant failed to identify issue of material fact related to cross-
collateralization clause; (2) Appellant baldly denied in his answer to
Appellee’s complaint that he is in default under mortgage and amount due
and owing on mortgage; Appellant failed to identify in his answer those
payments he claims he made under mortgage; information on Appellant’s
payments not stated in complaint was within Appellant’s control; therefore,
Appellant’s denial of default is deemed admission of default and amount due
and owing under mortgage; Appellant’s response to motion for summary
judgment rested completely on pleadings; Appellant failed to attach
supporting documents to demonstrate genuine issue of material fact).
Therefore, we affirm on the basis of the trial court’s opinion.
Order affirmed.
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J-S14006-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
-6-
Circulated 03/03/2017 09:49 AM
Wells Fargo Bank, N.A. s/b/m : In the Court of Common Pleas
Wachovia Bank, National of Luzerne County
Association
Appel lee
VS.
Patrick F. Constantino, a/k/a
Pasquale F. Constantino, and
Koren Constantino a/k/a
Karen Ann Karboski
Patrick F. Constantino,
Appellant No. 6640 of 2014
OPINION
Background
On May 28, 2014, Appellee filed a Complaint in Mortgage
Foreclosure against Appellant (the "Comptolnt"}. In the
Complaint, Appellee alleged that Appellant executed a
mortgage to Wachovia Bank, National Association
("Wachovia") in the original principal amount of $240,141.50.
Appellee is the successor by merger to Wachovia. The
mortgage to Wachovia was recorded at the Luzerne County
II
Recorder of Deeds, Book 3007, Page 161163 (the Mortgage").
In the Complaint, Appellee alleged that Appellant defaulted
on the Mortgage for failure to pay installments of principal and
interest due on January 26, 2012. Appellee further explained
that, due to the default, Act 6 and Act 91 Notices were sent to
Appellant.
According to Appellee, the total amount due and owing
by Appellant on the Mortgage through May 8, 2014 was
$278,678.91with per diem interest in the amount of $44.44281
accruing thereafter. At the close of the Complaint, Appellee
sought an in rem judgment in mortgage foreclosure against
Appellant for the amount of $278,678.91.
On December 10, 2014, Appellant filed his Answer and
New Matter (the "Answer") in response to the Complaint. In the
Answer, Appellant generally denied Appellee's averment
alleging a default under the terms of the Mortgage, without
listing any payment dates or amounts. Appellant likewise
generally denied the amounts alleged to remain due and
owing on the Mortgage. Further, Appellant denied as
conclusions of fact and law to which no responsivepleading is
necessary the averment that the Act 6 and Act 91 Notices
2
were sent. In his New Matter, Appellant raised various irrelevant
issues that fail to amount to defenses in the instant matter.
-------------------- -------~-- ---------------
Appellee filed its Reply to New Matter on December 31, 2014.
On February 3, 2016, Appellee filed its Motion for Summary
Judgment (the "Motion for Summary Judgment"). In the Motion
-· · for Summary Judgment, Appellee osserted trrcrf"there·were-nn -
issues of material fact remaining and attached various
supportive documents to demonstrate Appellant's liability
pursuant to the Mortgage. Specifically, Appellee attached the
following documents to the Motion for Summary Judgment: the
Mortgage and Promissory Note; an Affidavit confirming the
default under the Mortgage and the amounts remaining due
and owing; Appellant's loan history; and, a copy of the
combined Act 6 and Act 91 Notice with proof of mailing.
Further, Appellee argued in the Motion for Summary Judgment
that Appellant's responses in his Answer effectively operated as
admissions to the allegations in the Complaint. Specifically,
Appellee claimed that Appellant's answers to averments l O
and 11 of the Complaint amount to admissions to the event of
3
default and the amounts due and owing under the Mortgage.
Appellee concluded the Motion for Summary Judgment with
the argument that Appellant's New Matter consisted only of
conclusions of law, unsupported by facts, which do not serve
as defenses in a mortgage foreclosure action .
.. ·····- ... -· ·-- ··-. ···-··-
On March-2; 20T6, Appellant filed his Respc,nse to · the
Motion for Summary Judgment. First, in his Response, Appellant
incorrectly stated that summary judgment is inappropriate
because Appellee failed to answer his New Matter. Indeed,
Appellee filed a timely Reply to New Matter on December 31,
2014. Next, Appellant attempted to overcome summary
judgment by arguing that the averments in his New Matter raise
unresolved issues of material fact. Notably, Appellant's New
Matter does not address any issues of fact, rather, it merely
states various conclusions of law irrelevant to this mortgage
foreclosure action. Finally, Appellant argued in his Response
that summary judgment is improper because Appellee relies on
its own allegations and deemed admissions by Appellant. Still,
throughout his seven (7) page Response, Appellant completely
4
fails to raise any facts relevant to the instant matter which
remain in dispute, or point to any contradictions in the record.
By Order dated March 14, 2016, this Court held that
Appellee was entitled to summary judgment as a matter of law.
Accordingly, this Court entered an in rem judgment in favor of
Appellee in the amount of $322,327.95 plus interest from
January 15, 2016 and other costs and charges collectible under
the Mortgage for foreclosure and sale of the mortgaged
property. On April 13, 2016, Appellant filed a Notice of Appeal
to the Pennsylvania Superior Court. 1 By Order dated April 15,
2016, this Court instructed Appellant to file a Concise Statement
of Matters Complained of on Appeal within 21 days. On May 3,
2016, Appellant filed his Concise Statement of Errors
Complained of on Appeal, raising fourteen (14) different
matters for review. Appellee did not file a response to
Appellant's Concise Statement.
1The other Defendant in this case, Karen Constantino a/k/a Karen Ann
Karboski, had a default judgment entered against her on January 21,
2015, and is not involved in the current appeal.
5
Standard of Review
Upon review of a motion for summary judgment, a court
must view the record in the light most favorable to the non-
moving party, and resolve all doubts as to the existence of a
genuine issue of material fact against the moving party. Fine v.
Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (citing Jones v.
SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (Pa. 2001)). The
Pennsylvania Rules of Civil Procedure governing summary
judgment instruct, in relevant part, that the court shall enter
judgment whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or
defense that could be established by additional discovery.
Pa.R.C.P., Rule l 035.2(1) (2015}. Pursuant to the Rules of Civil
Procedure, a motion for summary judgment is based upon an
evidentiary record that entitles the moving party to judgment
as a matter of law. Note to Pa.R.C.P., Rule 1035.2 (2015}. The
court 11
... may grant summary judgment only where the right to
such a judgment is clear and free from doubt." Checcio, 582
6
Pa. 253, 265, 870 A.2d 850, 857 (citing Marks v. Tasman, 527 Pa.
132, 589 A.2d 205, 206 (Pa. 1991)).
Law and Discussion
First and foremost, Appellant waived all issues for appeal
because he failed to concisely and coherently identify his
matters complained of, as ordered to do so by this Court.
According to the Pennsylvania Superior Court, the mere filing of
a timely response to the trial court's Pa.R.A.P. l925(b) order
does not automatically equate to issue preservation. Jiricko v.
Geico Insurance Company, 947 A.2d 206, 210 (Pa. Super. 2008).
The statement is a crucial step in the process because it permits
the trial court to focus on those issues an appellant intends to
raise. _!st (internal citations omitted). Accordingly, any issues not
properly raised will be deemed waived. kt (internal citations
omitted).
Pennsylvania Courts have repeatedly held that an
appellant waives all matters for review where he/she identifies
an outrageous number of issues in the concise statement. See
Jones v. Jones, 878 A.2d 86 (Pa. Super. 2005) (seven page,
7
twenty-nine issue statement resulting in waiver); Signora v.
Liberty Travel, Inc., 886 A.2d 284 (Pa. Super. 2005) (appellants
admonished for eight page, 25 issue statement and eight
page, forty-six issue statement, but court declined to find
waiver due to trial court opinion); Kanter v. Epstein, 866 A.2d
394 {Pa. Super. 2004) {fifteen page, fifty-five issue statement
resulting in waiver). However, " ... the number of issues raised in
a Rule 1925(b) statement does not, without more, provide a
basis upon which to deny appellate review where an appeal
otherwise complies with the mandates of appellate practice."
Eiser v. Brown & Williamson Tobacco Corp., 595 Pa. 366, 385,
938 A.2d 417, 427-428 (Pa. 2007). The Pennsylvania Supreme
Court has identified the complexity of the matter under review
as a consideration for courts to make prior to finding waiver
based on sheer volume of the concise statement. kt at 383,
427.
Additionally, the Pennsylvania Superior Court has
explained that an appellant's failure to state his/her issues to be
raised on appeal in a concise manner impedes a trial court's
8
ability to prepare an opinion explaining its ruling and, thus,
impedes proper appellate review. Kanter, 866 A.2d at 401.
-------·-- ··--·········-·-------------
Specifically, by raising an outrageous number of issues and/or
by identifying issues which he/she never intends to raise on
appeal, an appellant may deliberately circumvent the
meaning and purpose of Rule 1925(b). Id. Indeed, under
certain circumstances, our courts have held that appellants
breach their duty of fair dealing with the court by filing
cumbersome statements in an effort to preclude meaningful
review. See Jones, 878 A.2d 86; Kt at 402.
In the instant matter, Appellant filed a three page,
fourteen issue concise statement. Although the sheer length of
the statement may not appear excessive at first glance, one
must consider the complexity of this matter. This case involves a
straight forward mortgage foreclosure where all relevant
documents were presented to this Court and summary
judgment granted in favor of Appellee because there were no
genuine issues of material fact to be resolved. This is not a case
that factually or procedurally justifies the identification of
9
fourteen issues for review by our appellate courts. Appellant's
Concise Statement clearly includes issues which are entirely
misplaced and which Appellant never intends to address with
the Superior Court. For example, Appellant identifies two issues
related to counterclaims when no counterclaims have been
filed in the matter currently before this Court. In another issue,
Appellant claims that this Court's ruling was against the weight
of the evidence when there was no trial and the case was
disposed of at summary judgment. Aside from these
misrepresentations, as described below, Appellant arguably
raises two issues for review, but uses eleven numbered
paragraphs to do so. It is evident to this Court that Appellant's
Concise Statement is nothing more than an attempt to delay a
final determination in this matter. Accordingly, this Court holds
that, for the reasons stated above, Appellant waived all issues
for appellate review by filing a Statement that is neither concise
nor coherent and thwarts meaningful review.
Second, in the event that the reviewing court does not
agree with this Court's finding of waiver, this Court has
10
attempted to distill from Appellant's Concise Statement any
matters which may be appropriate for review. Although
··•·"-··-··-··-··-··---·-··-----------
Appellcnt' s Concise Statement inhibits meaningful review by
this Court, due to the lack of complexity of the substance and
procedural posture of this matter, this Court has identified the
following issues for review:
(1) Whether the trial court erred by granting Appellee's
Motion for Summary Judgment where genuine issues of
material fact exist?
(2) Whether the trial court erred by granting Appellee's
Motion for Summary Judgment where a cross-collateralization
clause rendered the Mortgage unlawful?
However, despite this Court's attempts to identify issues for
review, it is worth noting that "[e]ven if the trial court correctly
guesses the issues Appellants raise on appeal and writes an
opinion pursuant to that supposition the issues are still wclved."
Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super. 2004) (citing
Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super.
2002)).
11
The Superior Court has explained as follows:
In an action for mortgage foreclosure, the
_________ .entrv of surnmory ludqmentIs _ proper.il.the.. _
mortgagors admit that the mortgage is in
default, that they have failed to pay
interest on the obligation, and that the
recorded mortgage is in the specified
amount. This is so even if the mortgagors
have not admitted the total amount of
the indebtedness in their
pleadings. Cunningham v. McWilliams,
714 A.2d 1054, 1056-1057 (Pa. Super. 1998)
{internal citations omitted); Washington
Federal Savings and Loan Assoc. v. Stein,
515 A.2d 980, 981 (Pa. Super. 1986).
Pennsylvania Rule of Civil Procedure 1029(b) states
"[a]verments in a pleading to which a responsive pleading is
required are admitted when not denied specifically or by
necessary implication." Pa.R.C.P., Rule 1029(b) {2015). "A
general denial or a demand for proof ... shall have the effect of
an admission." 19.:_ In First Wisconsin v. Strausser, the Court held
that, when a defendant generally denies the amount due and
owing the bank, the general denial must be considered an
admission and tha.t summary judgment is therefore
appropriate. First Wisconsin v. Strausser, 653 A.2d 688 {Pa. Super.
12
1995). The First Wisconsin Court applied the rationale that a
defendant/ debtor, apart from the plaintiff I lender, is the only
party who would have sufficient knowledge of which to base a
specific denial. Id.
Applying the law to the facts of this case, it is clear that
the entry of summary judgment in favor of Appellee was
proper. In the Answer, Appellant purports to deny the
allegations in averment 10 of the Complaint that he is in default
under the terms of the Mortgage for failure to pay installments
due on January 26, 2012. Such denial is not specific because it
fails to allege payments made under the Mortgage and not
otherwise stated in the Complaint. Because such information
would be within the control of Appellant, his response to
averment 10 must be deemed an admission to the event of
default on January 26, 2012. Likewise,Appellant included in the
Answer a specific denial to the amounts due and owing on the
Mortgage through May 8, 2014, while, again, failing to allege
any payments he made that were unaccounted for in the
Complaint. Appellant's response to averment 11 of the
13
Complaint must be deemed an admission to the amounts
remaining due and owing under the Mortgage.
--------------------------------------------
Further, a party seeking to avoid the entry of summary
judgment may not rest on the pleadings. Stein, 515 A.2d at 289.
Rather, a party attempting to avoid the entry of summary
judgment must demonstrate a genuine issue for trial by utilizing
affidavits, admissions, answers to interrogatories, and/or
depositions. kt In the instant matter, Appellant has completely
failed to identify any genuine issue which remains in dispute,
such that summary judgment should be denied, and the case
allowed to proceed to trial. Related to Appellant's failure to
identify a remaining issue of fact is his failure to attach any
supportive materials to his Response that demonstrate a
material dispute of fact. While Appellee attached multiple
documents in support of the Motion for Summary Judgment,
including the Mortgage and Note, affidavits, and a loan history,
Appellant has failed to attach even one document to his
Response. Instead, Appellant continues to rest on the
pleadings, while arguing that the entry of summary judgment
14
was improper. This argument is simply against the state of the
law in this Commonwealth. See Stein, 515 A.2d at 289.
-------···-··--·-······-------------
Finally, Appellant indicates that this Court was required to
deny Appellee's Motion for Summary Judgment because a
cross-collateralization of his loan with a loan provided to his
former wife, Defendant Karen Karboski, was completed after
their divorce was finalized. Appellant alleged in his New Matter
that this rendered the Mortgage unlawful and in contravention
of the banking regulations. Also, for the first time, in his Concise
Statement, Appellant mentions a guaranty and two other loans
allegedly executed by Appellant. As discussed above, a party
attempting to avoid the entry of summary judgment must
demonstrate that relevant factual issues remain through the
use of affidavits, admissions, answers to interrogatories, and/or
depositions. Stein, 515 A.2d at 289. Not only did Appellant fail to
attach any such materials to his Response to the Motion for
Summary Judgment, but he has failed to make any factual
allegations related to the other loans and guaranty, and to
properly identify any cross-collateralization provision. Neither
15 ·
Appellant's New Matter, nor his Response to the Motion for
Summary Judgment provide any identifyi"ng information or
·-------------------··-·-····-···-··-····-----·-···-------·--------------
include copies of such documents which appear wholly
irrelevant to the instant mortgage foreclosure matter. As such,
no information related to said documents or the documents
themselves have been made of record in this case. Due to his
failure to identify any issue of material fact related to the cross
collateralization clause, Appellant's vague argument is without
merit and must fail as a matter of law.
(END OF OPINION)
16
Wells Fargo Bank, N.A. s/b/m : In the Court of Common Pleas
Wachovia Bank, National of Luzerne County
Association
Appel lee
MORTGAGE FORECLOSURE
vs.
Patrick F. Constantino, a/k/a
Pasquale F. Constantino, and
Karen Constantino a/k/a
Karen Ann Karboski
Patrick F. Constantino,
Appellant No. 6640 of 2014
ORDER
AND NOW, this£day of June, 2016, the Clerk of
Judicial Records/Prothonotary is hereby directed to serve
notice of the attached Opinion pursuant to Pa. R.C.P. 236 to
the Appellants and Appellee as well furnish a copy to the
Superior Court of Pennsylvania Docket No. 607 MDA 2016.
/
i
-, _. Lesa S. Gelb, J
17
cc:
Mario J. Hanyon, Esquire
Phelan Hallinan Diamond & Jones, LLP
1617 J.F.K. Blvd., Suite 1400
One Penn Center Plaza
Philadelphia, PA 19103
Andrew Katsock, Esquire
15 Sunrise Drive
Wilkes-Barre, PA 18705
18