J-A28008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. S/B/M TO : IN THE SUPERIOR COURT OF
WACHOVIA BANK, N.A. F/K/A FIRST : PENNSYLVANIA
UNION NATIONAL BANK :
:
Appellant :
:
v. :
:
BRYAN M. BAROSH :
CHRISTOPHER A. BAROSH :
:
Appellee : No. 491 EDA 2017
Appeal from the Order Entered December 23, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2015-07521
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 11, 2018
Appellant, Wells Fargo Bank, N.A. S/B/M to Wachovia Bank, N.A.
F/K/A/ First Union National Bank (“Bank”), appeals from the order entered in
the Bucks County Court of Common Pleas, which purported to grant the
second motion for summary judgment of Appellee, Christopher A. Barosh,
but in favor of Bank.1 We vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows.
On February 7, 2002, Bank and the Barosh brothers executed two
mortgages on a property located at 350 S. River Road, New Hope, PA
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1 Bryan M. Barosh did not respond to any of the pleadings in the matter
including this appeal.
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18938. The first mortgage (“senior mortgage”) was for $157,000.00; the
second mortgage (“junior mortgage”) was for $31,139.48. Both mortgages
were recorded in the Bucks County Office of the Recorder of Deeds.
On October 30, 2015, Bank filed a foreclosure complaint against the
Barosh brothers to enforce the senior mortgage, after they had failed to
make mortgage payments or cure the default. In response to Appellee’s
preliminary objections, the Bank filed an amended complaint on December
21, 2015, and admittedly through inadvertence, attached the junior
mortgage as Exhibit “C.” Appellee filed his first motion for summary
judgment on March 7, 2016, asserting Bank had failed to produce a contract
between him and Bank, and requested dismissal of Bank’s complaint. Bank
responded to this first motion for summary judgment on April 5, 2016, and
attached its amended complaint to its response, along with the junior
mortgage appended as Exhibit “C.” On May 2, 2016, Bank filed a praecipe
to substitute the senior mortgage as Exhibit “C” to its amended complaint.
Appellee filed his second motion for summary judgment on June 27,
2016, again asserting that Bank had failed to include a contract between him
and Bank in its amended complaint and requesting dismissal of Bank’s
complaint. Bank filed a response to Appellee’s second motion for summary
judgment on July 20, 2016, and again attached the amended complaint with
the junior mortgage appended as Exhibit “C.” The court denied Appellee’s
first motion for summary judgment on July 27, 2016. The court conducted a
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phone conference on August 1, 2016, during which Appellee offered to settle
Bank’s claim for the face amount of the junior mortgage. Bank did not
accept the offer. On August 3, 2016, Bank filed a praecipe to attach
exhibits, including the senior mortgage, to its response to Appellee’s second
motion for summary judgment. On December 23, 2016, the court entered
summary judgment in favor of Bank for the face amount of the junior
mortgage. The order stated:
[U]pon consideration of, Motion for Summary Judgment,
[Bank’s] Answer, and [Appellee’s] offer to settle for the
face amount of the mortgage sued upon in the Amended
Complaint, it is hereby ORDERED and DECREED that
judgment is entered in favor of [Bank] and against [Bryan
M. Barosh and Christopher A. Barosh] for the full face
amount of the mortgage sued upon in the Amended
Complaint being $31,139.48.
(Judgment Order, filed December 23, 2016). This order was docketed and
notice of the disposition was sent to the parties on January 3, 2017.
Bank timely filed a notice of appeal on February 2, 2017. The court
ordered Bank, on February 3, 2017, to file a concise statement of errors
complained of an appeal pursuant to Pa.R.A.P. 1925(b). Bank timely
complied on February 23, 2017. On May 19, 2017, Appellee filed an
application to quash Bank’s appeal, claiming the appeal was untimely and
Bank was not an aggrieved party because it obtained a judgment for the full
amount of the mortgage upon which Bank had sued. Bank responded on
June 2, 2017. This Court issued a per curiam order on June 7, 2017, stating
the appeal was timely filed but denied, without prejudice, Appellee’s right to
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argue before the merits panel the issue of whether Bank was an aggrieved
party.
Bank raises the following issues for our review:
WHETHER THIS COURT SHOULD DENY [APPELLEE’S]
APPLICATION TO QUASH APPEAL BECAUSE [BANK] IS AN
AGGRIEVED PARTY AND THE APPEAL WAS TIMELY
FILED?[2]
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND ABUSED ITS DISCRETION BY GRANTING
SUMMARY JUDGMENT IN FAVOR OF [BANK], THE NON-
MOVING PARTY?
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND ABUSED ITS DISCRETION BY ENTERING
JUDGMENT IN THE FACE AMOUNT OF A MORTGAGE
INADVERTENTLY ATTACHED TO [BANK’S] AMENDED
COMPLAINT?
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND ABUSED ITS DISCRETION BY ENTERING
SUMMARY JUDGMENT BASED ON [APPELLEE’S] “OFFER TO
SETTLE” WHICH DOES NOT APPEAR IN HIS SECOND
MOTION FOR SUMMARY JUDGMENT?
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND ABUSED ITS DISCRETION BY ENTERING
SUMMARY JUDGMENT WHEN GENUINE DISPUTES OF
MATERIAL FACT EXISTED?
WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND ABUSED ITS DISCRETION BY RECEIVING
TESTIMONY, ADMISSIONS, OR ARGUMENT DURING A
PHONE CONFERENCE ON PENDING DISCOVERY MATTERS
WITHOUT ADVANCE NOTICE TO [BANK]?
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2 This Court’s June 17, 2017 per curiam order concluded Bank’s appeal was
timely. Thus, the timeliness of the appeal is no longer at issue.
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(Bank’s Brief at 3-4).
As a prefatory matter, Pennsylvania Rule of Appellate Procedure 501
provides:
Rule 501. Any Aggrieved Party May Appeal
Except where the right of appeal is enlarged by statute,
any party who is aggrieved by an appealable order, or a
fiduciary whose estate or trust is so aggrieved, may appeal
therefrom.
Note: Whether or not a party is aggrieved by the
action below is a substantive question determined by
the effect of the action on the party, etc.
Pa.R.A.P. 501. “A party is ‘aggrieved’ when the party has been adversely
affected by the decision from which the appeal is taken.” Ratti v.
Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super. 2000),
appeal denied, 567 Pa. 715, 785 A.2d 90 (2001). A party can be
“aggrieved” for purposes of an appeal, if that party did not obtain the full
contractual relief it sought. Pittsburgh Const. Co. v. Griffith, 834 A.2d
572, 589-90 (Pa.Super. 2003), appeal denied, 578 Pa. 701, 852 A.2d 313
(2004). Likewise, “summary judgment cannot benefit a party that did not
seek it. … There is an appeal from a summary judgment by a non-moving
party when summary judgment ends the litigation and removes that party
from court.” Sidkoff, Pincus, Greenberg & Green, P.C. v. Pennsylvania
Nat. Mut. Cas. Ins. Co., 521 Pa. 462, 470, 555 A.2d 1284, 1288 (1989).
Instantly, Bank sued the Barosh brothers on the defaulted senior
mortgage, which is substantially larger than the face amount of the junior
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mortgage that the court awarded. Even though Bank was technically a
prevailing party, Bank did not obtain full relief. Therefore, Bank qualifies as
an “aggrieved” party. See Pittsburgh Const. Co., supra. Further, Bank
was the non-moving party in the summary judgment proceedings, yet the
court awarded summary judgment in Bank’s favor for substantially less than
Bank requested and removed Bank’s case from court. As a displaced party
that effectively suffered summary judgment, Bank had no alternative but to
appeal the judgment. See Sidkoff, Pincus, Greenberg & Green, P.C.,
supra. Thus, Bank’s appeal is properly before this Court.
On appeal, Bank principally argues that it met its burden to defeat
Appellee’s motion for summary judgment. Bank contends it corrected the
mortgage attached to its amended complaint before Appellee filed his second
motion for summary judgment. Bank also submits Appellee did not ask for a
judgment in favor of Bank, for the junior mortgage, in his motion for
summary judgment. Bank avers that, in this context, it was required only to
point to genuine issues of material fact in the record to defeat summary
judgment, but it did not have to prove its entire case. Further, Bank asserts
the inadvertent attachment of the junior mortgage, as Exhibit “C” to Bank’s
amended complaint, did not constitute a “judicial admission” for several
reasons: (a) Bank substituted the correct exhibit; (b) the amended
complaint specifically referred to the primary mortgage which was recorded
in the Bucks County Recorder of Deeds’ Office and is a matter of public
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record; (c) Appellee’s offer to pay the face amount of the junior mortgage
did not include escrow paid or interest accrued; and (d) Bank objected to
Appellee’s arguments during the court conference and filed supplemental
materials to dispute summary judgment. When viewed in the light most
favorable to Bank as the non-moving party, Bank submits the record makes
clear the court’s entry of summary judgment was factually and legally
incorrect. Bank concludes this Court should reverse the trial court’s decision
to grant summary judgment, due to the manner employed and the amount
awarded, and vacate and remand for further proceedings. We agree.
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted). Our scope of review is plenary. Pappas v.
Asbel, 564 Pa. 407, 768 A.2d 1089 (2001), cert. denied, 536 U.S. 938, 122
S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of
summary judgment:
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[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(emphasis added, internal citations and quotation marks omitted).
The Pennsylvania Rules of Civil Procedure provide:
Rule 1035.2. Motion
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After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the cause of
action or defense which could be established by
additional discovery or expert report, or
(2) if, after completion of discovery relevant to
the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at
trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial
would require the issues to be submitted to a jury.
Note: Rule 1035.2 sets forth the general principle that a
motion for summary judgment is based on an evidentiary
record which entitles the moving party to judgment as
a matter of law.
* * *
Pa.R.C.P. 1035.2 (emphasis added). “Nothing in this rule intimates that a
court may grant summary judgment in favor of a non-moving party.”
Bensalem Tp. School Dist. v. Commonwealth, 518 Pa. 581, 585, 544
A.2d 1318, 1320 (1988).3 See also Sidkoff, supra at 469, 555 A.2d at
1287 (“There exists no provision in the rules [of civil procedure] for
summary judgment to be entered in favor of a non-moving party.”);
Warfield v. Shermer, 910 A.2d 734 (Pa.Super. 2006), appeal denied, 591
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3 This decision occurred before the General Assembly amended the Rules of
Civil Procedure in 1996. We note, however, that the language of the current
rule regarding summary judgment is substantially the same.
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Pa. 737, 921 A.2d 497 (2007) (citing favorably language from Bensalem,
supra). Only the movant in a motion for summary judgment can prevail,
because if the movant fails, a dispute continues on the facts. Id.
Courts sitting in equity have broad powers to grant relief that results
in an equitable resolution. Gutteridge v. J3 Energy Group, Inc., 165 A.3d
908 (Pa.Super. 2017) (en banc). Courts, however, must formulate a
remedy that is consistent with the requested relief. Id.
Instantly, Bank filed a foreclosure complaint against the Barosh
brothers to enforce the Banks’ senior mortgage. Bank then filed an
amended complaint and inadvertently attached the parties’ junior mortgage
as Exhibit “C.” Appellee filed two motions for summary judgment; in both
he argued Bank had failed to produce a contract between him and Bank and
requested dismissal of Bank’s complaint. In its responses to both motions
for summary judgment, Bank included a copy of its amended complaint with
the junior mortgage attached as Exhibit “C.” Before Appellee’s second
motion for summary judgment, however, Bank filed a praecipe to substitute
the senior mortgage as Exhibit “C” in the amended complaint. After denying
Appellee’s first motion for summary judgment, the court conducted a phone
conference with Bank and Appellee. During the phone conference, Appellee
offered to settle the dispute for the face amount of the junior mortgage,
which Bank did not accept. Bank filed a praecipe to attach exhibits to its
response to the second motion for summary judgment, which included a
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copy of the senior mortgage. Ultimately, the court entered summary
judgment in favor of Bank for the face amount of the junior mortgage.
Here, Bank twice submitted a praecipe to substitute the senior
mortgage for the junior mortgage attached to the amended complaint during
the summary judgment proceedings. Bank was the non-moving party in
these proceedings and demonstrated the existence of a genuine issue of
material fact. See Chenot, supra. At this stage, we must view the record
in the light most favorable to Bank, as the non-moving party, and resolve all
doubts as to the existence of a genuine issue of material fact against
Appellee, as the moving party.
Additionally, the record shows Bank did not move for summary
judgment or file a cross-motion for summary judgment. On this record,
therefore, the rule and case law governing summary judgment did not
authorize the court to grant summary judgment in Bank’s favor. See
Pa.R.C.P. 1035.2; Sidkoff, supra; Bensalem, supra. Moreover, in his
motions for summary judgment Appellee did not request relief in the form of
a judgment for Bank for the face amount of the junior mortgage. Instead,
Appellee asked for complete dismissal of Bank’s complaint. Thus, the court’s
judgment was inconsistent with Appellee’s requested relief. See
Gutteridge, supra. Accordingly, we vacate the order granting summary
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judgment in Bank’s favor and remand for proper disposition after further
proceedings.4
Order vacated; case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
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4 In light of our disposition, we decline to reach Bank’s other arguments.
Similarly, we deny as moot all outstanding motions/applications for relief.
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Wells Fargo Bank v. Barosh, B.
Combined Opinion