J-S38029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CITIZENS BANK NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION, SUCCESSOR BY : PENNSYLVANIA
MERGER TO CITIZENS BANK OF :
PENNSYLVANIA :
:
:
v. :
:
: No. 690 WDA 2021
ACUITE CONSULTING SOLUTIONS, :
LLC., CHRISTOPHER A. FUSCO, :
CASEY LAVELLE, AND AMANDA :
LAVELLE :
:
:
APPEAL OF: ACUITE CONSULTING :
SOLUTIONS, LLC. AND :
CHRISTOPHER A. FUSCO :
Appeal from the Order Entered May 12, 2021
In the Court of Common Pleas of Washington County Civil Division at
No(s): 2019-6579
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: MARCH 8, 2022
Appellants, Acuite Consulting Solutions, LLC (“Acuite”) and Christopher
A. Fusco (“Fusco”) (collectively, “Appellants”), appeal from the May 12, 2021
order entered in the Washington County Court of Common Pleas granting
summary judgment in favor of Citizens Bank National Association (“Citizens”)
in this action to conform confessed judgment. After careful review, we affirm.
The relevant facts and procedural history are as follows. On July 2,
2010, Acuite entered into a loan agreement with Citizens in the original
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* Retired Senior Judge assigned to the Superior Court.
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principal amount of $250,000, as evidenced by a “Revolving Demand Note”
(the “Note”). On that same date, Fusco executed and delivered to Citizens a
guaranty agreement (the “Guaranty”), wherein he agreed to act as guarantor
for all of Acuite’s obligations to Citizens in connection with the Note.
On May 3, 2019, Citizens filed a complaint in confession of judgment at
a separate docket number alleging that Acuite defaulted for failing to pay the
money due to Citizens under the note, and Fusco defaulted on the Guaranty
by failing to cure Acuite’s default. Thereafter, on May 7, 2019, Citizens
obtained a confessed judgment against Appellants in the amount of
$263,590.11. Appellants petitioned to open or strike the judgment, which the
trial court denied. This Court affirmed the denial of the petition. See Citizens
Bank National Ass’n v. Acuite Consulting Solutions, LLC and
Christopher Fusco, 2021 WL 1998451 (Pa. Super. 2021) (unpublished
memorandum).
At the time Citizens obtained the confessed judgment, Fusco owned the
residential real property located at 105 Willoughby Court, Venetia, Washington
County. Thus, Citizens’ judgment became a lien on the property.
On October 24, 2019, Citizens filed a Complaint to Conform Confessed
Judgment against Appellants pursuant to Pa.R.C.P. 2986 and 41 P.S. § 407(a)
so that it could execute its judgment against the Willoughby Court property.1
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1Because Fusco transferred the Willoughby Court property to Casey LaValle
and Amanda LaValle (the “Successor Owners”) on August 5, 2019, without
(Footnote Continued Next Page)
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Appellants filed an Answer to the Complaint in which they asserted that the
Note was an unenforceable contract of adhesion.2
Following discovery on this issue, including the deposition of Fusco,
Citizens filed a Motion for Summary Judgment pursuant to Pa.R.C.P. 1035.2.
In support of its motion, Citizens relied on Fusco’s admissions regarding: (1)
his level of business sophistication; (2) his access to counsel; (3) that he had
negotiated some of the terms of the Note with Citizens; and (4) his freedom
to pursue financing with other lenders.3 Motion, 11/13/20, at 4-11.
On January 4, 2021, Appellants filed a Brief in Opposition to Summary
Judgment in which they asserted that “principles of estoppel should apply in
this matter” pending disposition of their appeal from the trial court’s order
denying their petition to strike or open the confessed judgment allegedly on
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first satisfying the judgment, Citizens also named the Successor Owners as
defendants in this action. On January 31, 2021, the parties stipulated to the
dismissal of Citizens’ claims against the Successor Owners.
2 Appellants asserted this same claim in their prior appeal from the trial court’s
denial of their petition to open or strike the confessed judgment. This Court
found that Appellants did not raise this defense in their petition to open or
strike and, thus, had waived it. Citizens Bank National Ass’n v. Acuite
Consulting Solutions, LLC, 2021 WL 1998451 at * 3 (Pa. Super. 2021)
(unpublished memorandum). However, because an action to execute against
residential real estate, i.e., one brought under Act 6 Section 407(a), is a de
novo proceeding, the parties are not “restricted to claims or defenses raised
in conjunction with a creditor’s earlier acquisition of a confessed judgment or
a debtors’ petition to open same.” RCK, Inc. v. Katz, 480 A.2d 295, 297-98
(Pa. Super. 1984).
3 Citizens annexed to its Motion the portions of Fusco’s deposition testimony
relevant to its position that there were no genuine issues of material fact as
to enforceability of the Note against Appellants.
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the grounds that the “boilerplate” Note was a contract of adhesion. Brief,
1/4/21, at 4 (unpaginated). In support of their claim that the Note was
unenforceable, Appellants baldly asserted that Fusco “had little to no
negotiating power” in this “take it or leave it situation[]” and implied that
Citizens’ requirement that Fusco personally guarantee the loan prior to loaning
Acuite any funds was improper. Id. at 6. Appellants did not provide any
evidence to support the arguments set forth in their Brief.
On May 12, 2021, the trial court granted Citizens’ motion. The court
found that Appellants failed to adduce any evidence to support their claim that
the Note and Guaranty were unenforceable. Thus, because there were no
genuine issues of material fact as to their enforceability, the court concluded
that Citizens was entitled to judgment as a matter of law. Memorandum and
Opinion (“Trial Ct. Op.”), 5/12/21, at 3-4.
This timely appeal followed. Appellants complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) Statement.4
Appellants raise the following issue on appeal:
[] Whether there exist[] no genuine issues of material fact[] such
that [Citizens] is entitled to summary judgment as a matter of
law[?]
Appellants’ Brief at 8.
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4 On August 20, 2021, the trial court filed a Rule 1925(a) Statement in Lieu
of Opinion.
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Appellants’ issue challenges the trial court’s entry of summary judgment
in Citizens’ favor. Our Supreme Court has clarified our role as the appellate
court as follows:
On appellate review [ ], an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
tribunals. To the extent that this Court must resolve a question
of law, we shall review the grant of summary judgment in the
context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations
and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.
(citation omitted); see also Pa.R.C.P. 1035.2(1). “When considering a motion
for summary judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the non-moving
party.” Summers, supra at 1159. “In so doing, the trial court must resolve
all doubts as to the existence of a genuine issue of material fact against the
moving party, and, thus, may only grant summary judgment where the right
to such judgment is clear and free from all doubt.” Id. (citation and internal
quotation marks omitted).
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Rule 1035.3(a) requires that the non-moving party file a response to a
motion for summary judgment identifying evidence in the record establish the
facts essential to their defense. Pa.R.C.P. 1035.3(a)(2).
In their Brief, Appellants argue that the trial court erred in finding that
there were no genuine issues of material fact as to their defense that the Note
and Guaranty were adhesion contracts. Appellants’ Brief at 17. Reiterating
their arguments before the lower court, Appellants assert that “as pled, in the
record, [Fusco] was in a position where he had to sign the loan documents at
the time of closing and had no choice to obtain other financing, without
incurring financial peril.” Id. In other words, the terms of the Note and
Guaranty were unconscionable “in today’s modern era of doing business,” and
therefore unenforceable “because practically, [Fusco] had to have the loan
funds or face financial devastation.” Id. at 17-18.
Appellants have not cited to the place in the record where they
presented evidence to support their claim, and our review reveals no such
evidence. Instead, Appellants’ response to Citizens’ motion consisted merely
of allegations and argument. Our review confirms the trial court’s finding that
because Appellants did not identify any evidence establishing facts essential
to their defense in response to Citizens’ motion for summary judgment, “no
part of the summary judgment record” supported Appellants’ ongoing claim
of unconscionability. Trial Ct. Op. at 3-4 (citing Pa.R.C.P. 1035.3(a)). Thus,
the trial court did not err when found that Appellants had not identified any
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record evidence to establish facts essential to their unconscionability defense
and it properly entered judgment as a matter of law in favor of Citizens.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2022
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Citizens Bank v. Acuite Consulting Solutions
Combined Opinion