Sonnier, K. v. Daley, P. ( 2022 )

J-S03017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KERMITH SONNIER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER DALEY AND MALDEN :
PROPERTIES, LTD :
: No. 734 WDA 2021
Appellants :
Appeal from the Order Entered May 28, 2021
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2017-1899
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: MARCH 18, 2022
Peter Daley (“Daley”) and Malden Properties, LTD (“Malden Properties”)
(collectively “Appellants”), appeal from the order granting the motion for
summary judgment filed by Kermith Sonnier (“Sonnier”) and denying the
cross-motion for summary judgment filed by Appellants. We affirm.
The relevant factual and procedural history of the dispute between the
parties to this appeal can be summarized as follows. Daley and Sonnier were
among several investors in American Deli’s, Inc. (“American Deli’s”), a
corporation that owned two unsuccessful Quiznos franchises in Pennsylvania.
In 2005, Daley asked Sonnier to loan funds to Daley for the payment of taxes
that American Deli’s owed to the Internal Revenue Service. Sonnier agreed,
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* Retired Senior Judge assigned to the Superior Court.
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and in July 2005, Sonnier wire-transferred $62,000 to Daley.1 The loan was
secured by a mortgage on real estate owned by Malden Properties and signed
by Daley in his capacity as president of Malden Properties.2 The mortgage
identified Malden Properties as the mortgagor and Sonnier as the mortgagee.
In December 2005, American Deli’s filed for bankruptcy. Sonnier, who
had invested $220,000 in American Deli’s, was listed as an unsecured creditor
in the bankruptcy proceedings. In November 2006, the bankruptcy court
issued a final decree discharging all debts to all creditors of American Deli’s.
In April 2012, Daley sent a letter to Sonnier reaffirming the loan and
promising to repay it with the proceeds of a pending personal injury action.
However, no repayment was ever made to Sonnier by Daley or Malden
Properties.
In June 2018, Sonnier filed a complaint against Appellants in which he,
inter alia, asserted a claim for breach of contract and sought repayment of the
loan. In their answer and new matter, Appellants admitted the particulars of
the loan and that it had not been repaid. However, Appellants averred that
the loan had been discharged in American Deli’s bankruptcy proceedings. The
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1 The trial court indicates that the loan amount is $62,000. Sonnier and
Appellants indicate that the loan amount is $62,020. As the order granting
summary judgment in Sonnier’s favor indicates that the loan amount is
$62,000, we will use that amount throughout this Memorandum.
2 Daley is the sole owner of Malden Properties.
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parties filed cross-motions for summary judgment. On May 28, 2021, the trial
court entered an order granting Sonnier’s motion for summary judgment and
denying Appellants’ cross-motion for summary judgment. Appellants filed a
timely notice of appeal, and both Appellants and the trial court complied with
Pa.R.A.P. 1925.
Appellants raise the following issue for our review:
Did the [trial] court err and abuse its discretion by denying
Appellants’ [sic] due process by when it did not follow the “Nanty-
Glo rule” . . . by not adhering to the rule of existence of a genuine
issue of a material fact and summarily entering a judgment where
the evidence depended upon Appellants’ oral testimony?
Appellants’ Brief at 9 (unnecessary capitalization omitted).3
Initially, we must determine whether Appellants preserved their sole
issue for our review.4 As our Supreme Court has explained, “arguments not
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3 The Nanty-Glo rule provides that “[o]ral testimony alone, either through
testimonial affidavits or depositions, of the moving party or the moving party’s
witnesses, even if uncontradicted, is generally insufficient to establish the
absence of a genuine issue of material fact.” Pa.R.C.P. 1035.2 Note (citing
Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523(Pa. 1932), and Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903
(Pa. 1989)).
4 Appellants have raised additional arguments in their brief; namely, that
Daley is not a proper party to the instant action, and that he should be
afforded the protections of the corporate veil. However, Appellants concede
that they did not raise these issues before the trial court. Accordingly, they
failed to preserve them for our review. See Pa.R.A.P. 302(a) (providing that
issues not raised in the lower court are waived and cannot be raised for the
first time on appeal). Further, even if these issues had been preserved, they
were not raised in the statement of questions involved. See Pa.R.A.P. 2116(a)
(Footnote Continued Next Page)
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raised initially before the trial court in opposition to summary judgment cannot
be raised for the first time on appeal.” Krentz v. CONRAIL, 910 A.2d 20, 37
(Pa. 2006) (citations omitted). Accordingly, when a litigant fails to raise a
Nanty-Glo argument in opposition to a motion for summary judgment, the
issue is waived. See id. at 37; see also Lineberger v. Wyeth, 894 A.2d
141, 149 (Pa. Super. 2006) (holding that a Nanty-Glo argument was waived
where it was not raised in opposition to a motion for summary judgment or
included in the concise statement).5
Here, Appellants did not raise any Nanty-Glo argument in their brief in
opposition to Sonnier’s motion for summary judgment. Accordingly, the issue
is waived. See Krentz, 910 A.2d at 37; Lineberger, 894 A.2d at 149.6
Order affirmed.
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(providing that “[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”).
5 The fact that the trial court addressed and rejected Appellants’ Nanty-Glo
argument in its Rule 1925(a) opinion does not operate to resuscitate the
waived claim. See Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.
Super. 2014) (holding that the failure to properly preserve a claim will result
in waiver, even if the trial court addresses the issue in its Rule Pa.R.A.P.
1925(a) opinion).
6 Even if Appellants had not waived their Nanty-Glo issue, it patently lacks
merit. The Nanty-Glo rule does not apply where the moving party supports
the motion by using admissions of the opposing party. See First Philson
Bank, N.A. v. Hartford Fire Ins. Co., 727 A.2d 584, 587 (Pa. Super. 1999).
Here, Sonnier’s motion for summary judgment was supported by, inter alia,
Appellants’ admissions in their answer and new matter and Daley’s deposition
testimony. See Motion for Summary Judgment, 4/12/21, at ¶¶ 1-20, Exhibits
C, D.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2022
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