J-A12019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL P. WUKICH, DANIEL J.             :   IN THE SUPERIOR COURT OF
WUKICH, TAMMY L. WUKICH, QUEST          :        PENNSYLVANIA
HEALTHCARE DEVELOPMENT, INC.,           :
QUEST REALTY PARTNERSHIP,               :
AMERICAN PORTABLE MEDICAL               :
SERVICES, INC., LOYALHANNA              :
HEALTH CARE ASSOCIATES,                 :
WILLIAM PENN HEALTH CARE                :
ASSOCIATES, ALLSTAR THERAPIES,          :   No. 1212 WDA 2016
INC., ALLSERVE THERAPIES, INC., A       :
LA CARTE SUPPORT SERVICES, INC.,        :
EXPRESS MOBILE DIAGNOSTIC               :
SERVICES, LLC, DANAN                    :
HEALTHCARE CONSULTING GROUP,            :
INC.                                    :
                                        :
                  Appellants            :
                                        :
                                        :
            v.                          :
                                        :
                                        :
PENN SECURITY BANK AND TRUST            :
CO., CRAIG BEST, GREG MISTERMAN

          Appeal from the Judgment Entered September 28, 2016
          In the Court of Common Pleas of Westmoreland County
                   Civil Division at No(s): No. 13CI01193


BEFORE:    OLSON, SOLANO, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.:                       FILED AUGUST 08, 2017

      In this lender liability action, Appellants appeal from the judgment

entered September 28, 2016, following a non-jury trial resulting in a verdict

in favor of Appellees, Penn Security Bank & Trust Co. (“Penn Security”) and

two of Penn Security’s principals, Craig Best and Greg Misterman.        We

affirm.
J-A12019-17



       The facts and procedural history are as follows.         In August 2007,

Appellants Loyalhanna and William Penn entered into a loan agreement with

NexTier Bank for an aggregate principal amount of $9,300,300.00 (“NexTier

Loan Agreement”).         Pls. Amended Compl., 10/18/2013, at ¶ 19.        The

NexTier Loan Agreement and promissory note were executed by Appellant

Daniel J. Wukich, President of Appellant Quest Healthcare and sole general

partner of Loyalhanna and William Penn, along with Appellants Daniel P. and

Tammy Wukich, Quest Healthcare, American, and Allstar Therapies as

guarantors. Id. at ¶¶ 19-21.

       In 2011, Appellants Daniel J. and Daniel P. Wukich sought financing for

a new business venture with Appellee Penn Security Bank based on their

previous knowledge and relationship with Appellee Craig Best, Penn Security

Bank Chief Executive Officer (CEO).              Id. at ¶ 24.    To finance the

construction of a new assisted living facility, Appellants wanted to use their

William Penn property as collateral. Trial Ct. Op. (TCO), 4/13/2016, at 2.

However, Appellants would first have to pay off the outstanding mortgage

loan held by NexTier Bank. See id. Under the terms of the NexTier Loan

Agreement, early payoff of the mortgage would result in a “hefty

prepayment penalty.” Id.1
____________________________________________


1
  Specifically, the NexTier loan agreement provided in relevant part that “any
Prepayment arising out of refinancing through another lending source other
than Lender of principal shall be subject to a prepayment fee of three (3%)
percent of any Prepayment during years 1 through 5 of the Loan Term, two
(Footnote Continued Next Page)


                                           -2-
J-A12019-17



      According to Daniel J. Wukich, Appellee Best had the idea that Penn

Security could issue a personal loan in an amount sufficient to pay off the

NexTier loan, using a structure that might avoid the prepayment penalty.2

The idea was that the prepayment penalty might be avoided if the NexTier

loan was paid off by unnamed borrowers, rather than by a third party lender

such as Penn Security directly. See id. at 2-3. In February 2011, Appellee

Greg Misterman, Penn Security Executive Vice President (VP), prepared a

memorandum entitled Loan Presentation Summary for the Penn Security

Board of Directors, which described a loan structure in which the bank would

lend $7,100,000.00 to an affiliate, which in turn would enable the Wukiches

to pay off the remaining balance/principal of the NexTier Loan. The board

memorandum stated that this “structure is being used to avoid a significant

prepayment penalty.” Mem., 2/15/2011, at 4 (“board memorandum”).

      On April 26, 2011, Appellants executed the Penn Security Loan

Agreement (“Agreement”). At trial, Appellee Misterman recalled giving his
                       _______________________
(Footnote Continued)

(2%) percent of any Prepayment during years 6 through 12 of the Loan
Term and one (1%) of any Prepayment during the remainder of the loan
term.” Pl. Amended Compl. at ¶ 22 (quoting NexTier Loan Agreement ¶ 5
and Promissory Note ¶ E, 8/31/2007).
2
  The Wukiches had an extended history of conviviality and partnership with
Penn Security Bank, from which both parties benefitted. Appellee Craig Best
helped Wukich obtain financing in 2007 to pay off a balloon payment on a
separate mortgage and Wukich became a stockholder in Penn Security.
Wukich was instrumental in Best’s ascension to President/Chief Executive
Officer of Penn Security. Trial Ct. Op., 4/13/2016, at 5.




                                            -3-
J-A12019-17



opinion that the penalty might be avoided. Trial Ct. Op., 4/13/2016, at 3.

Misterman denied promising on Penn Security’s behalf to take care of the

penalty if it was imposed by NexTier. Misterman also denied discussing the

prepayment penalty at closing.          Id. at 3.   None of their discussions were

incorporated into the final Penn Security loan closing documents. Id. The

primary    purpose     of   the    Agreement     was   for   Appellants   to   borrow

$7,100,000.00 from Penn Security to enable Appellants to embark on a new

project, i.e. the assisted living facility. See id.

       On April 29, 2011, Daniel J. Wukich used the Penn Security loan to pay

off the NexTier loan’s principal balance of $7,121,628.69 in full. See id. at

6. Thereafter, a court entered a declaratory judgment in favor of NexTier

Bank and against Appellants for the prepayment penalty that was owed

($206,448.32), plus attorney’s fees, costs, and interest.3

       In 2013, Appellants filed suit against Appellees, Penn Security Bank,

Best, and Misterman, asserting joint and several liability for fraud, negligent
____________________________________________


3
  On July 18, 2011, NexTier Bank filed a complaint in the Butler County
Court of Common Pleas for a declaratory judgment against Appellants for
the prepayment penalty that was owed ($206,448.32), plus attorney’s fees,
costs, and interest. See NexTier Bank, N.A. v. Loyalhanna Health Care
et al., No. A.D. 11-10911 (CCP Butler Cty. 2011). On November 21, 2012,
the Butler County court found in favor of NexTier Bank and entered a
judgment as a matter of law against Appellants for the prepayment penalty,
plus costs of litigation and interest. See Pl. Amend. Compl., 10/18/2013, at
¶¶ 35-36. This Court affirmed the judgment. See NexTier Bank, N.A. v.
Loyalhanna Health Care et al., 1994 WDA 2012 (Pa. Super. Ct. July 17,
2013) (unpublished memorandum).




                                           -4-
J-A12019-17



misrepresentation, promissory estoppel, and common law indemnification

arising out of Best and Misterman’s oral representations regarding the

prepayment penalty that allegedly induced Appellants to enter into the

Agreement.      See Pls. Amended Compl., ¶¶ 38-67.                  In December 2015, a

nonjury trial was held.4 In April 2016, the court rendered a verdict in favor

of Appellees. See TCO, 4/13/2016, at 7-8.

       Appellants     timely    filed   a      post-trial     motion   seeking     judgment

notwithstanding verdict (JNOV) or in the alternative, a new trial. Their post-

trial motion was denied.           The court subsequently issued an amended

opinion. See TCO, 7/28/2016, at 1.

       Appellants    timely    appealed        and    filed    a   court-ordered    1925(b)

statement. The trial court issued a 1925(a) opinion, incorporating its earlier

decisions. See 1925(a) Opinion, 9/12/2016.5

       On appeal, Appellants raise the following seventeen issues:

       1. The [c]ourt erred in denying [Appellants] a jury trial when
          several of their claims related to the individual liability of
          [Appellees] Misterman and Best, and the alleged waiver of the
          [Appellants’] constitutional right to a jury only applied to
____________________________________________


4
 The lower court denied Appellants’ request for a jury trial, finding that they
had waived the right to a jury trial under the terms of the loan agreement.
5
  Initially, Appellants appealed on August 10, 2016, from the order denying
this post-trial motion. This Court directed Appellants to provide proof that
judgment was entered on the trial court’s verdict.        Appellants timely
complied. Accordingly, we deem this appeal timely. See Minich v. City of
Sharon, 472 A.2d 706, 707 (Pa. Super. 1984).




                                            -5-
J-A12019-17


        claims against the Bank.

     2. In its written [o]pinion, the [c]ourt failed to address
        [Appellants’] causes of action and elements for negligent
        misrepresentation, promissory estoppel, and indemnification,
        focusing instead on [Appellants’] fraud claim alone.

     3. The representations and promises of the expert [Appellees]
        concerning the prepayment penalty, upon which [Appellants]
        reasonably relied, caused [Appellants] to incur liability and
        expenses which they would not have incurred but for
        [Appellees’] conduct.

     4. Consequently, [Appellees] are liable, at common law, under
        theories of negligent misrepresentation and estoppel, and are
        liable to indemnify [Appellants] for the losses they have
        incurred due to [Appellees’] broken promises.

     5. The [c]ourt’s failure to consider whether [Appellees] were
        liable for negligent misrepresentation, promissory estoppel, or
        common law indemnification, the elements of which are
        different than those required to prove fraud, is an error
        entitling [Appellants] to a new trial.

     6. The [c]ourt erred in applying the parol evidence rule to
        exclude or disregard extrinsic evidence of [Appellees’]
        promises to take responsibility if NexTier imposed the
        prepayment penalty.

     7. The [c]ourt erred in ignoring the internal Penn Security
        memorandum, which was provided to the Bank’s Board of
        Directors, which stated that the Penn Secuirty loan was being
        utilized to avoid the significant prepayment penalty. (Trial
        Exhibit 5, p. 4.)

     8. The [c]ourt erred in concluding that any discussions about the
        prepayment penalty were mere good faith expressions of
        advice and opinion, where Penn Security’s own internal
        memorandum indicated that the loan was used to avoid the
        prepayment penalty, where the evidence established [that
        Appellees] were experts upon whom [Appellants] could rely,
        and where counsel for [Appellees], on behalf of those
        [Appellees], stipulated that it would require a bank to know
        whether a prepayment penalty could be avoided.



                                   -6-
J-A12019-17


     9. The [c]ourt erred in concluding that the final Penn Security
        loan closing documents were integrated agreements.

     10. The [c]ourt erred by ignoring and/or failing to consider
        evidence and testimony that the [Appellees] did not give
        [Appellants] an opportunity to review the loan documents
        before the closing, and instead represented again that the
        prepayment penalty would be avoided or taken care of by the
        [Appellees] Bank [sic], who committed, at a minimum, fraud
        in the execution or negligent misrepresentation (which was
        not addressed by the [c]ourt).

     11. The [c]ourt erred in ignoring the final letter from NexTier
        Bank, which indicated that the amount owed, including the
        prepayment penalty, exceeded $7.3 million.

     12. The [c]ourt erred in concluding that the total payoff
        amount of the NexTier loan, including the prepayment
        penalty, was $7,121,628.69, as this was contrary to the
        evidence presented by [Appellants], which was not
        controverted by [Appellees].

     13. The [c]ourt erred in concluding that [Appellants] were
        required to approach or notify [Appellees] immediately upon
        being sued by NexTier in order to recover, and by ignoring, in
        any event, [Appellants’] testimony that they did believe [that]
        they advised [Appellees] upon being sued by NexTier through
        their former in-house counsel.

     14. The [c]ourt erred in concluding that the primary purpose of
        the financing from Penn Security was not to avoid the
        prepayment penalty, where all evidence suggested that
        avoiding the prepayment penalty was a significant purpose of
        the loan, where the uncontroverted evidence showed that
        [Appellants] had several options from banks with similar or
        better financial terms, and where the person in charge of the
        project for [Appellants], with the authority to choose the bank
        (Daniel P. Wukich) testified that the only reason he selected
        the [Appellee] Bank over the other lenders was because of its
        representations regarding the prepayment penalty.

     15. The [c]ourt erred by ignoring uncontroverted testimony
        that [Appellees] Best and Misterman would cause [Appellee]
        Bank to take care of the prepayment penalty if it was
        assessed by NexTier, notwithstanding the [Appellees’]

                                   -7-
J-A12019-17


        representations.

     16. The [c]ourt erred in concluding that the Penn Seucirty loan
        proceeds were sufficient to cover the principal and interest on
        the NexTier loan, as well as the prepayment penalty.

     17. The [c]ourt erred in placing undue reliance on the self-
        serving testimony of [Appellee] Craig Best regarding his
        statements of ‘opinion,’ where the uncontroverted evidence
        and admission of the [Appellees], in writing, was that the loan
        was being utilized to avoid a significant prepayment penalty,
        thus making his self-serving testimony incredible per se.

Appellants’ Br. at 27-30 (reciting issues presented in Appellants’ 1925(b)

statement).

     It is well-established that a 1925(b) statement “must be ‘concise’ and

‘coherent’ such that the trial judge may be able to identify the issues to be

raised on appeal, and the circumstances must not suggest the existence of

bad faith.” Jiricko v. Geico Insurance Company, 947 A.2d 206, 211 (Pa.

Super. 2008).     Where the statement is so incoherent, confusing, or

redundant that it impairs appellate review, issues in the statement are

deemed waived. Jiricko, 947 A.2d at 213. “Specifically, this Court has held

that when appellants raise an ‘outrageous’ number of issues in their 1925(b)

statement, the appellants have ‘deliberately circumvented the meaning and

purpose of Rule 1925(b) and ha[ve] thereby effectively precluded appellate

review of the issues [they] now seek to raise.’” Id. (quoting Tucker v. R.M.

Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (quoting Kanter v. Epstein,

866 A.2d 394, 401 (Pa. Super. 2004) (finding issues waived where concise

statement was “anything but concise”).


                                    -8-
J-A12019-17


       We caution appellants against presenting voluminous and redundant

issues on appeal.       In their brief, Appellants effectively reorganized these

issues into five arguments, divided with an appropriate number of

subheadings, and effectively reduced a number of the redundant issues.

See Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as

there are questions to be argued[.]”). Here, the trial court has not indicated

that its ability to review the issues presented was impeded by Appellants’

lengthy statement. Accordingly, we decline to find waiver and will proceed

to address the questions in the order presented in their arguments.           See

Appellants’ Br. at 4-5.         However, the issues not raised in Appellants’

argument section of the brief are deemed waived for lack of development.

Pa.R.A.P. 302, 2101.6

       Appellants have referenced standards of review for both JNOV and a

new trial.    See Appellants’ Br. at 3.        We will evaluate Appellants’ issues

based on the specific request for relief included in the relevant analysis.

See Irwin Union Nat. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1103

____________________________________________


6
  We will address the issues raised in their arguments in the following order:
(1) whether Appellants’ waived their right to a jury trial; (2) whether the
evidence established their claims for promissory estoppel, negligent
misrepresentation, and common law indemnification; (3) whether the court
erred in rendering its legal conclusion that the agreement was fully
integrated agreement and whether the parol evidence rule applied; (4)
whether the court failed to consider certain evidence; and (5) whether the
court properly assessed the weight of Best’s testimony. See Appellant's Br.
at 5-6. After careful review, we deem issues eight and thirteen waived.



                                           -9-
J-A12019-17


(Pa. Super. 2009) (noting that “[w]hen deficiencies in a brief hinder our

ability to conduct meaningful appellate review, we may dismiss the appeal

entirely or find certain issues to be waived”) (citing Pa.R.A.P. 2101).

      Our standard of review is well-settled:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, [where] the issue ... concerns a
      question of law, our scope of review is plenary.

      The trial court's conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court's duty to determine if the trial court correctly
      applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664–

65 (Pa. Super. 2014) (quoting Wyatt, Inc. v. Citizens Bank, 976 A.2d

557, 564 (Pa. Super. 2009) (internal citations omitted)). Although the trial

court does not provide a detailed legal analysis in its opinion, “this Court

may affirm a decision of the trial court when it is correct on any legal ground

without regard to the ground upon which the trial court relied.” Williams v.

Wade, 704 A.2d 132, 135 (Pa. Super. 1997).

      First, Appellants seek a new trial based on the allegation that the trial

court erred in denying their constitutional right to a jury trial. According to

Appellants, the jury trial waiver in the Agreement with Penn Security Bank

                                     - 10 -
J-A12019-17


did not necessarily apply to the claims asserted against Appellees Best and

Misterman individually.    Appellants also contend that it is not certain

whether their claims arose out of the Agreement so as to implicate the

waiver. See Appellants’ Br. at 11-12 (citing in support PA. CONST. Art. 1, §

6).

      In response, Appellees argue that the jury trial waiver in the

Agreement applied to Penn Security and its agents for all claims arising from

the oral statements made during the course of negotiations prior to

execution of the Agreement.     See Appellees’ Br. at 40 (citing in support

persuasive authority from the Third Circuit, Tracinda Corp. v. Daimler

Chysler AG, 502 F.3d 212, 225 (3d Cir. 2007), holding: “[W]hen a valid

contractual jury trial waiver provision applies to a signatory corporation, the

waiver also applies to nonsignatory directors and officers seeking to invoke

the waiver as agents of the corporation.”).

      Here, the trial court found that the jury trial waiver applied equally to

claims against Penn Security and its agents because Appellees Best (as CEO)

and Misterman (as VP) were acting on behalf of and in their capacity as

agents of Penn Security when the acts underlying the causes of action arose.

See 1925(a) Opinion, 9/9/2016, at 2. Our standard of review is as follows:

      The interpretation of any contract is a question of law and this
      Court's scope of review is plenary. Moreover, we need not defer
      to the conclusions of the trial court and are free to draw our own
      inferences. In interpreting a contract, the ultimate goal is to
      ascertain and give effect to the intent of the parties as
      reasonably manifested by the language of their written

                                    - 11 -
J-A12019-17


       agreement. When construing agreements involving clear and
       unambiguous terms, this Court need only examine the writing
       itself to give effect to the parties' understanding. This Court
       must construe the contract only as written and may not modify
       the plain meaning under the guise of interpretation.

Stephan, 100 A.3d at 665 (quoting Humberston v. Chevron U.S.A., Inc.,

75 A.3d 504, 509–10 (Pa. Super. 2013) (internal quotation marks and

citations omitted)).

       An agency is created when the principal deliberately and specifically

grants an agent express authority as to certain matters.           Walton v.

Johnson, 66 A.3d 782, 786 (Pa. Super. 2013).                The prima facie

demonstration of agency “is the notion that the agent has authority to alter

the principal's relationships with third parties, such as binding the principal

to a contract.” Basile v. H & R Block, 761 A.2d 1115, 1121 (Pa. 2000).7

“The burden of establishing an agency relationship rests with the party

asserting the relationship.” eToll, Inc. v. Elias/Savio Advert., Inc., 811

A.2d 10, 21 (Pa. Super. 2002) (quoting Basile, 761 A.2d at 1120) (citation

omitted).

       Here, Penn Security manifested an intention for Best and Misterman to

act as its agents by giving Best and Misterman the authority to negotiate the

____________________________________________


7
  See also RESTATEMENT (SECOND) OF AGENCY § 12: Agent as Holder of Power
(“An agent or apparent agent holds a power to alter the legal relations
between the principal and third persons and between the principal and
himself.”).




                                          - 12 -
J-A12019-17


loan terms on Penn Security’s behalf.    Best executed the contract thereby

binding Penn Security.      See Basile, 761 A.2d at 1121.         In this case,

Appellants’   claims     arise   from    Best    and      Misterman’s   alleged

misrepresentations during their exercise of apparent authority to act on

behalf of Penn Security. Accordingly, the trial court correctly found that the

individual Appellees were acting as agents of Penn Security.

      Moreover, “[i]t is well-settled that the right to a jury trial may be

waived either by conduct or by express statement.” Eighth N.-Val, Inc. v.

William L. Parkinson, D.D.S., P.C., Pension Trust, 773 A.2d 1248, 1256

(Pa. Super. 2001) (citations omitted). Here, the Agreement contained the

following provision in bold font in clear and conspicuous language:

      17. WAIVER OF JURY TRIAL. Each of the Borrowers and each of
      the Entity Guarantors and William Penn irrevocably waive all and
      any right any of them may have to a trial by jury in any action,
      proceeding, or claim of any nature regarding the Term Loan, any
      of the documents executed in conjunction with the Term Loan or
      any transaction contemplated in any such documents. Each of
      the Borrowers and each of the Entity Guarantors acknowledge
      that the foregoing waiver is knowing and voluntary.

Trial Exhibit 8, Agreement ¶ 17.

      Here, the court found that the purpose of the loan was to secure

financing for a new facility by using the William Penn property as collateral.

In order to pledge that property as collateral, Appellants needed to prepay

the NexTier loan.      Therefore, prepayment of the loan was a transaction

contemplated by the parties in entering into the Agreement.        Accordingly,

the court did not err and a new trial is not warranted.


                                    - 13 -
J-A12019-17



      Next, we proceed to address issues two, three, four, and five.

Appellants contend that the court erred in failing to consider their causes of

action   for   promissory     estoppel,   negligent    misrepresentation,    and

indemnification.   See Appellants’ Br. at 13.         In their brief, Appellants’

argument is divided into three subparts.      Essentially, they argue that the

evidence presented was sufficient to support each claim. See id. at 13-19.

      In response, Appellees contend that the trial court’s factual findings

were sufficient to dispose of Appellants’ claims. See Appellees’ Br. at 13-29.

      The trial court declined to address Appellants’ claims individually; it

found that there was simply no basis upon which Appellees should be liable

to Appellants. See TCO, 4/13/2016, at 7; TCO, 7/28/2016, at 4. The trial

court has failed to prove a “reasoned basis” for its decision. See Cooke v.

Eq. Life Assur. Soc. of U.S., 723 A.2d 723, 727 (Pa. Super. 1999)

(declining to remand to trial court to prepare an opinion providing a

reasoned basis for the court’s decision where such reasoning is not fatal for

our review). “Ordinarily, the remedy for non-compliance with the Pa.R.A.P.

1925(a) is a remand to the trial court with directions that an opinion be

prepared and returned to the appellate court.” Gibbs v. Herman, 714 A.2d

432, 435 (Pa. Super. 1998) (quotation omitted).

      The record in this particular case is sufficient for appellate review and

in the interests of judicial economy, we shall address the merits of

Appellants’ arguments.      See Gibbs, 714 A.2d at 437 (affirming the trial

court’s decision despite noncompliance with Pa.R.A.P. 1925(a)).        As noted

                                     - 14 -
J-A12019-17



previously, this Court may affirm the trial court’s decision to a deny a new

trial on any proper legal ground. Williams, 704 A.2d at 135.

      In order to prevail on any of these claims, Appellants needed to

establish that the evidence more likely than not would enable the factfinder

to find all of the necessary elements of the causes of action were established

by a preponderance of the evidence.          Samuel-Bassett v. Kia Motors

America, Inc., 34 A.3d 1, 34-35 (Pa. 2011).         We will address each of

Appellants’ claims individually.

      In order to maintain an action in promissory estoppel, the
      aggrieved party must show that 1) the promisor made a promise
      that he should have reasonably expected to induce action or
      forbearance on the part of the promisee; 2) the promisee
      actually took action or refrained from taking action in reliance on
      the promise; and 3) injustice can be avoided only by enforcing
      the promise. As promissory estoppel is invoked in order to avoid
      injustice, it permits an equitable remedy to a contract dispute.

Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000) (citation

omitted); see also RESTATEMENT (SECOND) OF CONTRACTS § 90.

      Appellants argue that Appellees should be estopped from denying that

their oral promises induced Appellants to enter into the Agreement.         See

Appellants’ Br. at 15-16. Appellants alleged that they were told by Appellee

Best that “Penn Security would ‘take care of [the prepayment penalty]’ and

make it right.”   Id.   Appellants alleged that “promises made by Best and

Misterman to pay any prepayment penalty incurred in connection with the

NexTier loan” constituted “a contract in that the promise was supported by

the consideration of [Appellants] entering into the [Agreement] and

                                    - 15 -
J-A12019-17


executing guarantees and mortgages.” Id. at ¶ 61.8

       The trial court found Appellants to be “experienced, sophisticated,

business-savvy, entrepreneurs who were determined to find financing to

build a new assisted living facility.” TCO, 7/28/2016, at 3. The court found

that Appellees testified credibly that the “creative suggestion and opinion

about the way in which the prepayment penalty might be avoided was just

that – an idea or contrivance that may or may not work.” Id. Moreover,

the court found that “[Appellants] understood it as such, and took a

calculated business risk, when they moved forward with the Penn Security

loan.” Id. Further, the court found the testimony regarding the discussions

“vague and contradictory.” TCO, 4/13/2016, at 4. The trial court concluded

that the representations were not misstatements of fact intended to induce

Appellants to borrow money from Penn Security Bank or to act to their

detriment. TCO, 4/13/2016, at 6-7.

       Based on the evidence presented and the trial court’s findings,

Appellants failed to establish the elements necessary to support a cause of
____________________________________________


8
  Appellants’ claim is akin to a claim of fraud in the inducement. The trial
courts commonly apply the parol evidence rule to bar the admission of
extrinsic evidence of an oral promise made prior to or contemporaneous with
an Agreement that allegedly induced a party to enter into it when the court
finds that the agreement was fully integrated. See Kehr Packages, 710
A.2d at 1174-75; see also Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super.
2005) (“The rationale for this rule of law is that a party cannot justifiably
rely upon prior oral representations and then sign a contract containing
terms that refute the alleged prior oral representations.”).




                                          - 16 -
J-A12019-17


action for promissory estoppel. Specifically, Appellants failed to prove that

the alleged promise was reasonably expected to induce reliance or that

Appellants took action based on the purported promise.                Accordingly, we

discern no legal error or abuse of the trial court’s discretion in dismissing

this claim.

      Appellants’ negligent misrepresentation claim also fails.

      Negligent misrepresentation requires proof of: (1) a
      misrepresentation of a material fact; (2) made under
      circumstances in which the misrepresenter ought to have known
      its falsity; (3) with an intent to induce another to act on it; and
      (4) which results in injury to a party acting in justifiable reliance
      on the misrepresentation. …[T]he misrepresentation must
      concern a material fact and the speaker need not know his or
      her words are untrue, but must have failed to make a reasonable
      investigation of the truth of these words. Moreover, like any
      action in negligence, there must be an existence of a duty owed
      by one party to another.

Milliken v. Jacono, 60 A.3d 133, 141 (Pa. Super. 2012) (emphasis in

original) (citations omitted), aff'd, 103 A.3d 806 (Pa. 2014), as modified on

reconsideration (Nov. 12, 2014).

      The     trial   court   made   the     following   findings:   (1)   the   alleged

misrepresentations were not material to the 2011 Penn Security loan

transaction; (2) Misterman specifically encouraged Appellants to seek legal

counsel on this issue for a more definitive answer; (3) Appellants were

familiar with prepayment penalty provisions based on past experiences; (4)

Appellants took a calculated business risk when they moved forward with the

terms of the loan; and (5) what actually induced Appellants to enter into the


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Agreement with Penn Security was a burning desire to finance their new

venture, not their desire to avoid the prepayment penalty. TCO, 4/18/2016,

at 7; TCO, 7/28/2016, at 3, 7.

      Based on the trial court’s findings, Appellants failed to establish by a

preponderance of the evidence the elements necessary to sustain a cause of

action for negligent misrepresentation.       In particular, the court found that

Appellants did not establish by a preponderance of the evidence that the

alleged misrepresentations induced them to enter into the Agreement.

Accordingly, we discern no abuse of the trial court’s discretion or error of law

in dismissing this claim.

      Appellants’ claim for indemnification also fails.     In order to assert a

right to indemnification, the party must generally establish an underlying

right to indemnification. See McClure v. Deerland Corp., 585 A.2d 19, 22

(Pa. Super. 1991) (noting that such a right includes the legal issue of the

scope of the indemnification agreement).         An action for indemnity is an

action at law for damages based on breach of contract.          Id. at 23 (citing

Allegheny Plastics v. Stuyvesant Ins. Co., 200 A.2d 775 (1964)).

      Appellants’ indemnification claim is based on Wukich’s own testimony

that Best said he or Penn Security would “take care” of the prepayment

penalty. See Appellants’ Br. at 18. The court found Best’s testimony more

credible   than Wukich’s and noted        that Wukich conceded on cross-

examination that he never discussed the penalty with Best.            See TCO,


                                     - 18 -
J-A12019-17


4/13/2016, at 3-4.       Based on the trial court’s findings, the purported oral

promise of indemnity was not credible.            Moreover, we find that Wukich’s

self-serving testimony does not establish an implied oral agreement for

indemnity      and   that   Appellants   presented    no   evidence   of   a   written

indemnification agreement to support their claim.           See McClure, supra.

Accordingly, we discern no legal error or abuse of the trial court’s discretion

in rejecting this claim.

         Next, we will address issues six and nine. Appellants present a single

argument with regard to these issues in their brief. First, they contend that

the trial court erred in finding the final Penn Security loan closing documents

fully integrated. See Appellants’ Br. at 19. They argue that Appellees failed

to meet their burden in showing that the Agreement was fully integrated at

trial.   See id. at 20 (citing in support Kehr Packages, Inc. v. Fidelity

Bank, Nat. Ass'n, 710 A.2d 1169, 1173 (Pa. Super. 1998)).                      Second,

Appellants suggest that the court erred in applying the parol evidence rule.

See id. According to Appellants, parol evidence was admissible “to explain

and supplement a written agreement where such evidence shows the writing

in question was not intended to, or did not state the entire agreement

between the parties.” See id. at 19-20.

             [O]ur standard of review regarding a challenge to the
         admissibility of evidence is very narrow; we will only reverse a
         ruling of the trial court if there is an abuse of discretion or error
         of law. The parol evidence rule states that, absent fraud,
         accident, or mistake, parol evidence of a prior or
         contemporaneous oral agreement is not admissible to alter,

                                         - 19 -
J-A12019-17


     vary, modify, or contradict terms of a contract which has been
     reduced to an integrated written instrument.

Kehr Packages, 710 A.2d at 1172 (internal citations omitted).

     “[B]efore the parol evidence rule is applied, the court must determine,

as a matter of law, whether the writing at issue is an integrated agreement.”

Kehr Packages, 710 A.2d at 1173 (citation omitted). “A written contract is

‘integrated’ if it represents a final and complete expression of the parties'

agreement.”    Id. at 1173.     To determine if an agreement is a final

expression, the court must assess the text to determine the completeness of

the written agreement that the oral statement purportedly modifies. See id.

at 1173-74.

     [W]e are mindful that typically, in cases such as this, ‘where the
     cause of action rests entirely on an alleged oral understanding
     concerning a subject which is dealt with in a written contract, it
     is presumed that the writing was intended to set forth the entire
     agreement as to that particular subject.’ Gianni v. R. Russell
     & Co., Inc., 126 A. 791 (Pa. 1924) (landmark case discussing
     parol evidence rule). Further, it is well established that parol
     evidence of a contemporaneous oral agreement is inadmissible if
     the subject of such agreement would naturally and normally
     have been included in the writing between the parties. Gemini
     Equipment [v. Pennsy Supply, 595 A.2d 1211, 1215 (Pa.
     Super. 1991)], (stating that ‘parol evidence is not admissible to
     show an agreement which normally is found in the written
     instrument.’).   Therefore, if the written agreement and the
     alleged oral agreement ‘relate to the same subject-matter and
     are so interrelated that both would be executed at the same
     time, and in the same contract, the scope of the [oral]
     agreement must be taken to be covered by the writing.’ Gianni,
     126 A. at 792.




                                   - 20 -
J-A12019-17


Kehr Packages, 710 A.2d at 1174 (emphasis added).9

       Although Appellees requested application of the parol evidence rule

several times, the record indicates that the trial court denied Appellees’

motions and declined to apply the parol evidence rule. See, e.g., Notes of

Testimony (N.T.), 12/4/2015, 409. 10 Contrary to Appellants’ contention, all

testimonial and documentary evidence appears to have been factored into

the trial court’s decision.        Thus, we reject the premise of Appellants’

allegation of error.

       Here, the court’s ruling was not based on application of the parol

evidence rule, but rather on a credibility assessment of the extrinsic
____________________________________________


9
  In Kehr Packages, the bank appealed from the entry of a judgment in
favor of the plaintiffs for breach of contract, promissory estoppel, negligent
misrepresentation, and tortious interference with a contract arising out of an
alleged oral agreement made during the course of settlement of a credit
agreement. Kehr Packages, 710 A.2d at 1171-72. On appeal, the bank
argued that the evidence concerning an oral agreement or modification
made during the course of settlement was barred by the parol evidence rule.
Id. at 1172. The parties signed multiple interrelated documents at the time
of settlement and the final agreement did not contain an integration clause.
Notwithstanding, the Superior Court found the credit agreement in that case
was a fully integrated contract because the contents of the alleged oral
agreement and credit agreement “relate to the same subject-matter and are
greatly interrelated.” Id. This Court reversed the trial court since the
alleged oral promise was “the type of thing that would natural and normally
have been contained in the written [c]redit [a]greement.” Id. at 1174.
10
   Appellees filed two pre-trial motions in limine to preclude testimony
barred by the parole evidence rule, which the trial court denied. In addition,
Appellees moved to dismiss all claims based on the parol evidence rule after
the evidence was presented at trial. See N.T., 12/4/2015, at 405-409.
Throughout, it was Appellees position that the Agreement constituted a final
expression of Penn Security’s obligations in the loan transaction.



                                          - 21 -
J-A12019-17


evidence offered in support of a collateral legal obligation created by an oral

promise.     The court found the parol evidence not credible to support a

separate, legally enforceable oral promise to cover the prepayment penalty.

See TCO, 4/13/2016, at 6.

       Nevertheless, Appellants argue that the court erred in finding the

Agreement fully integrated because the Agreement does not contain an

integration clause and references other loan documents.11                 Appellants’

argument is without merit because it is well-established that the absence of

an integration clause does not preclude the trial court from finding an

agreement to be fully integrated. See Kehr Packages, 710 A.2d at 1173

(reasoning that an agreement need not contain an integration clause if the

written    instrument     represents     the   final   expression   of   the   parties’

agreement).

       Here, the trial court found that “the final written loan agreement

between Penn Security and [Appellants] contains no mention of NexTier’s

prepayment penalty, and this agreement embodies the entire agreement of

the parties.” TCO, 4/13/2016, at 7. Here, the Agreement clearly manifests

the intentions and obligations of both parties by specifying, inter alia, the
____________________________________________


11
   Notably, Appellants do not assert that the Agreement fraudulently omitted
any term, such as the alleged promise to cover the prepayment penalty,
from the Agreement, nor do they assert that this omission was a mistake.
Specifically, Appellants claim that the court failed to consider the board
memorandum. See Appellants’ Br. at 20-21. We address this claim, infra.




                                          - 22 -
J-A12019-17


amount of the term loan, calculation of interest, payment provisions, and

Appellants’ obligations.   Applying the Kehr Packages test summarized

above, the court did not err in finding the Agreement fully integrated.

      Furthermore, although the trial court did not apply the parol evidence

rule to exclude evidence, it would have been proper to do so. In this case,

the alleged oral promise to “cover” a prepayment penalty of over

$200,000.00 would naturally and normally have been incorporated into the

terms of the loan and the parties’ integrated Agreement.            See Kehr

Packages, 710 A.2d at 1174. Thus, pursuant to Kehr Packages, the parol

evidence rule was applicable.    Accordingly, Appellants are not entitled to

relief and we affirm the denial of a new trial on this ground. See Williams,

704 A.2d at 135.

      Next, we will address issues seven, ten, and fourteen, in which

Appellants claim that they are entitled to a new trial based on the allegations

that the court failed to consider various pieces of evidence. See Appellants’

Br. at 21-23.

      In issue seven, Appellants contend that the court failed to consider the

memorandum to Penn Security’s board of directors.          The memorandum

proposed a complicated loan structure and then stated “[t]his structure is

being used to avoid a significant prepayment penalty.” See Appellants’ Br.

at 23 (citing Trial Ex. 5, p. 4). According to Appellants, this memorandum

evidenced that the purpose of the loan agreement was to avoid the


                                    - 23 -
J-A12019-17


prepayment penalty.

      This memorandum was prepared two months before execution of the

Agreement for the purpose of informing Penn Security’s board about the

proposed loan transaction.      The memorandum did not establish any

independent legal obligation of Penn Security to Appellants.    Because the

court found that any legal obligations were established by the fully

integrated Agreement, the court did not err in failing to consider the board

memorandum to the extent that it related to matters addressed in the final

written Agreement entered into by the parties. See Kehr Packages, 710

A.2d at 1174-75.

      Contrary to Appellants’ argument, the trial court found that “the

primary purpose of the new financing was to finance the new project, not to

avoid a fee.”     See TCO, 4/13/2016, at 7.   Even if the memorandum was

admissible   to   explain certain   terms of the   parties’ Agreement, the

memorandum itself is not binding on Penn Security or Appellants in any

manner. Thus, we defer to the findings of the trial court and we discern no

abuse of discretion.

      In issue ten, Appellants assert that the court failed to consider

evidence that they did not have an opportunity to review the loan

documents before closing. Appellants’ Br. at 22 (citing N.T. at 80-83). They

maintain that such evidence supported their claim for fraud in the execution.

See id.


                                     - 24 -
J-A12019-17


       Our review of the record reveals that Appellants mischaracterize the

notes of testimony cited in their brief.           Misterman testified that the loan

documents were redrafted several times.               See N.T. at 81.     Misterman

forwarded the final version for Appellants to review prior to closing. See id.

He testified that Appellants “were in a hurry to close, [Penn Security and its

officers] were trying to accommodate their schedule.” See id. The actual

closing lasted approximately two hours.             Id. at 83-84.    Misterman also

denied promising to take care of the NexTier penalty at closing. See id. at

85-86. According to the factfinder:

       [Appellants] were moving full steam ahead, and Daniel J.
       admitted that even if they had been advised by lenders that they
       would have to pay the penalty in order to pay off the existing
       NexTier loan, they still would have gone ahead with the new
       project.

See TCO, 4/13/2016, at 5-6 (noting that Appellants had also obtained

building permits prior to securing the necessary financing).

       Based on our review of the record, Appellants had sufficient time to

review the loan closing documents. As a matter of law, Appellants bore the

risk of any mistake resulting from their failure to include alleged oral

statements at closing into the final agreement.12           Accordingly, no relief is

due.

____________________________________________


12
  See, e.g., Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 411 (Pa.
Super. 2010) (quoting RESTATEMENT (SECOND) CONTRACTS § 154: When A Party
Bears the Risk of a Mistake).



                                          - 25 -
J-A12019-17


      In issue fourteen, Appellants contend that the court failed to consider

testimony regarding the loan options Appellants had discussed with other

banks before entering into the Agreement with Penn Security.              See

Appellants’ Br. at 22 (citing N.T. at 295-296). Appellants suggest that they

entered the Agreement with Penn Security based on an alleged arrangement

to avoid the prepayment penalty, despite their “other options.”          Their

argument is unconvincing in light of the factfinder’s conclusion that

Appellants decided to work with Penn Security based on their relationship

with Best. See TCO, 4/13/2016, at 5 (“When [Appellants] were frustrated in

their attempts to work with NexTier on obtaining financing for the new

project, they turned to Best, who they had kept apprised of the situation.”).

As the trial court’s findings are supported by the record, see, e.g., N.T. at

201, we discern no abuse of discretion. Accordingly, no relief is due.

      Next, we will address issues eleven, twelve, and sixteen. Appellants

combined these issues under a single subheading in their brief, in which they

assert that the trial court erred in concluding that the Penn Security loan of

$7,121,628.69 was sufficient to cover the principal amount and the

prepayment penalty. See Appellants’ Br. at 23. Appellants claim that they

are entitled to relief in the form of JNOV or, in the alternative, a new trial.

See id.

      In reviewing the trial court’s denial of JNOV, we must consider all of

the evidence admitted to decide if there was sufficient competent evidence


                                    - 26 -
J-A12019-17


to sustain the verdict, drawing all inferences in a manner favorable to the

verdict winner.     See V-Tech Services, Inc. v. Street, 72 A.3d 270, 275

(Pa. Super. 2013) (“If any basis exists upon which the [court] could have

properly made its award, then we must affirm the trial court's denial of the

motion for JNOV. A JNOV should be entered only in a clear case.”) (citations

omitted)).

       The trial court acknowledged that it had made a numerical mistake in

its opinion dated June 28, 2016,13 however, the court reasoned that this was

harmless error and noted that “this fact is inconsequential in the overall

scheme of things.” Trial Ct. Op., 7/28/2016, at 1, 3. We agree. Moreover,

Appellants make no effort to explain how a contrary finding would affect the

verdict on any specific claim.         Thus, Appellants are not entitled to relief.

Accordingly, we affirm the trial court’s denial of JNOV and a new trial.

       Finally, we will address Appellants’ fifteenth and seventeenth issues,

which they discuss under a single argument heading in their brief.             See

Appellants’ Br. at 23-24.        Appellants contend that the court erred in “in

____________________________________________


13
   The correct payoff amount was indicated in a letter NexTier Bank sent to
Appellants dated March 29, 2011. See Trial Ct. Op., 7/28/2016, at 2. The
correct payoff amount for the notes and loan, including the penalty, was
$7,334,198.75. See id. The trial court adhered to its prior ruling on the
basis that the $7.1 million loan from Penn Security was relatively close to
the amount of principal amount due, $7,121,628.69, before the prepayment
penalty was imposed. See id. at 2-3 (noting that this amount was “only a
few dollars short (in relative terms) of the proceeds” of the Penn Security
loan).



                                          - 27 -
J-A12019-17


placing undue reliance on the self-serving testimony of Craig Best” and

request relief in the form of a new trial. See id. Our standard of review to

a challenge based on the weight of the evidence is as follows.

      A new trial will be granted on the grounds that the verdict is
      against the weight of the evidence where the verdict is so
      contrary to the evidence it shocks one's sense of justice. An
      appellant is not entitled to a new trial where the evidence is
      conflicting and the finder of fact could have decided either way.

Betz v. Erie Ins. Exch., 957 A.2d 1244, 1252 (Pa. Super. 2008) (citations

and quotation marks omitted).

      Ordinarily, ‘[i]t is well established that the credibility of
      witnesses is an issue to be determined by the trier of fact. On
      appeal this Court will not revisit the trial court's determinations
      ... regarding the credibility of the parties. Thus, [an] argument,
      which would require this Court to revisit and essentially reverse
      the [trial court] on his credibility determinations, provides no
      grounds for relief.’

Stephan v. Waldron Elec., 100 A.3d 660, 667 (Pa. Super. 2014) (quoting

Woods v. Cicierski, 937 A.2d 1103, 1105 (Pa. Super. 2007)).

      In this section, Appellants merely contend that the court improperly

weighted Best’s testimony. The only contradictory evidence they point to is

the board memorandum, which we have addressed supra.              As discussed

above, it is not the role of the appellate court to weigh credibility of the

evidence presented at trial on appeal. Stephan, 100 A.3d at 667. We defer

to the findings in the court’s ruling as they are supported by the record and

therefore, they will not be disturbed. Accordingly, no relief is due.

      Judgment affirmed.




                                     - 28 -
J-A12019-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017




                          - 29 -
