J-S54026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANNE P. DEVLIN                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

WALTON T. KURZ AND ARLENE KURZ

                           Appellees                    No. 90 EDA 2015


               Appeal from the Order Entered December 4, 2014
                In the Court of Common Pleas of Bucks County
                        Civil Division at No(s): 99-3520


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 27, 2015

        Appellant, Ann P. Devlin, appeals from the December 1, 2014 order

granting summary judgment in favor of Appellees, Walton Kurz and Arlene

Kurz, defendants below. We affirm.

        We briefly set forth the uncontested facts of this case as follows. On

October 27, 1998, Devlin entered into an agreement of sale with Mr. Kurz

for the property located at 1579 Applewood Circle, Yardley, Pennsylvania

(the “Property”). Under the agreement of sale, Mr. Kurz agreed to sell and

convey the Property to Devlin for $162,000.          Devlin paid a deposit of

$11,000 in cash at the time of the signing of the agreement of sale. She

agreed to pay the remaining balance amount of $151,000 at the settlement.


*
    Former Justice specially assigned to the Superior Court.
J-S54026-15


Devlin, however, was ultimately unable to purchase the Property because

she was unable to acquire a mortgage. Devlin never received her deposit on

the Property back.

        On April 13, 2000, Devlin filed a complaint against Mr. and Mrs. Kurz

in which she alleged that she was entitled to the return of her $11,000

deposit. Devlin later filed a second amended complaint. In her complaint,

Devlin averred that Mr. and Mrs. Kurz assured her that a valid mortgage

contingency clause would be included in the agreement of sale so that her

$11,000 deposit would be returned if she was unable to acquire a mortgage.

Devlin further claimed that Mr. and Mrs. Kurz deliberately drafted the

mortgage contingency clause to be ineffective and unenforceable.            Devlin

asserted four counts against Mr. and Mrs. Kurz: Count I: Conspiracy to

Commit Fraud in the Inducement; Count II: Unjust Enrichment; Count III:

Fraud in the Execution; and Count IV: Conversion.           Mr. and Mrs. Kurz

subsequently filed preliminary objections to Devlin’s second amended

complaint. On March 12, 2002, the trial court dismissed Count II and Count

IV as to Mrs. Kurz.

        On July 23, 2007, Mr. and Mrs. Kurz filed a motion for summary

judgment. Devlin filed a response.1 The parties commenced oral argument

before the Bucks County Court of Common Pleas on November 24, 2014.


1
    Devlin did not file an accompanying brief in support of her response.


                                       -2-
J-S54026-15


Mrs. Kurz was dismissed from the case at oral argument. On December 4,

2014,2 the trial court entered an order granting summary judgment on all

counts. This timely appeal followed.

      We review a challenge to the entry of summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      On appeal, Devlin argues that the trial court erred in granting

summary judgment on all counts because Mr. and Mrs. Kurz’s motion for

summary judgment only addressed Count I: Conspiracy to Commit Fraud in


2
  See Frazier v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999)
(“[P]ursuant to the express terms of the rules, [i.e., Pa.R.C.P. 301(a),
108(b), and 236(b)] an order is not appealable until it is entered on the
docket with the required notation that appropriate notice has been given.”).


                                     -3-
J-S54026-15


the Inducement.       She asserts that the trial court improperly granted

summary judgment on all counts sua sponte.         We need not address the

substance of Devlin’s argument, however, because she failed to preserve

this issue.   Devlin did not argue that Mr. and Mrs. Kurz’s motion for

summary judgment should be limited to Count I during oral argument before

the trial court.    She lodged no objection whatsoever to the trial court’s

action. Instead, she raises this argument for the first time on appeal.

      Arguments not raised initially before the trial court in opposition to

summary judgment cannot be raised for the first time on appeal. See, e.g.,

Harber Phila. Center City Office Ltd. v. LPCI Ltd. Partnership, 764

A.2d 1100, 1105 (Pa. Super. 2000). This Court has noted that “under Rule

1035.3, the non-moving party must respond to a motion for summary

judgment, he or she bears the same responsibility as in any proceeding, to

raise all defenses or grounds for relief at the first opportunity.” Devine v.

Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004) (citations omitted). “A party

who fails to raise such defenses or grounds for relief may not assert that the

trial court erred in failing to address them.” Id. “Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a).

      In the instant case, Devlin failed to argue before the trial court that

Mr. and Mrs. Kurz’s motion for summary judgment should be limited just to

Count I. As noted, she voiced no objection at all. Instead, she raises this


                                     -4-
J-S54026-15


argument for the first time on appeal.     Thus, Devlin waived this issue on

appeal.3   Accordingly, we affirm the trial court’s order granting summary

judgment on all counts.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2015




3
  Even if we were to address the merits of Devlin’s claims, we would find
that her claims do not have merit. After a careful review of the record, we
agree with the trial court’s conclusion that there are no genuine issues of
material fact in dispute. Therefore, it was proper for the trial court to grant
summary judgment as to all counts.


                                     -5-
