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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


1 Bryan M. Barosh did not respond to any of the pleadings in the matter
including this appeal.
J-A28008-17


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


                                    -2-
J-A28008-17


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

                                    -3-
J-A28008-17


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]?

____________________________________________


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.



                                           -4-
J-A28008-17


(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

                                     -5-
J-A28008-17


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


                                     -6-
J-A28008-17


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:



                                     -7-
J-A28008-17


        [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


                                   -8-
J-A28008-17


             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

____________________________________________


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.



                                             -9-
J-A28008-17


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


                                    - 10 -
J-A28008-17


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




                                    - 11 -
J-A28008-17


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




____________________________________________


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.



                                          - 12 -
