J-A23041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

THOMAS A. DALFONSO,                    :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                   Appellant           :
                                       :
      v.                               :
                                       :
R. DONALD BENSON,                      :
                                       :
                   Appellee            :      No. 62 WDA 2016

           Appeal from the Judgment Entered January 27, 2016
             in the Court of Common Pleas of McKean County
                   Civil Division at No(s): No. 2009-1474

BEFORE:    LAZARUS, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED NOVEMBER 17, 2016

     Thomas A. Dalfonso appeals from the judgment1 entered against him

and in favor of R. Donald Benson following a non-jury trial in this mortgage

foreclosure action. We affirm.

     In 1994, Omni Capital (Omni) lent $200,000 to United Business

Enterprises (UBE) upon the personal guarantee of UBE’s owners Richard and

Pamela Robidoux (the Robidouxs, collectively).      After UBE defaulted, a

settlement agreement (the 1997 Agreement) was reached under which the

Robidouxs agreed to pay $273,435 in installments.       The 1997 Agreement



1
   Dalfonso filed his notice of appeal before judgment had been entered. The
appeal was perfected, however, following this Court’s issuance of a rule,
when judgment was entered on the verdict on January 27, 2016. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).

*Retired Senior Judge assigned to the Superior Court.
J-A23041-16


was secured by mortgages on several of the Robidouxs’ properties, including

the McKean County oil, gas, and mineral (OGM) rights at issue in the instant

foreclosure action.   When the Robidouxs failed to meet their obligations

under the 1997 Agreement, Omni obtained a judgment in Massachusetts

against the Robidouxs for $273,435.

     In 2000, appellee Benson purchased at a tax sale the OGM rights to

the McKean County properties at issue, subject to the mortgages executed

as required by the 1997 Agreement.

     In 2002, with Omni’s judgment against the Robidouxs not satisfied,

Omni entered into another settlement agreement with the Robidouxs and

UBE (the 2002 Agreement).     Under the 2002 Agreement, Omni agreed to

accept $55,400, to be paid in installments, in full satisfaction of the

outstanding debts of UBE and the Robidouxs. The 2002 Agreement did not

require mortgages as security, but did provide that if its terms were not

met, the 1997 judgment “will be deemed to be in full effect, minus any sums

that have been received, plus any applicable interest and costs.”      2002

Agreement at ¶ 6.      The 2002 Agreement also contained the following

integration clause: “This Agreement is the entire agreement among the

parties with respect to the subject matter hereof and supercedes [sic] all

prior and contemporaneous oral and written agreements and discussions.”

Id. at ¶ 10. After the Robidouxs and UBE defaulted on the 2002 Agreement,

Omni sold the debt to appellant Dalfonso in 2004 for $20,000.


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     In 2005, Benson filed an action to quiet title as to the McKean County

OGM rights.   An order was entered in 2007 providing that Benson’s OGM

interests were held subject to Dalfonso’s mortgages. However, the validity

of the mortgages was not decided at that time.

     In 2009, Dalfonso filed the instant action to foreclose on the

mortgages.    Following trial, the trial court filed a memorandum and order

detailing its findings of fact and legal conclusions. Memorandum and Order,

11/16/2015.     Therein, the trial court held that the 2002 Agreement

constituted a novation of the 1997 Agreement, and that, because the 2002

Agreement did not provide for mortgages as had the 1997 Agreement, no

valid mortgages existed in 2004 when Dalfonso purported to purchase them

along with the debt of UBE and the Robidouxs. Accordingly, the trial court

entered a verdict in favor of Benson and against Dalfonso.

     On November 25, 2015, Dalfonso timely filed a post-trial motion which

the trial court denied on December 11, 2015. Dalfonso timely filed a notice

of appeal on January 6, 2016.     The trial court ordered Dalfonso to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Dalfonso timely filed a statement. The trial court subsequently

filed a statement pursuant to Pa.R.A.P. 1925(a) directing this Court to its

November 16, 2015 Memorandum and Order.

     Dalfonso presents this Court with the same question in his 1925(b)

statement: “Whether the trial court erred in concluding that the 2002


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Settlement Agreement invalidated or otherwise extinguished the OGM

mortgages?” Dalfonso’s Brief at 4 (unnecessary capitalization omitted).

      Before we consider the merits of Dalfonso’s issue, we must determine

whether Dalfonso has preserved it for our review. In support of his position

that the trial court erred, Dalfonso argues (1) the 2002 Agreement did not

replace an existing contract because the 1997 Agreement had merged into

the judgment Omni obtained in 1997, and (2) even if a novation occurred,

the mortgages were not affected as they are separate obligations.           Id. at

15. Benson argues that Dalfonso has waived the bases for relief by failing to

identify them clearly in his 1925(b) statement. Benson’s Brief at 9.

      The trial court, upon review of Dalfonso’s 1925(b) statement, indicated

as follows: “It is impossible from [Dalfonso’s] concise statement to identify

with any certainty which part or parts of my Memorandum and Order are the

subject of his appeal.      Consequently, I am unable to further elucidate the

findings   of   fact   or   discussion    contained   in   the   November    16th

Memorandum.”       Pa.R.A.P. 1925(a) Statement, 11/23/2016, at 1.

       “An overly vague or broad Rule 1925 statement may result in waiver.”

Majorsky v. Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012). The reasons

for this waiver rule are as follows.

      When a court has to guess what issues an appellant is appealing,
      that is not enough for meaningful review. When an appellant
      fails adequately to identify in a concise manner the issues sought
      to be pursued on appeal, the trial court is impeded in its
      preparation of a legal analysis which is pertinent to those issues.


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      In other words, a concise statement which is too vague to allow
      the court to identify the issues raised on appeal is the functional
      equivalent of no concise statement at all.                   While
      [Commonwealth v. Lord, [] 719 A.2d 306 (Pa. 1998)] and its
      progeny have generally involved situations where an appellant
      completely fails to mention an issue in his concise statement, for
      the reasons set forth above we conclude that Lord should also
      apply to concise statements which are so vague as to prevent
      the court from identifying the issue to be raised on appeal. In
      the instant case, [the] appellant’s Concise Statement was not
      specific enough for the trial court to identify and address the
      issue [that the] appellant wished to raise on appeal. As such,
      the court did not address it. Because [the] appellant’s vague
      concise statement has hampered appellate review, it is waived.

Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (quoting

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)) (unnecessary

capitalization omitted).

      Here, Appellant’s statement that “the trial court erred in concluding

that the 2002 Settlement Agreement invalidated or otherwise extinguished

the OGM mortgages” does not evoke the claims of merger and separateness

upon which he bases his right to relief. The trial court has filed no opinion

addressing these issues.       Our review of the issues unquestionably is

hampered, as we are unable to determine whether the trial court’s resolution

of those issues was erroneous when we have to guess at the legal and/or

factual bases for the trial court’s rejections of Dalfonso’s positions.

      Accordingly, we hold that Dalfonso’s issues are waived.             See, e.g.,

Majorsky, 58 A.3d at 1258–59 (holding that arguments that the trial court

erred in granting summary judgment on res judicata grounds because an



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J-A23041-16


earlier    motion   was   denied   were   waived   on   appeal   because   “these

considerations were not raised in clear terms in Appellants’ Rule 1925(b)

statement, and the trial court did not address them in disposing of the res

judicata issue in its original memorandum granting Appellees’ second motion

for summary judgment or in its Rule 1925(a) opinion”).

      Even if Dalfonso had preserved his claims for our review, he has failed

to convince us that the trial court erred and that he is entitled to relief as a

result.2

      Our review in a non-jury case is limited to whether the findings
      of the trial court are supported by competent evidence and
      whether the trial court committed error in the application of law.
      We must grant the court’s findings of fact the same weight and
      effect as the verdict of a jury and, accordingly, may disturb the
      non-jury verdict only if the court’s findings are unsupported by
      competent evidence or the court committed legal error that
      affected the outcome of the trial. It is not the role of an
      appellate court to pass on the credibility of witnesses; hence we
      will not substitute our judgment for that of the factfinder. Thus,
      the test we apply is not whether we would have reached the
      same result on the evidence presented, but rather, after due
      consideration of the evidence which the trial court found
      credible, whether the trial court could have reasonably reached
      its conclusion.

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.

2012) (quoting Lebanon County Hous. Auth. v. Landeck, 967 A.2d 1009,

1012 (Pa. Super. 2009)).



2
  In re Estate of Coombs, 784 A.2d 150, 155 (Pa. Super. 2001) (“It is the
Appellant who has the burden of establishing his entitlement to relief by
showing that the ruling of the trial court is erroneous under the evidence or
the law.”).

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      The doctrine of novation, or substituted contract, applies where:
      (i) a prior contract has been displaced, (ii) a new valid contract
      has been substituted in its place, (iii) there exists sufficient legal
      consideration for the new contract, and (iv) the parties
      consented to the extinction of the old and replacement of the
      new. A novation is accepted by the parties as satisfaction of a
      pre-existing duty, [which] thus bars the revival of the pre-
      existing duty following a breach of the substituted contract.
      However, whether a contract has the effect of a novation
      primarily depends upon the parties’ intent. The party asserting
      its existence bears the burden of demonstrating the parties had
      a meeting of the minds.

First Lehigh Bank v. Haviland Grille, Inc., 704 A.2d 135, 138–39 (Pa.

Super. Ct. 1997) (internal quotation marks and citations omitted).

      The trial court held that Benson proved all of the elements necessary

to establish a novation.    Specifically, it held that: (i) & (ii) “[t]here is no

dispute that both the 1997 [] Agreement and the 2002 [] Agreement are

valid contracts. It could not be clearer, from the explicit terms of the 2002

Agreement, that the latter replaced the former,” Trial Court Opinion,

11/16/2015, at 5; (iii) there existed sufficient consideration for the new

contract, as the 2002 Agreement included settlement of another civil action

between the parties that had not been resolved, id.; and (iv) consent was

proven by the terms of the 2002 Agreement itself, which stated that the

parties “have entered into this Agreement willingly, and are not under

duress.” Id. at 6. The trial court thus found that it was the intention of the

parties that the 2002 Agreement supplanted the 1997 Agreement and the

mortgage interests secured by it.     Id.   “Consequently, it follows, Dalfonso



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J-A23041-16


cannot foreclose on mortgages that secured the 1997 Agreement when all

that was transferred to him in his 2004 purchase from Omni was the

obligations and related security arrangements contained in the 2002

Agreement.” Id.

     In this Court, Dalfonso claims that the 2002 Agreement could not have

constituted a novation of the 1997 Agreement because the 1997 Agreement

ceased to exist as a valid contract when the 1997 judgment was entered, as

the Agreement merged into the judgment. Dalfonso’s Brief at 17.

     Dalfonso cites no authority that provides that a contract ceases to be

valid for novation purposes after a judgment is entered upon it. Rather, he

constructs his argument upon the foundation of a federal bankruptcy court

case in which the court noted that “[u]nder Pennsylvania law, it is well

established that upon entry of a judgment the contractual relationship

between the parties that gave rise to the debt merges into the judgment.” 3

In re Foy, 469 B.R. 209, 214 (Bankr. E.D. Pa. 2012). Aside from the fact

that the case has no precedential value in this Court, the issue decided

therein is not at all analogous to the instant case.     The court in Foy



3
  Pennsylvania cases relied upon by the Foy court in discussing Pennsylvania
law provide not that a contract ceases to be “valid” after judgment is
entered, but that the causes of action upon agreement, including both those
actually litigated and those that could have been litigated, are what merge
into a judgment. See, e.g., Kessler v. Old Guard Mut. Ins. Co., 570 A.2d
569, 573 (Pa. Super. 1990) (“[T]he finality of a judgment extends not only
to matters actually determined but also to matters which could properly
have been raised and determined therein.”).

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J-A23041-16


determined that the creditor’s assignee of the debtor’s contract did not also

obtain the judgment entered against the debtor on those accounts because

the assignment referenced only the accounts and not the judgment. We fail

to see the relevance of that case to Dalfonso’s argument that a judgment

invalidates for purposes of a novation the contract which gave rise to the

judgment. This argument does not persuade us that the trial court erred.

      Dalfonso also argues that, even if there had been a novation, the

mortgage interests were not extinguished by the supplanting of the 1997

Agreement because “a mortgage and the debt it secures are separate

obligations.” Dalfonso’s Brief at 18. Again citing a non-binding federal court

case, Dalfonso claims that it is “well established in Pennsylvania that a

mortgagee may pursue remedies on both the mortgage and the underlying

debt at the same time.” Id. (citing Miners Sav. Bank of Pittston, Pa. v.

United States, 110 F. Supp. 563, 566 (M.D. Pa. 1953)).4

      Dalfonso is correct that debts and the mortgages that secure them are

separate obligations under Pennsylvania law.      However, as Benson aptly

notes, it is also true that once the debt that a mortgage secures is

eliminated for any reason, the mortgage is extinguished: “‘The debt being

every thing, and the mortgage barely a security for the payment of it, it


4
  Again, the case upon which Dalfonso builds his argument bears no
resemblance to the instant case, as Miners Savings Bank was a quiet title
action by a bank to prevent the federal government from foreclosing on a
tax lien on a property against which the bank had already obtained an in
rem judgment in mortgage foreclosure.

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J-A23041-16


follows of necessity, that whatever affects the debt, will produce a

corresponding effect upon the mortgage. If the debt be extinguished by any

means, the mortgage will become so likewise.’”5         Benson’s Brief at 23

(quoting Weir v. Potter Title & Mortgage Guarantee Co., 185 A. 630,

633 (Pa. 1936)). See also Kaylor v. Cent. Trust Co. of Harrisburg, 36

A.2d 825, 827 (Pa. 1944) (observing that a note and a mortgage “taken for

the same debt are distinct securities, possessing dissimilar attributes subject

to different remedies, but the payment of either discharges both, and a

release or extinguishment of either, without actual payment, is a discharge

of the other, unless otherwise intended by the parties” (citation and internal

quotation marks omitted)).

      Dalfonso acknowledges that the mortgages “secure[d] payment of

‘$273,435.00 based upon the terms of a certain settlement agreement dated

August 5, 1997’” among Omni and the Robidouxs. Dalfonso’s Reply Brief at

10 (quoting the mortgages collectively admitted at trial as Dalfonso’s Exhibit


5
  Benson also points out that, although Dalfonso obtained the mortgages in
assignment from Omni, he did not obtain from Omni assignment of the
underlying note, which in this case is the 1997 Agreement, and for that
reason Dalfonso lacked the ability to foreclose. Benson’s Brief at 25 (citing
CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 68 (Pa. Super. 2016) (“A
person foreclosing on a mortgage, however, also must own or hold the note.
This is so because a mortgage is only the security instrument that ensures
repayment of the indebtedness under a note to real property. A mortgage
can have no separate existence.” (citation omitted)); Carpenter v. Longan,
83 U.S. 271, 274 (1872) (“The note and mortgage are inseparable; the
former as essential, the latter as an incident. An assignment of the note
carries the mortgage with it, while an assignment of the latter alone is a
nullity.”)).

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6).   The 2002 Agreement supplanted the 1997 Agreement.            The 2002

Agreement provided that the 1997 judgment would once again “be deemed

to be in effect” upon breach of the 2002 Agreement, 2002 Agreement at ¶ 6,

but did not provide for revival of any part of the 1997 Agreement (as

opposed to the 1997 judgment).

      Therefore, the trial court reasonably found that, based upon the terms

of the 2002 Agreement, Omni ceased holding mortgages to assign because

“the 2002 Agreement, as a substitute for the 1997 Agreement, did not

require the entry of any mortgage as security or explicitly provide for the

mortgages previously entered.” Trial Court Opinion, 11/16/2015, at 6-7.

The trial court properly concluded that breach of the 2002 Agreement did

not revive the duty to provide mortgages as security for the 1997

Agreement. See Nernberg & Laffey v. Patterson, 601 A.2d 1237, 1239

(Pa. Super. 1991) (“Since a substituted contract is accepted as satisfaction

of a pre-existing duty, [it] thus bar[s] the revival of the pre-existing duty

following a breach of the [substituted] contract….” (citation and quotation

marks omitted)). As such, the trial court correctly held that “there were no

valid mortgages for Dalfonso to purchase” in 2004.       Trial Court Opinion,

11/16/2015, at 7.

      For the foregoing reasons, Dalfonso has failed to convince us that he is

entitled to relief from this Court.

      Judgment affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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