J-A15031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CITIZENS BANK OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ROBERT PHILLIP MAIZEL                    :
                                          :
                    Appellant             :   No. 3502 EDA 2018

            Appeal from the Order Entered November 19, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 2018-03183


BEFORE:    BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                      FILED SEPTEMBER 24, 2019


      Appellant, Robert Phillip Maziel (Appellant), appeals from the order of

the Honorable Gail A. Weilheimer, on November 19, 2018, granting Plaintiff

Citizen Bank’s (Citizens) motion for judgment on the pleadings in an action

arising out of a loan Citizens made to Appellant’s former law practice, Borjeson

& Maizel, LLC (B & M), that Appellant guaranteed. We affirm.

      Appellant and his law partner at the time, Eric Borjeson, maintained a

law practice, B & M, in 2007. Citizens filed a complaint against Appellant on

February 8, 2018. In this complaint, Citizens alleged on or about August 21,

2007, the bank entered into a loan transaction with B & M, whereby B & M

executed and delivered to the bank a commercial line note in the original

principal amount of $100,000.00. Complaint ¶ 3, 2/8/18. Citizens further

alleged, in order to induce the bank to enter into the note, Appellant executed

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A15031-19


and delivered to the bank his guaranty agreement, agreeing to guaranty and

act as surety for B & M’s obligations under the note and any other obligation

of B & M to the bank. Id. ¶ 4. Citizens alleged that B & M has drawn on and

received funds from the bank in connection with the note, and has defaulted

on its obligations to the bank under the note by virtue of, among other things,

failing to make payments when and as due in accordance with the terms of

the note. Id. ¶¶ 5, 6. Citizens alleged that Appellant has defaulted on his

obligations under the guaranty by virtue of, among other things, failing to cure

B & M’s default. Id. ¶ 7. Citizens alleged that on or about January 18, 2018,

the bank notified Appellant of his default under the guaranty and that

Appellant failed to repay the bank after written demand. Id. ¶¶ 8, 9. Citizens

alleged the amount due and payable under and in connection with the note

and guaranty as of February 5, 2018 was $26,093.31.           Id. ¶ 10.   Lastly,

Citizens alleged that it was entitled to recover all its collection expenses,

including without limitation, its attorney’s fees which it estimated to be

$2,500.00. Id. ¶ 11.

      Appellant filed preliminary objections stating that Citizens failed to join

a necessary party, his former law partner, and seeking dismissal of the

complaint.   The trial court overruled the preliminary objections.     Appellant

filed an answer to the complaint, responding to averments one and three -

eleven with the following response: “Denied. After a reasonable investigation,

Maizel is without knowledge or information to form a belief as to the truth of


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the averments contained in this paragraph, and therefore Maizel denies the

allegations.” Appellant’s Answer, 6/28/18, ¶¶ 1, 3-11. Additionally, Appellant

responded that the averments at paragraph 3 and 11 contained conclusions

of law to which no response is required. Id. ¶¶ 3, 11. Appellant also included

“new matter,” stating several defenses and included an averment that all

funds were received by Appellant’s former law partner and, therefore, liability

rests with him. Appellant’s New Matter, ¶¶ 1-10. Citizens filed a reply to the

new matter, denying all the allegations as conclusions of law to which no

response is required. Citizens Reply to New Matter, 6/29/18, ¶¶ 1-10.

       Citizens then filed a motion for judgment on the pleadings, alleging that

because Appellant generally denied the averments in the complaint, they

should be deemed admitted.             Citizens argued that since Appellant has

admitted the averments in the complaint, it has proved a prima facie case for

breach of contract and judgment on the pleadings should be granted.

Appellant filed a response alleging he properly denied the averments in

Citizen’s complaint by way of Pa.R.C.P. 1029(c).1        The trial court granted

Citizen’s motion for judgment on the pleadings on November 19, 2018.




____________________________________________


1 “A statement by a party that after reasonable investigation the party is
without knowledge or information sufficient to form a belief as to the truth of
an averment shall have the effect of a denial.” Pa.R.C.P. 1029(c).




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Appellant filed a timely appeal.2         Appellant raises the following issues on

appeal:

    1. Did the trial court err as a matter of law in granting the Plaintiff’s
       Motion for Judgment on the Pleadings, where doing so was
       contrary to the law, because issues of fact exist in this matter?

    2. Did the trial court err as a matter of law in determining the Plaintiff
       was entitled to judgment as a matter of law and a prima facie
       judgment when it found that Defendant’s denials within his
       Answer to Complaint were “general” denials?

Appellant’s Brief at 4. (suggested answers omitted).

       When reviewing a grant of judgment on the pleadings, our scope of

review is plenary and our standard of review is de novo. Rice v. Diocese of

Altoona-Johnsontown,            212    A.3d    1055,   1061   (Pa.   Super.   2019),

reargument denied (August 14, 2019).

       The Superior Court applies the same standard as the trial court and

confines its considerations to the pleadings and documents properly attached

thereto. Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 101 (Pa. Super.

2016) (citations omitted). The Court will review to determine whether the

trial court’s action respecting the motion for judgment on the pleadings was

based on a clear error of law or whether there were facts disclosed by the


____________________________________________


2 The Appellant filed his Pa.R.A.P. 1925(b) statement on November 26, 2018,
attached to his notice of appeal. The trial court ordered a Rule 1925(b)
statement on December 10, 2018. Appellant complied with this order by
serving his Rule 1925(b) statement upon Judge Weilhemer on December 11,
2018.



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pleadings which should properly go to the jury. Id. The Court will affirm the

grant of judgment on the pleadings if the moving party’s right to succeed is

certain and the case is so free from doubt that the trial would clearly be a

fruitless exercise. Id.

      Before reviewing Appellant’s issues on the merits, we must first

determine whether Appellant preserved his issue for appellate review under

Pa.R.A.P. 1925(b).

      In Commonwealth v. Lord, [] 719 A.2d 306 ([Pa.] 1998), the
      Pennsylvania Supreme Court held that issues not included in a
      Pa.R.A.P. 1925(b) statement are deemed waived on appeal. The
      absence of a trial court opinion poses a substantial impediment to
      meaningful and effective appellate review. Pa.R.A.P. 1925 is
      intended to aid trial judges in identifying and focusing upon those
      issues which the parties plan to raise on appeal. Rule 1925 is thus
      a crucial component of the appellate process.

Commonwealth v. Lemon, 804 A.2d 34, 36–37 (Pa. Super. 2002) (internal

citations omitted); see also Lord, 719 A.2d at 308.

      When the trial 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. 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.

Lemon, 804 A.2d at 37 (internal citations and quotations omitted).

      Pa.R.A.P. 1925(b) exists primarily to require the appellant to identify

with certainty each of the issues to be addressed on appeal. Lemon, 804

A.2d at 37. “An appellant must have an opportunity to frame his/her own


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issues which will guide the trial court’s subsequent opinion.” Id. at 38. It is

not up to the trial court to frame the issues for an appellant, either by

“guessing or anticipating.” Id. “When an appellant fails to identify in a vague

Pa.R.A.P. 1925(b) statement the specific issue he/she wants to raise on

appeal, the issue is waived, even if the trial court guesses correctly and

addresses the issue in its Pa.R.A.P. 1925(a) opinion.” Id.

      Appellant’s Rule 1925(b) statement averred that the trial court erred as

follows:

           1. Granting Plaintiff’s Motion for Judgment on the Pleadings
           was contrary to the law in the Commonwealth of Pennsylvania.

           2. The Court erred in granting Plaintiff’s Motion for Judgment
           on the Pleadings.

           3. The Court made an abuse of discretion and/or an error of
           law in granting Plaintiff’s Motion for Judgment on the Pleadings.

           4. The Court erred and ignored the evidence that the [sic] a
           genuine issue of material fact exists in this matter, and
           therefore the granting a motion for judgment on the pleadings
           was not germane in this matter.

           5. The Court erred and ignored the law which prohibits a
           creditor from seeking a double recovery and/or remainder of
           the debt on a judgment, as a judgment has previously been
           issued against Defendant’s loan co-signer in this matter.

           6. The Court erred and decided contrary to the law in the
           Commonwealth of Pennsylvania that the instant action was
           closed and/or dismissed by granting Plaintiff’s Motion for
           Judgment on the Pleadings.

           7. The Court erred and decided contrary to the law in the
           Commonwealth of Pennsylvania that the Plaintiff was entitled
           to judgment on the pleadings based solely on the argument


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            that Plaintiff was entitled to a prima facie judgment in this
            contract matter.

Appellant’s Rule 1925(b) statement, 11/26/18.

      Appellant’s first, second, third and sixth appellate issues generally

complained that the trial court erred in granting Citizen’s judgment on the

pleadings. Appellant does not identify any specific error he is alleging the trial

court made, nor does he point to any law that the trial court purportedly

violated.    We find that Appellant’s issues one, two, three, and six are too

vague to merit review. Accordingly, because we conclude that those items in

Appellant’s Rule 1925(b) statement are so vague as to be the functional

equivalent of no Rule 1925(b) statement at all, we find these issues waived.

See Lemon, 804 A.2d at 37; see also Commonwealth v. Williams, 204

A.3d 489, 495 (Pa. Super. 2019) (concluding that a vague Rule 1925(b)

statement hampered appellate review and finding issue waived).

      Appellant’s issues four and seven are likewise waived for vagueness.

Appellant does not specify what evidence the trial court purportedly

disregarded, nor does he proffer any basis why he believed the trial court

erred in determining Citizens was entitled to a “prima facie judgment.” This

left the trial court to speculate as to the specific issues raised on appeal. As

a result, in its Rule 1925(a) opinion in response to Appellant’s Rule 1925(b)

statement, the trial court summarily dismissed Appellant’s claims, and

generally opined that it properly determined no issue of material fact existed

and that Appellant admitted the claims in Citizen’s complaint by failing to

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J-A15031-19


specifically respond per Pa.R.C.P. 1029(b).3 See TCO at 4. Accordingly, we

find these issue waived for vagueness. See Lemon, 804 A.2d at 37; see

also Williams, 204 A.3d at 495.

       Finally, while Appellant raised the issue, “[t]he Court erred and ignored

the law which prohibits a creditor from seeking a double recovery and/or

remainder of the debt on a judgment, as a judgment has previously been

issued against Defendant’s loan co-signer in this matter,” in his Rule 1925(b)

statement, we agree with the trial court that this issue is waived as this

argument was not made in his response in opposition to Citizen’s motion for

judgment on the pleadings. See Pa.R.A.P. 302 ([i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal); see

also Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (issues not raised

before the trial court cannot be preserved or resurrected by including in a Rule

1925(b) statement); see also Estate of O’Connell, 79 A.3d 1134, 1140 (Pa.

Super. 2013).

       Even if Appellant had preserved for appellate review the issues that he

argues in this appeal, they are meritless. Appellant’s claim that he believed

his ex-law partner was responsible for paying the loan, and therefore, an issue

of material fact exists, is meritless. An unambiguous contract is interpreted

____________________________________________


3 “Averments in a pleading to which a responsive pleading is required are
admitted when not denied specifically or by necessary implication.” Pa.R.C.P.
1029(b).



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by the court as a matter of law. Commonwealth by Shapiro v. UPMC, 208

A.3d 898, 910 (Pa. 2019).        Where language of a contract is clear and

unambiguous, the focus of interpretation is upon the terms of the agreement

as manifestly expressed, rather than as, perhaps, silently intended. Wert v.

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1260 (Pa. 2015) (citations

omitted). Appellant does not dispute he signed the guaranty of the Citizen’s

loan. The guaranty contains the following language:

      Guarantor name and address: Robert Phillip Maizel . . . Lender:
      Citizens Bank of Pennsylvania 1735 Market Street Philadelphia, PA
      19103. . . The guarantor hereby guarantees to the lender the full
      and punctual payment when due (whether at maturity, by
      acceleration or otherwise), and the performance, of all liabilities,
      agreements and other obligations of the Customer to the Lender
      . . . This guaranty is an absolute, unconditional and continuing
      guaranty of the full and punctual payment and performance of the
      obligations and not of their collectability only . . . The liability of
      the guarantor hereunder shall be unlimited . . . [the Guarantor]
      agrees that the obligations of the Guarantor shall not be released
      or discharged, in whole or in part, or otherwise affected by (a) the
      failure of the Lender to assert any claim or demand or to enforce
      any right or remedy against the [Borrower]; . . . (d) the
      substitution or release of any entity primarily or secondarily liable
      for any of the obligations; (e) the adequacy of any rights the
      Lender may have against any collateral or other means of
      obtaining repayment of the obligations. . .

Guaranty, 8/21/2007. Appellant’s subjective belief that his law partner was

responsible for making the payments on the loan, therefore, does not

constitute a defense to Citizen’s claim.

      Likewise, if Appellant had preserved for appellate review an issue of

whether he properly availed himself of Pa.R.C.P. 1029(c) in answering

Citizen’s complaint, we would find that Appellant admitted the averments of

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the complaint upon which judgment on the pleadings was based. Rule 1029

provides:

         (a)    A responsive pleading shall admit or deny each
         averment of fact . . .

         (b)       Averments in a pleading which are not specifically
         denied are deemed to be admitted. A general denial or a
         demand for proof, except as provided by subdivisions (c) and
         (e) of this rule, shall have the effect of an admission.

         (c)       A statement by a party that after reasonable
         investigation the party is without knowledge or information
         sufficient to form a belief as to the truth of an averment shall
         have the effect of a denial.

         Note: Reliance on subdivision (c) does not excuse a failure to
         admit or deny a factual allegation when it is clear that the
         pleader must know whether a particular allegation is true or
         false. See Cercone v. Cercone, 254 Pa.Super. 381, 386 A.2d
         1 (Pa. Super. 1978). . . .

Pa.R.C.P. 1029.    In his answer to Citizen’s complaint, Appellant denied

averments one, and three – eleven, claiming that after reasonable

investigation he is without knowledge or information sufficient to form a belief

as to the truth of the averments. However, Appellant’s denials do not comply

with Rule 1029(c), as a person may not rely on Rule 1029(c) to excuse a

failure to make a specific denial when it is clear that he must know whether a

particular allegation is true or false.   See First Wisconsin Trust Co. v.

Strausser, 653 A.2d 688, 692 (Pa. Super. 1995) (denial of knowledge of total

amount of mortgage due deemed insufficient under Rule 1029(c) and

therefore averment was admitted); see Frazier v. Ruskin, 199 A.2d 513,

534 (Pa. Super. 1964) (finding that landlord’s denial, under Rule 1029(c), of

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receiving payment by tenant is patently insufficient since it is clear that

landlord must know whether or not they received the payment, therefore the

payments to them are taken as admitted); see also Cercone v. Cercone,

386 A.2d 1, 5 (Pa. Super. 1978) (finding appellant could not rely on Rule

1029(c) where she clearly would have sufficient personal knowledge to admit

or deny if she individually received funds from appellees that she promised to

repay); see also Bank of America, N.A. v. Gibson, 102 A.3d 462, 467 (Pa.

Super. 2014) (mortgagee’s ineffective denials and improper claims of lack of

knowledge of material portions of Bank’s complaint constituted admissions

where mortgagee is deemed to know principal and interest owing on

mortgage).

      As to the averments contained in paragraphs 3 and 4, Appellant could

not properly utilize the narrow exception formulated in Rule 1029(c).

Paragraph 3 contained the following averment:

      On or about August 21, 2007, the Bank entered into a loan
      transaction with Barbieri & Borjeson, LLC f/k/a Borjeson & Maizel,
      LLC (“Borrower”), whereby Borrower executed and delivered to
      the Bank, a Commercial Line Note in the original principal amount
      of $100,000.00 (collectively with any modifications, extensions
      and/or renewals, including without limitation modification
      agreements dated August 2, 2011 and November 11, 2013, the
      “Note”). A true and correct copy of the Note is attached hereto
      and made a part hereof as Exhibit “A.”

Complaint, ¶ 3.    To this Appellant made a denial under Rule 1029(c).

However, all Appellant had to do in order to admit or deny this averment was

scrutinize the contract, to which Appellant fixed his signature as partner of B


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& M. See Scales v. Sheffield Fabricating and Mach. Co., 393 A.2d 680,

683 (Pa. Super. 1978) (finding appellant’s denial under Rule 1029(c) to be

classically and inherently incredible where appellant was involved in all stages

of the transaction, including the signing of the contract, all appellant had to

do was scrutinize the contract and corporate records to determine whether

appellee had been paid only $5,000 of the $10,000 due under the contract).

As such, Appellant made a general denial and the trial court properly deemed

this response to constitute an admission for failure to admit or specifically

deny the averments in paragraph 3. See Pa.R.C.P. 1029(b). Likewise, the

averment in paragraph 4 stated:

      In order to induce the Bank to enter into the Note, Guarantor
      executed and delivered to the Bank his Guaranty agreement,
      agreeing to guaranty and act as surety for Borrower’s obligations
      under the Note and any other obligation of Borrower to the Bank
      (the “Guaranty”). A true and correct copy of the Guaranty is
      attached hereto as Exhibit “B.”

Complaint, ¶ 4. Appellant’s signature is affixed to the Guaranty, which states

that Appellant guarantees and agrees to act as surety for B & M’s obligations

under the contract.    As such, all Appellant had to do was scrutinize the

Guaranty in order to admit or deny the averment. Appellant did not properly

utilize Pa.R.C.P. 1029(c) in this instance, and as such made a general denial

to this averment, which the trial court properly deemed an admission. See

Scales v. Sheffield, 393 A.2d at 683.

      Appellant alleged that he did not have the knowledge or information to

form a belief as to the truth of the averments in paragraphs 6, 8, 9 and 10.

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Paragraph 6 and 10 state, “[b]orrower has defaulted on its obligations to the

Bank under the Note by virtue of, among other things, failing to make

payments when and as due in accordance with the terms of the Note” and

“[a]s a result of said defaults, the following amounts are immediately due and

payable under and in connection with the Note and Guaranty as of February

5, 2018 . . . total $26,093.31.” Complaint, ¶¶ 6, 10. Citizens also avers that

“although not required to do so, on or about January 18, 2018, the Bank

notified Appellant of his default under the guaranty,” including the amount

owed, and attached a copy of the letter sent to Appellant. Complaint, ¶ 8.

Appellant responded that he did not have sufficient knowledge to form a belief

as to the truth of the averments.     However, Appellant necessarily knew

whether or not he received the letter, and yet attempted to avail himself of

the exception to Rule 1029(c), again, unsuccessfully. Importantly, Appellant

does not dispute that he signed the guaranty.        Appellant had sufficient

personal knowledge to specifically admit or deny these averments.         The

averment in paragraph 9 stated, “[t]he Guarantor failed to repay the Bank

after written demand.”    Complaint, ¶ 9.     Appellant clearly has personal

knowledge of whether he, individually, made any payments to Citizens. See

Cercone, 386 A.2d at 5. Instead, he attempted to rely, unsuccessfully, on

the exception of Rule 1029(c).

      Given the insufficiency of Appellant’s denials, Appellant admitted the

averments of the complaint. Citizens was therefore entitled to judgment on


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the pleadings and the trial court did not err in granting judgment on the

pleadings.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/19




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