J-A32036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

  ALBERT L. KIRKNER, BRIAN C.           :  IN THE SUPERIOR COURT OF
  MCNEW, AND TRUST INVESTMENT           :        PENNSYLVANIA
  GROUP, LLC                            :
                                        :
                     v.                 :
                                        :
  MICHAEL S. GLASS, MARGERY             :
  DANA, AND DGK PROPERTIES, LP,         :
                                        :
  APPEAL OF: MICHAEL S. GLASS           : No. 240 MDA 2017


           Appeal from the Judgment Entered February 2, 2017
           in the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 11-3968

BEFORE:   OTT, DUBOW, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                FILED FEBRUARY 14, 2018

     Michael S. Glass (Glass) appeals from the judgment entered on February

2, 2017, against him, Margery Dana (Dana), and DGK Properties (DGK), and

in favor of Albert L. Kirkner (Kirkner), Brian C. McNew (McNew), and Trust

Investment Group, LLC (TIG) (collectively, Appellees). We affirm.

     The trial court summarized the facts of this case as follows.

           On October 12, 2007, [TIG]1 made a loan to DGK …, which
     was evidence[d] by a mortgage note dated October 12, 2007. The
     mortgage note was executed by DGK in favor of [TIG] in the
     amount of $3,200,000[]. The 2007 loan was secured by a
     mortgage executed by DGK in favor of TIG and a joint and several
     guaranty executed by [] Glass and [his wife, Dana,] along with
     Victor and Denise Kicera.2
           ____________________
           1   [TIG] members are [] Kirkner and [] McNew.




*Retired Senior Judge assigned to the Superior Court.
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            2 [] Dana and Glass are notarized as husband and wife
            signatories, as are Victor and Denise Kicera, for the DGK
            2007 loan guaranty.

            In 2009, [] Glass, on behalf of DGK, entered into another
      mortgage and note that replaced and superseded the prior
      mortgage and note with individual members of TIG. To evidence
      the 2009 loan, DGK executed and delivered a mortgage note
      dated November 3, 2009, in the principal amount of $2,200,000[],
      to [] Kirkner and McNew. The 2009 note expressly replaced and
      superseded the 2007 mortgage and note. Only [] Glass executed
      a guaranty for the 2009 loan, which specifically did not include
      language that would terminate or remove parties from the 2007
      guaranty.3
            ____________
            3 2007 guarantors Victor and Denise Kicera were expressly

            removed from the 2007 guaranty agreement by a separate
            instrument; hence, the reason they were not named in this
            action.

             The first page of both the 2007 and 2009 guaranty
      agreement specifically provide[d]: “If I sign another guaranty
      agreement for the Borrower with you, the other agreement shall
      not terminate this agreement, but shall be an additional guaranty
      unless it specifically provides otherwise.” It goes on to allow: “The
      Lender need not get my approval or notify me if […] (5) You accept
      different notes or contracts for money you lend or credit you give
      to the Borrower.” [] Dana has never been expressly removed from
      the 2007 guaranty agreement.

Trial Court Opinion, 4/4/2017, at 2-3 (unnecessary capitalization omitted).

      On April 29, 2011, Appellees filed a complaint for, inter alia, breach of

contract against Glass, Dana, and DGK for breach of the October 12, 2007

guaranty agreement, and against Glass and DGK for breach of the November

3, 2009 guaranty agreement. After the close of pleadings, on July 7, 2015, a

non-jury trial was scheduled for February 10, 2016.

      On December 28, 2015, counsel for Glass and Dana, Timothy Palmer,

Esquire, on behalf of his firm, Buchanan Ingersoll and Rooney, P.C. (BIR), filed

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a motion to withdraw its appearance. BIR “determined that the interests of

[] Glass and [] Dana in this matter are no longer aligned and continued

representation to one or both clients would result in an ethical conflict for

BIR.” Motion to Withdraw, 12/28/2015, at ¶ 4.         According to the motion,

Dana’s new counsel would be entering an appearance imminently. Id. at ¶ 8.

Additionally, Glass “indicated that he consents to BIR’s withdrawing from

representing him in this matter.” Id. at ¶ 9. On December 29, 2016, new

counsel for Dana entered an appearance. On January 6, 2016, the trial court

issued a rule to show cause as to why BIR should not be permitted to withdraw

its appearance on behalf of Glass. Glass did not file a response. On February

5, 2016, the trial court permitted BIR to withdraw.

       A two-day non-jury trial occurred from February 10 through 11, 2016.

Glass represented himself at trial. On March 3, 2016, the trial court entered

a verdict in favor of Appellees, and against Glass, Dana, and DGK jointly for

$2,395,616.91 plus $22,975 in legal fees. Both Dana and Glass timely filed

post-trial motions.     The trial court did not rule on these motions, and on

December 30, 2016, Appellees entered a praecipe for judgment on the verdict

in the full amount.

       Glass obtained new counsel and filed a notice of appeal.1 Both Glass

and the trial court complied with Pa.R.A.P. 1925.

____________________________________________


1 The notice of appeal was filed on February 3, 2017. Since the praecipe for
judgment was filed on December 30, 2016, this notice of appeal appears at a



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       On appeal, Glass sets forth three issues for our review.

       1. Did the trial court err by improperly granting [Glass’s] prior
          counsel leave to withdraw, on the eve of trial?

       2. Did the trial court err by affording [] Glass insufficient time to
          prepare for trial after his prior counsel withdrew?

       3. Did the trial court err by failing to conclude that [] Glass was
          fraudulently induced into signing a personal guaranty in
          2009[]?

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

       We first consider Glass’s contentions that the trial court erred by

permitting counsel to withdraw and by not affording Glass sufficient time to

prepare for trial. See Glass’s Brief at 12-17. Our review of the motions and

transcript reveals that Glass neither objected to BIR’s motion to withdraw,2

nor requested additional time to prepare or a continuance.

       It is well settled that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). “Our

Supreme Court has admonished that [a]n appellate court does not sit to

review questions that were neither raised, tried, nor considered by the trial
____________________________________________


glance to have been filed untimely pursuant to Pa.R.A.P. 903(a). However, it
is apparent from the record that notice of entry of the December 30, 2016
judgment pursuant to Pa.R.C.P. 236(b) was not mailed to Glass until February
2, 2017. The date of the entry of an order for the purposes of appeal is the
date on which the clerk makes a notation on the docket that notice of entry
of an order has been given pursuant to Pa.R.C.P. 236(b). See Pa.R.A.P.
108(b). Accordingly, judgment was entered in this case on February 2, 2017,
and the notice of appeal was timely filed.

2In fact, according to the motion, Glass consented to BIR’s withdrawal. See
Motion to Withdraw, 12/28/2015, at ¶ 9.

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court.” Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764

A.2d 1100, 1104 (Pa. Super. 2000) (internal quotation marks omitted). “To

maximize our efficiency and to maintain and enhance the quality of our dispute

resolution process, strict compliance with the procedures designed for issue

preservation is essential.” Dollar Bank v. Swartz, 657 A.2d 1242, 1245 (Pa.

1995). Here, because Glass neither objected to BIR’s motion nor requested

additional time to prepare for trial, we conclude Glass has waived these issues

for appeal.3

       We now turn to Glass’s third issue, wherein he claims that he was

fraudulently induced into signing the 2009 guaranty. Glass’s Brief at 17-21.

Specifically, Glass claims that Kirkner “represented to [him] that [] Dana

would not be a guarantor on the 2009 note.” Id. at 17. (unnecessary

capitalization omitted).      According to Glass, this representation constituted

fraudulent inducement and judgment should be entered against only him,

rather than both him and Dana jointly. Id. at 21.

       Our review of Glass’s post-trial motion reveals that he did not raise this

issue in that motion.

             Post-trial motions serve an important function in the
       adjudicatory process because they provide the trial court with an
       opportunity to correct errors in its ruling and avert the need for
____________________________________________


3 Glass’s raising of these issues in his post-trial motion did not preserve them
for our review. See Rancosky v. Washington Nat. Ins. Co., 130 A.3d 79,
102 (Pa. Super. 2015) (holding that including an issue in a post-trial motion
regarding admissibility of certain evidence did not preserve that issue for
review where Rancosky did not make a timely and specific objection during
trial).

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J-A32036-17


       appellate review. In 1984, this Court adopted Rules 227.1 through
       227.4 to establish uniform procedures for post-trial relief in
       actions at law and equity, and actions tried with or without a jury.
       Rule 227.1 addresses waiver at the trial court level, as a matter
       of the trial court’s post-trial power. Rule 227.1(b) establishes that
       issues not preserved … in post-trial motions … are waived. As this
       Court ruled in Lane Enterprises, Inc. v. L.B. Foster Co., [] 710
       A.2d 54 ([Pa.] 1998), Rule 227.1 “requires parties to file post-trial
       motions in order to preserve issues for appeal,” and “[i]f an issue
       has not been raised in a post-trial motion, it is waived for appeal
       purposes.”

Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 155

A.3d 39, 44 (Pa. 2017) (some citations and quotation marks omitted).

       Based on the foregoing, Glass’s failure to include this issue in his post-

trial motion renders it waived for appellate purposes.4 Having concluded that

Glass has waived all issues presented on appeal, we affirm the judgment.

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/14/2018



____________________________________________


4 Even if Glass had not waived this issue, he would still not be entitled to relief.
As the trial court pointed out, “[a]t trial, [Glass’s] own testimony showed that
there was no language in the 2009 Guaranty that specifically terminated the
agreement of the 2007 Guaranty. As such, the 2009 Guaranty did not
terminate the 2007 Guaranty and the 2007 Guaranty permitted for joint and
several recovery from [] Dana.” Trial Court Opinion, 4/4/2017, at 5.

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