J-A20009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PEOPLES SECURITY BANK & TRUST             :   IN THE SUPERIOR COURT OF
SUCCESSOR BY MERGER TO PENN               :        PENNSYLVANIA
SECURITY BANK & TRUST CO.                 :
                                          :
                   Appellee               :
                                          :
             v.                           :
                                          :
ROBERT A. FRITZ                           :
                                          :
                   Appellant              :        No. 1904 MDA 2016

              Appeal from the Order Entered October 20, 2016
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 15-CV-6188


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                     FILED OCTOBER 13, 2017

      Appellant, Robert A. Fritz, appeals from the order of the Lackawanna

County Court of Common Pleas, which entered summary judgment in favor

of Appellee, Peoples Security Bank & Trust (“Peoples Bank”), successor by

merger to Penn Security Bank & Trust Co. We affirm.

      In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case.     Therefore, we will only briefly

summarize them. Peoples Bank made a mortgage loan to Cadosia Partners,

Inc. (“Borrower”) on February 16, 2006. Appellant is one of five officers of

Borrower who executed individual commercial guaranties for the loan. The

guaranty specifically provided:

         GUARANTEE OF PAYMENT AND PERFORMANCE. For good
         and valuable consideration, [Appellant] absolutely and
J-A20009-17


         unconditionally guarantees full and punctual payment and
         satisfaction of the Indebtedness of Borrower to [Peoples
         Bank], and the performance and discharge of all
         Borrower’s obligations under the Note and the Related
         Documents.       This is a guaranty of payment and
         performance and not of collection, so [Peoples Bank] can
         enforce this Guaranty against [Appellant] even when
         [Peoples Bank] has not exhausted [Peoples Bank’s]
         remedies against anyone else obligated to pay the
         Indebtedness or against any collateral securing the
         Indebtedness, this Guaranty or any other guaranty of
         Indebtedness. [Appellant] will make any payments to
         [Peoples Bank] or its order, on demand, in legal tender of
         the United States of America, in same-day funds, without
         set-off or deduction or counterclaim, and will otherwise
         perform Borrower’s obligations under the Note and Related
         Documents.

(See Complaint of Peoples Bank, Exhibit B; R.R. at 12a).

      After the alleged default, Peoples Bank demanded payment of the loan

in full from the guarantors. On October 19, 2015, Peoples Bank instituted

an in personam action against Appellant as guarantor of the loan. Appellant

filed preliminary objections, which asserted among other things, that Peoples

Bank failed to join the other guarantors to the action as necessary parties.

The trial court overruled Appellant’s preliminary objections. Appellant filed

his answer and new matter, and Peoples Bank filed a reply to the new

matter and the pleadings closed in May 2016.

      On August 25, 2016, Peoples Bank filed a motion for summary

judgment, its brief in support of the motion, and an affidavit of Robert Diehl,

vice president of Peoples Bank, concerning the amount borrowed and still

outstanding.   Appellant opposed the motion.     By order dated October 20,


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J-A20009-17


2016, the trial court granted summary judgment in favor of Peoples Bank in

the amount of $123,475.32, plus accrued interest from September 8, 2015,

accruing in the approximate amount of $10.83 per diem. Appellant filed a

notice of appeal on November 18, 2016. The court did not order a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and

Appellant filed none.

      Appellant raises two issues on appeal:

         DID THE [TRIAL] COURT…ERR AS A MATTER OF LAW IN
         DISMISSING [APPELLANT]’S PRELIMINARY OBJECTION[S]
         AND   NEW    MATTER    ASSERTING   THAT…[PEOPLES
         BANK]…FAILED TO JOIN NECESSARY PARTIES TO THE
         ACTION?

         DID THE [TRIAL] COURT…ERR AS A MATTER OF LAW IN
         GRANTING [PEOPLES BANK]’S MOTION FOR SUMMARY
         JUDGMENT?

(Appellant’s Brief at 4).

      We address Appellant’s issues together. Initially, Appellant argues the

other four officers of Borrower each also signed a commercial guaranty for

the loan and are necessary and indispensable parties to this action.

Appellant contends Peoples Bank’s complaint is defective because it failed to

join the other guarantors who share a joint interest with Appellant in any

claim or recovery of Peoples Bank in this action.

      Appellant also claims summary judgment was improper as genuine

issues of material fact exist in the case.          Appellant asserts summary

judgment is premature when discovery is necessary to demonstrate that


                                     -3-
J-A20009-17


payments made were not properly credited to the subject loan.        Appellant

insists that, as a matter of law, Peoples Bank cannot rely on its own

declarations to support its motion for summary judgment.           Specifically,

Appellant contends the Diehl affidavit is simply a mirror image of Peoples

Bank’s motion for summary judgment and does not introduce any facts or

proof to support the motion. Based upon the foregoing, Appellant concludes

the court erred in granting summary judgment as a matter of law and must

be reversed; this case should be remanded for further proceedings.          We

disagree.

      Appellate review of an order granting summary judgment asks 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, 347

(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, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there


                                     -4-
J-A20009-17


        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)

(internal citations and quotation marks omitted).

     Rule 2227 of the Pennsylvania Rules of Civil Procedure defines

compulsory joinder as follows:

        Rule 2227. Compulsory Joinder


                                    -5-
J-A20009-17


              (a) Persons having only a joint interest in the subject
           matter of an action must be joined on the same side as
           plaintiffs or defendants.

Pa.R.C.P. 2227(a).     “In Pennsylvania, an indispensable party is one whose

rights are so directly connected with and affected by litigation that [the

entity] must be a party of record to protect such rights[.]” Columbia Gas

Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 379, 346 A.2d

788, 789 (1975). See also CRY, Inc. v. Mill Service, Inc., 536 Pa. 462,

468, 640 A.2d 372, 375 (1994) (stating same).             “The absence of an

indispensable party goes absolutely to the court’s jurisdiction.          If an

indispensable party is not joined, a court is without jurisdiction to decide the

matter. The absence of an indispensable party renders any order or decree

of the court null and void.” Sabella v. Appalachian Development Corp.,

103 A.3d 83, 90 (Pa.Super. 2014), appeal denied, 631 Pa. 744, 114 A.3d

417 (2015).      The failure to join an indispensable party is a non-waivable

issue.    Id.; Fiore v. Oakwood Plaza Shopping Center, Inc., 585 A.2d

1012, 1020 (Pa.Super. 1991) (stating issue of failure to join indispensable

party cannot be waived).

         In determining whether a party is “indispensable,” courts analyze: “(1)

whether the party has a right or interest related to the claim; (2) the nature

of the right or interest; (3) whether the right or interest is essential to the

merits; and (4) whether justice can prevail without violating due process

rights of the absent party.”     Id.   In other words, “An indispensable party


                                       -6-
J-A20009-17


must have a right or interest in the claim that may be affected by disposition

of the lawsuit and is essential to the merits of the suit, so that justice

may not be afforded without violating due process if the party remains

absent.”   U.S. Bank Nat’l Association for Pennsylvania Hous. Fin.

Agency v. Watters, 163 A.3d 1019, 1023 n.3 (Pa.Super. 2017) (emphasis

added).

      Significantly, not all parties or entities related to an action are

“indispensable” parties. Corman v. Nat’l Collegiate Athletic Association,

74 A.3d 1149 (Pa.Cmwlth. 2013). For example, “where a person’s official

designee is already a party, the participation of such designee may alone be

sufficient, as the interests of the two are identical, and thus, the

participation of both would result in duplicative filings.” Id. at 1163. See,

e.g., City of Philadelphia v. Commonwealth, 575 Pa. 542, 568, 838 A.2d

566, 582 (2003) (holding petitioners’ failure to join all parties who were

potentially affected by challenged legislation did not deprive Supreme Court

of jurisdiction to review merits of petitioners’ claims; requiring participation

of all parties having any interest which could be potentially affected would

be impractical; legislation at issue purports to alter rights and obligations of

numerous persons, but achieving justice is not dependent upon participation

of all of those persons; substantial justice can be done without joining any

parties other than those who are presently participating in litigation). “[T]he

basic inquiry remains whether justice can be done in the absence of a third


                                     -7-
J-A20009-17


party.”   Orman v. Mortgage I.T., 118 A.3d 403, 407 (Pa.Super. 2015).

See also CRY, Inc., supra at 469, 640 A.2d at 375 (stating same).           To

decide if a party or entity is indispensable to a lawsuit, “we must carefully

review the plaintiff’s pleadings as well as any appropriate exhibits.”

Grimme Combustion, Inc. v. Mergentime Corp., 595 A.2d 77, 79

(Pa.Super. 1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992). “If no

redress is sought against a party, and its rights would not be prejudiced by

any decision in the case, it is not indispensable with respect to the

litigation.” Id. at 81.

      “[I]n essence, a guaranty is a document defining a guarantor’s liability

for another’s debt and a creditor’s concomitant right to recover from the

guarantor if the debtor does not pay.” Osprey Portfolio, LLC v. Izett, 620

Pa. 274, 283, 67 A.3d 749, 755 (2013). “Guaranty contracts are subject to

the same rules of interpretation as other contracts, …, and the principles

guiding our review of a contract’s interpretation are settled.   Whether the

trial court has properly interpreted a contract is a question of law which this

court will fully review.”   Meeting House Lane, Ltd. v. Melso, 628 A.2d

854, 857 (Pa.Super. 1993), appeal denied, 537 Pa. 633, 642 A.2d 486

(1994).    “Furthermore, the parties have the right to make their own

contract, and it is not the function of a court to rewrite it or to give it a

construction in conflict with the accepted and plain meaning of the language

used.” Id.


                                     -8-
J-A20009-17


         In cases of a written contract, the intent of the parties is
         the writing itself. If left undefined, the words of a contract
         are to be given their ordinary meaning. When the terms of
         a contract are clear and unambiguous, the intent of the
         parties is to be ascertained from the document itself. … A
         contract is ambiguous if it is reasonably susceptible of
         different constructions and capable of being understood in
         more than one sense. While unambiguous contracts are
         interpreted by the court as a matter of law, ambiguous
         writings are interpreted by the finder of fact…. [T]he
         question of whether a contract is ambiguous is a question
         of law. Our standard of review over questions of law is de
         novo and to the extent necessary, the scope of our review
         is plenary as this court may review the entire record in
         making its decision.

Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 889-90

(Pa.Super. 2006). The trial court can construe unambiguous contracts as a

matter of law. Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 653, 976

A.2d 474, 483 (2009).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable John L.

Braxton, S.J., we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, filed December 16, 2016, at 2-4)

(finding: (1) appellant signed guaranty providing Peoples Bank with

authority to proceed directly against Appellant without including any other

guarantor or other person; (2) upon review of Peoples Bank’s complaint,

Appellant’s answer and new matter, and affidavit of Robert Diehl, Vice

President of Peoples Bank, in support of its summary judgment motion,


                                     -9-
J-A20009-17


summary     judgment      was   warranted;     Appellant’s    answers   to   factual

allegations in complaint are general denials, which are deemed admissions;

only evidence in addition to verified exhibits attached to Peoples Bank’s

complaint is affidavit of its vice president; affidavit documents history of loan

agreement and parties to agreement, purported default and amounts owed,

and alleged responsible parties; Appellant failed to provide any specific proof

in support of his defense on accuracy of sums owed; instead, Appellant has

merely denied some allegations and stated others are conclusions of law to

which no response is required; given these general denials, averments in

complaint are deemed admissions; Appellant failed to establish any issue of

material fact to defeat summary judgment in favor of Peoples Bank).             We

agree.   There can be no dispute in this case that the guaranty Appellant

signed defines the parties’ rights, duties, entitlements, and/or liabilities,

particularly Appellant’s legal obligation to pay the loan principal and related

charges in the event of a default.      Correspondingly, the guaranty defines

Peoples Bank’s right to obtain payment solely and directly from Appellant,

even when Peoples Bank has not exhausted its remedies against any other

obligor or against any collateral securing the loan, the guaranty or any other

guarantor of the loan, without set-off or deduction or counterclaim.            The

guaranty   as   written    is   absolute,    unconditional,    and   unambiguous.

Accordingly, we affirm on the basis of the trial court’s opinion.




                                      - 10 -
J-A20009-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




                          - 11 -
                                                                                    Circulated 09/22/2017 02:48 PM




                               IN THE COURT OF
                              COMMON PLEAS OF
                      LACKAWANNA COUNTY, PENNSYLVANIA
                                 CIVIL ACTION


Peoples Security Bank & Trust,
Successor by Merger to
Penn Security Bank & Trust Co.,

Plaintiff                                                                        ;'/
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Robert A. Fritz,                                                                  !..:.:: ,:-~, .~.     -,-:     J~.: .
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Defendant                                                                                ··-·
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                          Memorandum in Support of Order


On October 20, 2016, after oral argument on the Plalntiff's Motion for Summary
Judgment, this Court granted the Motion and entered judgment "in favor of
Plaintiff Peoples Security Bank & Trust (''Bank'1 and against
Defendant/Guarantor Robert A. Fritz (''Fritz'') in the amount of $123,475.32, plus
accrued Interest from September 8, 2015, accruing In the approximate amount of
$19.83 per diem, reasonable attorneys fees and costs." Defendant/Guarantor
Fritz has appealed this Court's Order of October 20, 2016, and this Memorandum
is in support of this Court's decision.

In its Summary Judgment Motion, the Bank alleged that on February 16, 2006, it
made a loan to Borrower Cadosia Partners, Inc. (''Borrower'') in the amount of
$204,000.00. This loan is evidenced by a promissory note, a copy of which is
attached to the Summary Judgment Motion. In order to induce the Bank to
make the loan, Guarantor1 executed and delivered to the Bank a Commercial
Guaranty (''Guaranty''), which provides as follows:

1 On the Note, the Guarantor is identified as the Secretary of Cadosia Partners, Inc. A review of the Note
shows that all corporate officers executed the Note on behalf of the Borrower: Robert A. Fritz, Secretary;
Robert M. Fritz, 111, Vice President; Gerald Sabatino, President, and Michael Rogan, Treasurer. Commercial
Guaranties were obtained from each corporate officer.

                                                                                                                                 1
             GUARANTEE OF PAYMENT AND PERFORMANCE. For good and
             valuable consideration, Guarantor absolutely and unconditionally
             guarantees full and punctual payment and satisfaction of the
             Indebtedness of Borrower to Lender, and the performance and
             discharge of all Borrower's obligations under the Note and the
             Related Documents. This is a Guaranty of payment and
             performance and not of collection, so Lender can enforce this
             Guaranty against Guarantor even when Lender has not exhausted
             Lender's remedies against anyone else obligated to pay the
             indebtedness or against any collateral securing the Indebtedness,
             this Guaranty, or any other Guaranty of indebtedness.

Said Guaranty further specifically provides in the "Guarantor's Representations
and Warranties" provision, subsection (J), that the "Guarantor has established
adequate means of obtaining from Borrower on a continuing basis information
regarding Borrower's financial condition." Also, the Guaranty specifically
provides that the "Guarantor waives any right to require Lender ... (C) to resort
to payment for to proceed directly or at once against any person, including
Borrower or any other Guarantor; (D) to proceed directly against or exhaust any
collateral held by Lender from Borrower, any other Guarantor, or any other
person."

A default allegedly occurred under the Note, in that the Borrower failed to pay
the money due and owing the Bank pursuant to the Note. In a letter dated July
21, 2015, the Bank demanded payment of the Loan in full, and to date, the Loan
has not been fully satisfied. There has been no assignment of the Note, though
the Court acknowledges that Peoples Security Bank & Trust is the successor by
merger to Penn Security Bank and Trust Company. As of September 8, 2015, the
amount due the Bank under the Note was $123,475.32, consisting of principal in
the amount of $121,654.75, accrued interest in the amount of $1,574.96 and
late charges in the amount of $245.61, exclusive of counsel fees and costs.

On October 19, 2015, the Bank filed this in personam action against the
Defendant/Guarantor Fritz to recover the amount due and owing, plus fees and
costs. Fritz filed his answer and new matter on May 4, 2015, and the Bank filed
its Reply to New Matter on May 9, 2015. The pleadings have now been closed
and, according to the Bank, its Motion for Summary Judgment should be granted
by the Court as there exists no genuine issue as to any material fact in regard to
the loan and nonpayment.

Pa. R.C.P. 1035.2 provides that after the relevant pleadings are closed, but
within such time as not to unreasonably delay trial, any party may move for
summary judgment as a matter of law (1) whenever there is no genuine issue of

                                                                                    2
material fact as to a necessary element of the cause of action or defense which
could be established by additional discovery or an expert report; or (2) if, after
the completion of discovery relevant to the motion, an adverse party who will
bear the burden of proof at trial has failed to produce evidence of facts essential
to the defense, which would require the issues to be submitted to a jury. In
considering a Summary Judgment Motion, the Court is to view the record in the
light most favorable to the nonmoving party and all doubts as to the existence of
material fact must be resolved against the moving party. Albrightv. Abington
Memorial Hospital, 696 A.2d 1159 (Pa. 1997). Summary judgment may
only be granted in the clearest of cases in which there is not the slightest doubt
as to the absence of a triable issue of fact. Skipworthv. Lead Industries
Association, 690 A.2d 169 (Pa. 1997). It is the moving party who bears the
burden of establishing that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Davis v. Brennan,
698 A.2d 1382 (Pa. Super. 1997).

Specifically, when facts contained in an affidavit filed by a party moving for
summary judgment are not disputed by any opposing affidavit, a court is bound
to conclude that there are no genuine issues as to any material facts contained
in the affidavit. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). When no
opposing affidavits are filed in response to a motion for summary judgment, a
court must ignore controverted facts appearing only in the pleadings, and must
consider all uncontroverted facts contained in the pleadings and affidavits.
O.S.C. v. Lackawanna River Basin Authority, 551 A.2d 376 (Pa. Cmwlth.
1988). To this end, the non-moving party may not rely on allegations or denials
of the pleadings and must file a response to the motion that identifies one or
more issues of fact arising from evidence in the record which controverts the
evidence cited in support of the motion. Pa. R.C.P. 1035.3(a). The very
mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.
Phaff, supra, citing Federal Rules of Civil Procedure, Notes of Advisory
Committee on 1963 Amendment. In the matter presently before the Court,
we have reviewed the factual allegations contained in the Complaint, the
Answers to each paragraph of the Complaint and New Matter, and the Affidavit
of Robert Diehl, Vice President of Plaintiff Bank, and have concluded that the
entry of summary judgment is warranted.

The Defendant/Guarantor's Answers to the Com plaint are general
denials and, pursuant to Pa. R.C.P. 1029 (b), the averments are
deemed admitted. To this point, Fritz has failed to offer any evidence
of facts essential to his defense. The only evidence before the Court,
outside of the verified exhibits attached to the Complaint, is the
Affidavit from the Bank Vice President, which documents the history of
the transaction, the agreement made and the parties to it, the loan,

                                                                                     3
the purported breach and the amounts owed, and the alleged
responsible parties. Fritz has been unable to come forth with any proof
in support of his defense, and rather, has merely denied some
allegations and stated that others are conclusions of law to which no
response is required. With the Affidavit unanswered, and with the
Defendant/Guarantor unable to produce sure evidence pursuant to Pa.
R.C.P. 1035.3, the Court finds that the responses to the Complaint do
not create any issue of material fact.

For the reasons stated, this Court granted the Motion for SummaryJudgment in
favor of Plaintiff and against Defendant/Guarantor Fritz.




                                                  --------' raxton, Senior Judge
                                                                             S.J.




                                                                               4
