J-A10020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BOLLARD & ASSOCIATES, INC.          IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA


                       v.

H&R INDUSTRIES,             INC.   AND   HARRY
SCHMIDT

APPEAL OF: HARRY SCHMIDT

                                                       No. 1038 EDA 2016


             Appeal from the Judgment Entered February 11, 2016
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2010-33146

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 24, 2017

        Appellant Harry Schmidt appeals from the judgment entered on

February 11, 2016, in favor of Appellee Bollard & Associates, Inc.

(“Bollard”), in this debt collection action.1 We affirm.

        H&R Industries, Inc. (“H&R”), is a manufacturer and supplier of parts

and equipment.        Mr. Schmidt is H&R’s owner.     He also makes property

investments. Bollard brought this action against H&R and Mr. Schmidt for

outstanding commissions on sales that Bollard generated for H&R products.

Insofar as is relevant here, Bollard contended that Mr. Schmidt made an oral

promise to pay H&R’s corporate debt from his personal assets.          The trial

court found in favor of Bollard following a one-day bench trial, and we

____________________________________________
1   The other party to this action, H&R Industries, Inc., has not appealed.
J-A10020-17


therefore summarize the relevant evidence from the trial as it relates to Mr.

Schmidt’s alleged agreement to pay H&R’s debt to Bollard.

     Donna M. Scheuren, a long-time manufacturers’ representative at

Bollard, testified that there came a time when H&R stopped paying

commissions that Bollard had earned on sales, and that she set up meetings

with Mr. Schmidt to discuss the outstanding debt. N.T., 8/24/15, at 11. At

a dinner meeting, Mr. Schmidt told Ms. Scheuren “that many of his issues

regarding cash flow problems were related to many of his personal

investments, personal assets, ventures.”   Id.   According to Ms. Scheuren,

Mr. Schmidt said that he would be able to pay the debt owed for the

commissions once he sold some of his properties:

     [I]n [Mr. Schmidt’s] office we sat and discussed townhouses that
     he was building up in Allentown, Pennsylvania and he showed
     me brochures and marketing paraphernalia. He explained that
     he was an investor in these townhomes and due to the slow
     down they weren’t selling quite as fast as he had hoped.

     But whether he bought out another contractor or builder or
     whether these homes started to sell and the market bounced
     back he would have the money from that particular venture to
     be square and pay out the past due commissions.

     If that didn’t happen in a timely fashion, he also shared with me
     his properties in Cherry Hill, New Jersey. He had two buildings
     over there that were up for sale and he was patiently waiting for
     Walgreen’s to come through with an offer on that building. . . .
     But the general consistency of the whole conversation was as
     soon as one of those ventures broke loose Mr. Schmidt said he
     would pay his debt and those personal assets would be able
     to clean up the commissions in one fell swoop when they
     were sold.

Id. at 11-13 (emphasis added).


                                    -2-
J-A10020-17


      Bollard’s owner, Richard A. Bollard (“Mr. Bollard”), similarly testified

that he and Mr. Schmidt “talked about his properties in Allentown” and “the

building over in Jersey” and that Mr. Schmidt told him, “I will definitely pay

you guys.”     N.T., 8/24/15, at 71.   Mr. Bollard stated that he “went to

Allentown with [Mr. Schmidt] to look at the property up there.” Id. at 72.

Mr. Bollard reiterated, “[Mr. Schmidt] was always saying, hey, when I get

flush, when I get something here, I will pay you guys.       His words were I

always pay my debts.” Id. Mr. Bollard further testified:

      Q.   Now, when you had these discussions with [Mr. Schmidt],
      was there ever anyone else around concerning his promises to
      pay you personally?

      A.    Yes, I mean, I remember I was out with Tom Kutzer a
      couple of times, Jeff Amtman. John Watt was with us one time
      and had a conversation, too.

      Q.     And the conversations are what you had discussed here?

      A.    Basically, that he would take care of us. He would pay
      us either through the business or personally out of his own
      pocket if he had to.

Id. at 73-74 (emphases added).

      Thomas M. Kutzer, a former supply manager for one of H&R’s

customers,     corroborated   Mr.   Bollard’s   testimony,   confirming   that

Mr. Schmidt “would always say that he was good for everything

personally.”     N.T., 8/24/15, at 56 (emphases added).         During cross-

examination, Mr. Kutzer reiterated:

      Q.     Now, do you have any idea -- you said that [Mr. Schmidt]
      said I will personally be responsible. Did he use those words?


                                      -3-
J-A10020-17


     A.   He said his word is good and he was personally
     responsible for . . . what he owed.

Id. at 59 (emphases added).

     During the trial, Mr. Schmidt testified as follows:

     Q.    . . . Mr. Bollard alleges that in 2007 and on times
     thereafter, you gave him assurances that you would personally
     pay his commissions. What’s your response to that?

     A.   My response. Why would I make such an assurance?             I
     mean it wasn’t my debt. It was company debt.

     Q.   Okay. Did you ever promise him that you personally
     would pay his commissions?

     A.     I never promised that I would personally pay his
     commissions or that I could do anything other than the fact that
     if the company didn’t have the funds, he’d have to wait. . . .

     Q.    Okay.   It’s been testified to that you discussed with
     Mr. Bollard your investment in Allentown. Do you recall that
     discussion?

     A.    Vaguely, but not one hundred percent.

     Q.    All right. Did you ever take a trip with Mr. Bollard to
     Allentown to look at the investment that you had there?

     A.   I don’t – I honestly don’t believe I took a trip up there with
     him. He might have gone up there on his own, but I don’t
     remember going up there with him. It’s got to be refreshed in
     my mind.

     Q.   Does that investment have anything to do with H&R
     Industries?

     A.    No.

     Q.    Did money from H&R Industries go into that investment?

     A.    No. . . .



                                    -4-
J-A10020-17


     Q.   Did you ever discuss with Mr. Bollard or with Donna
     Schueren an investment you had in Cherry Hill, New Jersey?

     A.    Could have been I mentioned it[?], yes.

     Q.    Did any      of   H&R     Industries[’]   money   go   into   that
     investment?

     A.    No, not a dime.

     ...

     Q.    Now, you indicated to [Mr. Schmidt’s counsel] with regard
     to the New Jersey property that you could have mentioned it to
     Donna Scheuren; is that correct?

     A.    Only if they were interested in buying it.

     Q.    The New Jersey property?

     A.    Right.

     Q.    So   you      didn’t        have     any    discussions       with
     [Ms. Scheuren?] . . .

     A.   I recall I did talk to her about that because I wanted to do
     some refinancing or sell it. That was the only reason.

     Q.   So you did bring up the fact that you were doing
     something with the property, correct?

     A.    I didn’t deny it. . . .

     Q.   Did you provide [Ms. Scheuren] with brochures of the
     townhomes that you were trying to sell in Allentown?

     A.    Yes.

     Q.    And did you indicate to her at that time that if you were
     able to sell those townhomes that you would be able to make
     payment for the outstanding commissions due to [Bollard]?

     A.  No. That’s mixing my personal money with the company
     money. That’s not allowed.


                                        -5-
J-A10020-17


      ...

      I never promised anybody personally that they would get paid
      for a company debt. . . .

      [Q. E]ven though you were telling [Mr. Bollard] that the
      company was in financial difficulty and he was owed a lot of
      money, you never told him you would make sure that he got
      paid so that he would continue to sell for you?

      A.    I don’t believe so.

N.T., 8/24/15, at 135-37, 141-42, 146-47.

      At the conclusion of the trial, counsel for Mr. Schmidt presented the

following argument:

      I believe the Court will find that there is an obligation by H&R
      Industries to pay Bollard & Associates. I, in fact, concede that.
      But . . . the personal assurance, as the Court opined early on, is,
      in fact, the issue. The Statute of Frauds is not relevant here . . .
      But that does not eliminate the level of proof required and it
      simply has to be more than balancing a scintilla of evidence as
      we do in the civil world. Just a little balance, a feather more on
      one side. It has to be clear and convincing that someone would
      go beyond their corporate entity and make a commitment.

      It’s significant that there is no writing to commemorate this
      promise personally. No memorandum, no confirmation, nothing
      whatsoever. It’s a — it’s a well thought out clever effort but it
      doesn't bear enough proof, if Your Honor pleases.

N.T., 8/24/15, at 157-58.

      After the bench trial, on August 31, 2015, the trial court entered the

following order:

      AND NOW, this 31st day of August, 2015, after a bench trial on
      the above captioned matter and review of the record, it is hereby
      ORDERED and DECREED that the parties are given forty (40)
      days from the date of this order to submit FINDINGS OF FACT
      and CONCLUSIONS OF LAW for the court’s review.


                                     -6-
J-A10020-17


       It is further ORDERED that such FINDINGS and CONCLUSIONS
       shall address the appropriate burden of proof to be utilized in the
       above captioned matter (ie., oral personal guarantee) as well as
       specifically address the damages sought against each Defendant,
       as the same is not clear from a reading of the Complaint.

Order, 8/31/15 (underlining in original; italicized emphasis added). Despite

this order, neither H&R nor Mr. Schmidt filed Findings of Fact or Conclusions

of Law.2 On October 27, 2015, the trial court found in favor of Bollard and

against H&R and Mr. Schmidt, awarding $402,815.73, plus interest.                   The

court said it rendered its decision after review of the proposed Findings of

Fact and Conclusions of Law submitted by Bollard, “as well as after

independent review of the record and case law.” Trial Ct. Op. at 1. The trial

court stated that by “fail[ing] to provide the court with the requested

Findings and Conclusions,” Mr. Schmidt had “abandon[ed] his burden of

proof argument.” Id. at 3; see also id. at 2.

       On November 9, 2015, Mr. Schmidt filed a post-trial motion, in which

he argued, among other things, that Bollard “did not meet its burden of

proof to establish a personal guarantee of an individual, [i.e.,] Harry

Schmidt     to   pay   the    debt   of   H&R    Industries,   Inc[.]   to   [Bollard].”

Mr. Schmidt’s Post-Trial Mot., 11/6/15, at 1 ¶ 2. The motion did not specify

what burden of proof should apply.             On December 21, 2015, Mr. Schmidt

filed a praecipe to attach a memorandum of law to his motion that argued

sufficiency and weight of the evidence and contended that the burden of
____________________________________________
2 Mr. Schmidt’s counsel contends that he sent letters to the trial court to
request an extension of time to file the proposed Findings and Conclusions,
but that the court “never responded” to his letters. Schmidt Brief at 8.

                                           -7-
J-A10020-17


proof applicable to Bollard’s claim was clear and convincing evidence.     On

January 5, 2016, the trial court denied Mr. Schmidt’s post-trial motion. On

January 8, 2016, Mr. Schmidt filed a motion for reconsideration, which the

trial court denied on February 9, 2015.

      Judgment was entered on February 11, 2016, and Mr. Schmidt then

filed this timely appeal.    On March 15, 2016, the trial court ordered

Mr. Schmidt to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).     Mr. Schmidt complied on April 4, 2016.

Among other issues, Mr. Schmidt contended that the trial court erred by not

applying a clear and convincing burden of proof.          Pa.R.A.P. 1925(b)

Statement, 4/4/16, at 1.

      In the statement of the questions involved pursuant to Pa.R.A.P. 2116

that is included in Mr. Schmidt’s brief to this Court, he raises the following

issues, which we reproduce verbatim:

      I.    Whether [the trial] court failed to see the clear
      inconsistencies offered in [Bollard]’s witnesses[’] testimony? No
      one (except [Bollard]’s counsel) said Harry Schmidt personally
      promised to pay the debt of his company; and the date of any
      alleged promise was never proven. [Bollard]’s case is based
      upon oral statements with no written evidence to support its
      claim.

      II.   If a personal promise to pay the debt of [H&R to Bollard]
      was conditioned upon Harry Schmidt’s liquidation of assets
      referred to as the Allentown townhouses property and/or the
      Cherry Hill property, absent receiving funds from these personal
      assets, can the conditional personal promise, even if made,
      cannot be enforced?

Schmidt Brief at 3.


                                    -8-
J-A10020-17


                                      Sufficiency

       In his first issue, Mr. Schmidt contends that the evidence is insufficient

to hold him personally liable for the debts owed to Bollard by his company,

H&R. As we stated in Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa.

Super. 2003) (citation omitted), appeal denied, 833 A.2d 143 (Pa.2003):

       A claim challenging the sufficiency of the evidence is a question
       of law. . . . When reviewing a sufficiency claim the court is
       required to view the evidence in the light most favorable to the
       verdict winner giving [the verdict winner] the benefit of all
       reasonable inferences to be drawn from the evidence.

“As a reviewing court, we may not weigh the evidence or substitute our

judgment for that of the fact-finder, who is free to believe all, part, or none

of the evidence.” Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa.

Super. 2017) (quoting Commonwealth v. Haughwout, 837 A.2d 480, 484

(Pa. Super. 2003)).        Applying this standard of review, we conclude that

Mr. Schmidt is not entitled to relief on his sufficiency claim.

       In arguing that the record did not establish that he “personally

promised to pay the debt of his company,” Mr. Schmidt asserts that the trial

court “failed to see the clear inconsistencies offered in [Bollard]’s witnesses’

testimony” that he made such a promise. Schmidt Brief at 10; see also id.

at 12, 26.3    Mr. Schmidt avers that “[n]o one (except [Bollard]’s counsel)

____________________________________________
3 As Mr. Schmidt frames his argument, it is not entirely clear whether he
contends that the evidence was insufficient to find him liable as a matter of
law, which would require reversal of the judgment, or whether the trial
court’s decision was against the weight of the evidence, which would require
a new trial. In view of Mr. Schmidt’s emphasis on the burden of proof, we
understand that his argument is lack of sufficiency.          To the extent
(Footnote Continued Next Page)
                                           -9-
J-A10020-17


said Harry Schmidt . . . personally promised to pay the debt of his

company.” Id. at 10.

       In connection with his argument, Mr. Schmidt contends that the trial

court failed to apply the correct burden of proof to Bollard’s claim against

him.    Mr. Schmidt emphasizes that Bollard bases its claim solely on a

purported oral promise by Mr. Schmidt to pay.      He points out that such a

promise normally would be unenforceable under the Statute of Frauds of

1855, 33 P.S. § 3,4 but is excepted from that statute where, as here, “the

main object of the promisor is to serve his own pecuniary or business

purpose.” Biller v. Ziegler, 593 A.2d 436, 440 (Pa. Super. 1991) (citations

omitted); see also Webb Mfg. Co. v. Sinoff, 674 A.2d 723, 725 (Pa.

(Footnote Continued) _______________________
Mr. Schmidt also argues that the decision was against the weight of the
evidence, we conclude that Mr. Schmidt is not entitled to relief. “In order for
a defendant to prevail on a challenge to the weight of the evidence, the
evidence must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536,
546 (Pa. Super. 2015) (citation and internal quotation marks omitted),
appeal denied, 138 A.3d 4 (Pa. 2016). Here, the verdict is supported by
the unambiguous testimony of Ms. Scheuren, Mr. Bollard, and Mr. Kutzer.
N.T., 8/24/15, at 12-13, 59, 73-74. Thus, it is not so tenuous, vague, and
uncertain that it shocks the conscience. See Talbert, 129 A.3d at 546.

4 This provision, Act No. 1855-322, § 1, P.L. 308 (Apr. 26, 1855), is a
“supplement” to the Statute of Frauds of 1772 and provides:

       No action shall be brought . . . whereby to charge the defendant,
       upon any special promise, to answer for the debt or default of
       another, unless the agreement upon which such action shall be
       brought, or some memorandum or note thereof, shall be in
       writing, and signed by the party to be charged therewith, or
       some other person by him authorized.

33 P.S. § 3.

                                         - 10 -
J-A10020-17


Super. 1996); Johnston the Florist, Inc. v. TEDCO Const. Corp., 657

A.2d 511, 517 (Pa. Super. 1995) (en banc).5 Relying on non-binding federal

law — particularly, Jefferson-Travis, Inc. v. Giant Eagle Markets, Inc.,

393 F.2d 426 (3d Cir. 1968) — Mr. Schmidt contends that in this situation, a

claim of such an oral promise must be proven by clear and convincing

evidence, rather than under the preponderance-of-the-evidence standard

normally applicable to civil cases.

       The trial court opined that although Mr. Schmidt had raised this issue

in his closing argument at trial, he “abandoned and/or waived” it by failing

to submit post-trial Findings of Fact and Conclusions of Law in response to

the court’s order that the parties address the burden-of-proof issue.    Trial

Ct. Op. at 2-3.      Alternatively, the court held that even if the clear-and-

convincing-standard applied, Bollard met its burden under that standard.

Id. at 4-5, 11. After careful review of the record, we agree with the trial

court’s latter holding and conclude that we therefore need not reach the

waiver question6 or decide which burden of proof applies to cases like this

one.

____________________________________________
5 All parties agree that this exception, which is commonly referred to as the
“leading object” or “main purpose” rule, applies here, and we therefore do
not consider that question.

6 On waiver, we note that Mr. Schmidt did not identify the burden of proof as
one of his issues in his brief’s Statement of Questions Involved under
Appellate Rule 2116, and that Rule 2116(a) provides that “[n]o question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.” We also observe, however, that Rule 2116(a)
further provides that a Statement’s listed issues “will be deemed to include
(Footnote Continued Next Page)
                                          - 11 -
J-A10020-17


      Although Bollard does not agree that the clear and convincing standard

applies to this case, it argues in its brief that its proof met that standard:

      [E]ven though not required to under the law, [Bollard] has
      demonstrated by clear and convincing evidence that [Appellant]
      Schmidt induced [Bollard] to continue selling for H&R
      notwithstanding H&R’s financial difficulties by virtue of utilizing
      the long standing relationship and the promise to be personally
      responsible for the commissions earned.

Bollard Brief at 16. In finding in Bollard’s favor, the trial court stated:

      The record clearly established that there was a long standing
      relationship between the parties; that [Bollard] was one of two
      entities that brought business to [H&R and Mr. Schmidt] over the
      past fifteen years; that [H&R and Mr. Schmidt] fell behind in
      commission payments; that there were several meetings
      concerning the outstanding commissions; that at those meetings
      Harry Schmidt continually requested that [Bollard] continue to
      sell despite the arrearages; that at those meetings H&R[’s]
      owner, Harry Schmidt, stated that he was good for the money;
      that H&R[’s] owner, Harry Schmidt, had conversations about his
      personal property with [Bollard] and [Bollard]’s employee as it
      related to the outstanding commissions; and that [Bollard]
      received material about, and toured some of Harry Schmidt’s
      personal property, pursuant to conversations concerning the
      arrearages.

Trial Ct. Op. at 4-5. In light of this evidence, the court concluded that “[t]he

record . . . amply supports the trial court’s factual finding that [Bollard]

showed by clear, direct, weighty and convincing evidence that [Appellant]

Harry Schmidt personally guaranteed the commission payments owed[.]”

Id. at 5. Viewing the evidence in a light most favorable to Bollard as the

verdict winner, we agree.

(Footnote Continued) _______________________
every subsidiary question comprised therein” and that a statement that a
plaintiff failed to prove a claim by sufficient evidence necessarily will
encompass consideration of which standard of proof applies to the claim.

                                         - 12 -
J-A10020-17


       Ms. Scheuren testified that Mr. Schmidt told her that he would use his

personal assets to “clean up” the debt he owed to Bollard. N.T., 8/24/15, at

12-13. Mr. Bollard testified that Mr. Schmidt said that he would pay Bollard

“personally out of his pocket if he had to.” Id. at 73-74. Mr. Bollard added

that this guarantee had been made in front of objective third parties,

including Mr. Kutzer.       Id.    Mr. Kutzer confirmed that he had heard Mr.

Schmidt tell Mr. Bollard “that he was good for everything personally” and

that “he was personally responsible for what he owed.” Id. at 59.7 Thus,

three witnesses testified that Mr. Schmidt orally promised to guarantee

H&R’s debt.      Id. at 12-13, 59, 73-74.          The record therefore contradicts

Mr. Schmidt’s appellate argument that “[n]o one (except [Bollard]’s counsel)

said Harry Schmidt . . . personally promised to pay the debt of his

company.” See Schmidt Brief at 10.

       Only one witness — Mr. Schmidt, himself — stated that he never made

such a guarantee, N.T., 8/24/15, at 135-36, 146, and the trial court, as fact-

____________________________________________
7  Mr. Schmidt argues that Mr. Kutzer’s testimony was equivocal because
when he was asked whether Mr. Schmidt’s promise of payment referred “to
his company or to his own pocket,” Mr. Kutzer responded, “I'm not a mind
reader. I don't know. . . . Either one.” Schmidt Brief at 13-14 (quoting
N.T., 8/24/15, at 59). The trial court observed Mr. Kutzer’s testimony and
understood it to mean that Mr. Schmidt would pay personally if H&R did not
pay the debt. We defer to the trial court’s understanding of Mr. Kutzer’s
testimony. As noted above, “[a]s a reviewing court, we may not weigh the
evidence or substitute our judgment for that of the fact-finder, who is free to
believe all, part, or none of the evidence.” Chambers, 157 A.3d at 512;
see also Commonwealth v. Stiles, 143 A.3d 968, 981 (Pa. Super.) (“we
may not weigh the evidence and substitute our judgment for the fact-
finder”), appeal denied, 163 A.3d 403 (Pa. 2016). Hence, we defer to the
findings by the trial court on this issue and find no error.

                                          - 13 -
J-A10020-17


finder, said it was “not persuaded” by Mr. Schmidt and found his testimony

to be “non-credible” and “evasive and contradictory.” Trial Ct. Op. at 5, 9.

We are required to defer to the trial court’s findings on credibility.

Commonwealth v. Talbert, 129 A.3d 536, 543 (Pa. Super. 2015), appeal

denied, 138 A.3d 4 (Pa. 2016).

      To meet the clear and convincing evidence standard --

      [t]he witnesses must be found to be credible, that the facts to
      which they testify are distinctly remembered and the details
      thereof narrated exactly and in due order, and that their
      testimony is so clear, direct, weighty, and convincing as to
      enable the [fact-finder] to come to a clear conviction, without
      hesitancy, of the truth of the precise facts in issue.

Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991) (quoted citation

omitted). “It is not necessary that the evidence be uncontradicted provided

it carries a clear conviction to the mind or carries a clear conviction of its

truth.”   In the Interest of J.M., 166 A.3d 408, 423 (Pa. Super. 2017)

(quoted citation omitted). We conclude that the trial court did not err when

it found that the evidence was sufficient under this standard to establish that

Mr. Schmidt orally promised personally to guarantee the debt that his

business, H&R, owed to Bollard.          Accordingly, Mr. Schmidt’s general

sufficiency issue is without merit.

                            Conditional Promise

      For his second issue, Mr. Schmidt contends that any oral promise by

him to pay “was conditioned upon Harry Schmidt’s liquidation of assets

referred to as the Allentown townhouses property and/or the Cherry Hill


                                      - 14 -
J-A10020-17


property,” and that “absent receiving funds from these personal assets, the

conditional personal promise, even if made, cannot be enforced.”       Schmidt

Brief at 16 (emphasis omitted). Although Mr. Schmidt preserved this issue

in his post-trial motion (at ¶ 4) and statement of errors under Appellate Rule

1925(b) (at ¶ 2), the trial court did not address this issue. We conclude that

no relief is due with respect to it.

       Upon reviewing the record, we find nothing to support Mr. Schmidt’s

contention that his personal guarantee to pay the debt to Bollard was

contingent upon the sale of his Allentown or Cherry Hill properties. Although

Ms. Scheuren and Mr. Bollard testified that Mr. Schmidt discussed those

properties with them and that Mr. Schmidt and Mr. Bollard said he went to

Allentown to look at that property, neither witness ever stated that he or she

agreed, on behalf of Bollard, that Mr. Schmidt would not have to pay his

debt to Bollard if the Allentown and Cherry Hill properties were not sold.

See N.T., 8/24/15, at 11-12, 71-72.

       Additionally, in his trial testimony, Mr. Schmidt himself claimed that he

never discussed the Allentown or Cherry Hill properties with Mr. Bollard or

Ms. Schueren. N.T., 8/24/15, at 136-37.8 The record does not support his

____________________________________________
8 Although Mr. Schmidt did later state that he provided Ms. Scheuren with
brochures of the townhouses on his Allentown property, he immediately
added that he did not tell her that his ability to pay the debt to Bollard was
predicated upon the sale of those townhouses, because “[t]hat’s mixing [his]
personal money with [his] company[’s] money.” N.T., 8/24/15, at 142. He
said that, if he had mentioned the Cherry Hill property to Ms. Scheuren, it
was only to see if “they” were interested in buying the property and not with
regard to the debt owed to Bollard. Id. at 141.

                                          - 15 -
J-A10020-17


claim that his promise was dependent upon a condition that he says he

never discussed with the other party.     Accordingly, Mr. Schmidt’s second

issue merits no relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/17




                                 - 16 -
