J-S12003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SANTANDER BANK, N.A., F/K/A                :   IN THE SUPERIOR COURT OF
    SOVEREIGN BANK, N.A.                       :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    EXPRESS SIGN OUTLET INC AND                :
    LINDA DEPAOLO                              :   No. 2912 EDA 2019
                                               :
                       Appellants              :

                Appeal from the Order Entered August 23, 2019
      In the Court of Common Pleas of Philadelphia County Civil Division at
                           No(s): No. 180801526


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 12, 2020

        Express Sign Outlet Inc. (“Express”) and Linda Depaolo, collectively

(“Appellants”), appeal from the order entered August 23, 2019, granting

Appellee, Santander Bank’s, N.A., F/K/A Sovereign Bank, N.A. (“Bank”),

motion to enforce settlement. We affirm.

        The trial court summarized the procedural history of this case as follows:

              On August 17, 2018, a Confession of Judgment was
        docketed that noted that the collective sum pursuant to an
        agreement was owed [to Bank] in the amount of $13,750.77. On
        September     6,    2018,     Appellant[s’] attorney  submitted
        Appellant[s’] offer to settle. See Email from Robert Rust dated
        September 6, 2018, attached as Exhibit 1. On January 3, 2019,
        a Settlement Agreement (“the Agreement”) was sent to
        Appellant[s’] attorney for review and execution. See Email from
        Robert Saldutti dated January 3, 2019, attached as Exhibit 2. On
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S12003-20


      the instant date, Appellant[s’] attorney confirmed receipt of the
      Agreement. See Email from Robert Rust dated January 3, 2019,
      attached as Exhibit 3. On January 15, 2019, the first payment
      was made for $5,000 pursuant to the Agreement. On May 22,
      2019, Appellant[s’] attorney sent an email stating that “the
      second and final payment is not due until April 21, 2109.” See
      Email from Robert Rust dated May 22, 2019, attached as Exhibit
      4. Appellee alleges that despite the typographical error, Appellant
      knew that the second payment was due and owing in the same
      year as the first payment.

            On June 19, 2019, Appellee filed a Motion to Enforce
      Settlement. On July 8, 2019, Appellants filed a Motion to Extend
      Time to Respond. On August 2, 2019, Appellant filed an Answer
      to the Motion to Enforce Settlement. On August 23, 2019, an
      Order was docketed granting Appellee’s Motion to Enforce
      Settlement.

            On September 17, 2019, Appellant filed a Notice of Appeal
      to the Superior Court of Pennsylvania (“Superior Court”), which
      appeal the Superior Court docketed at 2912 EDA 2019. On
      September 18, 2019, this [c]ourt docketed an Order directing
      Appellant to provide a Statement of Errors pursuant to Pa. R.A.P.
      1925(b). On October 8, 2019, Appellant timely filed a Statement
      of Errors.

Trial Court Opinion, 10/23/19, at 1-2.

      On appeal, Appellant presents the following issue for our review:

“Whether the lower court properly applied the factors in analyzing the best

interests for the Appellant, Express Sign Outlet?” Appellant’s Brief at 6 (full

capitalization omitted).   Specifically, Appellant argues:    “The Appellant,

De[p]aolo even though no longer has an interest in the company, Appellant

Express is presuming the alternative standard of PA ST 15 Pa.C.S.A. § 1716(b)

in ‘considering the best interests of the corporation’ as the debt is with




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Appellant De[p]aolo.   Cuker v. Mikalauskas, 547 Pa. 600, 692 A.2d 1042

(1997).” Id. at 10.

     For context purposes, Appellants assert in the “statement of the case”

of their appellate brief that “it was brought to the attention of Appellee’s

counsel by an email from Appellant[s’] attorney on September 14, 2018 that

Appellant Express was sold, and Appellant Depaolo is no longer the owner, as

of May 2017.”    Appellants’ Brief at 7.   Moreover, in Appellants’ Pa.R.A.P.

1925(b) statement, Appellants present the following issue:

            The Honorable Trial Court was not advised by [Bank] that
     [Appellant Express Sign Outlet] should be excluded from the
     Court’s judgment.       The proper and only [Appellant], Linda
     De[p]aolo (“De[p]aolo”), does not own or have any connection
     with Express, as De[p]aolo sold her interest in Express well before
     [Bank] sought repayment of the Notice owed to it by De[p]aolo.
     Moreover, from the outset of its lawsuit, [Bank] was given formal
     written notice that Express was not a party to the referenced Note.
     [Bank] chose to ignore this Note and in so doing is intentionally
     harming the business reputation and credit rating of Express.
     Express seeks redress to this wrong by securing this Honorable
     Court’s removal of Express’ name from the Court’s judgment. If
     this Honorable Court does remove Express from the Court’s
     judgment, Express is content to consider the matter resolved in
     lieu of it taking legal action against [Bank] for its blatant refusal
     to act on the timely notice and demand to remove Express from
     its complaint.

Pa.R.A.P. 1925(b) statement, 10/8/19, at 2-3.

     We first note that the issue Appellants raised on appeal is vague and not

entirely consistent with the issue raised in the Pa.R.A.P. 1925(b) statement.

To the extent that Appellants are arguing that Express is not a proper party

to this action and that it should be removed from the court’s judgment, as


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asserted in their Pa.R.A.P. 1925(b) statement, we conclude that this issue is

waived.

      Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). “Hence, only claims properly presented in the

lower court are preserved for appeal.” Coulter v. Ramsden, 94 A.3d 1080,

1089 (Pa. Super. 2014).

      [I]n general, a Rule 1925(b) statement cannot resurrect an
      otherwise untimely claim or objection. Because issues not raised
      in the lower court are waived and cannot be raised for the first
      time on appeal, a 1925(b) statement can therefore never be used
      to raise a claim in the first instance. Pa. R.A.P. 302. Pennsylvania
      law is clear that claims and objections that are not timely made
      are waived.

Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009).

      In the case herein, Appellants at no time prior to filing their Pa.R.A.P.

1925(b) statement asserted that Express was not a proper party to the action.

In fact, the complaint for confession of judgment was filed on August 17, 2018.

According to Appellants, Appellant Depaolo had sold Express in May of 2017.

Appellants, however, did not raise this issue in response to the filing of the

complaint for confession of judgment. In fact, there is no indication in the

record that at any time in the underlying proceedings did Appellants assert

that Express was not a proper party to the proceeding. Furthermore, as will

be discussed in greater detail below, when the parties entered into the

Settlement Agreement based on Appellants’ offer, the Agreement included


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both Appellants. Stipulation of Settlement, 1/11/19, at 1-3. Thus, to the

extent that Appellants on appeal attempt to argue that Express is not a proper

party to this action and should be removed from the judgment imposed, that

claim is waived.

        To the extent that Appellants argue that the trial court improperly

applied “the factors in analyzing the best interests for the Appellant, Express

Sign Outlet,” Appellant’s Brief at 6, we also find this claim to lack merit. We

note that the appealed order granted Appellee’s motion to enforce the

Settlement Agreement. Notice of Appeal, 9/17/19, at 1. As such, Appellants’

identification of a “best interests of the corporation” standard as set forth in

15 Pa.C.S. § 1716(b),1 Appellant’s Brief at 10, is improper.

____________________________________________


1   The statutory provision at 15 Pa.C.S. § 1716 provides, as follows:

                          § 1716. Alternative standard

        (a) General rule.--In discharging the duties of their respective
        positions, the board of directors, committees of the board and
        individual directors of a business corporation may, in considering
        the best interests of the corporation, consider the effects of any
        action upon employees, upon suppliers and customers of the
        corporation and upon communities in which offices or other
        establishments of the corporation are located, and all other
        pertinent factors. The consideration of those factors shall not
        constitute a violation of section 1712 (relating to standard of care
        and justifiable reliance).

        (b) Presumption.--Absent breach of fiduciary duty, lack of good
        faith or self-dealing, actions taken as a director shall be presumed
        to be in the best interests of the corporation.




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       Contrary to Appellants’ assertion, the proper standard of review of a

motion for enforcement of a settlement agreement is set forth as follows:

       The enforceability of settlement agreements is determined
       according to principles of contract law.          Because contract
       interpretation is a question of law, this Court is not bound by the
       trial court’s interpretation. Our standard of review over questions
       of law is de novo and to the extent necessary, the scope of our
       review is plenary as [the appellate] court may review the entire
       record in making its decision. With respect to factual conclusions,
       we may reverse the trial court only if its findings of fact are
       predicated on an error of law or are unsupported by competent
       evidence in the record.

Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 408 (Pa. Super. 2010).

       We have further explained: Pennsylvania law states that once formed,

a settlement will not be set aside except upon “a clear showing of fraud,

duress, or mutual mistake.” Felix v. Giuseppe Kitchens & Baths, Inc., 848

A.2d 943, 947 (Pa. Super. 2004). “Where the parties, without any fraud or

mistake, have deliberately put their engagements in writing, the law declares

the writing to be not only the best, but the only, evidence of their

agreement....” Ragnar Benson, Inc. v. Hempfield Tp. Mun. Authority,

916 A.2d 1183, 1189 (Pa. Super. 2007). The court might consider extrinsic

or parol evidence to determine the parties’ intent only where the language of

the agreement is ambiguous. Step Plan Services, Inc., 12 A.3d at 409-410.

       A mutual mistake occurs when the written instrument fails to
       properly set forth the true agreement among the parties. Further,
       the language of the instrument should be interpreted in the light
____________________________________________


       (c) Cross reference.--See section 1711 (relating to alternative
       provisions).

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      of the subject matter, the apparent object or purpose of the
      parties and the conditions existing when it was executed.

Daddona v. Thorpe, 749 A.2d 475, 487 (Pa. Super. 2000) (citations and

quotation marks omitted) (emphasis added).

      We have further stated:

             We most commonly have allowed reformation of mistaken
      contract provisions in cases of “scriveners’ errors,” where the
      parties’ writing mistakenly failed to record their agreed-upon
      intentions. See Daddona v. Thorpe, 749 A.2d 475, 487 (Pa.
      Super. [2000]) (“[a] mutual mistake occurs when the written
      instrument fails to ... set forth the ‘true’ agreement among the
      parties”), appeal denied, 563 Pa. 702, 761 A.2d 550 (2000); see
      also Bollinger v. Central Pa. Quarry Stripping & Constr. Co.,
      425 Pa. 430, 229 A.2d 741, 742 (1967); Bugen v. New York
      Life Ins. Co., 408 Pa. 472, 184 A.2d 499, 500 (1962). In such
      situations, the court may reform the contract document so that its
      language conforms to what the parties intended. Bollinger, 229
      A.2d at 742.

Murray v. Willstown Township, 169 A.3d 84, 91 (Pa. Super. 2017).

      In the case sub judice, the subject Settlement Agreement provides as

follows:

                       STIPULATION OF SETTLEMENT

      The within matter having been amicably settled between the
      parties and Defendant[s], it is hereby stipulated and agreed that
      the same should be marked “SETTLED” with the Court subject to
      the terms and conditions annexed hereto.

                          TERMS OF SETTLEMENT

      1.    Defendants, Express Sign Outlet, Inc. and Linda Depaolo,
      (hereinafter the “Defendants”) acknowledge[] and admit[] there
      is due and owing from [them] to Plaintiff, Santander Bank, N.A.,
      f/k/a Sovereign Bank, N.A., (hereinafter the “Plaintiff”)
      $13,750.77, for the claims set forth in Plaintiff’s Complaint


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      inclusive of attorney fees, court costs and collection costs
      (hereinafter, the “Claim Amount”).

      2.     In settlement of this legal action, Defendants shall pay
      Plaintiff $13,750.77 (the “Settlement Amount”).

      3.    The Settlement Amount shall be paid as follows:

            a)   The Defendants shall make their first payment of
            $5,000 on or before January 15, 2019;

            b)    The Defendants shall pay the balance of $8,750.77 on
            or before April 1, 2109;

            c)    Payments will be made payable to Plaintiff and
            delivered on or before their due date to Plaintiff. . . .

            d)   Time is of the essence with respect to payments to be
            made under this Agreement . . . .

Settlement Agreement, 1/11/19, at 1-2 (emphasis added) (Exhibit A to

Defendants’ Brief in Support of Response and New matter to Plaintiff’s Motion

to Enforce the Settlement Agreement).

      Thus, Paragraph 3(a) provides that the first payment is due on January

15, 2019. Paragraph 3(b), as written, reflects that the payment is due April

1, 2109.    In response to Appellee’s motion to enforce the Settlement

Agreement, Appellants argued that they were not late with the second

payment because it was not due until April 1, 2109. Defendants’ Response

and New Matter to Plaintiff’s Motion to Enforce the Settlement Agreement,

8/2/19, at 1; Defendants’ Brief in Response to Plaintiff’s Motion to Enforce the

Settlement Agreement, 8/2/19, at 1-3.




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         In addressing this issue, the trial court deemed the date listed in

paragraph 3(b) of the Settlement Agreement to be a typographical error. Trial

Court Opinion, 10/23/19, at 3. As noted in its summary of the history of this

case, the      trial court relied on           documents of   record, including   the

communications between the parties outlining the terms of the agreement, in

reaching this conclusion. Id. at 1-2. Moreover, the trial noted that during the

August 22, 2019 hearing on the motion to enforce the Settlement Agreement,

Appellee’s counsel explained the intention of the parties to the Agreement to

be that the second payment be made on April 1, 2019.2 Id.

         The certified record includes the email to Robert Saldutti from defense

counsel Robert Rust, dated September 6, 2018, and referred to by the trial

court.     This email outlines Appellants’ proposed terms of payment for the

Settlement Agreement.         Complaint for Confession of Judgment, Exhibit 1,

8/17/18, at 1. Specifically, defense counsel stated in response to a request

for proposed terms of the agreement:              “Does $5,000 in 30 days and the

balance in 90 days work for you?” Id. A subsequent email, dated January 3,

2019, indicated acceptance of those terms and drafting of a Settlement

Agreement.      Defendants’ Brief in Support of Response and New Matter to

Plaintiff’s Motion to Enforce the Settlement Agreement, Exhibit A, at 1.

Specifically, it stated:


____________________________________________


2Defense counsel did not attend the hearing on the motion to enforce the
Settlement Agreement. N.T., 8/22/19, at 1-4.

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           Enclosed please find a Stipulation of Settlement which must
      be executed and returned to my attention with your client’s first
      payment of $5,000.00 on or before January 15, 2019. Please
      ensure that all payments are made in a prompt and timely
      manner.

Id.

      Thus, it is clear that the Settlement Agreement executed on January 11,

2019, was based on the terms as outlined by the parties. Furthermore, the

evidence supports the conclusion that it was the parties’ intentions that the

entirety of the amount owed would be paid within ninety days. Appellants’

argument that the second payment was not due until April 1, 2109, obviously

does not align with the parties’ intent to have the debt paid within ninety days.

Moreover, it is untenable to argue that the second and final payment

reasonably would be expected approximately ninety years after the first

payment. Thus, the transposed number of “2109” included in paragraph 3(b)

of the Settlement Agreement was clearly a scrivener’s error.         Appellants’

assertion to the contrary is disingenuous.

      Thus, based on the certified record, the trial court properly concluded

that the second and final payment under the terms of the Settlement

Agreement was due on April 1, 2019. Appellants failed to comply with the

terms of the Settlement Agreement. Accordingly, the trial court did not abuse

its discretion or commit an error of law when it granted Appellee’s motion to

enforce the Settlement Agreement.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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