J-A33014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PENN SECURITY BANK & TRUST                        IN THE SUPERIOR COURT OF
COMPANY                                                 PENNSYLVANIA

                            Appellee

                       v.

EDMUND LEIZENS AND LITICIA LEIZENS

                            Appellants                No. 722 EDA 2014


               Appeal from the Order Entered February 18, 2014
                 In the Court of Common Pleas of Pike County
                        Civil Division at No(s): 809-2013


BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 03, 2015

        Edmund and Liticia Leizens appeal from the order entered in the Court

of Common Pleas of Pike County granting Penn Security Bank and Trust

Co.’s (“Penn Security”) motion for summary judgment. After careful review,

we affirm.

        This case arises from a commercial loan between Penn Security and an

LLC operated by Edmund Leizens and Liticia Leizens, known as Our House

Publications. In April of 2008, Penn Security agreed to provide a commercial

loan to Our House Publications for $60,000 for a term of ten years at an

interest rate of 6.99%.         Simultaneously, Penn Security provided to Our


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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House Publications an additional $60,000 as a commercial credit line. This

loan had a term of one year and an interest rate of 5.25%.

     In March of 2010, Penn Security contacted the Leizens, as the owners

of Our House Publications, and demanded repayment of the entire $60,000

line of credit. Thereafter, in April of 2010, Penn Security proposed merging

both the commercial loan and the credit line and forgoing immediate

payment of the $60,000 credit line.   In return, the Leizens would need to

guarantee the merged loan with a mortgage secured against their residence.

The Leizens agreed and executed a promissory note on June 28, 2010.

     At some point, Penn Security came to believe that the Leizens had

ceased or missed their payments on the loan and provided notice to them on

March 27, 2013. Thereafter, Penn Security filed a complaint in foreclosure

on May 21, 2013, alleging that the Leizens were in default on their mortgage

payments and Penn Security was entitled to judgment in the amount of

$103,558.70.   The trial court scheduled a mortgage foreclosure diversion

conference for July 23, 2013.

     On September 5, 2013, the Leizens filed a pro se answer and new

matter.   The new matter alleged that Penn Security had used duress to

coerce the Leizens into signing the mortgage.     Penn Security replied on

September 20, 2013, and then filed a motion for summary judgment on

October 10, 2013.   On November 12, 2013, the Leizens filed a counseled

brief in opposition to summary judgment. The trial court held oral argument

on November 18, 2013.      On February 18, 2014, the trial court granted

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summary judgment.         The Leizens filed a motion for reconsideration on

February 28, 2014, which the trial court denied on March 3, 2014.             This

timely appeal followed.

     On appeal, the Leizens present the following issues for our review:

     1. Was the granting of the Motion for Summary Judgment an
        error in that it failed to comply with the Procedural Rules and
        controlling precedent providing the standard for the granting
        of the Motion for Summary Judgment?

     2. Did the court err in not taking into account the affidavits filed
        by the Leizens in this matter which set forth material facts
        that are in dispute?

     3. Is the court’s reliance   on Phaff v. Gerner, 303 A.2d 826 (Pa.
        1973), an error and       did the court’s granting a Motion for
        Summary Judgment           preclude the ability to engage in
        discovery in that no      discovery was engaged in or is now
        possible?

     4. Is the court’s reliance on the form of the pro se pleadings and
        demand for specificity an error in that no issues of fraud were
        alleged and the Leizens’ pro se pleadings were a concise
        summary of fact as required by the Rules of Civil Procedure?

     5. Is the court’s conclusion that the pleadings are contradictory,
        based upon an assumption of what the Leizens’ “must have
        known” where such a presumption is speculative and an
        improper basis in that no Evidentiary Hearing was held an
        error given that the Leizens’ knowledge or state of mind could
        not have been determined and the court was bound to resolve
        all disputes in favor of the Defendants?

     6. Is the trial court’s reliance upon case law involving business
        obligations an error since as is evident by the Complaint’s
        caption the Leizens are individual persons?

     7. Is the court’s conclusion that the Leizens were barred from
        raising a defense in this action because they did not file a
        separate action prior to the foreclosure action challenging the
        validity of the line of credit an error since it is contrary to the



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         principles of law and of pleading and is not supported by
         controlling precedence?

      8. Is the court’s reliance on the Briefs for Factual Matters an
         error in that pursuant to Pennsylvania Rules of Civil Procedure
         a Brief is not by definition a Pleading for the purposes of a
         Motion for Summary Judgment? [sic]

Brief of Appellant, at 5-6.

      As a preliminary matter, we note that, “[i]t is the appellant who has

the burden of establishing his entitlement to relief by showing that the ruling

of the trial court is erroneous under the evidence or the law.      Where the

appellant has failed to cite any authority in support of a contention, the

claim is waived.” Korn v. Epstein, 727 A.2d 1130, 1135 (Pa. Super. 1999)

(quotations and citations omitted). See also Pa.R.A.P. 2119(a) (argument

shall be followed by discussion and citation of authorities); Jones v. Jones,

878 A.2d 86, 90-91 (Pa. Super. 2005) (arguments not appropriately

developed include failure to cite authority in support of contention;

arguments not appropriately developed are waived).

      Instantly, the Leizens set forth eight errors in their brief; however, the

only case law cited references the standard of review for granting a motion

for summary judgment. The remaining arguments are based largely on the

Leizens’ contention that the trial court ignored or misapplied facts of record

in entering summary judgment.        Therefore, we will review the Leizens’

averment that the trial court erred when it granted Penn Security’s motion

for summary judgment, but find their other arguments waived.             Korn,

supra.


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      Our standard of review of an order granting summary judgment is

well-settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will 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.

JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.

Super. 2013) (citations omitted).

      In support of their contention that the trial court erred in granting

summary judgment, the Leizens argue that the court erroneously concluded

that their denials to averments 6, 8, 9, and 12 in Penn Security’s complaint

constituted admissions. We disagree.

      Pa.R.C.P. 1029 provides in relevant part:

      Rule 1029. Denials. Effect of Failure to Deny.

         (a) A responsive pleading shall admit or deny each
         averment in the preceding pleading or any part thereof . . .



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          (b) Averments in a pleading to which a responsive pleading
          is required are admitted when not denied specifically or by
          necessary implication. 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.

Id. The note to this rule is instructive: “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, 386 A.2d 1 (Pa. Super. 1978).”           Pa.R.C.P. 1029(c)

Note.

        Indeed, this Court has held that in a mortgage foreclosure action, a

mortgagor’s general denial in the answer to allegations in the complaint

must be considered an admission under Pa.R.C.P. 1029(b) and (c).          First

Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995).

Specifically, we found that if a mortgagor does not respond to allegations in

the complaint regarding default and the amount due with specificity in his

answer, the mortgagor will be deemed to have admitted the allegations of

default and the amount due in the complaint.        Id.   Furthermore, general

denials by a mortgagor that he is without sufficient information to form a

belief as to the truth of allegations regarding the principal and interest owing

on a mortgage       are   considered admissions because       apart from the

mortgagee, the mortgagor is the only party who has sufficient knowledge on

which to base a specific denial.        See Strausser, supra citing N.Y.

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Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super.

1987).

      Here, the trial court concluded that there were no genuine issues of

material fact; therefore, Penn Security was entitled to judgment as a matter

of law.   In reaching its conclusion, the trial court found that the Leizens’

responsive pleading was deficient under Pa.R.C.P. 1029.         Specifically, the

trial court found that the Leizens’ denials to allegations 6, 8, 9, and 12 in the

complaint amounted to general denials and demands for proof under

Pa.R.C.P. 1029(c), which constituted admissions under Pa.R.C.P. 1029(b).

As the trial court explained,

      The sixth paragraph denies as a conclusion of law that the
      [Leizens] executed a real estate mortgage on the property and
      delivered it to [Penn Security], therefore denying a factual
      allegation as a legal conclusion. In their New Matter, moreover,
      the [Leizens] aver that “the mortgage in question was entered
      into under duress” and that the “mortgage in question is a
      contract of adhesion.” These averments seemingly contradict
      the [Leizens’] initial denial in paragraph 6 by confirming the
      existence of a mortgage.

                                      ***
      Paragraph twelve of the [Leizens’] Answer, as an example,
      indicates that they may owe some money to [Penn Security].
      Paragraph eight, by contrast, denies that a default occurred,
      which would ameliorate the very reason the [Leizens] allegedly
      owe an outstanding balance to [Penn Security]. Paragraph nine
      does not add clarity to the response, only denying [Penn
      Security’s] averment “as stated.” Consequently, this [c]ourt
      found that these were general denials that failed to specifically
      address [Penn Security’s] allegations. The only thing these
      denials did was indicate that [Penn Security’s] averments were
      denied.

Trial Court Opinion, 5/2/14, 9, 11.

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      We agree with the trial court that the Leizens’ sixth, eighth, ninth and

twelfth   averments     functioned   as   admissions.   Strausser,    supra.

Furthermore, there was no indication within the Leizens’ answer and new

matter that they intended these averments to be pleadings in the

alternative. Even after acquiring counsel and filing a brief in opposition to

summary judgment and a motion to reconsider, this argument was still

never raised.

      Through their ineffective denials and improper claims of lack of

knowledge, the Leizens admitted the material allegations of the complaint,

which permitted the trial court to enter summary judgment on those

admissions. Accordingly, we discern no error in the trial court’s application

of law, nor do we find that the trial court abused its discretion in granting

Penn Security’s motion for summary judgment. Murray, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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