Devgru Financial v. Powers, B. ( 2022 )

J-A12001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEVGRU FINANCIAL, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BERNADETTE POWERS : No. 1394 WDA 2021
Appeal from the Order Entered October 21, 2021
In the Court of Common Pleas of Allegheny County
Civil Division at MG-19-001330
BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: May 18, 2022
Devgru Financial, LLC (Appellant), appeals from the entry of summary
judgment in favor of Bernadette Powers (Ms. Powers) in this mortgage
foreclosure action. Upon review, we affirm.
The trial court summarized the case history as follows:
On December 11, 2019, [Appellant] commenced this action
by filing a Complaint against [Ms. Powers]. [Appellant] alleged
[Ms. Powers] defaulted on a Home Equity Line of Credit with PNC
Bank, N.A., which was secured by a Mortgage on her Property at
333 Edna Street, E. McKeesport, PA 15035. [Appellant] asserts
[Ms. Powers] owes $44,183.04 by virtue of receiving an
Assignment of Mortgage and being the holder of the Line of Credit.
[Ms. Powers] filed preliminary objections on February 3, 2020,
which were overruled. She filed an Answer, New Matter and
Counterclaim on January 7, 2021. On August 11, 2021, [Ms.
Powers] filed a Motion for Summary Judgment averring that there
are no genuine issues of material fact, [Appellant] does not have
standing, and that she satisfied the Line of Credit that secures the
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* Retired Senior Judge assigned to the Superior Court.
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Assigned Mortgage. [Appellant] filed a Response to the Motion for
Summary Judgment on October 13, 2021. Oral argument was
held on October 20, 2021, and [the trial] court granted [Ms.
Powers’] Motion for Summary Judgment[.]
***
The undisputed facts of record established that [Ms. Powers’]
Choice Access Line of Credit Card was stolen by Michael DeCario,
a convicted felon, shortly after it was opened. Starting on or about
September 7, 201[0], Mr. DeCario made several large withdrawals
from ATMs without [Ms. Powers’] consent, until the $35,000 limit
was reached. He was found guilty of 106 counts of Access Device
Fraud between [Ms. Powers’] Home Equity Line of Credit and other
credit cards that he stole from her. [Ms. Powers] reported both
Mr. Decario’s unauthorized use of the Choice Access Card and the
guilty verdict to PNC Bank. The record also established that [Ms.
Powers] withdrew $5,000.00 in loans, which she repaid with
interest.
Trial Court Opinion, 1/12/22, at 1-2, 4.
Appellant timely appealed, and both Appellant and the trial court have
complied with Pa.R.A.P. 1925. Appellant presents two questions for review:
1. Did the trial court abuse its discretion or commit an error of
law by finding that the language of the agreement between the
parties precludes [Appellant] from proceeding with a
foreclosure action?
2. Did the [trial] court err in granting [Ms. Powers’] motion for
summary judgment where discovery had not been completed
and where genuine issues of material facts had not been
resolved?
Appellant’s Brief at 7.
In reviewing the grant of summary judgment, we
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.
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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. . . . Failure of a nonmoving party to adduce
sufficient evidence on an issue essential to [the] 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.
Kornfeind v. New Werner Holding Co., Inc., 241 A.3d 1212, 1216-17 (Pa.
Super. 2020) (citations omitted). “In response to a summary judgment
motion, the nonmoving party cannot rest upon the pleadings, but rather must
set forth specific facts demonstrating a genuine issue of material fact.” Bank
of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (citation
omitted).
Although Appellant presents two issues, Appellant argues: (1) the trial
court abused its discretion by not considering the effect of 13 Pa.C.S.A. § 4406
et seq.1 on language in the line of credit agreement (the Agreement); (2) the
term “liability” in Section 19(b) of the Agreement is “unclear at best” and
subject to interpretation; (3) the trial court improperly directed that the
mortgage be satisfied within thirty days; (4) there is a genuine issue of
material fact as to whether Ms. Powers “knew or should have known that this
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1 13 Pa.C.S.A. § 4406 addresses the duties of bank customers to examine and
report unauthorized activity.
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account was being used . . . without her permission before she reported this
fraudulent use to PNC Bank”; and (5) the trial court improperly failed to
consider the intent of the parties when the loan documents were signed.2
Appellant’s Brief at 16-19. Appellant has waived all but the fourth issue.
This Court has long held:
Arguments not raised initially before the trial court in opposition
to summary judgment cannot be raised for the first time on
appeal. This canon of appellate practice comports with our
Supreme Court’s efforts to promote finality, and effectuates the
clear mandate of our appellate rules requiring presentation of all
grounds for relief to the trial court as a predicate for appellate
review.
Moranko v. Downs Racing, LP, 118 A.3d 1111, 1115-16 (Pa. Super. 2015)
(en banc) (citations omitted).
Here, Appellant waived the first, second, third, and fifth issues by not
raising them before the trial court in either the written response in opposition
to summary judgment, or at oral argument. See Brief in Opposition to Motion
for Summary Judgment, 10/13/21, at 1-7; N.T. 10/20/21, at 11-18.
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2 As noted above, Appellant raises the question of whether the trial court erred
in granting summary judgment because “discovery had not been
completed[.]” Appellant’s Brief at 7. This issue is waived because Appellant
does not address it in the argument section of the brief. Id. at 14-19. See
also Hinkal v. Pardoe, 133 A.3d 738, 740 (Pa. Super. 2016) (en banc)
(citations omitted) (citing Pa.R.A.P. 2119 in finding waiver based on
appellant’s failure to address issue in the argument section of her brief).
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Likewise, Appellant did not raise the issues in its Rule 1925(b)
statement.3 When a trial court directs a party to file a Pa.R.A.P. 1925(b)
concise statement, any issues not raised in the statement are waived. Linde
v. Linde, 220 A.3d 1119, 1146 (Pa. Super. 2019) (citations omitted); In re
S.T.S., Jr., 76 A.3d 24, 35 n.4 (Pa. Super. 2013) (noting Commonwealth v.
Lord, 719 A.2d 306, 308 (1998) “requires a finding of waiver whenever an
appellant fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b)
statement”). See also Erie Ins. Exchange v. Bristol, 174 A.3d 578, 590
(Pa. 2017); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Accordingly, we are
constrained to find waiver.
In the remaining issue, Appellant argues “genuine issues of material fact
existed that preclude the [trial] court from granting Ms. Powers’ motion for
summary judgment.” Appellant’s Brief at 18. Appellant asserts,
the question remains to be resolved whether or not Ms. Powers
knew or should have known that this account was being used by
DeCario without her permission before she reported this
fraudulent use to PNC Bank.
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3 In the concise statement, Appellant raised three issues: (1) Appellant “is
the real party in interest and therefore has standing”; (2) [t]he instrument at
issue is a line of credit rather than a letter of credit; and (3) Ms. Powers “is
liable to [Appellant] for the amount due under the Note[.]” Statement of
Matters Complained of on Appeal, 12/10/21, at 1-2 (unnumbered).
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Id. at 18. While Appellant did not use this identical language in the trial court,
Appellant argued, in response to Ms. Powers’ motion for summary judgment,
that Ms. Powers “failed to notify PNC within a reasonable period of time of any
alleged fraudulent charges or mistakes with regard to her account.” Brief in
Opposition to Motion for Summary Judgment, 10/13/21, at 2. In its 1925(b)
concise statement, Appellant claimed Ms. Powers was
obliged to notify PNC Bank immediately and in writing. In reality,
[Ms. Powers] allowed for an unreasonable delay before notifying
PNC of any unauthorized use. Indeed, [Ms. Powers] acknowledges
that an unauthorized user proceed[ed] to make a series of “nearly
daily large unauthorized withdrawals.” [Ms. Powers’] lack of
oversight of her account is not an excuse for her delay in notifying
PNC of the alleged unauthorized activity.
Statement of the Matters Complained of on Appeal, 12/10/21, at 1-2 (italics
in original). Thus, the issue of Ms. Powers’ obligations under, and compliance
with the Agreement, is preserved for review.
In considering the Agreement:
The fundamental rule in contract interpretation is to ascertain the
intent of the contracting parties. In cases of a written contract,
the intent of the parties is the writing itself. Under ordinary
principles of contract interpretation, the agreement is to be
construed against its drafter. When the terms of a contract are
clear and unambiguous, the intent of the parties is to be
ascertained from the document itself. When, however, an
ambiguity exists, parol evidence is admissible to explain or clarify
or resolve the ambiguity, irrespective of whether the ambiguity is
patent, created by the language of the instrument, or latent,
created by extrinsic or collateral circumstances. 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.
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Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468-69
(Pa. 2006) (citations omitted).
Here, the trial court rejected Appellant’s argument because:
[The Agreement] contains a specific section regarding a
borrower’s liability for unauthorized use. See Exhibit A to the
Complaint, Choice Access Line of Credit Agreement, pg. 5, Section
19, Lost and Stolen Choice Access Cards and Checks. It states in
relevant part:
If your Card is lost or stolen, or if you think someone is using
your Card without your permission, notify us immediately
by calling us at 1-888-678-0002, or in writing to PFPC, 8800
Tinicum Blvd, 5th Floor, Philadelphia, PA 19153.
Regarding liability, the Agreement states:
You may be liable for unauthorized use of any Card provided
to any Borrower, according to applicable law, but not for
more than $50.00.
Looking at the plain language of the [A]greement, notification is
not contingent upon when fraud is reported. PNC Bank could have
added a condition that a borrower must report unauthorized use
within a certain time period but it did not. Therefore, Ms. Powers
is only liable for $50.00. When the language of a contract is clear
and unambiguous, a trial court is required to give effect to that
language. A court must give effect to the clear terms to which the
parties have agreed. Madison Construction Co. v. Harlevsville
Mutual Insurance Co., 735 A.2d 100, 106 (Pa. 1999). The facts
showed that Ms. Powers satisfied and repaid all of the authorized
and valid draws against the Line of Credit that she made. She is
not liable, however, for the unauthorized and fraudulent
transactions.
Trial Court Opinion, 1/12/22, at 4-5.
We discern no error. The Agreement did not require the vigilant
oversight advanced by Appellant. Rather, the Agreement advises the
borrower to “follow the directions” in the Notice of Billing Rights and provide
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notice if the borrower suspects fraud. The borrower’s liability is not
conditioned on notification, and is expressly limited to $50.00. Ms. Powers
correctly asserts that “while PNC Bank mentions procedures for reporting lost
or stolen cards, it does not state any connection in those sections to Section
19(b) ‘Liability for unauthorized use.’” Ms. Powers’ Brief at 38 (footnote and
record citation omitted); see also Agreement, 6/26/10, ¶ 19(b). Accordingly,
Appellant did not demonstrate PNC conditioned the limitation on liability to
Ms. Powers’ prompt review of monthly statements; the language of the
Agreement was ambiguous; or the trial court erred in finding Ms. Powers’
liability was limited to $50.00. In other words, Appellant failed to demonstrate
the existence of an issue of material fact.
Appellant’s claims are either waived or meritless. We therefore affirm
the trial court’s grant of summary judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2022
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