J-A12019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL P. WUKICH, DANIEL J. 

WUKICH, TAMMY L. WUKICH, QUEST 

HEALTHCARE DEVELOPMENT, INC., 

QUEST REALTY PARTNERSHIP, 

AMERICAN PORTABLE MEDICAL 

SERVICES, INC., LOYALHANNA 

HEALTH CARE ASSOCIATES, 

WILLIAM PENN HEALTH CARE 

ASSOCIATES, ALLSTAR THERAPIES, 

INC., ALLSERVE THERAPIES, INC., A 

LA CARTE SUPPORT SERVICES, INC., 

EXPRESS MOBILE DIAGNOSTIC 

SERVICES, LLC, DANAN 

HEALTHCARE CONSULTING GROUP, 

INC. 

Appellants

v.

PENN SECURITY BANK AND TRUST 

CO., CRAIG BEST, GREG MISTERMAN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1212 WDA 2016

Appeal from the Judgment Entered September 28, 2016

In the Court of Common Pleas of Westmoreland County 

Civil Division at No(s): No. 13CI01193

BEFORE: OLSON, SOLANO, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.: FILED AUGUST 08, 2017

In this lender liability action, Appellants appeal from the judgment 

entered September 28, 2016, following a non-jury trial resulting in a verdict 

in favor of Appellees, Penn Security Bank & Trust Co. (“Penn Security”) and 

two of Penn Security’s principals, Craig Best and Greg Misterman. We 

affirm.
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The facts and procedural history are as follows. In August 2007, 

Appellants Loyalhanna and William Penn entered into a loan agreement with 

NexTier Bank for an aggregate principal amount of $9,300,300.00 (“NexTier 

Loan Agreement”). Pls. Amended Compl., 10/18/2013, at ¶ 19. The 

NexTier Loan Agreement and promissory note were executed by Appellant 

Daniel J. Wukich, President of Appellant Quest Healthcare and sole general 

partner of Loyalhanna and William Penn, along with Appellants Daniel P. and 

Tammy Wukich, Quest Healthcare, American, and Allstar Therapies as 

guarantors. Id. at ¶¶ 19-21. 

In 2011, Appellants Daniel J. and Daniel P. Wukich sought financing for 

a new business venture with Appellee Penn Security Bank based on their 

previous knowledge and relationship with Appellee Craig Best, Penn Security 

Bank Chief Executive Officer (CEO). Id. at ¶ 24. To finance the 

construction of a new assisted living facility, Appellants wanted to use their 

William Penn property as collateral. Trial Ct. Op. (TCO), 4/13/2016, at 2. 

However, Appellants would first have to pay off the outstanding mortgage 

loan held by NexTier Bank. See id. Under the terms of the NexTier Loan 

Agreement, early payoff of the mortgage would result in a “hefty 

prepayment penalty.” Id.

1

 

____________________________________________

1 Specifically, the NexTier loan agreement provided in relevant part that “any 

Prepayment arising out of refinancing through another lending source other 

than Lender of principal shall be subject to a prepayment fee of three (3%) 

percent of any Prepayment during years 1 through 5 of the Loan Term, two 

(Footnote Continued Next Page)
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According to Daniel J. Wukich, Appellee Best had the idea that Penn 

Security could issue a personal loan in an amount sufficient to pay off the 

NexTier loan, using a structure that might avoid the prepayment penalty.2 

The idea was that the prepayment penalty might be avoided if the NexTier 

loan was paid off by unnamed borrowers, rather than by a third party lender 

such as Penn Security directly. See id. at 2-3. In February 2011, Appellee 

Greg Misterman, Penn Security Executive Vice President (VP), prepared a 

memorandum entitled Loan Presentation Summary for the Penn Security 

Board of Directors, which described a loan structure in which the bank would 

lend $7,100,000.00 to an affiliate, which in turn would enable the Wukiches 

to pay off the remaining balance/principal of the NexTier Loan. The board 

memorandum stated that this “structure is being used to avoid a significant 

prepayment penalty.” Mem., 2/15/2011, at 4 (“board memorandum”). 

On April 26, 2011, Appellants executed the Penn Security Loan 

Agreement (“Agreement”). At trial, Appellee Misterman recalled giving his 

(Footnote Continued) _______________________

(2%) percent of any Prepayment during years 6 through 12 of the Loan 

Term and one (1%) of any Prepayment during the remainder of the loan 

term.” Pl. Amended Compl. at ¶ 22 (quoting NexTier Loan Agreement ¶ 5 

and Promissory Note ¶ E, 8/31/2007).

2

The Wukiches had an extended history of conviviality and partnership with 

Penn Security Bank, from which both parties benefitted. Appellee Craig Best

helped Wukich obtain financing in 2007 to pay off a balloon payment on a 

separate mortgage and Wukich became a stockholder in Penn Security. 

Wukich was instrumental in Best’s ascension to President/Chief Executive 

Officer of Penn Security. Trial Ct. Op., 4/13/2016, at 5. 
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opinion that the penalty might be avoided. Trial Ct. Op., 4/13/2016, at 3. 

Misterman denied promising on Penn Security’s behalf to take care of the 

penalty if it was imposed by NexTier. Misterman also denied discussing the 

prepayment penalty at closing. Id. at 3. None of their discussions were 

incorporated into the final Penn Security loan closing documents. Id. The 

primary purpose of the Agreement was for Appellants to borrow 

$7,100,000.00 from Penn Security to enable Appellants to embark on a new 

project, i.e. the assisted living facility. See id. 

On April 29, 2011, Daniel J. Wukich used the Penn Security loan to pay 

off the NexTier loan’s principal balance of $7,121,628.69 in full. See id. at 

6. Thereafter, a court entered a declaratory judgment in favor of NexTier 

Bank and against Appellants for the prepayment penalty that was owed 

($206,448.32), plus attorney’s fees, costs, and interest.3

In 2013, Appellants filed suit against Appellees, Penn Security Bank, 

Best, and Misterman, asserting joint and several liability for fraud, negligent 

____________________________________________

3 On July 18, 2011, NexTier Bank filed a complaint in the Butler County 

Court of Common Pleas for a declaratory judgment against Appellants for 

the prepayment penalty that was owed ($206,448.32), plus attorney’s fees, 

costs, and interest. See NexTier Bank, N.A. v. Loyalhanna Health Care 

et al., No. A.D. 11-10911 (CCP Butler Cty. 2011). On November 21, 2012, 

the Butler County court found in favor of NexTier Bank and entered a 

judgment as a matter of law against Appellants for the prepayment penalty, 

plus costs of litigation and interest. See Pl. Amend. Compl., 10/18/2013, at 

¶¶ 35-36. This Court affirmed the judgment. See NexTier Bank, N.A. v. 

Loyalhanna Health Care et al., 1994 WDA 2012 (Pa. Super. Ct. July 17, 

2013) (unpublished memorandum).
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misrepresentation, promissory estoppel, and common law indemnification 

arising out of Best and Misterman’s oral representations regarding the 

prepayment penalty that allegedly induced Appellants to enter into the 

Agreement. See Pls. Amended Compl., ¶¶ 38-67. In December 2015, a 

nonjury trial was held.4 In April 2016, the court rendered a verdict in favor 

of Appellees. See TCO, 4/13/2016, at 7-8. 

Appellants timely filed a post-trial motion seeking judgment 

notwithstanding verdict (JNOV) or in the alternative, a new trial. Their posttrial motion was denied. The court subsequently issued an amended 

opinion. See TCO, 7/28/2016, at 1. 

Appellants timely appealed and filed a court-ordered 1925(b) 

statement. The trial court issued a 1925(a) opinion, incorporating its earlier 

decisions. See 1925(a) Opinion, 9/12/2016.5

On appeal, Appellants raise the following seventeen issues:

1. The [c]ourt erred in denying [Appellants] a jury trial when 

several of their claims related to the individual liability of 

[Appellees] Misterman and Best, and the alleged waiver of the 

[Appellants’] constitutional right to a jury only applied to 

____________________________________________

4 The lower court denied Appellants’ request for a jury trial, finding that they 

had waived the right to a jury trial under the terms of the loan agreement. 

5

Initially, Appellants appealed on August 10, 2016, from the order denying 

this post-trial motion. This Court directed Appellants to provide proof that 

judgment was entered on the trial court’s verdict. Appellants timely 

complied. Accordingly, we deem this appeal timely. See Minich v. City of 

Sharon, 472 A.2d 706, 707 (Pa. Super. 1984).
J-A12019-17

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claims against the Bank.

2. In its written [o]pinion, the [c]ourt failed to address 

[Appellants’] causes of action and elements for negligent 

misrepresentation, promissory estoppel, and indemnification, 

focusing instead on [Appellants’] fraud claim alone.

3. The representations and promises of the expert [Appellees] 

concerning the prepayment penalty, upon which [Appellants] 

reasonably relied, caused [Appellants] to incur liability and 

expenses which they would not have incurred but for

[Appellees’] conduct.

4. Consequently, [Appellees] are liable, at common law, under 

theories of negligent misrepresentation and estoppel, and are 

liable to indemnify [Appellants] for the losses they have 

incurred due to [Appellees’] broken promises.

5. The [c]ourt’s failure to consider whether [Appellees] were 

liable for negligent misrepresentation, promissory estoppel, or 

common law indemnification, the elements of which are 

different than those required to prove fraud, is an error 

entitling [Appellants] to a new trial.

6. The [c]ourt erred in applying the parol evidence rule to 

exclude or disregard extrinsic evidence of [Appellees’] 

promises to take responsibility if NexTier imposed the 

prepayment penalty.

7. The [c]ourt erred in ignoring the internal Penn Security 

memorandum, which was provided to the Bank’s Board of 

Directors, which stated that the Penn Secuirty loan was being 

utilized to avoid the significant prepayment penalty. (Trial 

Exhibit 5, p. 4.)

8. The [c]ourt erred in concluding that any discussions about the 

prepayment penalty were mere good faith expressions of 

advice and opinion, where Penn Security’s own internal 

memorandum indicated that the loan was used to avoid the 

prepayment penalty, where the evidence established [that 

Appellees] were experts upon whom [Appellants] could rely, 

and where counsel for [Appellees], on behalf of those 

[Appellees], stipulated that it would require a bank to know 

whether a prepayment penalty could be avoided.
J-A12019-17

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9. The [c]ourt erred in concluding that the final Penn Security 

loan closing documents were integrated agreements.

10. The [c]ourt erred by ignoring and/or failing to consider 

evidence and testimony that the [Appellees] did not give 

[Appellants] an opportunity to review the loan documents 

before the closing, and instead represented again that the 

prepayment penalty would be avoided or taken care of by the 

[Appellees] Bank [sic], who committed, at a minimum, fraud 

in the execution or negligent misrepresentation (which was 

not addressed by the [c]ourt).

11. The [c]ourt erred in ignoring the final letter from NexTier 

Bank, which indicated that the amount owed, including the 

prepayment penalty, exceeded $7.3 million.

12. The [c]ourt erred in concluding that the total payoff 

amount of the NexTier loan, including the prepayment 

penalty, was $7,121,628.69, as this was contrary to the 

evidence presented by [Appellants], which was not 

controverted by [Appellees].

13. The [c]ourt erred in concluding that [Appellants] were 

required to approach or notify [Appellees] immediately upon 

being sued by NexTier in order to recover, and by ignoring, in 

any event, [Appellants’] testimony that they did believe [that] 

they advised [Appellees] upon being sued by NexTier through 

their former in-house counsel.

14. The [c]ourt erred in concluding that the primary purpose of 

the financing from Penn Security was not to avoid the 

prepayment penalty, where all evidence suggested that 

avoiding the prepayment penalty was a significant purpose of 

the loan, where the uncontroverted evidence showed that 

[Appellants] had several options from banks with similar or 

better financial terms, and where the person in charge of the 

project for [Appellants], with the authority to choose the bank 

(Daniel P. Wukich) testified that the only reason he selected 

the [Appellee] Bank over the other lenders was because of its 

representations regarding the prepayment penalty.

15. The [c]ourt erred by ignoring uncontroverted testimony 

that [Appellees] Best and Misterman would cause [Appellee] 

Bank to take care of the prepayment penalty if it was 

assessed by NexTier, notwithstanding the [Appellees’] 
J-A12019-17

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representations.

16. The [c]ourt erred in concluding that the Penn Seucirty loan 

proceeds were sufficient to cover the principal and interest on 

the NexTier loan, as well as the prepayment penalty.

17. The [c]ourt erred in placing undue reliance on the selfserving testimony of [Appellee] Craig Best regarding his 

statements of ‘opinion,’ where the uncontroverted evidence 

and admission of the [Appellees], in writing, was that the loan 

was being utilized to avoid a significant prepayment penalty, 

thus making his self-serving testimony incredible per se.

Appellants’ Br. at 27-30 (reciting issues presented in Appellants’ 1925(b) 

statement). 

It is well-established that a 1925(b) statement “must be ‘concise’ and 

‘coherent’ such that the trial judge may be able to identify the issues to be 

raised on appeal, and the circumstances must not suggest the existence of 

bad faith.” Jiricko v. Geico Insurance Company, 947 A.2d 206, 211 (Pa. 

Super. 2008). Where the statement is so incoherent, confusing, or 

redundant that it impairs appellate review, issues in the statement are 

deemed waived. Jiricko, 947 A.2d at 213. “Specifically, this Court has held 

that when appellants raise an ‘outrageous’ number of issues in their 1925(b) 

statement, the appellants have ‘deliberately circumvented the meaning and 

purpose of Rule 1925(b) and ha[ve] thereby effectively precluded appellate 

review of the issues [they] now seek to raise.’” Id. (quoting Tucker v. R.M. 

Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (quoting Kanter v. Epstein, 

866 A.2d 394, 401 (Pa. Super. 2004) (finding issues waived where concise 

statement was “anything but concise”).
J-A12019-17

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We caution appellants against presenting voluminous and redundant 

issues on appeal. In their brief, Appellants effectively reorganized these 

issues into five arguments, divided with an appropriate number of 

subheadings, and effectively reduced a number of the redundant issues. 

See Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as 

there are questions to be argued[.]”). Here, the trial court has not indicated 

that its ability to review the issues presented was impeded by Appellants’ 

lengthy statement. Accordingly, we decline to find waiver and will proceed 

to address the questions in the order presented in their arguments. See

Appellants’ Br. at 4-5. However, the issues not raised in Appellants’ 

argument section of the brief are deemed waived for lack of development. 

Pa.R.A.P. 302, 2101.6 

Appellants have referenced standards of review for both JNOV and a 

new trial. See Appellants’ Br. at 3. We will evaluate Appellants’ issues 

based on the specific request for relief included in the relevant analysis. 

See Irwin Union Nat. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1103 

____________________________________________

6 We will address the issues raised in their arguments in the following order: 

(1) whether Appellants’ waived their right to a jury trial; (2) whether the 

evidence established their claims for promissory estoppel, negligent 

misrepresentation, and common law indemnification; (3) whether the court 

erred in rendering its legal conclusion that the agreement was fully 

integrated agreement and whether the parol evidence rule applied; (4) 

whether the court failed to consider certain evidence; and (5) whether the

court properly assessed the weight of Best’s testimony. See Appellant's Br. 

at 5-6. After careful review, we deem issues eight and thirteen waived.
J-A12019-17

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(Pa. Super. 2009) (noting that “[w]hen deficiencies in a brief hinder our 

ability to conduct meaningful appellate review, we may dismiss the appeal 

entirely or find certain issues to be waived”) (citing Pa.R.A.P. 2101).

Our standard of review is well-settled:

Our appellate role in cases arising from non-jury trial verdicts is 

to determine whether the findings of the trial court are 

supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of 

fact of the trial judge must be given the same weight and effect 

on appeal as the verdict of a jury. We consider the evidence in a 

light most favorable to the verdict winner. We will reverse the 

trial court only if its findings of fact are not supported by 

competent evidence in the record or if its findings are premised 

on an error of law. However, [where] the issue ... concerns a 

question of law, our scope of review is plenary.

The trial court's conclusions of law on appeal originating from a 

non-jury trial are not binding on an appellate court because it is 

the appellate court's duty to determine if the trial court correctly 

applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664–

65 (Pa. Super. 2014) (quoting Wyatt, Inc. v. Citizens Bank, 976 A.2d 

557, 564 (Pa. Super. 2009) (internal citations omitted)). Although the trial 

court does not provide a detailed legal analysis in its opinion, “this Court 

may affirm a decision of the trial court when it is correct on any legal ground 

without regard to the ground upon which the trial court relied.” Williams v. 

Wade, 704 A.2d 132, 135 (Pa. Super. 1997). 

First, Appellants seek a new trial based on the allegation that the trial 

court erred in denying their constitutional right to a jury trial. According to 

Appellants, the jury trial waiver in the Agreement with Penn Security Bank 
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did not necessarily apply to the claims asserted against Appellees Best and 

Misterman individually. Appellants also contend that it is not certain 

whether their claims arose out of the Agreement so as to implicate the 

waiver. See Appellants’ Br. at 11-12 (citing in support PA. CONST. Art. 1, § 

6). 

In response, Appellees argue that the jury trial waiver in the 

Agreement applied to Penn Security and its agents for all claims arising from 

the oral statements made during the course of negotiations prior to 

execution of the Agreement. See Appellees’ Br. at 40 (citing in support 

persuasive authority from the Third Circuit, Tracinda Corp. v. Daimler 

Chysler AG, 502 F.3d 212, 225 (3d Cir. 2007), holding: “[W]hen a valid 

contractual jury trial waiver provision applies to a signatory corporation, the 

waiver also applies to nonsignatory directors and officers seeking to invoke 

the waiver as agents of the corporation.”).

Here, the trial court found that the jury trial waiver applied equally to 

claims against Penn Security and its agents because Appellees Best (as CEO) 

and Misterman (as VP) were acting on behalf of and in their capacity as 

agents of Penn Security when the acts underlying the causes of action arose. 

See 1925(a) Opinion, 9/9/2016, at 2. Our standard of review is as follows:

The interpretation of any contract is a question of law and this 

Court's scope of review is plenary. Moreover, we need not defer 

to the conclusions of the trial court and are free to draw our own 

inferences. In interpreting a contract, the ultimate goal is to 

ascertain and give effect to the intent of the parties as 

reasonably manifested by the language of their written 
J-A12019-17

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agreement. When construing agreements involving clear and 

unambiguous terms, this Court need only examine the writing 

itself to give effect to the parties' understanding. This Court 

must construe the contract only as written and may not modify 

the plain meaning under the guise of interpretation.

Stephan, 100 A.3d at 665 (quoting Humberston v. Chevron U.S.A., Inc., 

75 A.3d 504, 509–10 (Pa. Super. 2013) (internal quotation marks and 

citations omitted)).

An agency is created when the principal deliberately and specifically 

grants an agent express authority as to certain matters. Walton v. 

Johnson, 66 A.3d 782, 786 (Pa. Super. 2013). The prima facie

demonstration of agency “is the notion that the agent has authority to alter 

the principal's relationships with third parties, such as binding the principal 

to a contract.” Basile v. H & R Block, 761 A.2d 1115, 1121 (Pa. 2000).7 

“The burden of establishing an agency relationship rests with the party 

asserting the relationship.” eToll, Inc. v. Elias/Savio Advert., Inc., 811 

A.2d 10, 21 (Pa. Super. 2002) (quoting Basile, 761 A.2d at 1120) (citation 

omitted). 

Here, Penn Security manifested an intention for Best and Misterman to 

act as its agents by giving Best and Misterman the authority to negotiate the 

____________________________________________

7 See also RESTATEMENT (SECOND) OF AGENCY § 12: Agent as Holder of Power 

(“An agent or apparent agent holds a power to alter the legal relations 

between the principal and third persons and between the principal and 

himself.”). 
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loan terms on Penn Security’s behalf. Best executed the contract thereby 

binding Penn Security. See Basile, 761 A.2d at 1121. In this case, 

Appellants’ claims arise from Best and Misterman’s alleged 

misrepresentations during their exercise of apparent authority to act on 

behalf of Penn Security. Accordingly, the trial court correctly found that the 

individual Appellees were acting as agents of Penn Security.

Moreover, “[i]t is well-settled that the right to a jury trial may be 

waived either by conduct or by express statement.” Eighth N.-Val, Inc. v. 

William L. Parkinson, D.D.S., P.C., Pension Trust, 773 A.2d 1248, 1256 

(Pa. Super. 2001) (citations omitted). Here, the Agreement contained the 

following provision in bold font in clear and conspicuous language:

17. WAIVER OF JURY TRIAL. Each of the Borrowers and each of 

the Entity Guarantors and William Penn irrevocably waive all and 

any right any of them may have to a trial by jury in any action, 

proceeding, or claim of any nature regarding the Term Loan, any 

of the documents executed in conjunction with the Term Loan or 

any transaction contemplated in any such documents. Each of 

the Borrowers and each of the Entity Guarantors acknowledge 

that the foregoing waiver is knowing and voluntary.

Trial Exhibit 8, Agreement ¶ 17. 

Here, the court found that the purpose of the loan was to secure 

financing for a new facility by using the William Penn property as collateral. 

In order to pledge that property as collateral, Appellants needed to prepay 

the NexTier loan. Therefore, prepayment of the loan was a transaction 

contemplated by the parties in entering into the Agreement. Accordingly, 

the court did not err and a new trial is not warranted.
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Next, we proceed to address issues two, three, four, and five. 

Appellants contend that the court erred in failing to consider their causes of 

action for promissory estoppel, negligent misrepresentation, and 

indemnification. See Appellants’ Br. at 13. In their brief, Appellants’ 

argument is divided into three subparts. Essentially, they argue that the 

evidence presented was sufficient to support each claim. See id. at 13-19. 

In response, Appellees contend that the trial court’s factual findings 

were sufficient to dispose of Appellants’ claims. See Appellees’ Br. at 13-29. 

The trial court declined to address Appellants’ claims individually; it 

found that there was simply no basis upon which Appellees should be liable 

to Appellants. See TCO, 4/13/2016, at 7; TCO, 7/28/2016, at 4. The trial 

court has failed to prove a “reasoned basis” for its decision. See Cooke v. 

Eq. Life Assur. Soc. of U.S., 723 A.2d 723, 727 (Pa. Super. 1999) 

(declining to remand to trial court to prepare an opinion providing a 

reasoned basis for the court’s decision where such reasoning is not fatal for 

our review). “Ordinarily, the remedy for non-compliance with the Pa.R.A.P. 

1925(a) is a remand to the trial court with directions that an opinion be 

prepared and returned to the appellate court.” Gibbs v. Herman, 714 A.2d 

432, 435 (Pa. Super. 1998) (quotation omitted). 

The record in this particular case is sufficient for appellate review and 

in the interests of judicial economy, we shall address the merits of 

Appellants’ arguments. See Gibbs, 714 A.2d at 437 (affirming the trial 

court’s decision despite noncompliance with Pa.R.A.P. 1925(a)). As noted 
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previously, this Court may affirm the trial court’s decision to a deny a new 

trial on any proper legal ground. Williams, 704 A.2d at 135. 

In order to prevail on any of these claims, Appellants needed to 

establish that the evidence more likely than not would enable the factfinder 

to find all of the necessary elements of the causes of action were established 

by a preponderance of the evidence. Samuel-Bassett v. Kia Motors 

America, Inc., 34 A.3d 1, 34-35 (Pa. 2011). We will address each of 

Appellants’ claims individually.

In order to maintain an action in promissory estoppel, the 

aggrieved party must show that 1) the promisor made a promise 

that he should have reasonably expected to induce action or 

forbearance on the part of the promisee; 2) the promisee 

actually took action or refrained from taking action in reliance on 

the promise; and 3) injustice can be avoided only by enforcing 

the promise. As promissory estoppel is invoked in order to avoid 

injustice, it permits an equitable remedy to a contract dispute.

Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000) (citation 

omitted); see also RESTATEMENT (SECOND) OF CONTRACTS § 90.

Appellants argue that Appellees should be estopped from denying that 

their oral promises induced Appellants to enter into the Agreement. See 

Appellants’ Br. at 15-16. Appellants alleged that they were told by Appellee 

Best that “Penn Security would ‘take care of [the prepayment penalty]’ and 

make it right.” Id. Appellants alleged that “promises made by Best and 

Misterman to pay any prepayment penalty incurred in connection with the 

NexTier loan” constituted “a contract in that the promise was supported by 

the consideration of [Appellants] entering into the [Agreement] and 
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executing guarantees and mortgages.” Id. at ¶ 61.8 

The trial court found Appellants to be “experienced, sophisticated, 

business-savvy, entrepreneurs who were determined to find financing to 

build a new assisted living facility.” TCO, 7/28/2016, at 3. The court found 

that Appellees testified credibly that the “creative suggestion and opinion 

about the way in which the prepayment penalty might be avoided was just 

that – an idea or contrivance that may or may not work.” Id. Moreover, 

the court found that “[Appellants] understood it as such, and took a 

calculated business risk, when they moved forward with the Penn Security 

loan.” Id. Further, the court found the testimony regarding the discussions 

“vague and contradictory.” TCO, 4/13/2016, at 4. The trial court concluded 

that the representations were not misstatements of fact intended to induce 

Appellants to borrow money from Penn Security Bank or to act to their 

detriment. TCO, 4/13/2016, at 6-7. 

Based on the evidence presented and the trial court’s findings, 

Appellants failed to establish the elements necessary to support a cause of 

____________________________________________

8 Appellants’ claim is akin to a claim of fraud in the inducement. The trial 

courts commonly apply the parol evidence rule to bar the admission of 

extrinsic evidence of an oral promise made prior to or contemporaneous with 

an Agreement that allegedly induced a party to enter into it when the court 

finds that the agreement was fully integrated. See Kehr Packages, 710 

A.2d at 1174-75; see also Hart v. Arnold, 884 A.2d 316, 340 (Pa. Super. 

2005) (“The rationale for this rule of law is that a party cannot justifiably 

rely upon prior oral representations and then sign a contract containing 

terms that refute the alleged prior oral representations.”).
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action for promissory estoppel. Specifically, Appellants failed to prove that 

the alleged promise was reasonably expected to induce reliance or that 

Appellants took action based on the purported promise. Accordingly, we 

discern no legal error or abuse of the trial court’s discretion in dismissing 

this claim.

Appellants’ negligent misrepresentation claim also fails. 

Negligent misrepresentation requires proof of: (1) a 

misrepresentation of a material fact; (2) made under 

circumstances in which the misrepresenter ought to have known 

its falsity; (3) with an intent to induce another to act on it; and 

(4) which results in injury to a party acting in justifiable reliance 

on the misrepresentation. ...[T]he misrepresentation must 

concern a material fact and the speaker need not know his or 

her words are untrue, but must have failed to make a reasonable 

investigation of the truth of these words. Moreover, like any 

action in negligence, there must be an existence of a duty owed 

by one party to another.

Milliken v. Jacono, 60 A.3d 133, 141 (Pa. Super. 2012) (emphasis in 

original) (citations omitted), aff'd, 103 A.3d 806 (Pa. 2014), as modified on 

reconsideration (Nov. 12, 2014). 

The trial court made the following findings: (1) the alleged 

misrepresentations were not material to the 2011 Penn Security loan 

transaction; (2) Misterman specifically encouraged Appellants to seek legal 

counsel on this issue for a more definitive answer; (3) Appellants were 

familiar with prepayment penalty provisions based on past experiences; (4) 

Appellants took a calculated business risk when they moved forward with the 

terms of the loan; and (5) what actually induced Appellants to enter into the 
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Agreement with Penn Security was a burning desire to finance their new 

venture, not their desire to avoid the prepayment penalty. TCO, 4/18/2016, 

at 7; TCO, 7/28/2016, at 3, 7. 

Based on the trial court’s findings, Appellants failed to establish by a 

preponderance of the evidence the elements necessary to sustain a cause of 

action for negligent misrepresentation. In particular, the court found that 

Appellants did not establish by a preponderance of the evidence that the 

alleged misrepresentations induced them to enter into the Agreement. 

Accordingly, we discern no abuse of the trial court’s discretion or error of law 

in dismissing this claim.

Appellants’ claim for indemnification also fails. In order to assert a 

right to indemnification, the party must generally establish an underlying 

right to indemnification. See McClure v. Deerland Corp., 585 A.2d 19, 22 

(Pa. Super. 1991) (noting that such a right includes the legal issue of the 

scope of the indemnification agreement). An action for indemnity is an 

action at law for damages based on breach of contract. Id. at 23 (citing 

Allegheny Plastics v. Stuyvesant Ins. Co., 200 A.2d 775 (1964)).

Appellants’ indemnification claim is based on Wukich’s own testimony 

that Best said he or Penn Security would “take care” of the prepayment 

penalty. See Appellants’ Br. at 18. The court found Best’s testimony more 

credible than Wukich’s and noted that Wukich conceded on crossexamination that he never discussed the penalty with Best. See TCO, 
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4/13/2016, at 3-4. Based on the trial court’s findings, the purported oral 

promise of indemnity was not credible. Moreover, we find that Wukich’s 

self-serving testimony does not establish an implied oral agreement for 

indemnity and that Appellants presented no evidence of a written 

indemnification agreement to support their claim. See McClure, supra. 

Accordingly, we discern no legal error or abuse of the trial court’s discretion 

in rejecting this claim. 

Next, we will address issues six and nine. Appellants present a single 

argument with regard to these issues in their brief. First, they contend that 

the trial court erred in finding the final Penn Security loan closing documents 

fully integrated. See Appellants’ Br. at 19. They argue that Appellees failed 

to meet their burden in showing that the Agreement was fully integrated at 

trial. See id. at 20 (citing in support Kehr Packages, Inc. v. Fidelity 

Bank, Nat. Ass'n, 710 A.2d 1169, 1173 (Pa. Super. 1998)). Second, 

Appellants suggest that the court erred in applying the parol evidence rule. 

See id. According to Appellants, parol evidence was admissible “to explain 

and supplement a written agreement where such evidence shows the writing 

in question was not intended to, or did not state the entire agreement 

between the parties.” See id. at 19-20. 

[O]ur standard of review regarding a challenge to the 

admissibility of evidence is very narrow; we will only reverse a 

ruling of the trial court if there is an abuse of discretion or error 

of law. The parol evidence rule states that, absent fraud, 

accident, or mistake, parol evidence of a prior or 

contemporaneous oral agreement is not admissible to alter, 
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vary, modify, or contradict terms of a contract which has been 

reduced to an integrated written instrument. 

Kehr Packages, 710 A.2d at 1172 (internal citations omitted).

“[B]efore the parol evidence rule is applied, the court must determine, 

as a matter of law, whether the writing at issue is an integrated agreement.” 

Kehr Packages, 710 A.2d at 1173 (citation omitted). “A written contract is 

‘integrated’ if it represents a final and complete expression of the parties' 

agreement.” Id. at 1173. To determine if an agreement is a final 

expression, the court must assess the text to determine the completeness of 

the written agreement that the oral statement purportedly modifies. See id.

at 1173-74. 

[W]e are mindful that typically, in cases such as this, ‘where the 

cause of action rests entirely on an alleged oral understanding 

concerning a subject which is dealt with in a written contract, it 

is presumed that the writing was intended to set forth the entire 

agreement as to that particular subject.’ Gianni v. R. Russell 

& Co., Inc., 126 A. 791 (Pa. 1924) (landmark case discussing 

parol evidence rule). Further, it is well established that parol 

evidence of a contemporaneous oral agreement is inadmissible if 

the subject of such agreement would naturally and normally 

have been included in the writing between the parties. Gemini 

Equipment [v. Pennsy Supply, 595 A.2d 1211, 1215 (Pa. 

Super. 1991)], (stating that ‘parol evidence is not admissible to 

show an agreement which normally is found in the written 

instrument.’). Therefore, if the written agreement and the 

alleged oral agreement ‘relate to the same subject-matter and 

are so interrelated that both would be executed at the same 

time, and in the same contract, the scope of the [oral] 

agreement must be taken to be covered by the writing.’ Gianni, 

126 A. at 792.
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Kehr Packages, 710 A.2d at 1174 (emphasis added).9

Although Appellees requested application of the parol evidence rule 

several times, the record indicates that the trial court denied Appellees’ 

motions and declined to apply the parol evidence rule. See, e.g., Notes of 

Testimony (N.T.), 12/4/2015, 409. 10 Contrary to Appellants’ contention, all 

testimonial and documentary evidence appears to have been factored into 

the trial court’s decision. Thus, we reject the premise of Appellants’ 

allegation of error. 

Here, the court’s ruling was not based on application of the parol 

evidence rule, but rather on a credibility assessment of the extrinsic 

____________________________________________

9

In Kehr Packages, the bank appealed from the entry of a judgment in 

favor of the plaintiffs for breach of contract, promissory estoppel, negligent 

misrepresentation, and tortious interference with a contract arising out of an 

alleged oral agreement made during the course of settlement of a credit 

agreement. Kehr Packages, 710 A.2d at 1171-72. On appeal, the bank 

argued that the evidence concerning an oral agreement or modification 

made during the course of settlement was barred by the parol evidence rule. 

Id. at 1172. The parties signed multiple interrelated documents at the time 

of settlement and the final agreement did not contain an integration clause. 

Notwithstanding, the Superior Court found the credit agreement in that case 

was a fully integrated contract because the contents of the alleged oral 

agreement and credit agreement “relate to the same subject-matter and are 

greatly interrelated.” Id. This Court reversed the trial court since the 

alleged oral promise was “the type of thing that would natural and normally 

have been contained in the written [c]redit [a]greement.” Id. at 1174.

10 Appellees filed two pre-trial motions in limine to preclude testimony 

barred by the parole evidence rule, which the trial court denied. In addition, 

Appellees moved to dismiss all claims based on the parol evidence rule after 

the evidence was presented at trial. See N.T., 12/4/2015, at 405-409. 

Throughout, it was Appellees position that the Agreement constituted a final 

expression of Penn Security’s obligations in the loan transaction. 
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evidence offered in support of a collateral legal obligation created by an oral 

promise. The court found the parol evidence not credible to support a 

separate, legally enforceable oral promise to cover the prepayment penalty. 

See TCO, 4/13/2016, at 6. 

Nevertheless, Appellants argue that the court erred in finding the 

Agreement fully integrated because the Agreement does not contain an 

integration clause and references other loan documents.11 Appellants’ 

argument is without merit because it is well-established that the absence of 

an integration clause does not preclude the trial court from finding an 

agreement to be fully integrated. See Kehr Packages, 710 A.2d at 1173 

(reasoning that an agreement need not contain an integration clause if the 

written instrument represents the final expression of the parties’ 

agreement). 

Here, the trial court found that “the final written loan agreement 

between Penn Security and [Appellants] contains no mention of NexTier’s

prepayment penalty, and this agreement embodies the entire agreement of 

the parties.” TCO, 4/13/2016, at 7. Here, the Agreement clearly manifests 

the intentions and obligations of both parties by specifying, inter alia, the 

____________________________________________

11 Notably, Appellants do not assert that the Agreement fraudulently omitted 

any term, such as the alleged promise to cover the prepayment penalty, 

from the Agreement, nor do they assert that this omission was a mistake. 

Specifically, Appellants claim that the court failed to consider the board 

memorandum. See Appellants’ Br. at 20-21. We address this claim, infra.
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amount of the term loan, calculation of interest, payment provisions, and 

Appellants’ obligations. Applying the Kehr Packages test summarized 

above, the court did not err in finding the Agreement fully integrated. 

Furthermore, although the trial court did not apply the parol evidence 

rule to exclude evidence, it would have been proper to do so. In this case, 

the alleged oral promise to “cover” a prepayment penalty of over 

$200,000.00 would naturally and normally have been incorporated into the 

terms of the loan and the parties’ integrated Agreement. See Kehr 

Packages, 710 A.2d at 1174. Thus, pursuant to Kehr Packages, the parol 

evidence rule was applicable. Accordingly, Appellants are not entitled to 

relief and we affirm the denial of a new trial on this ground. See Williams, 

704 A.2d at 135. 

Next, we will address issues seven, ten, and fourteen, in which 

Appellants claim that they are entitled to a new trial based on the allegations 

that the court failed to consider various pieces of evidence. See Appellants’ 

Br. at 21-23. 

In issue seven, Appellants contend that the court failed to consider the 

memorandum to Penn Security’s board of directors. The memorandum 

proposed a complicated loan structure and then stated “[t]his structure is 

being used to avoid a significant prepayment penalty.” See Appellants’ Br. 

at 23 (citing Trial Ex. 5, p. 4). According to Appellants, this memorandum 

evidenced that the purpose of the loan agreement was to avoid the 
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prepayment penalty. 

This memorandum was prepared two months before execution of the 

Agreement for the purpose of informing Penn Security’s board about the 

proposed loan transaction. The memorandum did not establish any 

independent legal obligation of Penn Security to Appellants. Because the 

court found that any legal obligations were established by the fully 

integrated Agreement, the court did not err in failing to consider the board 

memorandum to the extent that it related to matters addressed in the final 

written Agreement entered into by the parties. See Kehr Packages, 710 

A.2d at 1174-75. 

Contrary to Appellants’ argument, the trial court found that “the 

primary purpose of the new financing was to finance the new project, not to 

avoid a fee.” See TCO, 4/13/2016, at 7. Even if the memorandum was 

admissible to explain certain terms of the parties’ Agreement, the 

memorandum itself is not binding on Penn Security or Appellants in any 

manner. Thus, we defer to the findings of the trial court and we discern no 

abuse of discretion. 

In issue ten, Appellants assert that the court failed to consider 

evidence that they did not have an opportunity to review the loan 

documents before closing. Appellants’ Br. at 22 (citing N.T. at 80-83). They 

maintain that such evidence supported their claim for fraud in the execution. 

See id. 
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Our review of the record reveals that Appellants mischaracterize the 

notes of testimony cited in their brief. Misterman testified that the loan 

documents were redrafted several times. See N.T. at 81. Misterman 

forwarded the final version for Appellants to review prior to closing. See id. 

He testified that Appellants “were in a hurry to close, [Penn Security and its 

officers] were trying to accommodate their schedule.” See id. The actual 

closing lasted approximately two hours. Id. at 83-84. Misterman also 

denied promising to take care of the NexTier penalty at closing. See id. at 

85-86. According to the factfinder: 

[Appellants] were moving full steam ahead, and Daniel J. 

admitted that even if they had been advised by lenders that they 

would have to pay the penalty in order to pay off the existing 

NexTier loan, they still would have gone ahead with the new 

project.

See TCO, 4/13/2016, at 5-6 (noting that Appellants had also obtained 

building permits prior to securing the necessary financing). 

Based on our review of the record, Appellants had sufficient time to 

review the loan closing documents. As a matter of law, Appellants bore the 

risk of any mistake resulting from their failure to include alleged oral 

statements at closing into the final agreement.

12

 Accordingly, no relief is 

due.

____________________________________________

12 See, e.g., Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 411 (Pa. 

Super. 2010) (quoting RESTATEMENT (SECOND) CONTRACTS § 154: When A Party 

Bears the Risk of a Mistake).
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In issue fourteen, Appellants contend that the court failed to consider 

testimony regarding the loan options Appellants had discussed with other 

banks before entering into the Agreement with Penn Security. See 

Appellants’ Br. at 22 (citing N.T. at 295-296). Appellants suggest that they 

entered the Agreement with Penn Security based on an alleged arrangement 

to avoid the prepayment penalty, despite their “other options.” Their 

argument is unconvincing in light of the factfinder’s conclusion that 

Appellants decided to work with Penn Security based on their relationship 

with Best. See TCO, 4/13/2016, at 5 (“When [Appellants] were frustrated in 

their attempts to work with NexTier on obtaining financing for the new 

project, they turned to Best, who they had kept apprised of the situation.”). 

As the trial court’s findings are supported by the record, see, e.g., N.T. at 

201, we discern no abuse of discretion. Accordingly, no relief is due.

Next, we will address issues eleven, twelve, and sixteen. Appellants 

combined these issues under a single subheading in their brief, in which they 

assert that the trial court erred in concluding that the Penn Security loan of 

$7,121,628.69 was sufficient to cover the principal amount and the 

prepayment penalty. See Appellants’ Br. at 23. Appellants claim that they 

are entitled to relief in the form of JNOV or, in the alternative, a new trial. 

See id. 

In reviewing the trial court’s denial of JNOV, we must consider all of 

the evidence admitted to decide if there was sufficient competent evidence 
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to sustain the verdict, drawing all inferences in a manner favorable to the 

verdict winner. See V-Tech Services, Inc. v. Street, 72 A.3d 270, 275 

(Pa. Super. 2013) (“If any basis exists upon which the [court] could have 

properly made its award, then we must affirm the trial court's denial of the 

motion for JNOV. A JNOV should be entered only in a clear case.”) (citations 

omitted)). 

The trial court acknowledged that it had made a numerical mistake in 

its opinion dated June 28, 2016,13 however, the court reasoned that this was 

harmless error and noted that “this fact is inconsequential in the overall 

scheme of things.” Trial Ct. Op., 7/28/2016, at 1, 3. We agree. Moreover, 

Appellants make no effort to explain how a contrary finding would affect the 

verdict on any specific claim. Thus, Appellants are not entitled to relief. 

Accordingly, we affirm the trial court’s denial of JNOV and a new trial. 

Finally, we will address Appellants’ fifteenth and seventeenth issues, 

which they discuss under a single argument heading in their brief. See

Appellants’ Br. at 23-24. Appellants contend that the court erred in “in 

____________________________________________

13 The correct payoff amount was indicated in a letter NexTier Bank sent to 

Appellants dated March 29, 2011. See Trial Ct. Op., 7/28/2016, at 2. The 

correct payoff amount for the notes and loan, including the penalty, was 

$7,334,198.75. See id. The trial court adhered to its prior ruling on the 

basis that the $7.1 million loan from Penn Security was relatively close to 

the amount of principal amount due, $7,121,628.69, before the prepayment 

penalty was imposed. See id. at 2-3 (noting that this amount was “only a 

few dollars short (in relative terms) of the proceeds” of the Penn Security 

loan). 
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placing undue reliance on the self-serving testimony of Craig Best” and 

request relief in the form of a new trial. See id. Our standard of review to 

a challenge based on the weight of the evidence is as follows.

A new trial will be granted on the grounds that the verdict is 

against the weight of the evidence where the verdict is so 

contrary to the evidence it shocks one's sense of justice. An 

appellant is not entitled to a new trial where the evidence is 

conflicting and the finder of fact could have decided either way.

Betz v. Erie Ins. Exch., 957 A.2d 1244, 1252 (Pa. Super. 2008) (citations 

and quotation marks omitted). 

Ordinarily, ‘[i]t is well established that the credibility of 

witnesses is an issue to be determined by the trier of fact. On 

appeal this Court will not revisit the trial court's determinations 

... regarding the credibility of the parties. Thus, [an] argument, 

which would require this Court to revisit and essentially reverse 

the [trial court] on his credibility determinations, provides no 

grounds for relief.’

Stephan v. Waldron Elec., 100 A.3d 660, 667 (Pa. Super. 2014) (quoting 

Woods v. Cicierski, 937 A.2d 1103, 1105 (Pa. Super. 2007)).

In this section, Appellants merely contend that the court improperly 

weighted Best’s testimony. The only contradictory evidence they point to is 

the board memorandum, which we have addressed supra. As discussed 

above, it is not the role of the appellate court to weigh credibility of the 

evidence presented at trial on appeal. Stephan, 100 A.3d at 667. We defer 

to the findings in the court’s ruling as they are supported by the record and 

therefore, they will not be disturbed. Accordingly, no relief is due. 

Judgment affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2017