J-A02030-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TODD KENNEDY

v.

MCCLARIN PROPERTIES, LLC AND 

MARTIN STEIN 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 979 MDA 2018

Appeal from the Order Entered May 17, 2018

In the Court of Common Pleas of York County Civil Division at No(s): 

2017-SU-001621

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 09, 2019

McClarin Properties, LLC (McClarin” and Martin Stein (collectively, 

Appellants) appeal from the order, entered in the Court of Common Pleas of 

York County, granting partial summary judgment in favor of Todd Kennedy 

regarding his claims for breach of contract, specific performance, and 

injunctive relief.

1

 After careful review, we affirm.

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1 We note the Appellants’ appeal, which pertains to the issuance of an 

injunction and an order for specific performance, is properly before this Court 

as an interlocutory appeal as of right. See Pa.R.A.P. 311(a)(4) (permitting 

interlocutory appeal as of right where court issues order that “grants or denies 

. . . an injunction unless the order was entered . . . [p]ursuant to 23 Pa.C.S. 

§§ 3323(f), 3505(a); or [a]fter a trial but before then entry of the final 

order[,]” circumstances which are not implicated in instant appeal); see also

Wynnewood Development, Inc. v. Bank and Trust Co. of Old York 

Road, 711 A.2d 1003, 1003–1005 (Pa. 1998) (finding order dismissing 

portion of complaint requesting injunctive relief and specific performance, but 

leaving for trial compensatory damages claim, interlocutory order appealable 

as of right pursuant to Rule 311(a)(4)). 
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On January 15, 2015, Stein, the managing partner of McClarin, executed 

a written agreement (Letter Agreement) with Kennedy, under which Stein and 

Kennedy would each personally guarantee McClarin’s payment and 

performance on a loan agreement between McClarin and Adams County 

National Bank (ACNB) in the principal amount of $3,750,000. In consideration 

for taking on the responsibilities of a guarantor, Kennedy was to receive 

$50,000 on or before June 15, 2015. Both Kennedy and Stein signed the 

Letter Agreement. 

The Letter Agreement, in its entirety, reads as follows:

Reference is hereby made to the Loan Agreement (“Loan 

Agreement”) between McClarin Properties, LLC and ACNB Bank, a 

Pennsylvania financial institution (“ANCB”), for the acquisition of 

certain real properties owned by McClarin Plastics, Inc. located at 

15 Industrial Drive and 211 North Blettner Avenue. Capitalized 

terms used herein which are not otherwise defined shall have the 

meanings ascribed to such terms in the Loan Agreement. 

ANCB requires that personal guaranties be executed in connection 

with the financing set forth in the Loan Agreement, which you 

[Kennedy] and I [Stein] have agreed to provide subject to the 

terms set forth herein. Thus, intending to be legally bound, the 

parties agree as follows:

1. Martin Stein and Todd Kennedy shall each execute a 

personal guaranty in favor of ANCB guarantying the 

payment and performance of the obligations of McClarin 

Properties to ANCB under the terms of the Loan Documents 

(together, the “Guaranties,” and individually, the “Todd 

Kennedy Guaranty”). The Todd Kennedy agreement will 

expire after 6 months from the date of execution. 

2. McClarin Properties, LLC, in the first instance, and Martin 

Stein agree to indemnify and hold you [Kennedy] and your 

affiliates harmless from and against all claims, liabilities, 

obligations, costs, damages, losses and expenses (including 
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reasonable attorneys’ fees and costs of investigation) of any 

nature (collectively, “Losses”) arising out of or relating to 

any claims made under the Todd Kennedy Guaranty. 

3. In consideration for your execution of the Todd Kennedy 

Guaranty referenced in paragraph 1, McClarin Properties, 

LLC will pay you [Kennedy] $50,000 the sooner of June 15, 

015 [sic], a refinance of the underlying loan or when the 

Todd Guaranty is removed (which in no case will be more 

than 6 months from the date of execution).

Letter Agreement, 1/15/15, at 1. 

On August 17, 2017, Kennedy filed a complaint raising claims of breach 

of contract, unjust enrichment, and fraud against McClarin, and claims of

permanent injunctive relief and specific performance against the Appellants. 

All claims concerned the Appellants’ failure to pay Kennedy $50,000 or release 

him as a guarantor. On December 7, 2017, Kennedy filed a motion for partial 

summary judgment with regard to all claims except fraud.

2

 Kennedy’s motion 

specifically requested the trial court issue an order “directing [the Appellants] 

to take all necessary action to remove the Guaranty and thereby release 

[Kennedy] from any liability of any kind . . . related to the Loan Agreement 

between McClarin and ACNB.” Motion for Partial Summary Judgment, 

12/7/17, at 11. 

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2 The trial court has yet to assess Kennedy’s fraud claim. 
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On May 17, 2018, the trial court granted Kennedy’s motion and entered 

partial summary judgment on his claims for breach of contract,3injunctive 

relief, and specific performance. On June 7, 2018, the Appellants filed a 

motion for reconsideration. On June 15, the Appellants timely filed a notice 

of appeal. On June 27, 2018, the trial court denied their motion for 

reconsideration. Both the Appellants and the court complied with Pa.R.A.P. 

1925. 

The Appellants raise the following issues for our review:

1. Whether the lower court erred as a matter of law and abused 

its discretion by applying the incorrect legal standard for the 

granting of mandatory injunctive relief?

2. Whether the lower court erred as a matter of law and abused 

its discretion when it determined that there were no material 

facts in dispute, and drew all factual inferences in the favor 

of [Kennedy]?

3. Whether the lower court erred as a matter of law and abused 

its discretion by granting relief to [Kennedy] requiring 

[Appellants] to take action that they have no legal or 

contractual authority and/or ability to take?

4. Whether the lower court erred as a matter of law and/or 

abused its discretion by granting [Kennedy’s] request for 

specific performance where [Kennedy] failed to establish 

the elements necessary for such relief?

Brief of Appellant, at 5. 

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3 As the court granted relief with respect to breach of contract, it did not assess 

Kennedy’s claim for unjust enrichment, which he pleaded in the alternative. 
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Preliminarily, we examine which claims are preserved for our review. 

“[A]rguments not raised initially before the trial court in opposition to 

summary judgment cannot be raised for the first time on appeal.” Moranko 

v. Downs Racing LP, 118 A.3d 1111, 1116 (Pa. Super. 2015). As we 

previously stated:

[A] non-moving party’s failure to raise grounds for relief in the 

trial court as a basis upon which to deny summary judgment 

waives those grounds on appeal. . . . A decision to pursue one 

argument over another carries the certain consequence of waiver 

for those arguments that could have been raised but were not. 

This proposition is consistent 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.

Rohrer v. Pope, 918 A.2d 122, 128 (Pa. Super. 2007). 

The trial court found the Appellants first, third, and fourth claims4

waived, as the Appellants failed to raise these arguments “when responding 

to [Kennedy’s] request for partial summary judgment.” Pa.R.A.P. 1925(a) 

opinion, 8/14/18, at 6–7. The court explained its decision as follows:

[The Appellants’] brief in opposition to [Kennedy’s] motion for 

partial summary judgment only discussed the issue of whether 

[the Appellants] had sufficiently answered the complaint. [The 

court was] not asked to consider whether it would be impossible 

or impractical for [the Appellants] to perform under the injunction. 

[The court was] also not asked to address the issue of an 

injunction on the merits. . . . [The Appellants] were very much 

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4 The court referred to the first, third, and fourth issues in the Appellants’ Rule

1925(b) statement; these correspond directly to the first, third, and fourth 

issues in the Appellants’ brief. See Pa.R.A.P. 1925(a) Opinion, 8/14/18, at

5–6; see also Brief of Appellant, at 5.
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aware of what [Kennedy] was requesting in his counts for 

injunctive relief and specific performance. If [the Appellants] felt 

that it was impossible for them to take action pursuant to a 

preliminary injunction, then they should have raised this issue 

specifically in their answer, or in new matter, or at the very least, 

in their opposing brief.

Id. 

Kennedy’s Brief in Support of Motion for Summary Judgment highlighted

the following: 1) the standard by which permanent mandatory injunction 

claims are assessed;

5 2) the elements of a specific performance claim; and 3) 

the nature of relief sought under both permanent mandatory injunction and 

specific performance claims. See Brief in Support of Plaintiff’s Motion for 

Partial Summary Judgment, 12/7/17, at 7–13. At no point in the Appellants’

Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment do they 

address the standard by which they believed permanent mandatory 

injunctions claims should be evaluated,6the elements of a specific 

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5 Kennedy and the court referenced identical language outlining the standard 

governing permanent mandatory injunctions. See Brief in Support of 

Plaintiff’s Motion for Partial Summary Judgment, 12/7/17, at 10; see also 

Order Granting Plaintiff’s Motion for Summary Judgment, 5/17/18, at 14 

(quoting J.C. Erlich Co., Inc, v. Martin, 979 A.2d 862, 864 (Pa. Super. 2009) 

(“In order to establish a claim for a permanent mandatory injunction, the party 

must establish his or her clear right to relief. However, unlike a claim for a 

preliminary injunction, the party need not establish either irreparable harm or 

immediate relief and a court may issue a final injunction if such relief is 

necessary to prevent a legal wrong for which there is no adequate redress at 

law.”)). 

6 We note the Appellants incorrectly conflate the standard for preliminary

mandatory injunctions with that for permanent mandatory injunctions. See

Brief of Appellants, at 15 (citing Mazzie v. Commonwealth, 432 A.2d 985, 

986 (Pa. 1981) (concerning preliminary mandatory injunction)); see also 
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performance claim, or the impossibility of Kennedy’s requested relief pursuant 

to either a permanent mandatory injunction or specific performance.

7

 See 

Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment, 2/2/18, 

at 1–11. Instead, the Appellants exclusively focus on whether there was a 

genuine issue of material fact, entirely neglecting to entertain the arguments 

put forth by Kennedy as to why he was “entitled to relief as a matter of law[.]” 

Murphy, supra at 429 (emphasis added). 

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supra at n.5. Further, the Appellants largely support their argument with

decisions from the Commonwealth Court—decisions by which we are not 

bound. See Beaston v. Ebersole, 986 A.2d 876, 881 (Pa Super. 2009) 

(“[D]ecisions rendered by the Commonwealth Court are not binding on this 

Court”). 

7 Pennsylvania has adopted the definition of legal impossibility put forth by

section 261 of the Restatement (Second) of Contracts, which states as follows:

Where, after a contract is made, a party’s performance is made 

impracticable without his fault by the occurrence of an event the 

non-occurrence of which was a basic assumption on which the 

contract was made, his duty to render that performance is 

discharged, unless the language or the circumstances indicate to 

the contrary.

Restatement (Second) of Contracts § 261 (1981); accord Felix v. Giuseppe 

Kitchens & Baths, Inc., 848 A.2d 943, 947 (Pa. Super. 2004) (“It is well[-

]settled that a party assumes the risk of his or her own inability to perform 

contractual duties. A claim of personal inability to perform the actions 

contemplated . . . does not rise to the level of legal impossibility.”). Though 

the Appellants are not party to the agreement between Kennedy and ACNB, 

the Appellants could potentially seek to have Kennedy removed as a guarantor 

by refinancing the loan, an action explicitly contemplated by the Letter 

Agreement. See Letter Agreement, at 1. (“McClarin Properties, LLC will pay 

you [Kennedy] $50,000 the sooner of June 15, 015 [sic], a refinance of the 

underlying loan or when the Todd Guaranty is removed (which in no case will 

be more than 6 months from the date of execution).”) (emphasis added). 
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As the Appellants failed to argue the appropriateness of the standard 

under which permanent mandatory injunctions are imposed, the elements of 

a specific performance claim, or the impossibility of performing the relief 

requested by Kennedy as “grounds for relief in the trial court as a basis upon 

which to deny summary judgment[,]” the Appellants’ first, third, and fourth 

claims are consequently waived. Rohrer, supra at 128.

The sole claim preserved for our review is, therefore, whether “the lower 

court erred . . . when it determined . . . there were no material facts in dispute, 

and drew all factual inferences in favor of [Kennedy]?” Brief of Appellants, at 

5. The Appellants argue the following errors rendered partial summary 

judgment improper: 1) the Letter Agreement itself is ambiguous as to 

whether the Appellants owed a duty to remove Kennedy as a guarantor, 

necessarily making the court’s interpretation of the Letter Agreement an 

impermissible inference in favor of the moving party; and 2) the lower court 

improperly construed certain denials in the Appellants’ pleadings as

admissions and compounded that error by relying on that assessment in 

determining whether there was a material difference of fact. See id. at 20–

26. We address these arguments in reverse order, as the first argument turns

on the second. 

This Court evaluates the remaining claim under the following, wellestablished standard:

Our review on an appeal from the grant of a motion for summary 

judgment is well-settled. A reviewing court may disturb the order 

of the trial court only where it is established that the court 
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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. 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.

Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429 

(Pa. 2001) (citations and quotations omitted). 

The non-moving party cannot allege the existence of a genuine issue of 

material fact when the issue alleged was generally denied in the pleading, as 

“general denials constitute admissions where . . . specific denials are 

required.” See Bank of America, N.A. v. Gibson, 102 A.3d 462, 466–67

(Pa. Super. 2014); see also Bayview Loan Servicing LLC v. Wicker, 163 

A.3d 1039, 1044 (Pa. Super. 2017) (finding partial summary judgment 

appropriate where answer contained general denial relating to mortgage 

default, constituting admission); accord Pa.R.C.P. 1029(b) (“[A]verments 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 . . . shall have the effect of an admission.”).
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To determine whether a denial has been made with sufficient specificity, 

we review the responsive pleading as a whole. Cercone v. Cercone, 386 

A.2d 1, at 6 (Pa. Super. 1978). This Court views denials as insufficient where 

that denial fails to inform the trial court or the opposing party of the grounds 

forming the basis for that denial. Compare Swift v. Milner, 538 A.2d 28, 

30 (Pa. Super. 1988) (stating “Denied” to salient averments constituted 

general denial manifesting admission, warranting judgment on pleadings) and 

Stimely v. Dutchmen Mobile Homes, 361 A.2d 733, 737 (Pa. Super. 1976) 

(“Defendant’s broad denial that appellant’s rejection was pursuant to the 

Uniform Commercial Code cannot be said to have made Appellant or the lower 

court aware that it specifically denied that she had given timely notice of the 

rejection.”) (emphasis added) with U.S. Bank, N.A. v. Pautenis, 118 A.3d 

386, 395–98 (Pa. Super. 2015) (finding mortgagor did not admit to amount 

of indebtedness alleged in complaint when mortgagor presented sufficient 

evidence to support a finding that she as unable to ascertain amount owed on 

loans). 

At summary judgment, “it is [the non-moving party’s] responsibility to 

show that a genuine issue of fact exists by affidavit or otherwise.” Johnson 

v. Harris, 615 A.2d 771, 775 (Pa. Super. 1992). “Where the non[-]moving 

party bears the burden of proof . . . 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 he bears the burden of proof establishes the entitlement of the moving 
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party to judgment as a matter of law.” Krauss v. Trane U.S. Inc., 104 A.3d 

556, 563 (Pa. Super. 2014). 

Our examination of the pleadings in their totality belies the Appellants’ 

assertion that the trial court erred in finding certain pleadings constituted 

admissions. See Bayview Loan Servicing LLC, supra at 1044. The

Appellants’ admitted “Exhibit A” to the Plaintiff’s Complaint8 was a true and 

accurate copy of the Letter Agreement, and that the Letter Agreement spoke 

for itself. See Answer with New Matter, 9/6/17, at 1. In paragraph 8 of 

Kennedy’s complaint, he stated “[p]ursuant to the Letter agreement, Kennedy 

executed a Guaranty and Suretyship Agreement in January 2015 in favor of 

ACNB,” Complaint, 8/17/17, at 2, to which the Appellants replied, “Admit.[9]” 

Answer with New Matter, 9/6/17, at 2. Paragraph 36 of the complaint states, 

“[a]s set forth in the Guaranty, in the event McClarin Defaults, Kennedy is 

____________________________________________

8 Exhibit A to the Complaint, which was signed by both Kennedy and Stein, 

states the guaranty was to be removed no more than “6 months from the date 

of execution.” Letter Agreement, at 1–3. Moreover, the Letter Agreement 

states Kennedy would be paid $50,000 at the earliest occurring of the three 

following circumstances: 1) “June 15, 015 [sic] [;]” 2) “a refinance of the 

underlying loan[;]” or 3) “when the Todd Guaranty is removed.” Letter 

Agreement, at 1. 

9 The Appellants argued in their motion opposing partial summary judgment 

that the admission to paragraph 8 did not constitute an admission of 

Kennedy’s complete performance under the Letter Agreement; they, however, 

failed to provide any additional facts that would support that assertion. See

Defendants’ Response in Opposition to Plaintiff’s Motion for Partial Summary 

Judgment, at 4; see also Johnson, supra at 775 (“it is [the non-moving 

party’s] responsibility to show that a genuine issue of fact exists by affidavit 

or otherwise.”). 
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personally obligated to guaranty payment and performance of a $3,750,000 

obligation of McClarin[,]” Complaint, 8/17/17, at 6, to which the Appellants 

replied, “[t]he Kennedy Guaranty speaks for itself and any characterization 

thereof by [Kennedy] is denied.” Answer with New Matter, 9/6/17, at 5. The 

above-mentioned pleadings in Appellants’ answer constitute either an outright 

admission or a general denial failing to inform Kennedy or the court as to the 

nature of the Appellants’ disagreements with Kennedy’s averments, fatally 

frustrating the second aspect of the Appellants’ argument. See Swift, supra

at 30; see also Stimely, supra at 737.

Finding the trial court properly assessed the averments above to be 

either general denials or outright admissions, we turn to the court’s 

interpretation of the Letter Agreement. The court made the following findings

in determining there were no material facts at issue regarding the letter 

agreement: 1) the terms of the Letter Agreement were clear, including the 

provision that Kennedy would be released as a guarantor; 2) the Appellants 

admitted Kennedy fulfilled his obligations under the Letter agreement; and 3) 

the Appellants admitted Kennedy would be responsible for the entirety of 

McClarin’s $3,750,000 obligation in the event McLarin defaulted on the loan. 

See Order Granting Plaintiff’s Motion for Partial Summary Judgment, 5/17/18, 

at 14–18. 

The Appellants initially asserted the Letter Agreement spoke for itself. 

See Answer with New Matter, at 1 (“The Letter Agreement speaks for 

itself[.]”). Kennedy, in support of partial summary judgment, stated “[t]he 
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terms of the Letter Agreement are straightforward and unambiguous.”). Brief 

in Support of Partial Summary Judgment, at 5. The Appellants never refuted 

that assertion, instead focusing their brief in opposition to partial summary 

judgment exclusively on whether denials had been made with sufficient 

specificity, neglecting to assert that ambiguities in the Letter Agreement 

raised a material question of fact. See Brief in Opposition to Plaintiff’s Motion 

for Partial Summary Judgment, at 5–10. Consequently, we find the material 

facts of this matter were not in dispute as a result of the Appellants’ failure to 

specifically deny the veracity of material facts averred in Kennedy’s complaint, 

and because the Appellants lack any support, via affidavit or otherwise, to 

lend credence to the argument that there was an issue of material fact.10 See 

Bayview Loan Servicing LLC, supra at 1044 (regarding general denials); 

Johnson, supra at 775 (“[I]t is [the non-moving party’s] responsibility to 

show that a genuine issue of fact exists by affidavit or otherwise.”). 

Order affirmed. 

Judge Dubow joins this Memorandum.

Judge Nichols notes her dissent.

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10 Beyond alleging ambiguities in the Letter Agreement, the Appellants have 

not disputed any facts material to claims for specific performance or 

mandatory permanent injunctions. See Brief of Appellant, at 20–26. We 

decline to search for any such factual disputes. Bombar v. West American 

Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (“This Court will not act as 

counsel and will not develop arguments on behalf of an appellant.”). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2019