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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FTF LENDING, LLC

v.
ONASIS ENTERPRISES, LLC AND NIRMAL R PATEL AND CHRISTOPHER RAHN AND CITY OF PHILADELPHIA DEPARTMENT OF LICENSES AND INSPECTION AND OCCUPANTS OR TENANTS 6985 SILVERWOOD STREET PHILADELPHIA, PA 19128 AND OCCUPANTS OR TENANTS 6975R

- 6985 SILVERWOOD STREET PHILADELPHIA, PA 19128 AND OCCUPANTS OR TENANTS 6975 SILVERWOOD STREET PHILADELPHIA, PA 19128

APPEAL OF: ONASIS ENTERPRISES, LLC, AND NIRMAL R. PATEL AND CHRISTOPHER RAHN : : : : : : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1043 EDA 2021

Appeal from the Order Entered April 8, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200802754

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 25, 2022 Defendants/Appellants Onasis Enterprises, LLC, Nirmal R. Patel, and Christopher Rahn ( collectively, “Onasis”) appeal from the Order entered in the Court of Common Pleas of Philadelphia County granting summary judgment

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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in favor of Plaintiff/Appellees FTF Lending, LLC (“FTF”). Herein, Onasis contends the court’s order was erroneous claiming FTF’s motion diverged from local rules of civil procedure , which prescribe the requisite form and contents of motions for summary judgment. Finding the c ourt exercise d sound discretion when it accepted FTF’s
motion and granted s ummary j udgment in FTF’s favor , we affirm. The present matter stems from an underlying in rem mortgage foreclosure action filed by FTF alleging Onasis ’ default under a commercial promissory note having an original principal amount of $2,400,000.00. Specifically, o n Fe bruary 5, 2019, Onasis executed a mortgage on several parcels of real property it had pledged as security for a commercial loan it received from FTF. Under the corresponding promissory note, Onasis was required to pay FTF certain interest

- only installmen ts due on January 1, 2020 and February 1, 2020, and a balloon payment on or before February 5, 2020, the denoted “maturity date”, on which all accrued and unpaid interest, the unpaid principal, and all other sums recoverable under the Note were due.
Onasi s paid neither the installments nor the balloon payment as scheduled. On February 7, 2020, FTF issued a notice of default to Onasis , but Onasis failed to remedy the default within the cure period. On September 1, 2020, FTF filed its Complaint, and on Nove mber 5, 2020, Onasis filed its Answer to the Complaint with New Matter, which raised 18 affirmative defenses. On March 1, 2021, FTF filed a motion for summary judgment and accompanying memorandum of law in which it set forth averments with recordJ

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support t hat Onasis , as of January 31, 2021, was in default to pay the total debt of $1,121,848.08, plus per diem interest of $587.20 from February 1, 2021, and thereafter, and all other amounts recoverable under the Note and Mortgage. It also provided legal argum ent dismissing each of Onasis ’ affirmative defenses. On March 31, 2021, Onasis filed a Reply in Opposition to the Motion for Summary Judgment in which it argued for dismissal of FTF’s motion as willfully

nonco n f orming with the procedural requirements of Phila. Civ.R. * 1035.2(a) , reproduced infra . Most notable, according to Onasis’ r eply , were the motion ’s failures to divide the factual averments in consecutively numbered paragraphs, to allege within each paragraph a si ngle material allegation, to reference within each allegation where support thereof may be found in the record, and to attach record support as needed.
Onasis ’ r eply acknowledged that FTF’s m otion had “incorporate d by reference ” the specific averments of fact and record attachments contained in the m emorandum of l aw , but the r eply denied that th is inclusion overcame the provision in Local Rule * 1035.2(a) barring consideration of memorand um
averments not raised in a motion. Nowhere d id the r eply contest the substance of the averments and exhibits identifying the debt owed, other than to state summarily and generally , without explanation or reference to the record , that it disputed the amount calculated.J

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Instead, the r eply focused exclusively on the form of FTF’s ’ m otion and alleged an “incredible degree of disrespect” out

- of

- state opposing counsel had shown the trial court “by demanding the clerks and Judges of t he Philadelphia Court of Common Pleas learn how to read a Motion for Summary Judgment following what Defendants assume to be the style or procedural requirements of Ohio Jurisprudence ” See Reply, 3/31/21, at 2 (unpaginated). The trial court, however, reje cted Onasis ’ position and effectively deemed the language of FTF’s m otion , coupled with the form and substance of its accompanying m emorandum of l aw, sufficient under the local rules to support an order granting summary judgment in FTF’s favor. This timely appeal followe d.

Onasis raise s the following issues for this Court’s consideration:

1. Was it an abuse of discretion and error of law to grant the Motion for Summary Judgment when (1) no Case Management Order had been entered scheduling discove ry deadlines and (2) no discovery had been commenced in the underlying action in part because no discovery deadlines had been entered or determined by the Philadelphia Court of Common Pleas?
2. Was it an abuse of discretion and error of law to grant the Motion for Summary Judgment because there was an issue of material fact as to the amount of the alleged amount owed by Defendants?
3. Was it an abuse of discretion and error of law to grant the Motion for Summary Judgment because the underlying Motion for Su mmary Judgment was not filed in accordance with the Pennsylvania Rules of Civil Procedure and Philadelphia Rules of Civil Procedure?J

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4. Was it was [sic] an abuse of discretion of law to grant the Motion for Summary Judgment because the instant Motion for Sum mary Judgment was filed in violation [of] Pennsylvania Rules of Civil Procedure and Phila, Civil Rule 1035.2(a) because the underlying motion was devoid of any reference to the record or any exhibits or any factual allegations or numbered paragraphs contai ning any factual allegations sufficient to support granting the underlying Motion for Summary Judgment including but not limited to the nature of the default and the amount of the alleged debt? Brief of Appellants, at 5

- 6. In addressing Onasis’ appeal, t he following principles govern our review: In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. An appellate court may reverse the entry of a summary judg ment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we vi ew 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. As our inquiry involves solely questions of law, our review is de novo

. Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact

- finder. If there is evidence that would allow a fact

- finder to render a verdict in favor of the non

- moving party, then summary judgment should be denied. Sampathkumar v. Chase Home Fin., LLC , 241 A.3d 1122, 1144 (Pa. Super. 2020) ( cleaned up). See also Summers v. Certainteed Corp. , 997 A.2d 1152, 1159 (Pa. 2010) (noting a n appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion ).J

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In their first issue, Onasis contend the tr ial court abused its discretion and/or committed an error of law by prematurely accepting FTF’s motion and granting summary judgment to the preclusion of “necessary discovery.” Appellant’s Brief at 9. O n asis argues that typically in Philadelphia Court s of Common Pleas , discovery does not commence until a Case Management Order is issued , whereas in the case sub judice , “no adequate timetable for discovery had been outlined by the court.” Brief of Appellants , at 9.
P ennsylvania Rule of Civil Procedure 1035.3(e) provides that a court may rule upon a motion for summary judgment at any time prior to trial, even without written responses or briefs , if no party is prejudiced. Prejudice occurs if a party “is not given a fu ll and fair opportunity to supplement the record and to oppose the motion.” Pa.R.Civ.P. 1035.3(e)(1). Initially, we note that Onasis had the opportunity to raise this issue in
its R eply in Opposition to the Motion for Summary Judgment , but they failed to do so. It is well

- settled that under relevant rules, “ the non

- moving party bears a clear duty to respond to a motion for summary judgment. ” Harber Philadelphia Center City Office Ltd. V. LPCI Ltd. Partnership , 764 A.2d 1100 (Pa. Super. 2000) (citing Pa.R.C iv .P. 1035.2 and 1035.3(a)(1), (2) ). If the non

- moving party does not respond, the trial court may grant summary judgment on that basis. Id

. Under our rules, therefore, the non

- moving party :
b ears the same responsibility as in any proceeding, to raise all defenses or grounds for relief at the first opportunity. A party who fails to raise such defenses or grounds for relief may not assertJ

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that the trial court erred in failing to address them. . .. The Superior Court, as an error

- correcting court, may not purport to reverse a trial court's order where the only basis for a finding of error is a claim that the responsible party never gave the trial court an opportunity to consider. Id. at 1104

– 05 (citations omitted). Accord Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”).
Because Onasis never presented this issue for the trial court’s consideration either in their r eply or by any other means , we apply the preceding jurisprudence to find Onasis have waived their first challenge to the order granting summary judgment.
In Onasis ’ second issue, they maintain summary judgment was erroneous where an issue of material fac t existed as to the amount allegedly owed by Onasis

. In support of this claim, Onasis offer only the bare assertion that “there remained significant issues of material fact as to the alleged judgment amount, which [was] never ascertained by the court. These issues were never examined during the discovery process in that no Case Management Order was ever issued in the underlying case. ” Brief for Appellants, at 9. The record belies Onasis ’ claim, as it shows the trial court ascertain ed the judgment amount based on record attachments to FTF’s motion and memorandum of law. Onasis , meanwhil e, have failed to identify , either in its Reply in Opposition or in its present appellate brief , what part of the recordJ

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demonstrat es a genuine issue of material fact with respect to the amount of debt averred by FTF and accepted by the trial court

. “It is not this Court's responsibility to comb through the record seeking the factual underpinnings of an appellant's claim.” Commonwealth v. Samuel , 102 A.3d 1001, 1005 (Pa. Super. 2014) ; s ee also , Commonwealth v. Phillips , 141 A.3d 512, 522 (Pa. Super. 2016) (“[I]ssues raised in a Brief's Statement of Questions Involved but not developed in the Brief's argument section will be deemed waived.”). As we find Onasis’ argument underdeveloped , we deem their second issue waived.
Onasis ’ third and fourth issue s coalesce to challenge the trial court’s order granting summary judgment notwithstanding the alleged nonconformity of FTF’s m otion with Phila delphia County’s local rules pertaining to the form and content of such motions

. 1 In particular dispute is the m otion’s “incorporation by reference” of facts and record support for such facts raised and developed fully in the accompanying memorandum of law. According to Onasis , incorporation by reference “ is not enough ” to satisfy the demands of Ph iladelphia Local Rule of Civil Procedure

* 1035

. 2(a) (2) , m otion for Summary Judgment, wh ich addresses the required form and contents of a motion. In support of this position, which Onasis

_________________ __________ ______ ____ _______ 1 Because Pa.R.Civ.P. 1035.2 provides no details as to the formal requirements of a motion for summary judgment , local practice establishes such requirements

. See , e.g. , Goodrich

- Amram 2d § 1035.2: 9.J

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specifically raised in its Reply in Opposition, Onasis relies solely on the language of the local rule, itself. Philadelphia Local Rule of Civil Procedure 1035.2(a)(2) provides , in relevant part, as follows: (2) Content of the Motion for Summary Judgment. The moving party shall provide the bases for the entry of summary judgment in a motion divided into consecutively numbered paragraphs. Each paragraph shall contain as far as practicable only one material allegation. The moving party must reference in each allegation the “record” (as that term is defined in Pa.R.C iv .P. No. 1035.1) which the moving party wants the court to consider, and shall attach a copy of that record as an exhibit. The moving pa rty shall include with the motion a brief or memorandum of law, as provided in Phila.Civ.R. *210. The brief or memorandum of law shall provide the court with the legal bases for summary judgment in light of the allegations made in the motion, and shall not reference any fact or pleading not raised in the motion. Any fact or allegation mentioned in the brief or memorandum of law which is not listed in the summary judgment motion will not be considered by the court.

. . . . Phila.Civ.R. * 1035.2(a) (2).
As not ed, FTF’s m otion “incorporated by reference” the averments of fact and supporting record that were both on file and presented specifically in the accompanying m emorandum of l aw. The m emorandum, in turn, was formatted in a manner fully compliant with the l ocal rule’s provisions pertaining to a motio n , as it was divided into consecutively numbered paragraphs each containing a singular allegation supported by a reference to and/or an attachment of a the "record" that FTF wanted the court to consider.
See Loc al Rule * 1035.2(a)(2) , supra .J

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The trial court found FTF’s filing to be fundamental ly , i f not technical l y, complian t with the local rule

. The motion’s incorporation by reference of the factual averments , affidavits, and extensive exhibits that were otherwise set forth in conformity with the rule’s formatting and content requirements informed the court and Onasis of the evidentiary proffer made in support of
FTF ’s claim

. That is, Onasis w as in default of its promissory note and , as a result , owed FTF the outstanding balance as specified in the filing. Given this format, the trial court determined FTF’s m otion and

m emorandum, taken together, had placed Onasis on notice of their need to come forth with a r eply demonstrating the existence of facts essential to its defense. Onasis had a full and fair opportunity to address both the averments of facts as well as the merits of FTF’s argument in this regard but ins tead chose to focus their r eply exclusively on the form of FTF’s m otion

. Accordingly, the trial court filed its order granting summary judgment

. The trial court found the variant form of FTF’s m otion did not impede Appellant’s ability to file a meaningful response addressing the substance of the filin g. Thus, the court concluded, its o rder granting the m otion in no way prejudiced Appellant.
W e discern no abuse of discretion with the trial court’s decision to act in the interests of judicial economy and accept for substantive review FTF’s

m otion. The trial court was in the best position to assess that the filing, when viewed as a whole under both local and corresponding state rules of civilJ

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procedure, 2 clearly and appropriately set forth individually

- stated, specific facts and record evidence in support of its clai m . As such, we agree Onasis had been put on notice that if they were to avoid an adverse order of summary judgment, an equally specific, evidence

based response creating a genuine issue of material fact was required on their part. Despite having every opportunity to address the merits of FTF’s filing in this way , Onasis elected to confine their r eply to matters of form an d procedure. Therefore, i n light of a n uncontradicted record regarding the note, mortgage, default, and resulting debt, all of which were substantiated by FTF in its motion and memorandum of law, we find the trial court properly granted summary judgment in favor of Plaintiff/Appellee FTF. Order affirmed.

_________________ __________ ______ ____ _______ 2 We deem the trial court’s exercise of sound discretion consistent with not only Phila. Civ.R

. * 1035.2, supra , but also Phila. Civ.R

. * 51(c) , which provides that “ all Philadelphia Civil Rules shall be construed liberally to insure that no one is denied justice [,] ” and its analog under the Pennsylvania Rules, Rule 1926

-- Liberal Construction and Application of Rules , which instructs, “[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.Civ.P. 126.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/25/2022