J
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_____________________________ *Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 WELLS FARGO BANK, N.A. SUCCESSOR BY MERGER TO WACHOVIA BANK, N.A.

v.
PATRICK F. COSTANTINO, A/K/A PASQUALE F. COSTANTINO, A/K/A PATRICK COSTANTINO, KAREN E. COSTANTINO, A/K/A KAREN ANN KARBOSKI AND THE UNITED STATES OF AMERICA

APPEAL OF: PATRICK F. COSTANTINO, A/K/A PASQUALE F. COSTANTINO, A/K/A PATRICK COSTANTINO : : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 607 MDA 2016 Appeal from the Order Entered March 14, 2016 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2014

- 06640
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.* MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 28, 2017 Appellant, Patrick F. Constantino a/k/a Pasquale F. Constantino a/k/a Patrick Constantino, appeals from the order of the Luzerne County Court of Common Pleas, which entered summary judgment in favor of Appellee, Wells Fargo Bank, N.A., in this mortgage foreclosure action. We affirm. In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no r eason toJ
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restate them. 1 Appellant raises two issues for our review: DID THE [TRIAL] COURT...ERR AS A MATTER OF LAW IN DISMISSING [APPELLANT]’S NEW MATTER ASSERTING THAT [APPELLEE]’S MORTGAGE WAS UNLAWFUL AND IN CONTRAVENTION OF BANKING REGULATIONS? DID TH E [TRIAL] COURT ERR AS A MATTER OF LAW IN GRANTING [APPELLEE]’S MOTION FOR SUMMARY JUDGMENT? (Appellant’s Brief at 4). With respect to Appellant’s first argument challenging “the dismissal of his new matter,” we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Rosselli v. Rosselli , 750 A.2d 355 (Pa.Super. 2000), appeal denied , 564 Pa. 696, 764 A.2d 50 (2000) (citing Pa.R.A.P. 2101). See also Pa.R. A.P. 2114
- 2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument (a) General rule. The argument shall be divided into as many part s as there are questions to be argued; and shall

____________________________________________ 1 We make the following additions to the trial court’s Rule 1925(a)(1) opinion: Appellant and then

- wife, Karen Constantino a/k/a Karen Ann Karboski, executed the residential mortgage and promissory note in favor of Wachovia Bank, N.A. on May 5, 2007. Appellant has not made a single payment since he defaulted on the mortgage on January 26, 2012, and the last payment he made was on December 28, 2011.J
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- have at the head of each part―in distinctive type or in type distinctively displayed―the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a). Importantly:

The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This Court will not consider the merits of an argu ment which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal. In re Estate of Whitley , 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied , 620 Pa. 724, 69 A.3d 603 (2013 ) (internal citations and quotation marks omitted). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining appellant’s arguments must adhere to rules of appellate procedure, and arguments which are not appropriately developed are waived

on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate procedure make clear appellant must s upport each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, this Court’s ability to provide appellate review is hampered, necessitating waiver of issue on appeal). Instantly, Appel lant fails to cite relevant legal authority to support his argument that the mortgage was unlawful. Instead, he merely cites the legal standard for summary judgment. Appellant baldly states that theJ
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mortgage was unlawful and violated banking regulations because “the cross

collateralization of the loan with the loan of...Appellant’s former wife was done after the parties were divorced.” Appellant’s argument is incoherent and unsupported by relevant legal authority. Appellant’s failure to develop his claim o n appeal precludes meaningful review and arguably constitutes waiver of his first issue on appeal. See Pa.R.A.P. 2119(a); Pa.R.A.P. 2101; Whitley, supra ; Lackner, supra ; Haiko, supra

. Moreover, with respect to both issues on appeal, after a thorough

re view of the record, the briefs of the parties, the applicable law, and the well

- reasoned opinion of the Honorable Lesa S. Gelb, we agree Appellant’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the que stions presented. ( See Trial Court Opinion, filed June 3, 2016 at 7
- 16) (finding: preliminarily, Appellant filed 14

- issue Rule 1925(b) statement; this case is straightforward mortgage foreclosure action where all relevant facts were presented to court; ca se does not factually or procedurally justify identification of 14 issues for appellate review; Appellant’s Rule 1925(b) statement includes issues, which are entirely misplaced and not intended to be addressed with Superior Court; Appellant’s Rule 1925(b) statement is nothing more than attempt to delay final determination in this matter; Appellant waived all issues on appeal for filing unnecessarily complex, incoherent, and lengthy Rule 1925(b) statement;
moreover, (1) Appellant’s new matter did not raise a ny material issues ofJ
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fact but merely stated conclusions of law irrelevant to this foreclosure action; in Appellant’s response to Appellee’s summary judgment motion, Appellant failed to identify relevant facts in dispute or point to contradictions in recor d; specifically, Appellant failed to: (a) attach to his response supporting documents; (b) make factual allegations related to other loans and guaranties; and (c) properly identify any cross

- collateralization provision; information related to other loans a nd guaranties are not in record; Appellant failed to identify issue of material fact related to cross

collateralization clause; (2) Appellant baldly denied in his answer to Appellee’s complaint that he is in default under mortgage and amount due and owing on mortgage; Appellant failed to identify in his answer those payments he claims he made under mortgage; information on Appellant’s payments not stated in complaint was within Appellant’s control; therefore, Appellant’s denial of default is deemed admissio n of default and amount due and owing under mortgage; Appellant’s response to motion for summary judgment rested completely on pleadings; Appellant failed to attach supporting documents to demonstrate genuine issue of material fact). Therefore, we affirm on the basis of the trial court’s opinion. Order affirmed.J
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/28/2017In the Complaint, Appellee alleged that Appellant defaulted

Recorder of Deeds, Book 3007, Page 161163 (the II Mortgage"). mortgage to Wachovia was recorded at the Luzerne County Appellee is the successor by merger to Wachovia

. The ("Wachovia") in the original principal amount of $240, 141.50. mortgage to Wachovia Bank, National Association Complaint, Appellee alleged that Appellant executed a Foreclosure against Appellant (the "Comptolnt"}. In the On May 28, 2014, Appellee filed a Complaint in Mortgage Background OPINION No. 6640 of 2014 Patrick F. Constantino,

Appellant Patrick F. Constantino, a/k/a Pasquale F. Constantino, and Koren Constantino a/k/a Karen Ann Karboski VS

. Appel lee Wells Fargo Bank, N.A. s/b/m : In the Court of Common Pleas Wachovia Bank, National of Luzerne County Association Circulated 03/03/2017 09:49 AM2

necessary the averment that the Act 6 and Act 91 Notices conclusions of fact and law to which no responsive pleading is owing on the Mortgage. Further, Appellant denied as generally denied the amounts alleged to remain due and listing any payment dates or amounts. Appellant likewise alleging a default under the terms of the Mortgage, without Answer, Appellant generally denied Appellee's averment New Matter (the "Answer") in response to the Complaint. In the On December 10, 2014, Appellant filed his Answer and Appellant for the amount of $278,678.91. sought an in rem judgment in mortgage foreclosure against accruing thereafter. At the close of the Complaint, Appellee $278,678.91 with per diem interest in the amount of $44.44281 by Appellant on the Mortgage through May 8, 2014 was According to Appellee, the total amount due and owing Appellant. that, due to the default, Act 6 and Act 91 Notices were sent to interest due on January 26, 2012. Appellee further explained on the Mortgage for failure to pay installments of principal and3

and 11 of the Complaint amount to admissions to the event of Appellee claimed that Appellant's answers to averments 

### l O admissions to the allegations in the Complaint. Specifically, that Appellant's responses in his Answer effectively operated as Further, Appellee argued in the Motion for Summary Judgment combined Act 6 and Act 91 Notice with proof of mailing. and owing; Appellant's loan history; and, a copy of the default under the Mortgage and the amounts remaining due Mortgage and Promissory Note; an Affidavit confirming the following documents to the Motion for Summary Judgment: the pursuant to the Mortgage. Specifically, Appellee attached the supportive documents to demonstrate Appellant's liability issues of material fact remaining and attached various - - · · for Summary Judgment, Appellee 

### osserted trrcrf"there · were - nn - - Judgment (the "Motion for Summary Judgment"). In the Motion On February 3, 2016, Appellee filed its Motion for Summary --------------- - ---- -- - ---~ - - - --------------

Appellee filed its Reply to New Matter on December 31, 2014. issues that fail to amount to defenses in the instant matter. were sent. In his New Matter, Appellant raised various irrelevant4

throughout his seven (7) page Response , Appellant completely its own allegations and deemed admissions by Appellant

. Still, that summary judgment is improper because Appellee relies on foreclosure actio n
. Finally, Appellant argued in his Response states various conclusions of law irrelevant to this mortgage Matter does not address any issues of fact, rather, it merely unresolved issues of material fact. Notably , Appellant's New judgment by arguing that the averments in his New Matter raise 

### 2014. Next, Appellant attempted to overcome summary Appellee filed a timely Reply to New Matter on December 31, because Appellee failed to answer his New Matte r. Indeed , incorrectly stated that summary judgment is inappropriate Motion for Summary Judgment

. First , in his Respo n se, Appellant .. · · · · · - .. . - · · - - · ·-. · · · - ·· -

On 

## Ma r ch

- 2 ; 20T6, Appellant filed his 

## Respc,nse to · · the as defenses i n a mortgage foreclosure action

. conclus i ons of law, unsupported by facts , which do not serve the argument that Appellant's New Matter consisted only of Appellee concluded the Motion for Summary Judgment with default and the amounts due and owing under the Mortgage

.5 1 The other Defendant in this case, Karen Constantino a/k/a Karen Ann Karboski, had a default judgment entered against her on January 2 1 , 2015 , and is not involved in the current appeal. Appellant's Concise Statement. matters for review. Appellee did not file a response to Complained of on Appeal, raising fourteen (14) different 2016, Appellant filed his Concise Statement of Errors of Matters Complained of on Appeal within 21 days. On May 3, 2016, this Court instructed Appellant to file a Concise Statement to the Pennsylvania Superior Court. 1 By Order dated April 15, property. On April 13, 2016, Appellant filed a Notice of Appeal the Mortgage for foreclosure and sale of the mortgaged January 15, 2016 and other costs and charges collectible under Appellee in the amount of $322,327.95 plus interest from Accordingly, this Court entered an in rem judgment in favor of Appellee was entitled to summary judgment as a matter of law. By Order dated March 14, 2016, this Court held that remain in dispute, or point to any contradictions in the record. fails to raise any facts relevant to the instant matter which6

Standard of Review Upon review of a motion for summary judgment, a courtmust view the record in the light most favorable to the nonmoving party, and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Fine v. Checcio, 582 Pa. 253, 265, 870 A

. 2d 850, 857 (citing Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (Pa. 2001)). The Pennsylvania Rules of Civil Procedure governing summary judgment instruct, in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Pa.R.C.P ., Rule l 035.2(1) (2015}. Pursuant to the Rules of Civil Procedure, a motion for summary judgment is based upon an evidentiary record that entitles the moving party to judgment as a matter of law. Note to Pa.R.C.P., Rule 1035.2 (2015}. The
court 11

... may grant summary judgment only where the right to such a judgment is clear and free from doubt." Checcio, 5827

Pa. 253, 265, 870 A.2d 850, 857 (citing Marks v. Tasman, 527 Pa. 132, 589 A.2d 205, 206 (Pa. 1991)). Law and Discussion First and foremost, Appellant waived all issues for appeal because he failed to concisely and coherently identify his matters complained of, as ordered to do so by this Court. According to the Pennsylvania Superior Court, the mere filing of a timely response to the trial court's Pa.R.A.P. l 925(b) order does not automatically equate to issue preservation

. Jiricko v. Geico Insurance Company, 947 A.2d 206 , 210 (Pa. Super. 2008). The statement is a crucial step in the process because it permits the trial court to focus on those issues an appellant intends to raise. _!st (internal citations omitted). Accordingly , any issues not properly raised will be deemed waived. 

## kt (internal citations omitted). Pennsylvania Courts have repeatedly held that an appellant waives all matters for review where he/she identifies an outrageous number of issues in the concise statement. See Jones v. Jones, 878 A.2d 86 (Pa. Super. 2005) (seven page,8 Addit i onally, the Pennsylvan i a Superior Court has explained that an appellant ' s failure to state his/her issues to be raised on appeal in a concise manner impedes a trial cour t' s twenty-nine issue statement resulting in waiver); Signora v. Liberty Travel, Inc. , 886 A

. 2d 284 (Pa. Supe r
. 2005) (appellants admonished for eight page, 25 issue statement and eight page , forty-six issue statement, but court declined to find waiver due to trial court opinion); Kanter v. Epstein, 866 A.2d 394 {Pa. Super

. 2004) {fifteen page , fifty-five issue statement resulting in waiver)

. However, " ... the number of issues ra i sed in a Rule 1925(b) statement does not, w i thout more , provide a basis upon which to deny appellate review where an appeal otherwise comp l ies with the mandates of appellate practice

. " Eiser v
. Brown & Williamson Tobacco Corp., 595 Pa. 366 , 385, 938 A

. 2d 417, 427-428 (Pa

. 2007). The Pennsylvania Supreme Cou r t has identified the complexity of the matter under review

as a considera ti on for courts to make pr i or to finding waiver based on sheer volume of the concise statement. 

### kt at 383,
427.9

that factually or procedurally justifies the identification of genuine issues of material fact to be resolved. This is not a case judgment granted in favor of Appellee because there were no documents were presented to this Court and summary straight forward mortgage foreclosure where all relevant must consider the complexity of this matter. This case involves a the statement may not appear excessive at first glance, one fourteen issue concise statement. Although the sheer length of In the instant matter, Appellant filed a three page, review. See Jones, 878 A.2d 86; 

### Kt at 402. cumbersome statements in an effort to preclude meaningful breach their duty of fair dealing with the court by filing certain circumstances, our courts have held that appellants meaning and purpose of Rule 1925(b). Id. Indeed, under appeal, an appellant may deliberately circumvent the by identifying issues which he/she never intends to raise on Specifically, by raising an outrageous number of issues and/or ---- --- · - - ··- - ······· · · - ·------------- impedes proper appellate review. Kanter, 866 A.2d at 401. ability to prepare an opinion explaining its ruling and, thus,10

agree with this Court's finding of waiver, this Court has Second, in the event that the reviewing court does not nor coherent and thwarts meaningful review. for appellate review by filing a Statement that is neither concise that, for the reasons stated above, Appellant waived all issues final determination in this matter. Accordingly, this Court holds Concise Statement is nothing more than an attempt to delay a paragraphs to do so. It is evident to this Court that Appellant's raises two issues for review, but uses eleven numbered misrepresentations, as described below, Appellant arguably disposed of at summary judgment. Aside from these of the evidence when there was no trial and the case was Appellant claims that this Court's ruling was against the weight filed in the matter currently before this Court. In another issue, related to counterclaims when no counterclaims have been the Superior Court. For example, Appellant identifies two issues misplaced and which Appellant never intends to address with Concise Statement clearly includes issues which are entirely fourteen issues for review by our appellate courts. Appellant's11

2002)). Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super. 2004) (citing opinion pursuant to that supposition the issues are still wclved." guesses the issues Appellants raise on appeal and writes an review, it is worth noting that "[e]ven if the trial court correctly However, despite this Court's attempts to identify issues for clause rendered the Mortgage unlawful? Motion for Summary Judgment where a cross-collateralization (2) Whether the trial court erred by granting Appellee's material fact exist? Motion for Summary Judgment where genuine issues of (1) Whether the trial court erred by granting Appellee's following issues for review: procedural posture of this matter, this Court has identified the this Court, due to the lack of complexity of the substance and Appellcnt' s Concise Statement inhibits meaningful review by ·· • · "

- · · -· · - ··-· · -··---·- · ------ - ---- matters which may be appropriate for review. Although attempted to distill from Appellant's Concise Statement any12

appropriate. First Wisconsin v. Strausser, 653 A.2d 688 {Pa. Super. admission and tha.t summary judgment is therefore owing the bank, the general denial must be considered an that, when a defendant generally denies the amount due and an admission." 19.:_ In First Wisconsin v. Strausser, the Court held general denial or a demand for proof ... shall have the effect of necessary implication." Pa.R.C.P ., Rule 1029(b) {2015). "A required are admitted when not denied specifically or by "[a]verments in a pleading to which a responsive pleading is Pennsylvania Rule of Civil Procedure 1029(b) states In an action for mortgage foreclosure , the



## _________ .entrv of surnmory 

### ludqmentIs

__ proper.il.the..

_ mortgagors admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount. This is so even if the mortgagors have not admitted the total amount of the indebtedness in their pleadings. Cunningham v. McWilliams, 714 A

. 2d 1054, 1056-1057 (Pa. Super. 1998) {internal citations omitted); Washington Federal Savings and Loan Assoc. v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). The Superior Court has explained as follows:13

1995). The First Wisconsin Court applied the rationale that a defendant/ debtor, apart from the plaintiff 

### I lender, is the only party who would have sufficient knowledge of which to base a specific denial. Id. Applying the law to the facts of this case, it is clear that the entry of summary judgment in favor of Appellee was
proper. In the Answer, Appellant purports to deny the allegations in averment 10 of the Complaint that he is in default under the terms of the Mortgage for failure to pay installments due on January 26, 2012. Such denial is not specific because it fails to allege payments made under the Mortgage and not otherwise stated in the Complaint. Because such information would be within the control of Appellant, his response to
averment 10 must be deemed an admission to the event of default on January 26, 2012. Likewise, Appellant included in the Answer a specific denial to the amounts due and owing on the Mortgage through May 8, 2014, while, again, failing to allege any payments he made that were unaccounted for in the Complaint. Appellant's response to averment 11 of the14

pleadings, while arguing that the entry of summary judgment Response. Instead, Appellant continues to rest on the Appellant has failed to attach even one document to his including the Mortgage and Note, affidavits, and a loan history, documents in support of the Motion for Summary Judgment, material dispute of fact. While Appellee attached multiple supportive materials to his Response that demonstrate a identify a remaining issue of fact is his failure to attach any allowed to proceed to trial. Related to Appellant's failure to such that summary judgment should be denied , and the case failed to identify any genuine issue which remains in dispute, depositions. 

### kt In the instant matter, Appellant has completely affidavits, admissions, answers to interrogatories, and/or judgment must demonstrate a genuine issue for trial by utilizing Rather, a party attempting to avoid the entry of summary judgment may not rest on the pleadings. Stein, 515 A.2d at 289. Further, a party seeking to avoid the entry of summary - - - - ------ - - - -------------------- - ----------

remaining due and owing under the Mortgage. Complaint must be deemed an admission to the amounts15 ·

properly identify any cross-collateralization provision. Neither allegations related to the other loans and guaranty, and to Summary Judgment, but he has failed to make any factual attach any such materials to his Response to the Motion for depositions. Stein, 515 A.2d at 289. Not only did Appellant fail to use of affidavits, admissions, answers to interrogatories, and/or demonstra t e that relevant factual issues remain through the attempting to avoid the entry of summary judgment must allegedly executed by Appellant. As discussed above, a party Statement, Appellant mentions a guaranty and two other loans of the banking regulations. Also, for the first time, in his Concise that this rendered the Mortgage unlawful and in contravention their divorce was finalized. Appellant alleged in his New Matter former wife, Defendant Karen Karboski, was completed after cross-collateralization of his loan with a loan provided to his deny Appellee's Motion for Summary Judgment because a Finally, Appellant indicates that this Court was required to ------ - ··· - ··-- · - ··· · ·· - -- - - - - -- - - - law in this Commonwealth. See Stein, 515 A.2d at 289. was improper. This argument is simply against the state of the16 (END OF OPINION) merit and must fail as a matter of law. collateralization clause, Appellant's vague argument is without failure to identify any issue of material fact related to the cross themselves have been made of record in this case. Due to his no information related to said documents or the documents irrelevant to the instant mortgage foreclosure matter. As such, include copies of such documents which appear wholly ·- -- - ---- - - -- -- -- - - - ··-· - ····-··· - ·· - ····-----· - ··· - --- - - - · - - - - -- - -- - ---

Summary Judgment provide any identifyi"ng information or Appellant's New Matter, nor his Response to the Motion for17 - , _. Lesa S. Gelb, 

### J / i Superior Court of Pennsylvania Docket No. 607 MDA 2016. the Appellants and Appellee as well furnish a copy to the notice of the attached Opinion pursuant to Pa. R.C.P. 236 to Judicial Records/Prothonotary is hereby directed to serve ORDER AND NOW, this£day of June, 2016, the Clerk of No. 6640 of 2014 MORTGAGE FORECLOSURE : In the Court of Common Pleas of Luzerne County

Patrick F. Constantino,

Appellant Patrick F. Constantino, a/k/a Pasquale F. Constantino, and Karen Constantino a/k/a Karen Ann Karboski vs. Appel lee Wells Fargo Bank, N.A. s/b/m Wachovia Bank, National Association18

Andrew Katsock, Esquire 15 Sunrise Drive Wilkes-Barre, PA 18705 cc: Mario J. Hanyon, Esquire Phelan Hallinan Diamond & Jones, LLP 1617 J.F.K. Blvd., Suite 1400 One Penn Center Plaza Philadelphia, PA 19103