J-A28008-17 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WELLS FARGO BANK, N.A. S/B/M TO 

WACHOVIA BANK, N.A. F/K/A FIRST 

UNION NATIONAL BANK 

Appellant

v.

BRYAN M. BAROSH

CHRISTOPHER A. BAROSH

Appellee

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 491 EDA 2017

Appeal from the Order Entered December 23, 2016

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2015-07521

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 11, 2018

Appellant, Wells Fargo Bank, N.A. S/B/M to Wachovia Bank, N.A. 

F/K/A/ First Union National Bank (“Bank”), appeals from the order entered in 

the Bucks County Court of Common Pleas, which purported to grant the 

second motion for summary judgment of Appellee, Christopher A. Barosh, 

but in favor of Bank.

1 We vacate and remand for further proceedings. 

The relevant facts and procedural history of this case are as follows. 

On February 7, 2002, Bank and the Barosh brothers executed two 

mortgages on a property located at 350 S. River Road, New Hope, PA 

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1 Bryan M. Barosh did not respond to any of the pleadings in the matter 

including this appeal. 
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18938. The first mortgage (“senior mortgage”) was for $157,000.00; the 

second mortgage (“junior mortgage”) was for $31,139.48. Both mortgages 

were recorded in the Bucks County Office of the Recorder of Deeds. 

On October 30, 2015, Bank filed a foreclosure complaint against the 

Barosh brothers to enforce the senior mortgage, after they had failed to 

make mortgage payments or cure the default. In response to Appellee’s 

preliminary objections, the Bank filed an amended complaint on December 

21, 2015, and admittedly through inadvertence, attached the junior 

mortgage as Exhibit “C.” Appellee filed his first motion for summary 

judgment on March 7, 2016, asserting Bank had failed to produce a contract 

between him and Bank, and requested dismissal of Bank’s complaint. Bank 

responded to this first motion for summary judgment on April 5, 2016, and 

attached its amended complaint to its response, along with the junior 

mortgage appended as Exhibit “C.” On May 2, 2016, Bank filed a praecipe

to substitute the senior mortgage as Exhibit “C” to its amended complaint. 

Appellee filed his second motion for summary judgment on June 27, 

2016, again asserting that Bank had failed to include a contract between him 

and Bank in its amended complaint and requesting dismissal of Bank’s 

complaint. Bank filed a response to Appellee’s second motion for summary 

judgment on July 20, 2016, and again attached the amended complaint with 

the junior mortgage appended as Exhibit “C.” The court denied Appellee’s

first motion for summary judgment on July 27, 2016. The court conducted a 
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phone conference on August 1, 2016, during which Appellee offered to settle 

Bank’s claim for the face amount of the junior mortgage. Bank did not 

accept the offer. On August 3, 2016, Bank filed a praecipe to attach 

exhibits, including the senior mortgage, to its response to Appellee’s second 

motion for summary judgment. On December 23, 2016, the court entered

summary judgment in favor of Bank for the face amount of the junior 

mortgage. The order stated:

[U]pon consideration of, Motion for Summary Judgment, 

[Bank’s] Answer, and [Appellee’s] offer to settle for the 

face amount of the mortgage sued upon in the Amended 

Complaint, it is hereby ORDERED and DECREED that 

judgment is entered in favor of [Bank] and against [Bryan 

M. Barosh and Christopher A. Barosh] for the full face 

amount of the mortgage sued upon in the Amended 

Complaint being $31,139.48. 

(Judgment Order, filed December 23, 2016). This order was docketed and 

notice of the disposition was sent to the parties on January 3, 2017. 

Bank timely filed a notice of appeal on February 2, 2017. The court 

ordered Bank, on February 3, 2017, to file a concise statement of errors 

complained of an appeal pursuant to Pa.R.A.P. 1925(b). Bank timely 

complied on February 23, 2017. On May 19, 2017, Appellee filed an 

application to quash Bank’s appeal, claiming the appeal was untimely and 

Bank was not an aggrieved party because it obtained a judgment for the full 

amount of the mortgage upon which Bank had sued. Bank responded on 

June 2, 2017. This Court issued a per curiam order on June 7, 2017, stating 

the appeal was timely filed but denied, without prejudice, Appellee’s right to 
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argue before the merits panel the issue of whether Bank was an aggrieved 

party. 

Bank raises the following issues for our review:

WHETHER THIS COURT SHOULD DENY [APPELLEE’S] 

APPLICATION TO QUASH APPEAL BECAUSE [BANK] IS AN 

AGGRIEVED PARTY AND THE APPEAL WAS TIMELY 

FILED?[2]

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF 

LAW AND ABUSED ITS DISCRETION BY GRANTING 

SUMMARY JUDGMENT IN FAVOR OF [BANK], THE NONMOVING PARTY?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF 

LAW AND ABUSED ITS DISCRETION BY ENTERING 

JUDGMENT IN THE FACE AMOUNT OF A MORTGAGE 

INADVERTENTLY ATTACHED TO [BANK’S] AMENDED 

COMPLAINT?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF 

LAW AND ABUSED ITS DISCRETION BY ENTERING 

SUMMARY JUDGMENT BASED ON [APPELLEE’S] “OFFER TO 

SETTLE” WHICH DOES NOT APPEAR IN HIS SECOND 

MOTION FOR SUMMARY JUDGMENT?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF 

LAW AND ABUSED ITS DISCRETION BY ENTERING 

SUMMARY JUDGMENT WHEN GENUINE DISPUTES OF 

MATERIAL FACT EXISTED?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF 

LAW AND ABUSED ITS DISCRETION BY RECEIVING 

TESTIMONY, ADMISSIONS, OR ARGUMENT DURING A 

PHONE CONFERENCE ON PENDING DISCOVERY MATTERS

WITHOUT ADVANCE NOTICE TO [BANK]?

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2 This Court’s June 17, 2017 per curiam order concluded Bank’s appeal was 

timely. Thus, the timeliness of the appeal is no longer at issue.
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(Bank’s Brief at 3-4). 

As a prefatory matter, Pennsylvania Rule of Appellate Procedure 501 

provides:

Rule 501. Any Aggrieved Party May Appeal

Except where the right of appeal is enlarged by statute, 

any party who is aggrieved by an appealable order, or a 

fiduciary whose estate or trust is so aggrieved, may appeal 

therefrom.

Note: Whether or not a party is aggrieved by the 

action below is a substantive question determined by 

the effect of the action on the party, etc.

Pa.R.A.P. 501. “A party is ‘aggrieved’ when the party has been adversely 

affected by the decision from which the appeal is taken.” Ratti v. 

Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super. 2000), 

appeal denied, 567 Pa. 715, 785 A.2d 90 (2001). A party can be 

“aggrieved” for purposes of an appeal, if that party did not obtain the full 

contractual relief it sought. Pittsburgh Const. Co. v. Griffith, 834 A.2d 

572, 589-90 (Pa.Super. 2003), appeal denied, 578 Pa. 701, 852 A.2d 313 

(2004). Likewise, “summary judgment cannot benefit a party that did not 

seek it. ... There is an appeal from a summary judgment by a non-moving 

party when summary judgment ends the litigation and removes that party 

from court.” Sidkoff, Pincus, Greenberg & Green, P.C. v. Pennsylvania 

Nat. Mut. Cas. Ins. Co., 521 Pa. 462, 470, 555 A.2d 1284, 1288 (1989). 

Instantly, Bank sued the Barosh brothers on the defaulted senior 

mortgage, which is substantially larger than the face amount of the junior 
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mortgage that the court awarded. Even though Bank was technically a 

prevailing party, Bank did not obtain full relief. Therefore, Bank qualifies as 

an “aggrieved” party. See Pittsburgh Const. Co., supra. Further, Bank 

was the non-moving party in the summary judgment proceedings, yet the 

court awarded summary judgment in Bank’s favor for substantially less than 

Bank requested and removed Bank’s case from court. As a displaced party 

that effectively suffered summary judgment, Bank had no alternative but to 

appeal the judgment. See Sidkoff, Pincus, Greenberg & Green, P.C., 

supra. Thus, Bank’s appeal is properly before this Court. 

On appeal, Bank principally argues that it met its burden to defeat 

Appellee’s motion for summary judgment. Bank contends it corrected the 

mortgage attached to its amended complaint before Appellee filed his second 

motion for summary judgment. Bank also submits Appellee did not ask for a 

judgment in favor of Bank, for the junior mortgage, in his motion for 

summary judgment. Bank avers that, in this context, it was required only to 

point to genuine issues of material fact in the record to defeat summary 

judgment, but it did not have to prove its entire case. Further, Bank asserts 

the inadvertent attachment of the junior mortgage, as Exhibit “C” to Bank’s 

amended complaint, did not constitute a “judicial admission” for several 

reasons: (a) Bank substituted the correct exhibit; (b) the amended 

complaint specifically referred to the primary mortgage which was recorded 

in the Bucks County Recorder of Deeds’ Office and is a matter of public 
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record; (c) Appellee’s offer to pay the face amount of the junior mortgage 

did not include escrow paid or interest accrued; and (d) Bank objected to 

Appellee’s arguments during the court conference and filed supplemental 

materials to dispute summary judgment. When viewed in the light most 

favorable to Bank as the non-moving party, Bank submits the record makes 

clear the court’s entry of summary judgment was factually and legally 

incorrect. Bank concludes this Court should reverse the trial court’s decision 

to grant summary judgment, due to the manner employed and the amount 

awarded, and vacate and remand for further proceedings. We agree. 

Our standard of review of an order granting summary judgment 

requires us to determine whether the trial court abused its discretion or 

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344 

(Pa.Super. 2006). 

Judicial discretion requires action in conformity with law on 

facts and circumstances before the trial court after hearing 

and consideration. Consequently, the court abuses its 

discretion if, in resolving the issue for decision, it 

misapplies the law or exercises its discretion in a manner 

lacking reason. Similarly, the trial court abuses its 

discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) 

(internal citations omitted). Our scope of review is plenary. Pappas v. 

Asbel, 564 Pa. 407, 768 A.2d 1089 (2001), cert. denied, 536 U.S. 938, 122 

S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of 

summary judgment:
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[W]e apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there 

exists a genuine issue of material fact. We 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. 

Only where there is no genuine issue as to any material 

fact and it is clear that the moving party is entitled to a 

judgment as a matter of law will summary judgment be 

entered. All doubts as to the existence of a genuine issue 

of a material fact must be resolved against the moving 

party. 

Motions for summary judgment necessarily and directly 

implicate the plaintiff’s proof of the elements of [a] cause 

of action. Summary judgment is proper if, after the 

completion of discovery relevant to the motion, including 

the production of expert reports, an adverse party who will 

bear the burden of proof at trial has failed to produce 

evidence of facts essential to the cause of action or 

defense which in a jury trial would require the issues to be 

submitted to a jury. In other words, whenever there is no 

genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which could be 

established by additional discovery or expert report and 

the moving party is entitled to judgment as a matter of 

law, summary judgment is appropriate. Thus, a record 

that supports summary judgment either (1) shows the 

material facts are undisputed or (2) contains insufficient 

evidence of facts to make out a prima facie cause of action 

or defense. 

Upon appellate review, we are not bound by the trial 

court’s conclusions of law, but may reach our own 

conclusions. 

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) 

(emphasis added, internal citations and quotation marks omitted). 

The Pennsylvania Rules of Civil Procedure provide:

Rule 1035.2. Motion
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After the relevant pleadings are closed, but within such 

time as not to unreasonably delay trial, any party may 

move for summary judgment in whole or in part as a 

matter of law

(1) whenever there is no genuine issue of any 

material fact as to a necessary element of the cause of 

action or defense which could be established by 

additional discovery or expert report, or

(2) if, after completion of discovery relevant to 

the motion, including the production of expert reports, 

an adverse party who will bear the burden of proof at 

trial has failed to produce evidence of facts essential to 

the cause of action or defense which in a jury trial 

would require the issues to be submitted to a jury. 

Note: Rule 1035.2 sets forth the general principle that a 

motion for summary judgment is based on an evidentiary 

record which entitles the moving party to judgment as 

a matter of law. 

* * *

Pa.R.C.P. 1035.2 (emphasis added). “Nothing in this rule intimates that a 

court may grant summary judgment in favor of a non-moving party.” 

Bensalem Tp. School Dist. v. Commonwealth, 518 Pa. 581, 585, 544 

A.2d 1318, 1320 (1988).3 See also Sidkoff, supra at 469, 555 A.2d at 

1287 (“There exists no provision in the rules [of civil procedure] for 

summary judgment to be entered in favor of a non-moving party.”); 

Warfield v. Shermer, 910 A.2d 734 (Pa.Super. 2006), appeal denied, 591 

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3 This decision occurred before the General Assembly amended the Rules of 

Civil Procedure in 1996. We note, however, that the language of the current 

rule regarding summary judgment is substantially the same. 
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Pa. 737, 921 A.2d 497 (2007) (citing favorably language from Bensalem, 

supra). Only the movant in a motion for summary judgment can prevail, 

because if the movant fails, a dispute continues on the facts. Id. 

Courts sitting in equity have broad powers to grant relief that results 

in an equitable resolution. Gutteridge v. J3 Energy Group, Inc., 165 A.3d 

908 (Pa.Super. 2017) (en banc). Courts, however, must formulate a 

remedy that is consistent with the requested relief. Id. 

Instantly, Bank filed a foreclosure complaint against the Barosh 

brothers to enforce the Banks’ senior mortgage. Bank then filed an 

amended complaint and inadvertently attached the parties’ junior mortgage 

as Exhibit “C.” Appellee filed two motions for summary judgment; in both 

he argued Bank had failed to produce a contract between him and Bank and 

requested dismissal of Bank’s complaint. In its responses to both motions 

for summary judgment, Bank included a copy of its amended complaint with 

the junior mortgage attached as Exhibit “C.” Before Appellee’s second 

motion for summary judgment, however, Bank filed a praecipe to substitute 

the senior mortgage as Exhibit “C” in the amended complaint. After denying 

Appellee’s first motion for summary judgment, the court conducted a phone 

conference with Bank and Appellee. During the phone conference, Appellee 

offered to settle the dispute for the face amount of the junior mortgage, 

which Bank did not accept. Bank filed a praecipe to attach exhibits to its 

response to the second motion for summary judgment, which included a 
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copy of the senior mortgage. Ultimately, the court entered summary 

judgment in favor of Bank for the face amount of the junior mortgage. 

Here, Bank twice submitted a praecipe to substitute the senior 

mortgage for the junior mortgage attached to the amended complaint during 

the summary judgment proceedings. Bank was the non-moving party in 

these proceedings and demonstrated the existence of a genuine issue of 

material fact. See Chenot, supra. At this stage, we must view the record 

in the light most favorable to Bank, as the non-moving party, and resolve all 

doubts as to the existence of a genuine issue of material fact against 

Appellee, as the moving party. 

Additionally, the record shows Bank did not move for summary 

judgment or file a cross-motion for summary judgment. On this record, 

therefore, the rule and case law governing summary judgment did not 

authorize the court to grant summary judgment in Bank’s favor. See

Pa.R.C.P. 1035.2; Sidkoff, supra; Bensalem, supra. Moreover, in his 

motions for summary judgment Appellee did not request relief in the form of 

a judgment for Bank for the face amount of the junior mortgage. Instead, 

Appellee asked for complete dismissal of Bank’s complaint. Thus, the court’s 

judgment was inconsistent with Appellee’s requested relief. See 

Gutteridge, supra. Accordingly, we vacate the order granting summary 
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judgment in Bank’s favor and remand for proper disposition after further 

proceedings.4 

Order vacated; case remanded for further proceedings. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/18

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4

In light of our disposition, we decline to reach Bank’s other arguments. 

Similarly, we deny as moot all outstanding motions/applications for relief.