J

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

KERMITH SONNIER

v.

PETER DALEY AND MALDEN PROPERTIES, LTD

Appellants : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 734 WDA 2021

Appeal from the Order Entered May 28, 2021 In the Court of Common Pleas of Washington County Civil Division at No(s): No. 2017

- 1899
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J. *
MEMORANDUM BY SULLIVAN, J.: FILED: MARCH 18, 2022
Peter Daley (“Daley”) and Malden Properties, LTD (“Malden Propertie s ”)
(collectively “Appellants”) , appeal from the order granting the motion for

summary judgment filed by Kermith Sonnier (“Sonnier”) and denying the

cross - motion for summary judgment filed by Appellants. We affirm.

T he relevant factual and procedural history of the dispute between the
parties to this appeal can be summarized as follows. Daley and Sonnier were
among several investors in American Deli’s , Inc. (“American Deli’s”) , a corporation that owned two unsuccessful Quiznos franchises in Pennsylvania.

In 2005 , Daley asked Sonnier to loan funds to Daley f or the payment of taxes

that American Deli’s owed to the Internal Revenu e Service. Sonnier agreed,

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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and in July 2005, Sonnier wire

- transferred $62,0 0 0 to Daley

. 1 The loan was

secured by a mortgage on real estate owned by Malden Properties and signed
by D aley in his capacity as p resident of Malden Properties

. 2 The mortgage

identified Malden Properties as the mortgagor and Sonnier as the mortgagee.
In December 2005, American Deli’s filed for bankruptcy. Sonnier , who
had invested $220,000 in American Deli’s, was listed as an unsecured creditor
in the bankruptcy proceedings. In November 2006, the bankruptcy court

issued a final decree discharg ing a ll debts to all creditors of American Deli ’ s. In April 2012, Daley sent a letter to Sonnier re affirming the loan and
promising to repay it with the proceeds of a pending personal injury action.
However, no re payment was ever made to Sonnier by Daley or Malden
Propertie s

. In June 2018, Sonnier filed a complaint against Appellants in which he ,
int er alia , asserted a claim for brea ch of contract and s ought repayment of the

loan

. In their answer and new matter, Appellants admitted the particulars of
the loan and that it had not been repaid. However, Appellants averred that
the loan had been discharged in American Deli’s bankruptcy proceedings. The

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1 T he trial court indicate s that the loan amount is $62,000. Sonnier and Appellants indicate that the loan amount is $ 62,020. As the order granting summary judgment in Sonnier’s favor indicates that the loan amount is $62,000, we will use th at amount throughout this Memorandum.

2 Daley is the sole owner of Malden Properties.J

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parties filed cross

- motions for summary judgment. On May 28, 2021, the trial

court entered an order granting Sonnier’s motion for summary judgment and
denying Appellants’ cross

- motion for summary judgment

. Appellants filed a
timely notice of appeal , and both Appellants and the trial court complied with

Pa.R.A.P. 1925

. Appellants raise the following issue for our review:

Did the [trial ] co urt err and abuse its discretion by denying Appellants ’ [ sic ] due process by when it did not follow the “ Nanty G l o r ule ”

. . . by not adhering to the rule of existence of a genuine issue of a material fact and summarily entering a judgment where the evidence depended upon Appellants ’ oral testimony?
Appellants’ Brief at 9 (unnecessary capitalization omitted)

. 3
Initially, we mu st determine whether Appellants preserved their sole

issue for our review. 4 As our Supreme Court has explained, “arguments not

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3 The Nanty - Glo rule provides that “[o]ral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact.” Pa.R.C.P. 1035.2 Note ( citing Borough of Nanty
- Glo v. American Surety Co. of New York , 163 A. 523 (Pa. 1932) , and Penn Center House, Inc. v. Hoffman , 553 A.2d 900, 903 (Pa. 1989) ).

4 Appellants have raised additional arguments in their brief ; namely, that Daley is not a proper party to the instant action , and that he should be afforded the protections of the corporate veil . However, Appellants concede that they did not raise these issues before the trial court. Accordingly, they failed to preserve t hem for our review. See Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Further, even if these issues had been preserved, they were not raised in the statement of questi ons involved. See Pa.R.A.P. 2116(a) (Footnote Continued Next Page)J

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raised initially before the trial court in opposition to summary judgment cannot
be raised for the first time on appeal. ” Kren tz v. CONRAIL , 910 A.2d 20, 37
(Pa. 2006) (citations omitted)

. Accordingly, when a litigant fails to raise a
Nanty - Glo argument in opposition to a motion for summary judgment, the

issue is waived. See id

. at 37 ; see also Lineberger v. Wyeth , 894 A.2d
141, 149 (Pa. Super. 2006) (holding that a Nanty - Glo argument was waived

where it was not raised in opposition to a motion for summary judgment or included in the concise statement)

. 5
Here, Appellants did not raise any Nanty - Glo argument in th e ir brief in
opposition to Sonnier’s motion f o r summary judgment . Accordingly, the issue

is waived. See Krentz , 910 A.2d at 37; Lineberger , 894 A.2d at 149. 6

Order affirmed.

_________________ __________ ______ ____ _______ (providing that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby”).

5 The fact that the trial court addressed and rejected Appellants’ Nanty - Gl o argument in its Rule 1925(a) opinion does not operate to resuscitate the waived claim. See Commonwealth v. Thompson , 93 A.3d 478, 490 (Pa. Super. 2014) (holding that the failure to properly preserve a claim will result in waiver, even if the trial court addresses the issue in its Rule Pa.R.A.P. 1925(a) opinion).

6 Even if Appellants had not waived their Nanty - Glo issue, it patently lacks merit. The Nanty - Glo rule does not apply where the moving party supports the motion by using admissions of the opposing party. See First Philson Bank, N.A. v. Hartford Fire Ins. Co. , 727 A.2d 584, 587 (Pa. Super. 1999)

. Here, Sonnier’s motion for summary judgment was supported by, inter alia , Appellants’ admissions in their answer and new matter and Daley’s deposition testimony. See Motion for Summary Judgment, 4/12/21, at ¶¶ 1

- 20 , Exhibits C, D

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2022