J-S03017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KERMITH SONNIER

v.

PETER DALEY AND MALDEN 

PROPERTIES, LTD 

Appellants

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 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 Properties”)

(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. 

The 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 for the payment of taxes 

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

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* Retired Senior Judge assigned to the Superior Court.
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and in July 2005, Sonnier wire-transferred $62,000 to Daley.

1

 The loan was 

secured by a mortgage on real estate owned by Malden Properties and signed 

by Daley in his capacity as president 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 discharging all debts to all creditors of American Deli’s. 

In April 2012, Daley sent a letter to Sonnier reaffirming the loan and 

promising to repay it with the proceeds of a pending personal injury action. 

However, no repayment was ever made to Sonnier by Daley or Malden 

Properties. 

In June 2018, Sonnier filed a complaint against Appellants in which he,

inter alia, asserted a claim for breach of contract and sought 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 The trial court indicates 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 that amount throughout this Memorandum.

2 Daley is the sole owner of Malden Properties. 
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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] court err and abuse its discretion by denying 

Appellants’ [sic] due process by when it did not follow the “NantyGlo rule” . . . 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 must 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 them 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 questions involved. See Pa.R.A.P. 2116(a) 

(Footnote Continued Next Page)
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raised initially before the trial court in opposition to summary judgment cannot 

be raised for the first time on appeal.” Krentz 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 their brief in 

opposition to Sonnier’s motion for summary judgment. Accordingly, the issue 

is waived. See Krentz, 910 A.2d at 37; Lineberger, 894 A.2d at 149.6

Order affirmed.

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(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-Glo

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