Opinion
J-S65001-18 No. 609 MDA 2018
01-09-2019
TERRY SUTTON, BRENDA L. SUTTON, AND CHRIS CINKAJ Appellants v. PEOPLES BANK
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered April 3, 2018
In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-000735-67 BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY SHOGAN, J.:
Appellants, Terry Sutton, Brenda L. Sutton, and Chris Cinkaj, appeal from the order granting summary judgment in favor of Appellee, Peoples Bank ("the Bank"). We affirm.
The trial court summarized the facts and procedural history of the case in its order granting summary judgment, as follows:
The trial court's eighteen-page order is in the nature of an opinion.
Plaintiff Terry L. Sutton is a person who does business under the trade name "Cinkaj Brogue Partnership" and resides in York County, Pennsylvania. Plaintiff Brenda L. Sutton is also a person who does business under the trade name "Cinkaj Brogue Limited Partnership" and resides in York[] County, Pennsylvania. Plaintiffs Terry and Brenda Sutton are also husband and wife. Plaintiff Chris Cinkaj is a person who does business under the trade name "Cinkaj Brogue Partnership" and resides in Langhorne, Pennsylvania. Plaintiff Brogue Limited Partnership is a Pennsylvania limited partnership located in York, Pennsylvania.
Defendant Peoples Bank, Codorus Valley Bancorp, Inc.[,] is a one-bank holding company headquartered in York, Pennsylvania.
Plaintiffs [were] part owners of the Brogue Center (hereinafter the "Property"), located at 2514 Delta Road, Chanceford Township, York County, Brogue, PA. The Property consists of a shopping center in which a number of tenants were under lease. Defendant operated a branch office in Suite #8 in the Property and had a signed lease with Plaintiffs. On February 13, 2006, Plaintiff Cinkaj executed an open end[ed] mortgage line of credit from Defendant in the sum of one million dollars[,] and Plaintiffs Terry and Brenda Sutton borrowed from Defendant the sum of $150,000 from a line of credit for commercial purposes. Plaintiff Cinkaj had unlimited unrestricted access to the first $500,000 of the open ended mortgage line of credit and the second $500,000 was restricted to a prior notice from Plaintiff Cinkaj to Defendant and consent of Defendant bank.
On or about June 15, 2010, Plaintiff Cinkaj withdrew $500,000 from his line of credit from Defendant to finance future construction projects. On August 30, 2011, Kent Ketterman, Senior Vice President of Defendant, sent an email to Plaintiff Cinkaj stating that he had withdrawn money from his restricted $500,000 line of credit without Defendant's consent. On November 1, 2011, Kent Ketterman sent correspondence to Plaintiff Cinkaj stating that Defendant put his line of credit in default and that the line of credit must be paid to a maximum balance of $500,000 by June 5, 2012. Plaintiffs Terry and Brenda Sutton's line of credit would remain frozen until additional collateral could be provided or when the line was paid back to the required level.
On or about February 1, 2012, Plaintiffs began to research the possibility of opening an adult entertainment business at their Property. On that same date, Plaintiffs allege that they entered into oral negotiations with Jeff Levy, representing Spearmint Rhino Entertainment, to purchase a space at the Property known as "The Office" to run an adult entertainment business. On March 5, 2013, Plaintiffs alleged that they entered
into a lease with Terry Thompson to open "the Office," an adult entertainment business, in a vacant space at their Property.
On March 12, 2013, Plaintiffs submitted an Application for Special Exception to the Chanceford Township Zoning Hearing Board ["Zoning Board"] seeking to make use of their Property as an Adult Oriented Facility. Plaintiffs allege that the application met all of the criteria of the Ordinance as set forth in order for Chanceford Township Zoning Hearing Board members to approve the application for special exception.
On April 16 2013, the Chanceford Township Planning Commission held a meeting. During this meeting, Plaintiffs allege that Defendant's agent, Paul Minnich, stated during the public comment period that Plaintiffs failed to meet the condition of harmony with orderly and appropriate development of the zone. Plaintiffs also allege that Paul Minnich stated that the adult oriented facility would adversely impact the bank's branch office operation.
On May 1, 2013, at another Chanceford Township Planning Commission meeting, Defendant, through its agent Paul Minnich, presented testimony and dissenting opinion based on morality-based arguments against Plaintiffs' application for special exemption. On May 2, 2013, Defendant filed confessed judgments against Plaintiffs Terry and Brenda Sutton in the amount of $79,415.03 and against Plaintiffs Cinkaj and Brogue Limited Partnership in the amount of $1,024,749.06.
On May 13, 2013, the Chanceford Township Planning Commission recommended that the Chanceford Township Zoning Hearing Board reject Plaintiff[s'] application.
On May 24, 2013, Plaintiffs filed a Petition to Strike Confessed Judgment in the Court of Common Pleas of York County, Pennsylvania.
On May 23, 2013, the Chanceford Township Zoning Hearing Board meeting took place. During the meeting, Plaintiffs allege that Defendant's agent, Paul Minnich, asked that the application for a special exemption be denied because Plaintiffs proposed adult-oriented facility was "immoral," "criminal," "outside the character and nature . . . in the neighborhood," and "not appropriate for the community."
On June 17, 2013, Plaintiff Sutton, with counsel, appeared before the Chanceford Township Zoning Hearing Board meeting and argued that the denial of Plaintiffs' application for special exception would be a violation of their rights protected by the Constitution of the United States. At this meeting, Plaintiff alleges that Paul Minnich stated that Plaintiff Sutton "won't even tell [sic] us who these people are . . . It goes directly to the heart of this gentleman's (Sutton) credibility or lack thereof." (See Plaintiffs' Second Amended Complaint ¶ 86). Plaintiffs also allege that Paul Minnich informed the Zoning Hearing Board that Plaintiffs were in default on their loan obligations to Defendant and have been sued for a million dollars.
On July 22, 2013[,] and July 25, 2013, during two meetings of the Chanceford Township Zoning Hearing Board, Plaintiffs allege that Defendant, through Paul Minnich, argued that the Plaintiffs' application should be denied. Plaintiffs allege that Paul Minnich made numerous arguments for the denial of Plaintiffs' application. At the conclusion of the July 25, 2013 meeting, Chanceford Township Zoning Hearing Board members voted to unanimously reject Plaintiffs' Application for Special Exception. Plaintiffs allege that the board members informed the audience that they had denied the application based on arguments made by Paul Minnich, who Plaintiffs allege is the Defendant's agent and special legal counsel. On August 15, 2013, the Chanceford Township Zoning Hearing Board issued a written decision that memorialized the denial.
On or about August 15, 2013, Plaintiffs allege that because of the denial of Plaintiffs' application, Jeff Levy decided not to purchase "the Office" space at the Property. On or about August 31, 2013, Plaintiffs allege that because of the denial of Plaintiffs' application, Terry Thompson announced that he purchased a
location in Atlantic City, New Jersey[,] instead of the location at the Property. The Property was eventually foreclosed on and sold at a Sheriffs sale on April 10, 2014.
On March 10, 2015, Plaintiffs filed their complaint in a civil action initially naming as Defendants Peoples Bank, Larry J. Miller, Kent Ketterman, Harry Swift, Susan Holtzinger, Scott Weaver, Brittany Crispens, and Paul Minnich. The initial complaint alleged intentional interference with existing contractual relations, intentional interference with prospective contractual relations, defamation of character, slander, breach of the implied covenant of good faith and fair dealing, and false light invasion of privacy. On March 30, 2015, the Peoples Bank Defendants, except for Defendant Paul Minnich, filed preliminary objections to Plaintiff[s'] Complaint. On April 6, 2015, Defendant Paul Minnich filed preliminary objections to Plaintiff[s'] Complaint. On June 10, 2015, the Honorable Judge Stephen P. Linebaugh sustained the Defendants' preliminary objections and dismissed all of Plaintiffs' counts, without prejudice. On June 17, 2015, the parties filed a Discontinuance of Action as to Defendant Paul Minnich.
On June 26, 2015, Plaintiffs filed their First Amended Complaint and alleged counts of intentional interference with existing contractual relations and intentional interference with prospective contractual relations against Defendants Peoples Bank, Larry Miller, Kent Ketterman, Scott Weaver, Harry Swift, Susan Holtzinger, and Brittney Crispens. On July 16, 2015, Defendants filed preliminary objections to Plaintiffs' Amended Complaint. On December 18, 2015, the Honorable Judge Stephen P. Linebaugh heard oral argument on Defendants' preliminary objections. On January 6, 2016, Judge Linebaugh granted, in part, and denied, in part, Defendants' preliminary objections. The order dismissed, with prejudice, the actions filed against Larry Miller, Kent Ketterman, Harry Swift, Susan Holtzinger, Scott Weaver, and Brittney Crispens. The case was allowed to continue against Defendant Peoples Bank.
On February 5, 2016, Plaintiffs filed their Second Amended Complaint, which again alleges only "intentional interference with existing contractual relations and intentional interference with prospective contractual relations." On March 11, 2016, Defendant Peoples Bank filed an answer with new matter to the complaint. On April 21, 2016, Plaintiffs filed a reply to Defendant's new matter. On December 15, 2017, Defendant filed a motion and
memorandum of law in support of summary judgment. On February 9, 2018, Plaintiffs filed a response and brief in opposition to Defendant's motion for summary judgment.Opinion and Order Granting Defendant's Motion for Summary Judgment, 4/3/18, at 2-8.
A related lawsuit described this business as "a cabaret featuring nude dancing in the shopping center." Sutton v. Chanceford Twp., 298 F.Supp.3d 790, 793 (M.D. Pa. 2018) (" Sutton II ").
Our review of the record reveals that the trial court was referring to Appellant Terry Sutton.
The Bank points out that while Appellants' claims center on the denial of zoning relief, the Reproduced Record does not include the Zoning Board's August 15, 2013 decision. The Bank's Brief at 3 n.3. We note that the Second Amended Complaint, as well, merely attaches newspaper articles regarding the denial as evidence of its occurrence. Second Amended Complaint, 2/5/16, at Exhibits 27 and 28.
The trial court granted the Bank's motion for summary judgment on April 3, 2018. Appellants filed a notice of appeal on April 13, 2018. Both Appellants and the trial court complied with Pa.R.A.P. 1925.
The trial court relied upon its reasoning in the April 3, 2018 order granting summary judgment in lieu of further explanation in a Pa.R.A.P. 1925(a) opinion.
Appellants frame the same six issues asserted in their Rule 1925(b) statement in the Statement of Questions Involved in their appellate brief:
1. Did the Court err and abuse its discretion by determining that the record is void of sufficient evidence that demonstrates a genuine issue for trial that statements and allegations made by [the Bank] during zoning board hearings went beyond the scope of fair argument and opposition?
2. Did the Court err and abuse[] its discretion by determining that the record is void of sufficient evidence that demonstrates a genuine issue for trial that [the Bank] did more than exercise its opinion in opposition to [Appellants'] zoning request?
3. Did the Court err and abuse its discretion by determining that the record is void of sufficient evidence that demonstrates a genuine issue for trial that [the Bank's] interference was not proper under Reinstatement (Second) of Torts § 767?
4. Did the Court err and abuse its discretion in determining that the record is void of sufficient evidence that
demonstrates a genuine issue for trial that [the Bank's] interference was not without privilege or justification under Reinstatement (Second) of Torts § 768?Appellants' Brief at 4-5.
5. Did the Court err and abuse its discretion, as well as deny [Appellants'] due process by failing to credit sufficient evidence that contradicted its key actual conclusion that [the Bank's] conduct was proper, privileged and justified by improperly weighing the sufficient evidence and resolving disputed issues in favor of the moving party, a clear misapplication of Pennsylvania Rule of Civil Procedure 1035.2?
6. Did the Court err and abuse its discretion by failing to address and offer its opinion on other issues advanced by [the Bank] to support its request for Summary Judgment and disputed by [Appellants]?
Our standard of review is settled:
It is well settled that "summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Truax v. Roulhac , 126 A.3d 991, 996 (Pa. Super. 2015) (en banc) (quoting Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (2010)). In ruling on such a motion, "the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party" and "resolve all doubts as to the existence of a genuine issue of material fact against the moving party." Id. "Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment." Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations omitted). "Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law." Id. Thus, "a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient facts to make out a prima facie cause of action or defense." Basile v. H & R Block , Inc., 777 A.2d 95,
100 (Pa. Super. 2001) (quoting McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998)).Dunlap v. Fed. Signal Corp., 194 A.3d 1067, 1069 (Pa. Super. 2018) (footnote omitted). On appeal, this Court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. Summers , 997 A.2d at 1159. "But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo." Truax , 126 A.3d at 996. "To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record." Wells Fargo Bank v. Joseph , 183 A.3d 1009, 1012 (Pa. Super. 2018).
All of Appellants' issues assert that the trial court failed to credit their evidence contradicting the trial court's "key actual conclusion that [the Bank's] conduct was proper, privileged, and justified by improperly weighing the sufficient evidence and resolving disputed issues in favor of" the Bank. Appellants' Brief at 12. We disagree.
We note initially that Appellants' brief does not comply with our rules of appellate procedure. Specifically, as noted supra, Appellants list six issues in their Statement of Questions Involved, which they identify as issues one through six. Appellants' Brief at 4-5. However, in their brief, Appellants provide argument for only two issues, labeled A and B, which refer to the topics suggested by issues three and five, with a subpart that tracks language of issue one. Clearly, Appellants' brief violates Pa.R.A.P. 2119, which mandates that "[t]he argument shall be divided into as many parts as there are questions to be argued . . . ." Pa.R.A.P. 2119(a). The reason for the rule is readily apparent, and compliance with the rule aids this Court in identifying and addressing Appellants' claims. Indeed, this Court will not consider an argument that has been abandoned. See Koller Concrete , Inc. v. Tube City IMS , LLC , 115 A.3d 312, 320 321 (Pa. Super. 2015) (Superior Court will not address issue presented in the statement of questions involved where no corresponding analysis is included in the brief); Lechowicz v. Moser , 164 A.3d 1271, 1276 (Pa. Super. 2017) (Superior Court will not consider argument that is not properly developed). Thus, issues two, four, and six, which have been abandoned in the brief, are waived and will not be addressed.
To the extent the abandoned issues were addressed by the trial court, we would rely on its disposition and explanation.
In issue A, subpart one, in the argument section of Appellants' brief, Appellants maintain that the trial court abused its discretion by determining that the record lacks sufficient evidence demonstrating a genuine issue that the Bank's "interference was not proper under Reinstatement (Second) of Torts §767." Appellants' Brief at 12. In subpart two, Appellants maintain that the trial court did not consider Appellants' evidence in concluding that the Bank's statements to the Zoning Board "went beyond the scope of fair argument and opposition." Id. at 21. Finally, Appellants contend the trial court abused its discretion in disregarding Appellants' "additional arguments." Id. at 34. In conjunction, Appellants suggest the trial court failed to credit contradicting evidence to its determination that the Bank's conduct was proper and justified, thereby misapplying Pa.R.C.P. 1035.2 Id .
We note that there was a discrepancy between the parties concerning Appellants' actions regarding the Zoning Board's decision. See Bank's Application for Relief in the Nature of a Motion to Correct the Record, filed 10/18/18. After their application was denied by the Zoning Board, Appellants forewent an appeal in state court and instead, filed the instant complaint against the Bank and others on March 10, 2015, and a federal complaint on August 12, 2014, against Chanceford Township and others challenging the zoning ordinance regarding adult-oriented businesses. Appellants claimed their application for a special exception was denied due to moral objections to adult entertainment, and that the ordinance and the denial of their application violated the First Amendment to the United States Constitution. Sutton v. Chanceford Twp., 186 F.Supp.3d 342, 345 (M.D. Pa. 2016) (" Sutton I "). Appellants sought "monetary damages, a declaration that the zoning ordinance was unconstitutional, and an injunction against the ordinance's future enforcement." Id. at 345-346. Ultimately, the federal district court granted the township's summary-judgment motion, stating:
[A]lthough the plaintiffs are plainly aggrieved by the denial of their application, we do not find sufficient evidence to show that this denial was so arbitrary or improper that it shocks the conscience. Instead, it appears to be little more than a local land-use decision pitting a frustrated business against the [Zoning Board] and other local officials who had legitimate, objective, and content-neutral reasons for their adverse decision.Sutton II , 298 F.Supp.3d at 810.
In its brief to this Court, the Bank asserted that Sutton II , because it was an unappealed decision, put to rest any attempt by Appellants to persuade us of the veracity of their position in the instant case. In actuality, however, Appellants did appeal the district court's decision to the Third Circuit Court of Appeals on April 18, 2018. Sutton v. Chanceford Twp., Case Number 18-1846 (3d Cir. 2018). Nevertheless, our decision today is based solely on the propriety of the trial court's decision in the case sub judice and not in reliance upon the federal lawsuit by Appellants against Chanceford Township.
We have considered Appellants' arguments, the Bank's responses, reviewed the applicable law, and carefully examined the record certified to us on appeal. We conclude that the April 3, 2018 Order granting summary judgment, as relied upon in the June 7, 2018 statement pursuant to Pa.R.A.P. 1925(a) in lieu of an opinion by the Honorable Richard K. Renn, sufficiently addresses the issues raised on appeal, and we rely upon it in affirming this case. The parties are directed to attach the April 3, 2018 Order in the event of future proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/9/2019
Image materials not available for display.