J-S56002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL L. NUGENT AND BRYANN M.                      IN THE SUPERIOR COURT OF
NUGENT, HUSBAND AND WIFE                                  PENNSYLVANIA

                            Appellants

                       v.

SUSQUEHANNA BANK, SUCCESSOR BY
ACQUISITION TO COMMUNITY BANKS

                            Appellee


                       v.
                                                         No. 734 MDA 2014
ROBERT R. NUGENT AND MARY E.
NUGENT, HUSBAND AND WIFE




                       Appeal from the Order April 7, 2014
                  In the Court of Common Pleas of York County
                    Civil Division at No(s): 2011-SU-3429-49


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED OCTOBER 07, 2014

        Appellants, Daniel L. Nugent and Bryann M. Nugent, husband and wife,

appeal from the order entered April 7, 2014, by the Honorable Maria Musti

Cook, Court of Common Pleas of York County, which entered summary

judgment in favor of Appellee, Susquehanna Bank. After review, we affirm.

        The trial court set forth the history of this case as follows:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           On September 6, 2011, Daniel L. Nugent and Bryann M.


     [Susquehanna Bank] failed to forward proceeds received in
     conveyance of a property rightfully and equitably owned by
     [Appellants].

           The relevant facts are as follows: Prior to November 24,

     record owners of the premises located at 230 Brickyard Road,

     November 24, 2003, [Appellants] filed a Complaint against
     Parents to enforce an inter vivos gift of the Property and
     improvement to [Appellants], docketed at case number 2003-
     SU-5398-Y07. A lis pendens from the above suit was indexed
     against the Property on July 29, 2004. A Petition to Strike the lis
     pendens was filed on November 28, 200[6], by Parents.
     [Susquehanna Bank] had confessed judgment against Parents
     and [Appellant] Daniel Nugent to case numbers 2006-NO-1760,
     1771, 1772-Y30 on May 2, 2006. [Appellant] Daniel Nugent filed
     Petitions to Strike these confessed judgments on January 12,
     2007, to case numbers 2007-SU-150, 152, 153-Y08. Amended
     Petitions to open and/or strike were filed on February 26, 2007,
     prior to any issuance of writ of execution or required notices
     regarding same pursuant to the Pennsylvania Rules of Civil
     Procedure.

           [Susquehanna Bank] appeared via counsel on January 22,
     2007, before this [c]ourt and actively advocated in the oral
     argument in favor of striking the lis pendens to allow the sale of
     the Property so the proceeds could be given to [Susquehanna
     Bank] in payment of confessed judgments which were being
     contested by [Appellant] Daniel Nugent. This [c]ourt entered an
     Order on March 15, 2007, striking the lis pendens. [Appellant]
     attempted to appeal the decision to the Superior Court. Parents
     resisted the appeal and it was eventually quashed on June 6,
     2007.

           After the lis pendens was stri[c]ken, Parents conveyed the
     Property [to a third party] on June 25, 2007, as part of a three
     parcel conveyance totaling 27.261 acres for a total consideration
     of $1,000,000,00. None of the proceeds of the conveyance were
     escrowed pending the determination of the validity of the
     underlying oral inter vivos gift and the net proceeds of the sale


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     were paid over to [Susquehanna Bank] in partial satisfaction of
     the above confessed judgments.

            On December 10, 2007, a jury found the existence of a
     valid oral gift of the Property to [Appellants] as tenants by the
     entireties by [Parents] which occurred in December 1989, and
     awarded [Appellants] the sum of $619,000.00 in money
     damages.        [The damages award was later modified to
     $510,150.00 in favor of Appellants,] which represents money
     damages in substantiation of the Property given to [Appellants]
     by inter vivos gift of [Parents], since the property had been sold
     prior to trial.

           [In their Complaint filed several years thereafter on
     September 6, 2011, Appellants] argue[d] that [Susquehanna
     Bank] is presently in possession of the money proceeds received
     in the conveyance of such property, which were not placed in an
     escrow account. [Appellants] aver that it would be improper for
     [Susquehanna Bank] to retain the money consideration received
     for the conveyance of the Property, and [Susquehanna Bank]
     would be unjustly enriched were it permitted to retain such
     proceeds. [Appellants] further aver that [Appellant] Bryann
     Nugent was never liable for any loans with [Susquehanna Bank],
     or its predecessors, and the gifted entireties property would
     have been unavai
     creditors.    [Appellants] requested that this [c]ourt hold
     [Susquehanna Bank] as trustee for [Appellants] of the money
     from the current owners of the Property, and that [Susquehanna
     Bank] be ordered to pay over to [Appellants] the amount due
     with interest from the date of the filing of the original action on
     November 24, 2003.

           [Susquehanna Bank] filed Preliminary Objections on
     October 14, 2011, and on October 24, 2011, a brief in support
     thereof. On November 22, 2011, [Appellants] filed an Answer to

     2012, the Honorable Sheryl Ann Dorney entered an Order
     overruling [the] Preliminary Objections.

           On May 3, 2012, [Susquehanna Bank] filed an Answer with
     New Matter and Counterclaim. In its New Matter, [Susquehanna
     Bank] explains that Parents, along with their sons Daniel Nugent
     and Donald J. Nugent, executed and delivered to Blue Ball Bank
     a/k/a Community Banks (now [Susquehanna Bank]) Commercial
     Suretyship Agreements and Disclosures for Confession of

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     Judgment in which they all agreed to act absolutely and
     unconditionally as sureties for a loan Community Banks made to
     York Mold, Inc., and they all agreed to pledge as collateral all
     other property and future real property or rights to Property of
     the Surety.    On April 24, 2003, [Susquehanna Bank had]
     granted to [Parents] a mortgage on the Property. [Appellants]
     did not object or contest that [Parents] were securing a loan
     with [the bank] by using the property as collateral.

           [Susquehanna Bank] states that it was due to the default
     on the loan by York Mold, Inc. that [it] filed a Complaint for
     Confession of Judgment against Robert, Mary, Daniel, and
     Donald Nugent on May 2, 2006. [Susquehanna Bank] argues
     that the June 25, 2007 conveyance of the Property by Parents to
     the third party was executed so that the net proceeds could be
     paid to the [the bank] in partial satisfaction of the outstanding
     loan and the confessed judgments entered against Parents.
     [Susquehanna Bank] alleges that the payment Parents paid to
     [the bank] is no longer available as [Susquehanna Bank] applied
     the payment it received to the outstanding loan balance and in
     partial satisfaction of the confessed judgment. [Susquehanna
     Bank] also alleges that at the time Parents sold the Property it
     paid the proceeds to [the bank], [Appellants] took no steps to
     seek an imposition of a constructive trust or otherwise take
     steps to prevent Parents from paying the proceeds to
     [Susquehanna Bank] or to prevent [the bank] from dispersing
     the funds against the outstanding loan balance. [Susquehanna
     Bank] also listed several affirmative defenses.

            In its Counterclaim, [Susquehanna Bank] argued that
     during the application and execution of the Loan Documents,
     [Appellants] intentionally concealed and did not disclose that
     they claimed to be the owner of the property based on an oral
     gift from Parents. Additionally, [Susquehanna Bank] claims that

     proceeds paid by Parents to [it] in satisfaction of a debt that
     [Appellant] Daniel Nugent was also contractually bound to pay
     represents   further  breach    of   the    Loan    Documents.
     [Susquehanna Bank] also argues that [Appellants] are
     attempting to misuse the legal process to try to collect the

     liable for the proceeds [Appellants] seek to recover. As such,
     [Susquehanna Bank] seeks a judgment in favor of all damages,



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        the Loan Documents.

              On May 3, 2012, [Susquehanna Bank] filed a joinder

        Robert R. Nugent and Mary E. Nugent arguing that in the
        underlying    litigation    (case   number   2003-SU-5398-Y07)
        [Appellants] obtained a money judgment against Parents only,
        therefore Parents are indispensable parties to any subsequent
        claim by [Appellants] seeking to enforce their judgment and
        Parents must be joined as [d]efendants as they are solely liable
        to [Appellants] for the money judgment. [Susquehanna Bank]
        argues that to the extent that the actions of Parents in selling
        the Property and using the proceeds to pay [the bank] caused
        the losses alleged by [Appellants], Parents are solely liable to
        Appellants or jointly liable with [Susquehanna Bank]. Moreover,
        [Susquehanna Bank] argues that Parents remain directly liable
        to [it] under the loan documents, suretyship agreement,
        confessed judgment, and equitable principals of unjust
        enrichment should it be determined that the proceeds from the
        sale of the property were improperly paid by Parents to
        [Susquehanna Bank].[1]

Trial Court Opinion, 4/10/14 at 2-7.

        On July 9, 2013, Appellants filed a Motion for Summary Judgment, and

on October 31, 2013, Susquehanna Bank filed a counter Motion for

Summary Judgment.          By order dated April 7, 2014, the trial court denied



in favor of Susquehanna Bank. This timely appeal followed.

        On appeal, Appellants raise the following issues for our review.

        A. Whether [Susquehanna Bank] was a subsequent bona fide
           mortgagee entitling [it] to a superior interest in the proceeds.


____________________________________________


1
    To date, Parents have not entered an appearance in this matter.



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J-S56002-14


      B. Whether Appellants established their right to the equitable
         relief of a constructive trust based on the record.

      C. Whether [Susquehanna Bank] can rely on the order lifting the
         lis pendens.

      D.
           for legal damages in a previous action.



      We review a challenge to the entry of summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.


      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      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. 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. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

                                                     l issue raised on appeal,

wherein they argue that the trial court incorrectly determined that the

instant action was untimely or barred by election for legal damages in a

previous action, was not included in their court-ordered Statement of

Matters Complained of on Appeal filed pursuant to Pa.R.A.P. 1925(b). See

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J-S56002-14



Pa.R.A.P. 1925(b) Statement, 5/6/14.         Rule 1925(b)(4)(vii) expressly

mandates th

are therefore prohibited from reviewing this issue on appeal.

                                                                        we

have examined the certified record, the briefs of the parties, t

opinion, and the applicable law, and we find that Judge Cook ably and

methodically addressed the issues Appellants presented on appeal. We find



Appellee, Susqueha

well-written memorandum opinion. See Trial Court Opinion, 4/10/14.

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




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