J-S50018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT C. FITZSIMMONS AND               :     IN THE SUPERIOR COURT OF
AMBRA FITZSIMMONS,                      :          PENNSYLVANIA
                                        :
                       Appellants       :
                                        :
             v.                         :
                                        :
THE OFFICE OF ECONOMIC AND              :
COMMUNITY DEVELOPMENT OF THE            :
CITY OF BRADFORD,                       :
                                        :
                       Appellee         :     No. 23 WDA 2014


              Appeal from the Order Entered December 3, 2013,
              In the Court of Common Pleas of McKean County,
                    Civil Division, at No. 1358 C.D. 2012.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.:                    FILED SEPTEMBER 08, 2014

     Appellants Robert C. Fitzsimmons and Ambra Fitzsimmons, his wife,

appeal from the order entering summary judgment in favor of The Office of



We affirm.

     The trial court summarized the facts and procedural history as follows:

     Patricia Rodgers purchased the property located at [28 Onofrio]
     Street, Bradford, Pennsylvania [on February 10, 2001]. To help
     with the purchase, she received a $22,000 loan from [OECD].
     The loan was secured with a mortgage. Robert Fitzsimmons
     married Patricia Rodgers in March 2004. On December 13,
     2006, Robert Fitzsimmons was added as a title owner to the
     property in question via a quit claim deed. In September 2009
     Robert Fitzsimmons and Patricia Rodgers were divorced. As part
     of the distribution of property, Mr. Fitzsimmons was given
J-S50018-14



     ownership of the property located at [28 Onofrio] Street,
     Bradford, Pennsylvania. On April 16, 2011, Robert Fitzsimmons
     and Ambra Fitzsimmons were married. On December 23, 2009,
     Robert Fitzsimmons executed a Mortgage Assumption Agreement
     with [OECD] and assumed the mortgage issued to Patricia
     Rodgers. On June 20, 2012, at a real estate closing, [OECD]
     took the net proceeds of the sale of the property at [28 Onofrio]
     Street Bradford, Pennsylvania ($16,319.96), over the objection
     of [Appellants]. [OECD] took the net proceeds to satisfy the
     $22,000 mortgage issued to Patricia Rodgers and assumed by
     [Appellants].   [According to Appellants, OECD] should have
     never taken the proceeds because the $22,000 loan was
     forgiven, per the mortgage, because Robert Fitzsimmons and
     Patricia Rodgers met the residency requirements.

           [Appellants filed a complaint on October 22, 2012.] On
     November 20, 2012, [OECD] filed an Answer and New Matter
     denying that it inappropriately took the net proceeds of the sale
     and alleged the following facts: The mortgage and note entered
     into by Patricia Rodgers explicitly required her to pay back the
     $22,000.[1]     Through the Mortgage Assumption Agreement
     Robert    Fitzsimmons     assumed     that   obligation.  Robert
     Fitzsimmons sold the property at [28 Onofrio] Street on June 20,
     2012. Prior to the sale, [Appellants] acknowledged that they
     owed [OECD] $22,000, but indicated they did not have sufficient
     funds to pay the full amount and agreed to pay [OECD] the net
     amount of proceeds from the sale ($16,319.96) if [OECD] would
     accept the same in return for satisfaction of the mortgage.
     [OECD] agreed.

           On December 28, 2012, [Appellants] filed an Answer to

     [OECD] because the loan was forgiven.




1
   According to Sara Andrews, Executive Director of OECD, the $22,000.00
down pa
2001 by Resolution #24519. This resolution specifically provides that these
monies are repayable in full without interest upon the sale of the
                                              /13, at unnumbered 2 and
attachment.

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J-S50018-14



          On October 24, 2013, [OECD] filed a Motion for Summary
     Judgment with a Brief in Support.         On November 7, 2013
     [Appellants] filed an Answer.          On November 14, 2013,
     [Appellants] filed a Brief in Opposition.

Trial Court Opinion, 12/3/13, at unnumbered 1 2.



December 3, 2013.    This appeal followed.   Appellants and the trial court

have complied with Pa.R.A.P. 1925.

     On appeal, Appellants present the following question for review:

           Did the Trial Court err in granting summary judgment
     against [Appellants] on claims against [OECD] based upon the
     Mortgage that was executed by the parties? Specifically, did the
     Trial Court err by finding as a matter of law that [Appel
     obligation to repay the $22,000 loan was not forgiven pursuant
     to the terms of the Mortgage and that [Appellants] were
     obligated to repay such loan?



     Initially, we observe our scope and standard of review:

     Our scope of review of an order granting summary judgment is
     plenary. [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.

     Motions for summary judgment necessarily and directly implicate

     Thus, a record that supports summary judgment will either (1)
     show the material facts are undisputed or (2) contain insufficient


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J-S50018-14



      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to the
      [fact-finder]. Upon appellate review, we are not bound by the
      t

      order only upon an error of law or an abuse of discretion.

            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.

      Where the discretion exercised by the trial court is challenged on
      appeal, the party bringing the challenge bears a heavy burden.

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585 586 (Pa. Super.

2013) (citations and quotation marks omitted).      The question of whether

there exist any genuine issues of material fact is subject to a de novo

standard of review.   Drelles v. Manufacturers Life Ins. Co., 881 A.2d

822, 830 831 (Pa. Super. 2005).

      Pennsylvania Rule of Civil Procedure 1035.2 provides for summary

judgment, in pertinent part, as follows:

      Rule 1035.2. Motion

            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




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      which could be established by additional discovery or expert
      report[.]

                                    ***

         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.

         The evidentiary record may be one of two types. Under
         subparagraph (1), the record shows that the material facts
         are undisputed and, therefore, there is no issue to be
         submitted to a [fact-finder].

         An example of a motion under subparagraph (1) is a
         motion supported by a record containing an admission. By
         virtue of the admission, no issue of fact could be
         established by further discovery or expert report.

                                    ***

         Oral testimony alone, either through testimonial affidavits

         witnesses, even if uncontradicted, is generally insufficient
         to establish the absence of a genuine issue of material
         fact.

Pa.R.C.P. 1035.2 (internal citations omitted).

      When faced with questions of contractual interpretation, our standard

and scope of review are well settled:

            Because contract interpretation is a question of law,

            interpretation.    Our standard of review over
            questions of law is de novo and to the extent
            necessary, the scope of our review is plenary as the
            appellate court may review the entire record in
            making its decision. However, we are bound by the




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     Ruby v. Abington Memorial Hospital, 50 A.3d 128, 132
     (Pa.Super.2012) (internal quotations omitted). Moreover, we
     have stated:

           Determining the intention of the parties is a
           paramount consideration in the interpretation of any
           contract. The intent of the parties is to be
           ascertained from the document itself when the terms
           are clear and unambiguous. However, as this Court
           stated in Herr Estate, 400 Pa. 90, 161 A.2d 32

           is admissible to explain or clarify or resolve the
           ambiguity, irrespective of whether the ambiguity is
           created by the language of the instrument or by


           We first analyze the contract to determine whether
           an ambiguity exists requiring the use of extrinsic
           evidence. A contract is ambiguous if it is reasonably
           susceptible of different constructions and capable of
           being understood in more than one sense. The
           court, as a matter of law, determines the existence
           of an ambiguity and interprets the contract whereas
           the resolution of conflicting parol evidence relevant
           to what the parties intended by the ambiguous
           provision is for the trier of fact.

     Missett v. Hub International Pennsylvania, LLC, 6 A.3d 530,


     State Farm Fire and Casualty Company v. PECO, 54 A.3d
     921, 928 (Pa.Super.2012).

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,

6 7 (Pa. Super. 2013).



Mortgage, the $22,000 loan was forgiven as a result of the satisfaction of

the condition that Patricia F. Rodgers and Robert C. Fitzsimmons occupy the


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J-S50018-14




     Robert C. Fitzsimmons assumed the debt of Patricia Rodgers
     under the Note and Mortgage.         The Note and Mortgage
     unambiguously required Rodgers to repay the $22,000.00 down
     payment assistance loan to the OECD upon the sale of the
     Property. . . Robert C. Fitzsimmons expressly acknowledged the
     obligation to repay the down payment assistance loan when he
     executed the Mortgage Assumption Agreement.

                      OECD explains that the five-year residency period relied



the Property under the HOME program[, a program to improve the quality of

housing stock in a community]. This language was designed to prevent a

purchaser from receiving the enhanced value and benefit of a publicly-

funded home renovation and then flipping the home shortly after purchasing

                        10; see also Affidavit of Sara Andrews, 10/24/13, at

unnumbered 3 (explaining that the residency provisions were related to the

HOME rehabilitation monies and not the $22,000.00 down payment

assistance monies).

     The trial court reviewed the following document provisions as relevant:

     1. Mortgage between Patricia Rodgers and [OECD] securing
        $22,000 loan, recorded February 20, 2001:

        a.
             OECD upon the sale of the real estate, without




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J-S50018-14



       b.
            1. Payment of this debt in full without interest upon the


       c.
            of Property; Borrowers Loan Application; leaseholds.
            Borrower shall occupy, establish, and use the Property

            the execution of this Security Instrument and shall

            residence for the entire five (5) year forgiveness period.

            principal residence at another location, Borrower will be


     2. Note for $22,000 dated February 20, 2001:

            a.                                    icia F. Rodgers,
                 borrower, whose address is 28 Onofrio Street,
                 Bradford, Pennsylvania 16701, hereby promises to
                 pay the order of Office of Economic and Community
                 Development of the City of Bradford, Payee, whose
                 address is 20 Russell Boulevard, Bradford,
                 Pennsylvania 16701, the principal sum of $22,000.
                 Payment of this debt may be made in full without


     3. Mortgage Assumption Agreement between OECD and Robert
        Fitzsimmons dated December 23, 2009:

            a.                                  der and owner of the
                 following   documents         (hereinafter sometimes

                 Mortgage Note dated February 20, 2001, in the
                 original principal amount of $22,000 executed and
                 delivered by PATRICIA F. RODGERS (hereinafter


                 2.   Mortgage   given    by    Original   Borrower   as

                 20, 2001 . . . and which Mortgage encumbers the
                 real


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            b. WHEREAS, the Borrower [Robert Fitzsimmons]
               desires to receive said Property and formally assume
               all of the covenants and conditions contained in the


            c. NOW THEREFORE, for and in consideration of the
               sum of One Dollar ($1.00) in hand paid, receipt of
               which is hereby acknowledged and in consideration
               of the Premises and of the mutual covenants
               contained herein, and for other good and valuable
               consideration, the receipt and sufficiency of which
               are hereby acknowledged by the parties, the parties
               hereto agree as follows:

                   i. Assumption. Borrower [Robert Fitzsimmons]
                      expressly assumes the Loan Documents and
                      agrees to perform all covenants, conditions,
                      duties and obligations contained therein and
                      agrees to pay the Note and the obligations
                      evidenced thereby in a prompt and timely
                      manner in accordance with the terms


Trial Court Opinion, 12/3/13, at unnumbered 2 4 (emphasis omitted;

brackets in original).

      Applying the laws of summary judgment and contract interpretation to

the mortgage and note provisions, the trial court opined as follows:


      because the contracts at issue in this case required [Appellants]
      to repay the $22,000 loan. Both parties agree that [Appellants]
      assumed the Mortgage and Note that belonged to Patricia
      Rodgers. The dispute is based on how to interpret the Mortgage.
      [OECD] argues that the Mortgage should be interpreted to
      require [Appellants] to re-pay the $22,000 loan. [Appellants]
      argue that the Mortgage should be interpreted to grant [them]
      loan forgiveness due to meeting the residency requirement. The
      Court must use the cannons [sic] of interpretation to determine


                                      -9-
J-S50018-14



     if these clauses can be reconciled or if one must trump the
     other. The Mortgage has at least two clauses that explicitly
     state that Ms. Rodgers had to repay the loan and one clause
     which suggests that the loan could be forgiven if she lived in the
     residence for five years. The clauses cannot cancel each other
     out and cannot be reconciled. Thus, under [Hoover to Use of
     Chambersburg Trust Co. v. Alexander, 163 A. 389, 390 (Pa.
     Super. Ct. 1932)], the earlier clauses requiring re-payment must
     trump the latter clause that suggests loan forgiveness.

           Further, the differing clauses create an ambiguity in the
     mortgage. Based on that ambiguity the Court must ascertain
     the intent of the parties. The best evidence for ascertaining the

     documents surrounding the mortgage. The Court has all of
     these documents properly before it, so it will use them to
     decipher the intent of Patricia Rodgers when she entered into the
     Mortgage and Note and the intent of Robert Fitzsimmons when
     he entered into the Mortgage Assumption Agreement.

           First, Patricia Rodgers intended to pay the loan back to
     [OECD]. The Mortgage contains two clauses that require Ms.
     Rodgers to re-pay the loan when she sells the house. Neither
     clause mentions loan forgiveness, but requires the loan to be re-
     paid once the house is sold. Along with the Mortgage, Ms.
     Rodgers signed a Note for $22,000 that explicitly stated that she
     was responsible for paying back the loan when she sold the
     house. The Note also makes no mention of loan forgiveness, but
     instead makes the sale of the house the trigger for paying back
     the loan. Ms. Rodgers intended to pay back the loan.

           Second, Robert Fitzsimmons intended to pay back the
     loan. The Mortgage Assumption agreement contains multiple
     clauses that require Mr. Fitzsimmons to pay back the loan. He
     assumed the mortgage, the note, and all obligations arising
     therefrom.     The Agreement makes no mention of loan
     forgiveness. Also, Mr. Fitzsimmons signed this Agreement long
     after he would have met any alleged residency requirement for
     loan forgiveness. If he thought the loan was forgiven, then he
     would not have assumed the Note and Mortgage because the
     loan obligations arising therefrom would have already been




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J-S50018-14



        fulfilled.  He knew, or should have known through the
        representations of his counsel, what he was assuming.

        . . . Based on a basic interpretation of the Mortgage and after

        disagree that [Appellants] were required to re-pay the $22,000
        loan.

Trial Court Opinion, 12/3/13, at unnumbered pages 7 8.

        Applying our standard of review to the record at hand, we discern no



determination. The agreement of sale between Patricia Rodgers and the City



assistance of $22,000 to be financed as a second mortgage         no monthly

payment required. Must be paid in full upon sale of property or change of

                                    16/01, at ¶ 6(E). The mortgage and note

expressly require repayment of the $22,000 down-payment-assistance loan

to OECD upon sale of the property. Mortgage, 2/20/01, at 1; Note, 2/20/01,

at 1.     Mr. Fitzsimmons assumed that obligation when he executed the

mortgage assumption agreement, which was recorded in McKean County

Record Book 647, Page 344. Mortgage Assumption Agreement, 12/23/09.

Indeed, Appellants     averred in their   complaint   that   Mr. Fitzsimmons

                                                             D] to assume the

mortgage previously issued from Patricia F. Rodgers mortgage dated




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      Additionally, the mortgage disallowed transfer of the property without

                                         uant to the mortgage assumption



Property to [Mr. Fitzsimmons] unless [he] shall assume all of the obligations



Mortgage, 2/20/01, at ¶ 15; Mortgage Assumption Agreement at 1.          The

record also contains a memo drafted by Sara Andrews on July, 13, 2012,

explaining the context of the five-year forgiveness language which was

erroneously included in the mortgage. Sara Andrews also indicated that Mr.



transfer of the property from Ms. Rodgers as [Sara Andrews] had a

conversation with him on the matter and [she] also required him to provide

income informat

10/22/12, at Exhibit I.

      Lastly, Mr. Fitzsimmons acknowledged the following facts under oath:

the agreement of sale, the mortgage, and the note contained repayment

provisions related to the $22,000.00 down payment assistance loan; he was

not aware of any documents that provided otherwise; OECD had to give

consent in writing to any transfer of the property; to receive such consent,

                                                                         the

closing on June 20, 2012, he signed a settlement agreement, which




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J-S50018-14




                                                                        39.

       Based on this evidentiary record and

credibility determinations, we agree with the trial court that no reasonable

mind could disagree that Appellants were required to re-pay the $22,000

loan to OECD.2 Thus, we conclude that OECD was entitled to judgment as a

ma

judgment.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2014




2
    We also agree with the trial court that this case was properly decided on

the equitable arguments [of collateral estoppel and accord and satisfaction]



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