J. A09010/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CFS-4 II, LLC, A DELAWARE LLC AND        :    IN THE SUPERIOR COURT OF
ASSIGNEE OF FIRST NATIONAL BANK          :          PENNSYLVANIA
OF PENNSYLVANIA                          :
                                         :
                   v.                    :
                                         :
THOMAS GRECO,                            :
A/K/A THOMAS J. GRECO,                   :         No. 1636 MDA 2015
                                         :
                        Appellant        :


               Appeal from the Order Entered August 26, 2015,
               in the Court of Common Pleas of Luzerne County
                       Civil Division at No. 3716 of 2012


BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 29, 2016

      Thomas Greco, also known as Thomas J. Greco (“Greco”), appeals the

order of the Court of Common Pleas of Luzerne County that granted the

motion for appointment of receiver of CFS-4 II, LLC (“CFS”) and allowed CFS

to exercise its right to appoint NAI Geis Realty Group, Inc. (“NAI”) as

receiver.

      The facts as recounted by the trial court are as follows:

                  On or about August 15, 2002, [Greco] acquired
            a commercial property located at 101-105 N. Main
            Street,     Wilkes-Barre,     Luzerne       County,
            [Pennsylvania], and more particularly described in
            Luzerne County Recorder of Deeds Office at Record
            Book 3002, Page 203671. (“Premises”)           The
            Premises is improved with an office building with
            office space leased and partially occupied by the


* Retired Senior Judge assigned to the Superior Court.
J. A09010/16


          Commonwealth of Pennsylvania. The Premises is
          also improved with residential units which appear to
          be leased and occupied.

                Also, on the aforesaid date, First National Bank
          of Pennsylvania (hereinafter “Lender”) made a loan
          to [Greco] in the principal amount of $1,600,000.00.
          (“Loan”) Said Loan is evidenced by a Promissory
          Note dated August 15, 2002, and amended on
          October 12, 2007.       As collateral for said Loan,
          [Greco] executed an Open End construction
          Mortgage conveying a security interest in the
          Premises to the Lender which was duly recorded in
          the Luzerne County Recorder of Deeds Office in
          Record Book 3002, Page 203669 (“Mortgage”). Said
          Mortgage remains open of record.             Also, on
          August 15, 2002, [Greco] executed an Assignment of
          Rents and Leases with respect to the Premises which
          was recorded in the Luzerne County Recorder of
          Deeds Office in Record Book 3002, Page 203688.

                The Mortgage provides certain rights and
          remedies to the Lender, any one or more of which
          can be exercised at the Lender’s option in the event
          of default, in addition to any other rights or remedies
          provided by law. Lender declared a Default under
          the Note and commenced this action. The Mortgage
          allows the Lender in the event of Default to exercise
          the following:

          ....

                 [“]Appoint Receiver. Lender shall have the
          right to have a receiver appointed to take possession
          of all or any part of the Property, with the power to
          protect and preserve the Property, to operate the
          Property, to operate the Property preceding
          foreclosure or sale, and to collect the Rents from the
          Property and apply the proceeds, over and above the
          cost of the receivership, against the Indebtedness.
          The receiver may serve without bond if permitted by
          law. Lender’s right to the appointment of a receiver
          shall exist whether or not the apparent value of the
          Property exceeds the indebtedness by a substantial


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          amount. Employment by Lender shall not disqualify
          a person from serving as receiver.”

                 [Greco] contends that there is a subsequent
          mortgage on the property dated December 23, 2004,
          and recorded on January 10, 2005 in Luzerne County
          Recorder of Deeds Office at Record Book 3005,
          Page 5963 and that this subsequent mortgage
          contains different terms and conditions regarding the
          collection of rents.

               Significantly,     the  mortgage       dated
          December 23, 2004 provides, with regard to Leases
          and Rents, the following:

                 “Assignments of Leases and Rents. Mortgagor
          may collect, receive, enjoy and use the Rents so long
          as Mortgagor is not in default. Mortgagor will not
          collect in advance any Rents due in future lease
          periods, unless Mortgagor first obtains Lenders’
          written consent.       Upon default, Mortgagor will
          receive any Rents in trust for Lender and Mortgagor
          will not commingle the Rents with any other funds.
          When Lender so directs, Mortgagor will endorse and
          deliver any payments of Rents from the Property to
          lender. Amounts collected will be applied at Lenders’
          discretion to the Secured Debts, the cost of
          managing, protecting and preserving the Property,
          and other necessary expenses. Mortgagor agrees
          that this Security Instrument is immediately effective
          between Mortgagor and Lender and effective as to
          third parties on the recording Assignment. . .”

                The parties agree that a legal determination
          must be made as to the applicable mortgage and the
          respective language contained therein. Presently,
          [CFS] contends that a default has occurred and is
          continuing to occur while [Greco] denies that any
          event of default has occurred.

                 On March 23, 2012,       Lender initiated a civil
          action by filing a Complaint   in Mortgage Foreclosure
          alleging default under the     Mortgage, and seeking
          judgment and foreclosure       against [Greco] in the


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            amount of $1,164,417.63 plus accrued interest from
            February 29, 2012 through the date of distribution of
            Sheriff’s sale, accruing in the approximate amount of
            $224.34 per diem, and reasonable attorney’s fees
            and costs.      On June 29, 2012 [Greco] filed an
            Answer and New Matter denying a default and
            asserting various counterclaims and defenses.

                  On September 29, 2014, Lender assigned all of
            its right, title and interest in and to the Loan,
            including, but not limited to, the pending commercial
            mortgage foreclosure action to [CFS] . . . . Included
            in the subject assignment, was the Assignment of
            Rents and Leases for the mortgaged property. At no
            time since the Assignment of the Loan to [CFS] has
            [Greco] made any payments of principal or interest
            on this account.

                    [CFS] maintains that [Greco] is in default of
            the mortgage and that [Greco] is not paying taxes
            and payments of principal or interest on this
            account.      [Greco] maintains income from the
            Commonwealth of Pennsylvania leases and the
            residential tenants is being utilized to pay taxes,
            utilities, insurance, maintenance, upkeep, and
            managing the property.

Trial court opinion, 11/25/15 at 1-7.

      Following oral argument and the receipt of briefs, the trial court

granted CFS’s motion and allowed it to appoint NAI as receiver.     The trial

court reasoned that Greco was in default under the terms of the mortgage

because he had not made any payments on the loan since the assignment of

the mortgage to CFS and had not made a payment to First National Bank of

Pennsylvania since July 23, 2012. The trial court explained the grant of the

motion to allow the appointment of NAI as receiver:




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                  [CFS] requests the appointment of [NAI], a
           qualified commercial real estate broker and property
           management entity to act as Receiver. This request
           comports with the express terms of the Loan
           documents which allow said remedy upon [Greco]
           being in a default status in failing to meet its
           obligation to the Lender.       Moreover, under the
           overall circumstances, [Greco] cannot justify any
           equitable basis to defeat [CFS’s] request given that it
           has failed to provide any accounting whatsoever as
           to the disposition of monthly rental payments being
           made to it by the Commonwealth or any other
           residential tenants.

                 The Junior Mortgage, the 2004 Mortgage,
           remains open. It is subordinate to and does not in
           any way alter the terms and conditions of the
           original mortgage. The original loan still has priority
           and the junior loan has not superseded it nor was it
           integrated into the mortgage.

                  This Court is not prepared to disturb the terms
           of either mortgage.         [Greco] is a competent
           individual and agreed to the very terms. Terms of a
           mortgage agreement are binding on the parties. . . .
           This Court finds that the terms of the mortgage
           clearly provide for the appointment of a receiver in
           the event of a default.

Trial court opinion, 11/25/15 at 12-13.

     Greco raises the following issues for this court’s review:

           A.    Whether the Lower Court abused its discretion
                 and committed an error of law by the granting
                 of the Motion for the Appointment of a
                 Receiver when there has been no judicial
                 determination that a default has occurred?

           B.    Whether the Lower Court abused its discretion
                 and committed an error of law by the granting
                 of the Motion for Appointment of a Receiver
                 when [CFS] has an adequate remedy at law,
                 the facts, circumstances and equities of the


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                   matter sub judice do not support the
                   appointment of a receiver, that greater
                   irreparable damage will result to [Greco] with
                   the appointment of a receiver and the right to
                   a receiver is not free from doubt?

            C.     Whether the Lower Court abused its discretion
                   and committed an error of law by the granting
                   of the Motion for Appointment of a Receiver
                   when a judge of coordinate jurisdiction entered
                   an Order granting [Greco’s] Petition to Open
                   Judgment based on the Judge’s determination
                   that [Greco] had a meritorious defense to the
                   claims of default, the same claims set forth in
                   the mortgage foreclosure action?

Appellant’s brief at 4.

      The trial court’s decision to appoint a receiver will not be reversed

absent a clear abuse of discretion. Metropolitan Life Ins. Co. v. Liberty

Center Venture, 650 A.2d 887 (Pa.Super. 1994).

            An abuse of discretion is not merely an error of
            judgment, but if in reaching a conclusion the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill-will, as shown by the evidence
            or the record, discretion is abused.

Fienke v. Huntington, 111 A.3d 1197, 1200 (Pa.Super. 2015), quoting

Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008).

      Initially, Greco contends that CFS failed to prove that it was entitled to

appointment of a receiver because it did not establish that an emergency

existed, that the right to receivership was free from doubt, that there had

been irreparable damage, that there was no adequate remedy at law, that

the rights of creditors and shareholders would not be interfered with, and


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that greater damage would result in the absence of the appointment of a

receiver.   These factors appear in cases cited by Greco such as Tate v.

Philadelphia Transp. Co., 190 A.2d 316, 321 (Pa. 1963), and McDougal

v. Huntington & Broad Top Mountain R.R. and Coal Co., Inc., 143 A.

574 (Pa. 1928).

      While these cases may set forth conditions under which a receiver may

be appointed, these conditions were not the basis for the trial court’s

determination that a receiver could be appointed. The trial court determined

that CFS could appoint a receiver because the parties contracted for that

possibility in the mortgage document in the event of a default.

      The trial court relied on Metropolitan, which Greco also looks to for

support. In Metropolitan, Metropolitan Life Insurance Company (“Metlife”)

and Grant Liberty Development Group Associates (“GLDGA”) created the

Liberty Center Venture (“Liberty”) to own and operate a building complex

with offices and a hotel in downtown Pittsburgh. Metlife owned 60 percent

of Liberty, and GLDGA owned 40 percent.          Metlife also loaned Liberty

$67,000,000.      Notes were issued with interest payable at the rate of

14½ percent for the offices and 15 percent for the hotel. Metlife’s loan was

secured by a mortgage.     The mortgage and the security agreement both

authorized the appointment of a receiver in the event of a default.       In

September 1990, Liberty began to make payments at the interest rate of

10 percent instead of the agreed-upon rate.      Metlife did not accept the



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payments on the basis that Liberty defaulted on its obligations. On March 8,

1991, Metlife commenced foreclosure proceedings in the Court of Common

Pleas of Allegheny County and also sought the appointment of a receiver.

Liberty asserted that it was not in default because Metlife and GLDGA had

agreed to reduce the interest rate to 10 percent.     The Court of Common

Pleas of Allegheny County initially denied the motion without prejudice

because a pending action in federal court centered on the question of

whether Liberty defaulted by paying at a lower rate. The Court of Common

Pleas of Allegheny County ultimately granted the motion for appointment of

a receiver after the United States District Court for the Western District of

Pennsylvania determined that Liberty was in default.     Metropolitan, 650

A.2d at 888-889.

     Liberty appealed to this court.      One of the issues Liberty raised

concerned whether the Court of Common Pleas of Allegheny County erred

when it granted the motion to appoint a receiver. Id. at 889. This court

affirmed after it determined that the parties contractually agreed in the

mortgage that a receiver could be appointed in the event of a default. Id. at

890. This court explained:

           Under Pennsylvania law, “parties have the right to
           make their own contract, and it is not the function of
           a court to rewrite it or to give it a construction in
           conflict with the accepted and plain meaning of the
           language used.” . . . . “It is, . . ., clear that the
           terms of the mortgage contract cannot be altered or
           impaired by either the legislature or the courts, and
           this applies to the remedies, or specific provision for


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            its enforcement as well as to the obligation to pay
            the bonded indebtedness.” . . .

Id. at 889 (citations omitted).

      Here, Greco argues that there was no finding of default and the matter

of the alleged default was still pending in an action regarding confession of

judgment and other related cases. However, in his answer to the motion for

appointment of a receiver, Greco admitted that he had not made any

payments since the assignment of the mortgage to CFS in September 2014.

The trial court noted this fact and also noted that failure to make payments

under the mortgage constituted a default.       The trial court also noted that

under the mortgage a remedy for default was appointment of a receiver.

This court cannot agree with Greco’s argument.         The trial court did not

abuse its discretion when it found that Greco was in default and that CFS

was entitled to the appointment of a receiver.

      Greco next contends that because a court of coordinate jurisdiction

granted   Greco’s   petition   to   open   judgment   based   on   the   court’s

determination that Greco had a meritorious defense to the claims of default

and confession of judgment in another proceeding involving a promissory

note, the trial court abused its discretion when it found Greco was in default

and granted the motion to appoint a receiver.

            Generally, the coordinate jurisdiction rule commands
            that upon transfer of a matter between trial judges
            of coordinate jurisdiction, a transferee trial judge
            may not alter resolution of a legal question
            previously decided by a transferor trial judge. . . .


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             More simply stated, judges of coordinate jurisdiction
             should not overrule each other’s decisions. . . .

Zane v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003) (citations omitted.)

      Nothing in the record indicates that the trial court overruled a prior

decision of a court of coordinate jurisdiction that Greco did not default on the

terms of the mortgage. Although the record before this court is less than

clear, it appears that First National Bank of Pennsylvania filed a complaint in

confession of judgment and asserted that Greco was in default under a

promissory    note   for   $1,600,000   because    Greco   defaulted   on   other

obligations owed to the bank, defaulted on obligations owed to third parties,

and failed to provide financial information to the bank. The promissory note

contained a confession of judgment clause. Greco petitioned to open and/or

strike the judgment entered by confession, asserted that he was not in

default, and asserted various defenses.       On April 23, 2013, the Honorable

Fred A. Pierantoni, III, of the Court of Common Pleas of Luzerne County

granted Greco’s petition.

      Greco’s reliance on this order is misplaced.         The order opening a

confessed judgment was issued in relation to a promissory note. The trial

court’s order granting the motion for appointment of a receiver was based

on express language contained in a different financial instrument, the

mortgage, which authorized the appointment of a receiver in the event of a

default.   Further, in the present matter, Greco admitted that he had not

made any payments on the mortgage since the assignment to CFS, a clear


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default.   The trial court did not abuse its discretion with respect to the

coordinate jurisdiction rule.

      Next, Greco continues to ignore the express language of the mortgage

which authorizes the appointment of a receiver in the event of default and

ignores that the trial court found that Greco was in default for failure to

make payments.      Greco argues that the second mortgage, the Open-End

Mortgage, dated December 23, 2004, did not contain the language regarding

the appointment of a receiver and the language in the more recent mortgage

should control.

      The trial court addressed this issue: “The Junior Mortgage, the 2004

Mortgage, remains open. It is subordinate to and does not in any way alter

the terms and conditions of the original mortgage. The original loan still has

priority and the junior loan has not superseded it nor was it integrated into

the mortgage.”     (Trial court opinion, 11/25/15 at 12.)    A review of the

Open-End Mortgage in the record confirms the trial court’s conclusion. The

trial court did not abuse its discretion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016



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