J. A06014/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CADLES OF GRASSY MEADOWS, II , LLC, : IN THE SUPERIOR COURT OF

SUBSTITUTED PLAINTIFF TO BROWN : PENNSYLVANIA

BARK I, L.P., ASSIGNEE OF SOVEREIGN :

BANK, SUCCESSOR BY MERGER TO MAIN:

STREET BANK :

:

v. :

:

BET SHAVEI-TZION A/K/A BET :

SHAVEI-TZION, INTERNATIONAL :

AND/OR BET SHAVEI-TZIO, LTD., :

INTERNATIONAL, :

:

Appellant : No. 1003 MDA 2015

Appeal from the Judgment Entered July 29, 2015

In the Court of Common Pleas of Wyoming County 

Civil Division No(s).: 2007-CV-331

BEFORE: LAZARUS, J., STABILE ,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED JUNE 07, 2016

Appellant, Bet Shavei-Tzion, appeals from the November 19, 2014 

Order entered in the Court of Common Pleas of Wyoming County, finding the 

promissory note and mortage at issue in this case in default, and lifting all 

stays imposed with respect to the foreclosure and sale of the mortgaged 95-

acre property owned by Appellant. After careful review, we affirm.

The relevant factual and procedural history of this case is summarized 

as follows. In 2000, Rabbi Harry Dombek served in at least two capacities: 

(i) as president/trustee of Mount Laurel Cemetery Association (“Mount 

Laurel”), and (ii) as president of Appellant, a synagogue. Mount Laurel 
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sought a $250,000.00 loan from Main Street Bank. Trial Ct. Op., filed 

11/19/14, at 2. Needing additional collateral to secure the loan, Mount 

Laurel approached Appellant. Appellant owns two properties: one 95-acre 

property, and one 275-acre property. Appellant and Mount Laurel reached 

an oral agreement whereby Appellant would pledge the 95-acre property as 

collateral for Mount Laurel’s loan in exchange for Mount Laurel’s promise to 

donate certain funds to Appellant. Id. at 6. Appellant passed two corporate 

resolutions; one authorizing Rabbi Dombek to mortgage property as 

collateral for Mount Laurel’s loan, and one specifically authorizing Rabbi 

Dombek to encumber the 95-acre property in order to use it as collateral. 

Id. at 4-6.

Thereafter, Main Street Bank as Lender executed two agreements: (i) 

a debt instrument (“Promissory Note”) signed by Mount Laurel for the 

$250,000 loan; and (ii) a mortgage document (“Mortgage Agreement”) 

signed by Appellant describing the 95-acre property to secure the 

Promissory Note. Id. at 4. 

The Mortgage Agreement itself contains, in relevant part, the following 

definitions:

Borrower. The word "Borrower" means Mount Laurel Cemetery 

Association, and all other persons signing the Notice in whatever 

capacity.

. . .

Grantor. The word "Grantor" means BET SHAVEI –TZION 

[Appellant].
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. . .

Indebtedness. The word "Indebtedness" means all principal, 

interest, and other amounts, costs and expenses payable under 

the Note or Related Documents, together with all renewals of, 

extensions of, modifications of, consolidations of and 

substitutions for the Note or Related Documents and any 

amounts expended or advanced by Lender to discharge Grantor's 

obligations or expenses incurred by Lender to enforce Grantor's 

obligations under this Mortgage, together with interest on such 

amounts as provided in this Mortgage. The liens and security 

interests created pursuant to this Mortgage covering the 

Indebtedness which may be created in the future shall relate 

back to the date of this Mortgage.

. . .

Note. The word "Note" means the promissory note dated 

November 16, 2000, in the original principal amount of 

$250,000.00 from Borrower to Lender, together with all 

renewals of, extensions of, modifications of, refinancings of, 

consolidations of and substitutions for the promissory note or 

agreement. The maturity date of this Mortgage is June 1, 2016.

Mortgage, recorded 11/27/00, Register and Recorder Wyoming County, Book 

0416, Page 0771 (emphasis in original).

The relevant terms of the Mortgage Agreement include the following:

GRANT OF MORTGAGE. For valuable consideration, Grantor 

grants, bargains, sells, conveys, assigns, transfers, releases, 

confirms and mortgages to Lender all of Grantor's right, title and 

interest in and to the following real property . . . located in 

WYOMING COUNTY County, (sic) Commonwealth of 

Pennsylvania:

See the exhibit or other description document 

which is attached to this Mortgage and made a 

part of this Mortgage as if fully set forth herein.
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Id. at 0767 (emphasis in original). Attached to the Mortgage Agreement is 

a description of Appellant’s 95-acre property. Id. at 0772-75. Regarding 

securitization, the Mortgage Agreement provides as follows:

CROSS COLLATERALIZATION. In addition to the Note, this 

Mortgage secures all obligations, debts and liabilities, plus 

interest thereon of Borrower to Lender, or any one or more of 

them, as well as all claims by Lender against Borrower or any 

one or more of them[.]

. . .

THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF

RENTS AND THE SECURITY INTEREST IN THE RENTS AND 

PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT 

OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY 

AND ALL OBLIGATIONS UNDER THIS MORTGAGE.

Id. at 0767 (emphasis in original). 

Finally, regarding default, the Mortgage Agreement provides as 

follows:

EVENTS OF DEFAULT. Each of the following, at Lender's option, 

shall constitute an Event of Default under this Mortgage:

Payment Default. Borrower fails to make any 

payment when due under the Indebtedness.

. . .

RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence 

of an Event of Default and at any time thereafter, Lender, at 

Lender’s option, may exercise any one or more of the following 

rights and remedies, in addition to any other rights and remedies 

provided by law:

. . .

Judicial Foreclosure. Lender may obtain a judicial 

decree foreclosing Grantor's interest in all or any 

part of the Property.
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Id. at 0769-70 (emphasis in original).

In 2005, Mount Laurel filed for bankruptcy protection under Chapter 7 

of the Bankruptcy Code, and ceased making payments on the Promissory 

Note. Brown Bank, a predecessor in interest of Appellee,1 brought a 

mortgage foreclosure action against Appellant on March 26, 2007, seeking to 

foreclose on both the 95-acre property and the 275-acre property. 

Appellant filed a Motion for Summary Judgment, arguing, inter alia, 

that (i) foreclosure was improper where Appellant had only executed the 

Mortgage Agreement and not a note or suretyship agreement; and (ii) 

Appellant had not pledged or mortgaged the 275-acre parcel. Motion for 

Summary Judgment, filed 4/30/09, at 2. 

On August 26, 2009, the trial court granted in part the Motion for 

Summary Judgment, dismissing from the mortgage complaint the 275-acre 

property after “concluding that [Appellant’s] 275 acre parcel of land is not 

sufficiently described in the mortgage so as to create a lien on said parcel.” 

Order of Court, filed 8/26/09. The court denied the Motion as to the 95-acre 

parcel, “concluding that there exist genuine issues of material fact as to 

whether the mortgage creates a lien[.]” Id.

 

1 Main Street Bank merged with Sovereign Bank, and Sovereign Bank later 

assigned the Mortgage Agreement and Promissory Note to Brown Bank. At 

some time after the instant mortgage foreclosure action was filed, Appellee 

purchased the Mortgage Agreement and Promissory Note from Brown Bank. 

Trial Ct. Op., filed 11/19/14, at 2-3.
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Following a non-jury trial, on November 19, 2014, the trial court found 

the Promissory Note and Mortgage Agreement in default, and lifted all stays 

imposed with respect to the foreclosure and sale of “the mortgaged premises 

located on Mount Zion Road, Eaton Township, Wyoming County, 

Pennsylvania known as Parcels Nos. 03-38-65 and 03-38-65-01.” Trial Ct. 

Op., filed 11/19/14, at 1. 

Appellant timely appealed, raising the following three issues in his 

Brief to this Court:

1. Whether the trial court committed plain error in its Court 

Order by mistakenly permitting the Appellee to foreclose upon a 

275-acre parcel of land, despite the fact that the immediate 

past-President Judge of Wyoming County had previously granted 

summary judgment, dismissing the 275 parcel (sic) from the 

mortgage foreclosure action?

2. Whether the findings of fact of the trial court were 

supported by substantial evidence?

3. Whether the findings of the trial court are premised on 

errors in the application of the law?

Appellant’s Brief at 4. 

Appellant first argues that the trial court’s November 19, 2014 Order 

improperly permitted foreclosure on both the 95-acre property and the 275-

acre property. The use of various Parcel Numbers has led to some confusion 

in this case. In documents submitted to the trial court, both parties 

identified the 95-acre property by the Parcel Number 03-38-65-00, and the 

275-acre property by the Parcel Number 03-38-67-01. The trial court’s 
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November 19, 2014 Order does not use either of these numbers, but instead 

permits foreclosure on Parcel Numbers 03-38-65 and 03-38-65-01. 

Appellant is correct that, because the 275-acre property was dismissed 

from the instant case in the August 26, 2009 Order, any subsequent order 

authorizing foreclosure on that property would be in error. Pennsylvania’s 

well-established Law of the Case Doctrine bars a judge from revisiting 

rulings previously decided by another judge of the same court. See 

Commonwealth v. Starr, 664 A.2d 1326, 1333 (Pa. 1995). Appellant has 

not presented this court with any factual basis for establishing that either 

Parcel Number referenced in the Order at issue in this appeal in fact refers to 

the 275-acre property. Because the prior order dismissed the 275-acre 

parcel from the action, we hold that the trial court’s November 19, 2014 

Order pertains only to the 95-acre property. Thus, Appellant’s claim that the 

November 11, 2014 Order improperly permitted foreclosure on the 275-acre 

parcel is incorrect and merits no further review.

Appellant’s next two issues present two sides of the same argument: 

whether the trial court’s factual findings are supported by the evidence and 

properly applied to the law. 

“Upon default, the holder of a mortgage can legally proceed to enforce 

the terms of the mortgage . . . by foreclosure proceedings[.]” Cunningham 

v. McWilliams, 714 A.2d 1054, 1056 (Pa. Super. 1998). The entry of 

judgment in an action for mortgage foreclosure is proper “if the mortgagors 
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admit that the mortgage is in default . . . and that the recorded mortgage is 

in the specified amount.” Id. at 1057. 

Appellant does not contest that Mount Laurel has failed to make 

payments on the Promissory Note when due and is in default on its 

indebtedness to Appellees. Nonetheless, Appellant argues the entry of the 

foreclosure order was improper because (i) Appellee’s failed to prove the 

existence of a surety agreement between Appellant and Mount Laurel, and 

(ii) absent proof of such a surety agreement, the Mortgage Agreement 

cannot be enforced. We reject Appellant’s arguments.

Appellant challenges the factual finding of the trial court, arguing the 

evidence adduced at trial shows Appellant did not really intend to enter into 

a binding mortgage agreement. According to Appellant’s version of the 

facts, Appellant only intended to offer the 95-acre property as collateral “if 

needed” and that the parties agreed the additional collateral was “not 

needed.” Appellant’s Brief at 21. 

Our standard of review in non-jury cases is limited to a determination 

of whether competent evidence supports the findings of the trial court and 

whether the trial court erred in applying the law. Company Image 

Knitware, Ltd. v. Mothers Work, Inc., 909 A.2d 324, 330 (Pa. Super. 

2006). We consider the evidence in a light most favorable to the verdict 

winner and will reverse the trial court only if its findings of fact lack the 

support of competent evidence or its findings are premised on an error of 
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law. Allegheny County Housing Authority v. Johnson, 908 A.2d 336, 

340 (Pa. Super. 2006). “In a written contract the intent of the parties is the 

writing itself and when the words are clear and unambiguous the intent is to 

be determined only from the express language of the agreement.” Robert 

F. Felte, Inc. v. White, 302 A.2d 347, 351 (Pa. 1973). 

In the instant case, the plain language of the Mortgage Agreement, 

reproduced supra, clearly and unambiguously created a mortgage securing 

Mount Laurel’s indebtedness to Appellee. In addition, the plain language of 

the Mortgage Agreement clearly and unambiguously demonstrates that the 

mortgage is now in default due to Mount Laurel’s failure to make payments 

to Appellee. There is nothing in the language of the Mortgage Agreement 

that suggests it was a conditional agreement or that the parties otherwise 

intended for it to only be legally binding “if needed.” Therefore, pursuant to 

Robert F. Felte, Inc., we need look no further than the Mortgage 

Agreement to conclude that the trial court’s finding that Appellant intended 

to grant a mortgage on the 95-acre property is supported by the evidence 

and the applicable law. 

However, even if there were some ambiguity (which there is not), 

Appellant would still not be entitled to relief. Looking outside of the 

language of the Mortgage Agreement, the trial court concluded that:

It is clear, beginning with the loan commitment letter and the 

testimony of the parties that the intent of the parties was to 

have [Appellant’s 95-acre property] used as collateral for the 
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loan in question. The promissory note and mortgage are in 

default. 

Trial Ct. Op., filed 11/19/14, at 9-10. 

After a careful review of the record, we find ample competent evidence 

to support the trial court’s finding that Appellant signed the Mortgage 

Agreement intending to use the 95-acre property as collateral to secure 

Appellee’s loan to Mount Laurel. This includes the commitment letter and 

testimony cited by the trial court, as well as the corporate resolutions 

discussed supra. To the extent that Appellant’s witnesses testified that 

Appellant did not truly intend to be bound by the Mortgage Agreement, the 

trial court as fact finder was free to find that this testimony was not credible. 

This Court will not second-guess those credibility determinations.2 

Therefore, Appellant is not entitled to relief on his claim that the findings of 

the trial court are not supported by competent evidence. 

Finally, Appellant avers that the trial court’s findings are premised on 

errors in the application of the law. It argues that the Mortgage Agreement, 

without a written and signed surety agreement between Appellant and 

Mount Laurel, violates the Statute of Frauds and is therefore unenforceable 

 

2

“It is well established that the credibility of witnesses is an issue to be 

determined by the trier of fact. On appeal this Court will not revisit the trial 

court’s determinations . . . regarding the credibility of the parties. Thus, this 

argument, which would require this Court to revisit and essentially reverse 

the [trial court] on his credibility determinations, provides no grounds for 

relief.” Woods v. Cicierski, 937 A.2d 1103, 1105 (Pa. Super. 

2007) (internal citations omitted).
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as a matter of law. This argument is without support in law and is, in any 

event, waived. 

Mortgages are subject to the Statute of Frauds as they represent 

interests in real property. Eastgate Enterprises, Inc. v. Bank and Trust 

Co. of Old York Road, 345 A.2d 279, 281 (Pa. Super. 1975). The Statute 

of Frauds as applied to mortgages requires only that, “[t]o be valid, a 

mortgage must be in writing.” Id. (emphasis added). Surety agreements 

promising to pay the debts of another may also be subject to the Statute of 

Frauds in this Commonwealth. Berks Products Corporation v. Arch 

Insurance Company, 72 A.3d 315, 321 (Pa. Cmwlth 2013). However, 

there is nothing in the Statute of Frauds requiring that, in order for a 

mortgage to be valid, any surety agreements that may have motivated the 

granting of the mortgage must also be in writing.

3

 

Appellant fails to cite to any controlling authority to support its claim 

that a mortgage cannot be valid absent a written surety agreement. 

Accordingly, we find Appellant waived his argument that the trial court erred 

in the application of law. See Pa.R.A.P. 2119(a); In re Estate of Whitley, 

50 A.3d 203, 209-10 (Pa. Super. 2012) (“Failure to cite relevant legal 

authority constitutes waiver of the claim on appeal.”).

 

3 Whether or not a written or oral surety agreement exists between 

Appellant and Mount Laurel, Appellee is not seeking to enforce a surety 

agreement. Appellee seeks only to enforce the terms of the signed, written 

Mortgage Agreement between itself and Appellant.
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Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2016