J-S50018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

 

ROBERT C. FITZSIMMONS AND 

AMBRA FITZSIMMONS, 

 Appellants 

 v.

THE OFFICE OF ECONOMIC AND 

COMMUNITY DEVELOPMENT OF THE 

CITY OF BRADFORD, 

 Appellee 

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 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 

Economic and Community Development of the City of Bradford (“OECD”). 

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 
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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’s] New Matter denying that [they] owed any money to 

[OECD] because the loan was forgiven. 

 

1

 According to Sara Andrews, Executive Director of OECD, the $22,000.00 

down payment assistance loan “was authorized by City Council on January 9, 

2001 by Resolution #24519. This resolution specifically provides that these 

monies are repayable in full—without interest—upon the sale of the 

property.” Affidavit of Sara Andrews, 10/24/13, at unnumbered 2 and 

attachment.
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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.

The trial court granted OECD’s motion for summary judgment on 

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 [Appellants’] 

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? 

Appellants’ Brief at 2.

 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 

the plaintiff’s proof of the elements of his cause of action.... 

Thus, a record that supports summary judgment will either (1) 

show the material facts are undisputed or (2) contain insufficient 
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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 

trial court’s conclusions of law, but may reach our own 

conclusions. The appellate Court may disturb the trial court’s 

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 

or depositions, of the moving party or the moving party’s 

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, 

this Court is not bound by the trial court’s 

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 

trial court’s credibility determinations.
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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 

(1960), “where an ambiguity exists, parol evidence 

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 

extrinsic or collateral circumstances.”

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, 

541 (Pa.Super.2010). “Where the language of the contract is 

ambiguous, the provision is to be construed against the drafter.” 

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). 

Appellants argue that, “[p]ursuant to the specific terms of the 

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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Residence as their principal residence for a period in excess of five years.” 

Appellants’ Brief at 6. In response, OECD contends that:

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’s Brief at 14. OECD explains that the five-year residency period relied 

upon by Appellants “related to funds disbursed for the actual rehabilitation of 

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 publiclyfunded home renovation and then flipping the home shortly after purchasing 

it.” OECD’s Brief at 9–10; 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. “This debt provides for the full repayment of the loan to 

OECD upon the sale of the real estate, without 

interest.”
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b. “Borrower and Lender Covenant and agree as follows: 

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

sale of the property.”

c. “Occupancy, preservation, maintenance and protection 

of Property; Borrowers Loan Application; leaseholds. 

Borrower shall occupy, establish, and use the Property 

as Borrower’s principal residence within sixty days after 

the execution of this Security Instrument and shall 

continue to occupy the Property as Borrower’s principal 

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

Should Borrower establish and occupy as Borrower’s 

principal residence at another location, Borrower will be 

required to repay the sum provided by lender. . .”

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

a. “FOR VALUE RECEIVED, Patricia 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 

interest upon the sale of the property.”

3. Mortgage Assumption Agreement between OECD and Robert

Fitzsimmons dated December 23, 2009: 

a. “WHEREAS, Lender is holder and owner of the 

following documents (hereinafter sometimes 

collectively referred to as the ‘Loan Documents’): 1. 

Mortgage Note dated February 20, 2001, in the 

original principal amount of $22,000 executed and 

delivered by PATRICIA F. RODGERS (hereinafter 

referred to as the ‘Original Borrower’) in favor of 

Lender (hereinafter referred to as the ‘Note’); and,

2. Mortgage given by Original Borrower as 

‘Mortgagor’ to Lender as ‘Mortgagee’ dated February 

20, 2001 . . . and which Mortgage encumbers the 

real property described herein.”
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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 

Mortgage and all other Loan Documents. . .”

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 

thereof.”

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: 

[OECD’s] Motion for Summary Judgment is granted 

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 
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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 

parties’ intent is the mortgage itself and the contracts and 

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 repaid 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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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 

ascertaining the Parties’ intent, no reasonable minds could 

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 

abuse of discretion or error of law in the trial court’s analysis and 

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

of Bradford for 28 Onofrio Street indicates that she received “Downpayment 

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 

ownership.” Agreement of Sale, 1/16/01, 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 

“executed a Mortgage Assumption Agreement with [OECD] to assume the 

mortgage previously issued from Patricia F. Rodgers mortgage dated 

February 20, 2001.” Complaint, 10/22/12, at ¶ 16; Exhibit H.
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Additionally, the mortgage disallowed transfer of the property without 

OECD’s prior written consent, and, pursuant to the mortgage assumption 

agreement, OECD was “unwilling to give its consent to the transfer of the 

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

heretofore imposed by the Loan Documents upon [Patricia Rodgers].” 

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. 

Fitzsimmons “was well aware of the [repayment] requirements prior to the 

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 information to meet the affordability requirements.” Complaint, 

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, 

he was required to assume Patricia Rodgers’ obligations to OECD; before the 

closing on June 20, 2012, he signed a settlement agreement, which 
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“provided that part of where the money was going at closing was to pay off 

the second loan to OECD.” Mr. Fitzsimmons Deposition, 6/13/13, at 24–39.

Based on this evidentiary record and deferring to the trial court’s 

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 

matter of law, and we affirm the order granting OECD’s motion for summary 

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 basis of contract interpretation. Therefore, “it is unnecessary to address 

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

set forth by [OECD].” Trial Court Opinion, 12/9/13, at 8.