### J-S56002- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL L. NUGENT AND BRYANN M.

NUGENT, HUSBAND AND WIFE IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

SUSQUEHANNA BANK, SUCCESSOR BY

ACQUISITION TO COMMUNITY BANKS

Appellee

v.

ROBERT R. NUGENT AND MARY E.

NUGENT, HUSBAND AND WIFE No. 734 MDA 2014

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 ent ered summary

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

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

____________________________________________

* 

### Retired Senior Judge assigned to the Superior Court.

### J-S56002- 14

- 2 - On September 6, 2011, Daniel L. Nugent and Bryann M

. Nugent ... filed [an] action in equity against Susquehan na Bank,

successor by acquisition to Community Banks ... alleging tha t

[Susquehanna Bank] failed to forward proceeds received in

conveyance of a property rightfully and equitably own ed by

[Appellants].

The relevant facts are as follows: Prior to November 2 4,

2003, Robert R. and Mary E. Nugent (herein “Parents”) were the

record owners of the premises located at 230 Brickyard Ro ad,

Manchester, York County, Pennsylvania (herein “Propert y”). On

November 24, 2003, [Appellants] filed a Complaint ag ainst

Parents to enforce an inter vivos gift of the Property and

improvement to [Appellants], docketed at case number 2 003-

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 Parent s

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 Februar y 26, 2007,

prior to any issuance of writ of execution or required notices

regarding same pursuant to the Pennsylvania Rules of Ci vil

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 [Susqueha nna

Bank] in payment of confessed judgments which were being

contested by [Appellant] Daniel Nugent. This [c]ourt e ntered an

Order on March 15, 2007, striking the lis pendens . [Appellant ]

attempted to appeal the decision to the Superior Cour t. Parents

resisted the appeal and it was eventually quashed on Ju ne 6,

2007.

After the lis pendens was stri[c]ken, Parents conveyed the

Property [to a third party] on June 25, 2007, as par t of a three

parcel conveyance totaling 27.261 acres for a total consid eration

of $1,000,000,00. None of the proceeds of the conveya nce were

escrowed pending the determination of the validity of the

underlying oral inter vivos gift and the net proceeds of the sale

### J-S56002- 14

- 3 -

were paid over to [Susquehanna Bank] in partial satisf action 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 t enants 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 m oney

damages in substantiation of the Property given to [ Appellants]

by in ter 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 [Susque hanna

Bank] is presently in possession of the money proceeds rece ived

in the conveyance of such property, which were not placed in an

escrow account. [Appellants] aver that it would be imp roper for

[Susquehanna Bank] to retain the money consideration r eceived

for the conveyance of the Property, and [Susquehanna B ank]

would be unjustly enriched were it permitted to retai n such

proceeds. [Appellants] further aver that [Appellant] Bryann

Nugent was never liable for any loans with [Susquehann a Bank],

or its predecessors, and the gifted entireties property w ould

have been unavai lable to satisfy the claims of Daniel Nugent’s

creditors. [Appellants] requested that this [c]ourt ho ld

[Susquehanna Bank] as trustee for [Appellants] of the money

from the current owners of the Property, and that [Su squehanna

Bank] be ordered to pay over to [Appellants] the am ount due

with interest from the date of the filing of the ori ginal 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

[Susquehanna Bank’s] Preliminary Objections. On April 23,

2012, the Honorable Sheryl Ann Dorney entered an Or der

overruling [the] Preliminary Objections.

On May 3, 2012, [Susquehanna Bank] filed an Answer wi th

Ne w Matter and Counterclaim. In its New Matter, [Susque hanna

Bank] explains that Parents, along with their sons Dani el Nugent

and Donald J. Nugent, executed and delivered to Blue Ball Bank

a/k/a Community Banks (now [Susquehanna Bank]) Comme rcial

Suretyship Agreements and Disclosures for Confession of

### J-S56002- 14

- 4 -

Judgment in which they all agreed to act absolutely a nd

unconditionally as sureties for a loan Community Banks made to

York Mold, Inc., and they all agreed to pledge as coll ateral all

other property and future real property or rights to Property of

the Surety. On April 24, 2003, [Susquehanna Bank ha d]

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 defaul t

on the loan by York Mold, Inc. that [it] filed a Com plaint for

Confession of Judgment against Robert, Mary, Daniel, a nd

Donald Nugent on May 2, 2006. [Susquehanna Bank] ar gues

that the June 25, 2007 conveyance of the Property by Parents to

the third party was executed so that the net proceeds co uld 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 p aid to

[the bank] is no longer available as [Susquehanna Bank ] applied

the payment it received to the outstanding loan balan ce and in

partial satisfaction of the confessed judgment. [Susqueh anna

Bank] also alleges that at the time Parents sold the Pr operty 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 disp ersing

the funds against the outstanding loan balance. [Susque hanna

Bank] also listed several affirmative defenses.

In its Counterclaim, [Susquehanna Bank] argued that

during the application and execution of the Loan Docu ments,

[Appellants] intentionally concealed and did not disclo se that

they claimed to be the owner of the property based on an oral

gift from Parents. Additionally, [Susquehanna Bank] claims that

[Appellants’] current lawsuit against [the bank] to tr y to recover

proceeds paid by Parents to [it] in satisfaction of a de bt 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

judgment ... even though [Appellant] Daniel Nugent re mains

liable for the proceeds [Appellants] seek to recover. A s such,

[Susquehanna Bank] seeks a judgment in favor of all d amages,

costs, and attorneys’ fees arising out of [Appellants’] conduct in

### J-S56002- 14

- 5 -

bringing this action and [Appellant] Daniel Nugent’s breach of

the Loan Documents.

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

Complaint ... against [a]gainst [a]dditional Defendants/ Parents

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 Parent s only,

therefore Parents are indispensable parties to any subseq uent

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 i n selling

the Property and using the proceeds to pay [the bank] caused

the losses alleged by [Appellants], Parents are solely l iable 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 f rom 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 Summ ary Judgment, and

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

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

Appellants’ Motion for Summary Judgment and entered Summary Judgment

in favor of Susquehanna Bank. This timely appeal fol lowed.

On appeal, Appellants raise the following issues for o ur review.

A. Whether [Susquehanna Bank] was a subsequent bona fide

mortgagee entitling [it] to a superior interest in th e proceeds.

____________________________________________

1 

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

### J-S56002- 14

- 6 -

B. Whether Appellants established their right to the equ itable

relief of a constructive trust based on the record.

C. Whether [Susquehanna Bank] can rely on the order lift ing the

lis pendens

.

D. Whether Appellants’ action was untimely or barred by e lection

for legal damages in a previous action.

Appellants’ Brief at 4 (unnecessary capitalization omitt ed).

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

[We] may disturb the order of the trial court only wh ere it is

established that the court committed an error of law o r abused

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summar y

judgment, we focus on the legal standard articulated i n 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 no t merely

rely on his pleadings or answers in order to survive summ ary

judgment. Failure of a non-moving party to adduce su fficient

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 p arty, and

all doubts as to the existence of a genuine issue of mat erial 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).

Preliminarily, we note that Appellants’ fina l issue raised on appeal,

wherein they argue that the trial court incorrectly de termined that the

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

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

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

### J-S56002- 14

- 7 -

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

mandates th at “[i]ssues not included in the Statement ... are waiv ed.” We

are therefore prohibited from reviewing this issue on appeal.

With regards to Appellants’ remaining issues raised on a ppeal, we

have examined the certified record, the briefs of the parties, t he trial court’s

opinion, and the applicable law, and we find that Ju dge Cook ably and

methodically addressed the issues Appellants presented on a ppeal. We find

no abuse of discretion in the court’s entry of summary j udgment in favor of

Appellee, Susqueha nna Bank. Accordingly, we affirm based on Judge Cook’ s

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