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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

judgment in favor of Appellee, Susquehanna Bank. After 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 Susquehanna Bank, 

successor by acquisition to Community Banks ... alleging that 

[Susquehanna Bank] failed to forward proceeds received in 

conveyance of a property rightfully and equitably owned by 

[Appellants]. 

The relevant facts are as follows: Prior to November 24, 

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

record owners of the premises located at 230 Brickyard Road, 

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

November 24, 2003, [Appellants] filed a Complaint against 

Parents to enforce an inter vivos gift of the Property and 

improvement to [Appellants], docketed at case number 2003-

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 Parents 

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 February 26, 2007, 

prior to any issuance of writ of execution or required notices 

regarding same pursuant to the Pennsylvania Rules of Civil 

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 [Susquehanna 

Bank] in payment of confessed judgments which were being

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

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

attempted to appeal the decision to the Superior Court. Parents 

resisted the appeal and it was eventually quashed on June 6, 

2007. 

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

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

parcel conveyance totaling 27.261 acres for a total consideration 

of $1,000,000,00. None of the proceeds of the conveyance 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 satisfaction 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 tenants 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 money 

damages in substantiation of the Property given to [Appellants] 

by inter 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 [Susquehanna 

Bank] is presently in possession of the money proceeds received 

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

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

[Susquehanna Bank] to retain the money consideration received 

for the conveyance of the Property, and [Susquehanna Bank] 

would be unjustly enriched were it permitted to retain such 

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

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

or its predecessors, and the gifted entireties property would 

have been unavailable to satisfy the claims of Daniel Nugent’s 

creditors. [Appellants] requested that this [c]ourt hold 

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

from the current owners of the Property, and that [Susquehanna 

Bank] be ordered to pay over to [Appellants] the amount due 

with interest from the date of the filing of the original 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 Order 

overruling [the] Preliminary Objections. 

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

New Matter and Counterclaim. In its New Matter, [Susquehanna 

Bank] explains that Parents, along with their sons Daniel Nugent 

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

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

Suretyship Agreements and Disclosures for Confession of 
J-S56002-14

- 4 - 

Judgment in which they all agreed to act absolutely and 

unconditionally as sureties for a loan Community Banks made to 

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

other property and future real property or rights to Property of 

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

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 default 

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

Confession of Judgment against Robert, Mary, Daniel, and 

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

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

the third party was executed so that the net proceeds could 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 paid to 

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

the payment it received to the outstanding loan balance and in 

partial satisfaction of the confessed judgment. [Susquehanna 

Bank] also alleges that at the time Parents sold the Property 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 dispersing 

the funds against the outstanding loan balance. [Susquehanna 

Bank] also listed several affirmative defenses. 

In its Counterclaim, [Susquehanna Bank] argued that 

during the application and execution of the Loan Documents, 

[Appellants] intentionally concealed and did not disclose 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 try to recover

proceeds paid by Parents to [it] in satisfaction of a debt 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 remains 

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

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

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 Parents only, 

therefore Parents are indispensable parties to any subsequent 

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 in selling 

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

the losses alleged by [Appellants], Parents are solely liable 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 from 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 Summary Judgment, and 

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

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

Appellants’ Motion for Summary Judgment and entered Summary Judgment 

in favor of Susquehanna Bank. This timely appeal followed. 

 On appeal, Appellants raise the following issues for our review. 

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

mortgagee entitling [it] to a superior interest in the 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 equitable 

relief of a constructive trust based on the record. 

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

lis pendens. 

D. Whether Appellants’ action was untimely or barred by election 

for legal damages in a previous action. 

Appellants’ Brief at 4 (unnecessary capitalization omitted). 

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

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

established that the court committed an error of law or abused 

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

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in 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 not merely 

rely on his pleadings or answers in order to survive summary 

judgment. Failure of a non-moving party to adduce sufficient 

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 party, and 

all doubts as to the existence of a genuine issue of material 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’ final issue raised on appeal, 

wherein they argue that the trial court incorrectly determined that the 

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

previous action, was not included in their court-ordered 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 that “[i]ssues not included in the Statement ... are waived.” We 

are therefore prohibited from reviewing this issue on appeal. 

With regards to Appellants’ remaining issues raised on appeal, we 

have examined the certified record, the briefs of the parties, the trial court’s 

opinion, and the applicable law, and we find that Judge Cook ably and 

methodically addressed the issues Appellants presented on appeal. We find 

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

Appellee, Susquehanna 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