J-A20024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE JUNIATA VALLEY BANK

v.

COFFEE RUN EQUITY ASSOCIATES, 

LP 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 285 MDA 2017

Appeal from the Order Entered January 18, 2017

In the Court of Common Pleas of Mifflin County 

Civil Division at No(s): CP-44-CV-488-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 13, 2018

In this mortgage foreclosure action, Appellant, Coffee Run Equity 

Associates, LP (“CREA”), appeals from the order entered in the Mifflin County 

Court of Common Pleas, granting summary judgment in favor of Appellee, The 

Juniata Valley Bank (“JVB”), awarding judgment in rem for $1,472,728.33, 

plus interest, costs, and attorneys’ fees. We affirm.

The relevant facts and procedural history of this case are as follows. 

CREA purchased a tract of land in 2009, and executed a mortgage to JVB for 

$1,300,000.00. The parties modified the mortgage agreement in 2010. CREA 

stopped making monthly payments shortly thereafter, in February 2011. CREA 

also failed to pay the full mortgage debt by the date of maturity.

Through an email sent on August 11, 2014, JVB demanded a payment 

of $25,000.00 on the past-due mortgage. JVB’s email stated that it planned 
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to exercise its right to the certificate of deposit it held as collateral to secure 

the mortgage debt and to the option of foreclosure if CREA failed to return the 

property deed to JVB. CREA’s lawyer paid JVB the $25,000.00. 

JVB then filed a mortgage foreclosure complaint against CREA on March 

30, 2015. CREA filed an answer with new matter and counterclaims, to which 

JVB filed preliminary objections. The court granted JVB’s preliminary 

objections, and dismissed CREA’s new matter and counterclaims. JVB later 

filed a motion for summary judgment, which the court also granted. CREA’s 

appeal is now before us.

On appeal, CREA challenges the trial court’s determination that its 

$25,000.00 payment to JVB was an acknowledgment of the mortgage debt. 

CREA argues the payment was in consideration of a wholly separate deal, not 

an acknowledgment of CREA’s nonpayment. CREA theorizes that the payment 

consequently did not toll the four-year statute of limitations. Thus, CREA 

asserts that JVB filed its complaint after the statute of limitations expired for 

mortgage foreclosure actions. CREA maintains the trial court erred in granting 

JVB’s preliminary objections to CREA’s statute of limitations defense. CREA 

concludes we must vacate the trial court’s order granting JVB’s preliminary 

objections, as well as the order granting summary judgment in favor of JVB. 

We disagree.

We review a challenge to a trial court’s order granting preliminary 

objections by examining whether the trial court committed an error of law. 

See Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011). 
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Preliminary objections in the nature of a demurrer test the legal 

sufficiency of the complaint. When considering preliminary 

objections, all material facts set forth in the challenged pleadings 

are admitted as true, as well as all inferences reasonably 

deducible therefrom. Preliminary objections which seek the 

dismissal of a cause of action should be sustained only in cases in 

which it is clear and free from doubt that the pleader will be unable 

to prove facts legally sufficient to establish the right to relief. If 

any doubt exists as to whether a demurrer should be sustained, it 

should be resolved in favor of overruling the preliminary 

objections.

Id. (citation mitted).

“[A]n action upon an instrument in writing under seal must be 

commenced within 20 years.” 42 Pa.C.S.A. § 5529(b)(1). Conversely, an 

action such as a mortgage foreclosure, which is not under seal, must be 

commenced within four years. See 42 Pa.C.S.A. § 5525(a)(7). Specifically, 

“[w]here such an instrument is payable upon demand, the time within which 

an action on it must be commenced shall be computed from the later of either 

demand or any payment of principal of or interest on the instrument.” Id. 

(emphasis added).

“Pursuant to the ‘acknowledgement doctrine,’ a statute of limitations 

may be tolled or its bar removed by a promise to pay the debt.” Makozy v. 

Makozy, 874 A.2d 1160, 1170 (Pa. Super. 2005) (citation omitted). “This 

[Court] has recognized that there can be no more clear and unequivocal 

acknowledgement of a debt than payment.” Cole v. Lawrence, 701 A.2d 987, 

990 (Pa. Super. 1997) (citation omitted). 
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The mortgage at issue in this action was not under seal. Consequently, 

JVB was subject to a four-year statute of limitations to bring a mortgage 

foreclosure action. See 42 Pa.C.S.A. § 5525(a)(7). CREA alleges that its 

$25,000.00 payment to JVB was in consideration for a different agreement, 

wherein JVB would agree not to foreclose while a group of investors raised 

money to satisfy the mortgage. In an exhibit attached to its counterclaims and 

affirmative defenses, CREA supplied an email sent from a representative of 

JVB to David McNitt, the attorney for CREA. See CREA’s Second Amended 

Answer, filed 7/29/15, at Exhibit A. That email was dated August 11, 2014. 

In it, JVB does not reference any agreement not to foreclose. Instead, 

it specifically states that it is “no longer able to entertain conceptual 

possibilities” and demands payment of $25,000.00 on the past-due mortgage 

by Friday, August 22, 2014. Id. The email also noted that JVB planned to 

exercise its right to the certificate of deposit it held as collateral to secure the 

mortgage debt, and requested that CREA return the property deed to JVB or 

else face foreclosure. 

CREA also attached as an exhibit a check dated August 22, 2014, in the 

requested amount of $25,000.00, signed by David McNitt with “CREA LP” in 

the memo line. See id., at Exhibit B. 

Even viewing the record in the light most favorable to CREA, the 

payment on August 22, 2014, was in response to JVB’s specific written 

demand for payment on the mortgage. Nowhere does JVB state that it would 

agree not to foreclose on the mortgage. Indeed, the email states precisely the 
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opposite—that it planned to foreclose unless CREA offered the property deed 

in lieu of foreclosure. JVB’s email also demands payment. CREA paid JVB 

$25,000.00 in response to this email. Thus, CREA’s acknowledgment of that 

debt by subsequent payment tolled the statute of limitations. See 42 

Pa.C.S.A. § 5525(a)(7). 

JVB’s complaint in mortgage foreclosure, filed on March 30, 2015, was 

well within the four-year statute of limitations. Thus, the trial court did not err 

in granting JVB’s preliminary objections, and we decline to reverse the order.

We turn next to an examination of the grant of summary judgment.

Summary judgment in a mortgage foreclosure action is subject to the 

same rules as other civil actions. See Pa.R.C.P. 1141(b). 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.
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E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) 

(citation omitted; brackets in original).

The holder of a mortgage has the right, upon default, to bring a 

foreclosure action. See Cunningham v. McWilliams, 714 A.2d 1054, 1056 

(Pa. Super. 1998). The holder is entitled to summary judgment “if the 

mortgagors admit that the mortgage is in default, that they have failed to pay 

interest on the obligation, and that the recorded mortgage is in the specified 

amount.” Id., at 1057 (citation omitted). Responsive pleadings in a mortgage 

foreclosure action should include specific denials; general denials constitute 

admissions. See Pa.R.C.P. 1029(b); Bank of America, N.A. v. Gibson, 102 

A.3d 462, 466-67 (Pa. Super. 2014). “[G]eneral denials by mortgagors that 

they are without information sufficient to form a belief as to the truth of 

averments as to the principal and interest owing [on the mortgage] must be 

considered an admission of those facts.” Id. at 467 (citation omitted). 

Here, JVB’s complaint complied with Pa.R.C.P. 1147, and included as 

exhibits copies of the original recorded mortgage, the modified mortgage, and 

a description of the land. CREA’s answer admits that it is in default on the 

mortgage. The answer states CREA is without sufficient knowledge or 

information to calculate the amount owing on the mortgage. CREA offers only 

general denials to JVB’s complaint, and, as such, admits the facts of JVB’s 

complaint. See CREA’s Second Amended Answer, filed 7/29/15, at 1-2. 

CREA failed to raise any material issues of fact or law that would refute 

the averments in the complaint, and JVB established therein a prima facie
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case to institute foreclosure. Accordingly, the trial court’s grant of the motion 

for summary judgment filed by JVB was proper.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/13/2018