J-A22013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOSEPH R. BIONDO,                                    IN THE SUPERIOR COURT
                                                                   OF
                                                              PENNSYLVANIA
                              Appellant

                        v.

    GREGORY LUTFY,

                              Appellee                          No. 50 EDA 2018


                 Appeal from the Order Dated December 1, 2017
                  In the Court of Common Pleas of Pike County
                      Civil Division at No(s): 262-2013-Civil


BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED DECEMBER 28, 2018

        Joseph R. Biondo (“Appellant”) appeals from the December 1, 2017

order granting summary judgment in favor of Appellee, Gregory Lutfy, and

denying Appellant’s cross-motion to dismiss. After careful review, we affirm.

        The   trial   court   summarized       the   relevant   facts   and   procedural

background of this case in its Pa.R.A.P. 1925(a) opinion:

               This matter arrives before the [c]ourt as a dispute over an
        alleged monetary loan. On February 13, 2013, [Appellant] filed a
        complaint against [Appellee], alleging that [he] was indebted to
        Appellant based on a promissory note [in the principal amount of
        $60,000.00,] executed on August 2, 2004. On May 14, 2013,
        Appellant filed an amended complaint. Appellee filed an answer
        and new matter shortly thereafter. On June 25, 2013, Appellee
        filed a motion for judgment on the pleadings, alleging that the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        applicable statute of limitations had expired. On November 14,
        2013, this [c]ourt denied Appellee’s motion for judgment on the
        pleadings and granted leave for Appellant to file an additional
        amended complaint.[1]

              Appellant filed a second amended complaint on December
        6, 2013. On April 19, 2017, following a lengthy period of
        discovery, Appellee filed a motion for summary judgment
        (“Motion”) and a brief in support thereof on June 5, 2017. On May
        8, 2017, Appellant filed preliminary objections to Appellee’s
        Motion. On May 26, [2017,] Appellee filed preliminary objections
        to Appellant’s preliminary objections. Argument on the Motion,
        Appellant’s preliminary objections thereto, and Appellee’s
        preliminary objections to those of the Appellant, was scheduled
        for August 16, 2017.

               On July 6, 2017, Appellant filed a praecipe to withdraw his
        preliminary objections, an answer to the motion, a brief in
        opposition thereto, a cross-motion to dismiss the Motion
        (“Appellant’s Cross-Motion”) with brief in support thereof, and an
        affidavit of [Appellant] (“Appellant’s Affidavit”). On August 1,
        2017, Appellee filed an answer to Appellant’s Cross-Motion and
        brief in opposition thereto. Argument was held on August 16,
        2017, and an order granting Appellee’s Motion was entered [on
        December 1, 2017].[2]

Trial Court Opinion (“TCO”), 4/2/18, at 1-2 (unnecessary capitalization

omitted).

____________________________________________


1   The court further provided in its order:

        After reviewing [Appellant’s] Amended Complaint, this [c]ourt
        finds that [Appellant] failed to plead sufficient facts showing that
        his claim is not barred by the statute of limitations. It is not
        enough to merely say that [Appellant] made annual demands for
        payment of the debt. To overcome the time-bar, [Appellant] must
        offer some evidence that [Appellee] acknowledged the debt.

Trial Court Order, 11/14/13, at 3.

2 The trial court granted summary judgment in favor of Appellee based on its
finding that Appellant’s cause of action is barred by the statute of limitations.
See Trial Court Order, 12/1/17, at 3-7.

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      On December 28, 2017, Appellant filed a notice of appeal, followed by a

timely   court-ordered   Pa.R.A.P.   1925(b)   concise   statement   of      errors

complained of on appeal. Herein, Appellant presents the following issues for

our review:

      A. Did the trial court erroneously base its grant of summary
         judgment on oral testimony?

      B. Are there material facts in dispute which preclude the entry of
         summary judgment?

      C. Did the trial court erroneously disregard Appellant[’]s Affidavit
         in Opposition to the Motion for Summary Judgment?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      Our standard of review with respect to a trial court’s decision to grant

or deny a motion for summary judgment is well-settled:

      A reviewing court 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. Pa.R.C.P. 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 non-moving 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 it bears the burden of proof establishes
      the entitlement of the moving party to judgment as a matter of
      law. Lastly, we will 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.




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Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations

omitted).

     Instantly, Appellant claims that the trial court erred in relying on his oral

deposition testimony in its granting of Appellee’s motion for summary

judgment.      Appellant’s Brief at 7.     Appellant’s claim is based on a

misapplication of the long-standing rule established in Nanty-Glo v.

American Surety Co., 136 A. 523 (Pa. 1932), which governs the use of oral

testimony to determine the outcome of a case in motions practice:

     However clear and indisputable may be the proof when it depends
     on oral testimony, it is nevertheless the province of the jury to
     decide, under instructions from the court, as to the law applicable
     to the facts, and subject to the salutary power of the court to
     award a new trial if they should deem the verdict contrary to the
     weight of the evidence.

Id. at 524.

     Appellant asserts that the trial court was prohibited by the Nanty-Glo

rule from relying on his deposition testimony in granting summary judgment.

We recognize that, “[i]n determining the existence or non-existence of a

genuine issue of a material fact, courts are bound to adhere to the rule of

Nanty-Glo[,] which holds that a court may not summarily enter a judgment

where the evidence depends upon oral testimony.” DeArmitt v. New York

Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013). However, as we explained

in DeArmitt:

     The Nanty-Glo rule means “the party moving for summary
     judgment may not rely solely upon its own testimonial affidavits
     or depositions, or those of its witnesses, to establish the non-
     existence of genuine issues of material fact.” Dudley [v. USX

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       Corp.], 606 A.2d [916, 918 (Pa. Super. 1992)]. “Testimonial
       affidavits of the moving party or his witnesses, not documentary,
       even if uncontradicted, will not afford sufficient basis for the entry
       of summary judgment, since the credibility of the testimony is still
       a matter for the factfinder.” Penn Center House, [In. v.
       Hoffman], 553 A.2d [900, 903 (Pa. 1989)].

       If, however, the moving party supports its motion for summary
       judgment with admissions by the opposing party, Nanty-Glo does
       not bar entry of summary judgment. InfoSAGE, Inc. v. Mellon
       Ventures, L.P., 896 A.2d 616, 631 (Pa. Super. 2006).

Id. (emphasis added).

       In accordance with the Nanty-Glo rule, the trial court would have been

precluded from granting summary judgment based solely upon oral testimony

and/or affidavits of Appellee and Appellee’s witnesses. In the instant case,

the record reveals that the lower court relied substantially on Appellant’s

deposition testimony; thus, the exception in Nanty-Glo cleary applies, and

the entry of summary judgment is not barred. See TCO at 6 (citing Appellant’s

deposition testimony in support of its decision).

       Next, Appellant argues that there are material facts in dispute, which

precludes the entry of summary judgment. Specifically, Appellant avers that

the parties are in dispute over whether a debt was created. Appellant’s Brief

at 3, 13-15.3 Regardless,

       [t]he issue presented by the Motion is whether [Appellee] is
       entitled to summary judgment when the action … is based upon a
       note dated August 2, 2004, to be repaid in ninety (90) days, the
       initial complaint was filed on February 13, 2013, and the
       applicable statute of limitations is four (4) years.
____________________________________________


3 Appellant avers that the August 2, 2004 promissory note represents a debt
owed to him by Appellee, whereas Appellee asserts that the $60,000.00 he
received from Appellant was, in fact, compensation. Id.

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Trial Court Order, 12/1/17, at 3-4. The trial court held that Appellant failed

to meet his burden to establish that his claim is not barred by the statute of

limitations. Id. at 4.

      It has been well-established that:

      The statute of limitations for a cause of action begins to run “from
      the time the cause of action accrued.” 42 Pa.C.S.[] § 5502(a).
      “In Pennsylvania, a cause of action accrues when the plaintiff
      could have first maintained the action to a successful conclusion.”
      Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 857 (2005).

Selective Way Ins. Co. v. Hospitality Group Services, Inc., 119 A.3d

1035, 1047 (Pa. Super. 2015). The statute of limitations applicable to “[a]n

action upon a negotiable or nonnegotiable bond, note or other similar

instrument in writing” is four years.       42 Pa.C.S. § 5525(a)(7).     “Entry of

summary judgment is proper where the plaintiff fails to plead facts sufficient

to toll the statute, or admits facts sufficient to admit the limitations defense….”

Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003) (internal citations

omitted).

      In support of its finding that Appellant’s action is barred by the statute

of limitations, the trial court opined:

      The evidence in this matter clearly shows that a promissory note
      was issued on August 2, 2004, and would become due and owing
      in ninety (90) days, or approximately November 4, 2004.
      Appellant’s initial Complaint was filed on February 13, 2013, more
      than eight (8) years after the indicated due date. Since the
      Statute of Limitations imposed on an action on a negotiable or
      nonnegotiable bond, note, or other similar instrument in writing is
      four (4) years, Appellant’s claim, without the application of the
      Acknowledgement Doctrine, is clearly barred.



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      Pursuant to the Acknowledgment Doctrine, the Statute of
      Limitations may be tolled when there is a clear, distinct, and
      unequivocal acknowledgement of a debt as an existing obligation.
      Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 659
      A.2d 1052, 1054 (Pa. Super. 1995), citing Gurenlian v.
      Gurenlian, 595 A.2d 145, 151 (Pa. Super. 1991).

         There must, however, be no uncertainty either in the
         acknowledgement or in the identification of the debt; and
         the acknowledgement must be plainly referable to the very
         debt upon which the action is based; and also must be
         consistent with a promise to pay on demand and not
         accompanied by other expressions indicating a mere
         willingness to pay at a future time. A simple declaration of
         an intention to discharge an obligation is not the equivalent
         of a promise to pay, but is more in the nature of a desire to
         do so, from which there is no implication of a promise. Id.

TCO at 5-6.

      The trial court concluded that the evidence in the instant matter

“indicates that the acknowledgment allegedly offered to [] Appellant by []

Appellee was far from clear, distinct, and unequivocal, thereby preventing the

application of the Acknowledgement Doctrine.” Id. at 6. The court provides

the following explanation in support of its decision:

      Appellant’s own deposition testimony indicates he could not recall
      any discussion regarding repayment at the time checks were
      provided to [] Appellee.       Furthermore, Appellant failed to
      recognize the promissory note attached to his own Second
      Amended Complaint. Appellant also prepared and submitted an
      Affidavit with his Answer and Cross-motion to [Appellee’s] Motion,
      presumably to rehabilitate the problematic testimony he gave at
      deposition. A court, however, may disregard an affidavit sworn in
      response to a motion for summary judgment when it contradicts
      a fact. Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 65 (Pa.
      Super. 2005), citing Gruenwald v.           Advanced Comput.
      Applications, Inc., 730 A.d 1004, 1009 (Pa. Super. 2005). We
      found Appellant’s Affidavit to lack credibility and chose to
      disregard it because the assertions contained therein contradicted
      his own statements of fact contained in his deposition testimony

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      and because it was filed in response to the Motion for Summary
      Judgment.

      Additionally, the specific acknowledgment averred by [] Appellant
      in his Complaint contained an expression indicating a mere
      willingness to pay at a future date:

         That despite repeated due demands for payment thereof
         made annually in or about December of each year since
         December 2004 through December 2012 by [Appellant] to
         [Appellee], [Appellee] has reaffirmed and re-acknowledged
         the aforesaid debt by acknowledging the indebtedness,
         acknowledging owing the debt to [Appellant], admitting
         [Appellee] did not have the funds available from which to
         make payment thereof and agreeing to make payment in
         the future.

      [Appellant’s] Second [Amended] Complaint ¶4. In accord with
      Huntington, an acknowledgment which would trigger the tolling
      of the statute of limitations must be akin to a promise to pay on
      demand and not a mere willingness to pay at a future time.

      Therefore, we held that the Acknowledgment Doctrine was
      inapplicable in this case and that the Statute of Limitations was
      not tolled. Accordingly, Appellant’s cause of action, unsupported
      by the Acknowledgment Doctrine, was barred [by] the Statute of
      Limitations.

      There being no genuine issue of material fact regarding the
      Statute of Limitations, the applicable dates, or the application of
      the Acknowledgment Doctrine, and there being no allegations of
      partiality, bias, or ill will levied against the trial court, [w]e hold
      the order[,] dated December 1, 2017, was a sound application of
      the applicable law.

TCO at 6-7 (citations to record omitted). After careful review, we discern no

error of law or abuse of discretion by the trial court.

      Finally, Appellant argues that the trial court erred in finding Appellant’s

Affidavit contradicted his deposition testimony and, therefore, choosing to

disregard his affidavit. Appellant’s Brief at 15-17. We deem Appellant’s claim

to be meritless. “[A] party may file an affidavit to supplement the record in


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order to avoid the entry of summary judgment. However, the trial court may

then properly disregard the affidavit, and other exhibits, if it is not ‘wholly

credible.’” Burger v. Owens Illinois, Inc., 966 A.2d 611, 620 (Pa. Super.

2009).

      As noted supra, the trial court found the affidavit submitted by Appellant

in response to the summary judgment motion to “lack credibility.” See TCO

at 6. We have repeatedly declined to find an abuse of discretion where a trial

court discounts affidavits in which an opposing party contradicts prior

deposition testimony in an effort to overcome summary judgment.             See

Stephens, supra at 65 (finding no abuse of discretion in grant of summary

judgment where trial court disregarded affidavit that contradicted earlier

deposition testimony); Gruenwald v. Advanced Computer Applications,

Inc., 730 A.2d 1004, 1009 (Pa. Super. 1999) (stating that trial court may

disregard affidavit sworn in response to summary judgment motion when it

directly contradicts fact and the court therefore finds it not wholly credible);

Lucera v. Johns-Manville Corp., 512 A.2d 661, 667 (Pa. Super. 1986)

(concluding the trial court did not abuse its discretion in granting a motion for

summary judgment where the court disregarded the appellant’s affidavit as

not credible because the affidavit contradicted the appellant’s testimony at the

non-jury trial).

      Here, during his deposition, Appellant did not even recognize the

promissory note attached to his own second amended complaint, nor could he

recall when the note was signed or whether he was present to witness the

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execution of the note. See TCO at 6; N.T. Deposition, 1/10/17, at 36, 42.

Moreoever,    while   being    questioned   by   Appellee’s   counsel,   Appellant

consistently stated that he could not recall any specific discussions with

Appellee regarding repayment of the alleged debt:

     Q.      Was there any discussion with [Appellee] about repayment
             of the two $30,000 checks?

     A.      I can’t recall.
                                        …

     Q.      When was the first time you asked [Appellee] for payment?

     A.      Probably a year and a half later.
                                      ...

     Q.      Okay. So tell me about that conversation … a year and a
             half later.

     A.      I can’t remember the conversation. We had a conversation
             every year, December or January, about the profits of the
             firm and whether there would be bonuses. And as I
             mentioned, I don’t think there were ever any bonuses.
                                       …

     Q.      Okay. In 2005, what is your recollection, if any, of what
             [Appellee’s] response was to this discussion?

     A.      I don’t have – I don’t have any. I mean, what he said in
             2005, I have no idea.

     Q.      All right. What about 2007? Do you have any idea about
             that?

     A.      No.

     Q.      What about 2008?

     A.      Generally, he said, you know, I can’t pay you until I get
             enough money, that kind of a – and I don’t know if those
             are his exact words, but something to that effect. And I
             understand that.




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       Q.     Okay. Was there anything else, other than what you told
              me, that you recall [Appellee] saying during these
              discussions, at any time?

       A.     No, I don’t recall.

N.T. Deposition at 47, 49, 52-53.

       Appellant’s subsequent affidavit filed in response to the motion for

summary judgment succinctly describes the money allegedly loaned to

Appellee and the note signed by Appellee in September of 2004. Moreover,

Appellant claims that beginning in December of 2005, and each year through

December of 2012, he asked Appellee about repaying the loan: “Each year

[Appellee] specifically told [Appellant] that he knew he owed [Appellant]

money and that he would repay [him], but that he did not have the money to

make payment then.”            Appellant’s Affidavit 2 ¶5.   Appellant’s affidavit

contradicts his prior deposition testimony, in which he was unable to recall the

details surrounding the execution of the note and/or any specifics about

discussions with Appellee regarding repayment of the debt. Accordingly, the

court was within its discretion to disregard Appellant’s affidavit. 4

       For the reasons stated above, we conclude that Appellant failed to

establish a genuine issue of material fact. Accordingly, we discern no error of

law or abuse of discretion by the trial court, and we affirm the order granting

Appellee’s motion for summary judgment.
____________________________________________


4Even if the court were to accept Appellant’s Affidavit, we note that Appellant’s
cause of action would still be time-barred, as the affidavit merely proclaims a
willingness on the part of Appellee to pay at a future time, which is not
sufficient to trigger the tolling of the statute of limitations pursuant to the
Acknowledgement Doctrine. See Huntingdon, supra.

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/18




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