J-S07001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OSAMA R. ABUGHAZALEH,                            IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

RAND S. ASHER,

                          Appellee                  No. 1800 EDA 2017


                Appeal from the Order Entered May 12, 2017
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2015-09486


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

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 01, 2018

      Appellant, Osama R. Abughazaleh, appeals from the May 12, 2017 order

granting summary judgment in favor of Appellee, Rand S. Asher. After careful

review, we affirm.

      This matter arises from a complaint in confession of judgment filed by

Appellant on April 30, 2015, in an attempt to collect monies allegedly owed to

him by Appellee pursuant to three separate agreements entered into by the

parties: (1) a $100,000.00 written promissory note entered into in 1994, (2)

a $35,000.00 oral agreement for a loan made in 2002, and (3) a $3,900.00

oral agreement for a loan made in 2003. On May 12, 2017, the trial court

entered an order granting Appellee’s motion for summary judgment. We need

not reiterate the history of this case at length herein, as the trial court
J-S07001-18



sufficiently set forth the relevant facts and procedural history in its October

30, 2017 opinion. See Trial Court Opinion, 10/30/17, at 1-3.

      On June 7, 2017, Appellant filed a timely 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 issue for

our review:    “Did the lower court commit legal error and/or abuse its

discretion, by entering summary judgment in favor of [Appellee] and against

[Appellant], based on the purported application of the relevant statute of

limitations and/or of the principle of judicial estoppel?” Appellant’s Brief at 3.

      We have reviewed the certified record, the briefs of the parties, and the

applicable law. Additionally, we have reviewed the thorough and well-crafted

opinion of the Honorable Carolyn Tornetta Carluccio of the Court of Common

Pleas of Montgomery County, entered on October 30, 2017. We conclude that

Judge Carluccio’s well-reasoned opinion accurately disposes of the issues

presented, and we discern no abuse of discretion or error of law. Accordingly,

we adopt Judge Carluccio’s opinion as our own and affirm the order granting

Appellee’s motion for summary judgment on that basis.

      Order affirmed.




                                      -2-
J-S07001-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/18




                          -3-
                                                                                    Circulated 04/06/2018 11:29 AM
                                                                               2015-09486-0033 Opinion, Page         1




                                                                                                      e
     IN THE COURT OF COMMON PLEAS, MONTGOMERY COUNTY, PENNSYLVANIA
                              CIVIL DIVISION


OSAMA        R.   ABUGHAZALEH                            NO. 15-09486


                  VS.
                                                         1111                                             111 II
                                                         2015.09486-0033   10/30/2017 11:28 AM   g 11504618
                                                                               Opinion
RAND    S.   ASHER                                       Rept1 Z3255321 Fee:$0.00
                                                                   Mark Levy - Monte() Prothonotary




CARLUCCIO, J.                                            OCTOBER            30              ,   2017

                                         OPINION


FACTS AND PROCEDURAL HISTORY:


        The matter at bar involves Plaintiff Osama R. Abughazaleh's suit to
                                                                            collect

monies from Defendant Rand       S.   Asher who allegedly owed him pursuant to
                                                                        and two
three(3) separate agreements, including one (1) written promissory note
(2) oral agreements entered into by the parties.

        On May 11, 2017,    after review of briefs, the trial court entered summary

judgment in favor of the Defendant Rand       S.   Asher and against the Plaintiff Osama

R.   Abughazaleh in the above captioned matter,

        The Plaintiff timely appealed.

        The trial court supports its' ruling below.



DISCUSSION:

        According to Pennsylvania Rule of Civil Procedure 1035.2,

        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
                                                                                 2015-09486-0033 Opinion, Page   2




                 whenever there is no genuine issue of any material fact as to a
                 necessary element of the cause of action or defense which could be
                 established by additional discovery or expert report, or

         (2)     if, after the completion of discovery relevant to the motion, including
                 the production of expert reports, an adverse party who will bear the
                 burden of proof at trial has failed to produce evidence of facts
                 essential to the cause of action or defense which in a jury trial would
                 require the issues to be submitted to a jury.

         Further, if the moving party meets its' initial burden of proof for summary

judgment, the burden then shifts to the non-moving party to establish                   a    genuine

issue of material fact. That is, 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
survive summary judgment, Pa.R.Civ.Pro. 1035.3(a). Failure of                a    non-moving
                                                                         which it
party to adduce sufficient evidence on an issue essential to his case on
bears the burden of proof establishes entitlement of the moving party
                                                                      to

judgement as        a   matter of law.   Id.

         In    the matter subjudice, Plaintiff filed   a   breach of contract complaint

against Defendant/Asher claiming that Asher failed to re -pay three (3) separate

loans:   a    $1, 000, 000.00   written promissory note entered into        in 1994,     a


$35,000.00 oral agreement/loan from 2002, and                 a   $3,900.00 oral agreement/loan

from 2003, (Plaintiff's Complaint, filed April 30, 2015, paragraphs 4 and 5)
      After discovery was complete, Defendant Asher filed a Motion for Summary
Judgment pleading that the statute of limitations had run on all three (3) of

Plaintiff's claims, thereby requiring entry of summary judgment in Defendant's
favor. After review of the applicable statute of limitations, the complaint, and

Plaintiff's response to the Defendant's Summary Judgment Motion, the trial court


                                                 2
                                                                                      2015-09486-0033 Opinion, Page   3




agreed that the statute of limitations had run on Plaintiff's claims and properly

entered judgment against Plaintiff Osama                    R   Abughazaleh,

         The first loan was memorialized by the Promissory Note dated November

18, 1994. The Note was signed under seal and notarized by                       a   Notary Public.

(Please See, Defendant's Motion for Summary Judgment                           Exhibit #2- Promissory

Note) A contract under seal           is   subject to   a   twenty (20) year statute of limitations

period. Pa.C.S. Section 5529(b)(1). That statutory Section provides,

In]otwithstanding Section 5525(7) (relating to four year limitation), an action
                                                                        20 years."
upon an instrument in writing under seal must be commenced within

Pa.C.S. Section 5529(b)(1), emphasis added. The                     parties at bar agree that the

Promissory Note is governed by the twenty (20) year statute of limitations.

Thus, applying the statute, the Promissory Note was executed on
                                                                November 18,

1994; the statute of limitations expired twenty (20) years later on November
                                                                             18,

                                                                   Note on April 30,
2014; and the Plaintiff filed his action to enforce the Promissory

2015, five (5) months outside of the statute of limitations. Since,
                                                                                        a   complaining

party    is   barred from bringing     a   lawsuit once the prescribed statutory period for

commencing         a   cause   of action   has expired, Defendant met his burden              of proof on

his Summary Judgment             Motion, and the burden then shifted to the Plaintiff to
                                                                                     to
identify a genuine issue of material fact. Pa.R.Civ.Pro. 1035.3(a). Plaintiff failed
do so.

          Plaintiff responded to the Motion by claiming that the twenty (20) year
statute of limitations did not begin to run on the Promissory Note until 2015
when he made his final demand for payment on the Note. Plaintiff cited to

Nimick v. Shuts , 655 A.2d 132, 136-137 (Pa.Super. 1995) for this proposition.

However, the Nimick case involved               a   four(4) year statute of limitations under


                                                        3
                                                                          2015-09486-0033 Opinion, Page 4




Section 5525(7) with    a   demand for payment, not an instrument under seal with          a


twenty (20) year statute of limitations under Section 5529(b)(1) containing no
demand for payment language. (Please See, Defendant's Motion for Summary

Judgment, Exhibit #2 -Promissory Note) Thus, Plaintiff failed to meet his burden

to identify outstanding questions of fact regarding the statute of limitations via
this case.

       Plaintiff also responded that every time Defendant made        a    partial payment

on the Note, the statute of limitations re -started, and therefore, the statute had

not run. Plaintiff quoted from Cole v. Lawrence, 701 A.2d 987, 990 (Pa.Super.
1997) which holds that in order for    a   partial payment to toll the statute of

limitations, the payment must constitute       a   constructive acknowledgement of the

debt from which   a   promise to pay the balance may be inferred. The trial court

agreed with this proposition. As indicated in Cole,

       A clear, distinct and unequivocal acknowledgement of a debt as an existing
       obligation, such as is consistent with a promise to pay, is sufficient to toll
       the statute of limitations. There must, however, be no uncertainty either in
       the acknowledgement or in the identification of the debt; and the
       acknowledgment 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. at 9.90, citing Huntingdon, 659 A2d at 1054,)


Thus, based upon the foregoing, an acknowledgment of debt or promise to pay

must be unequivocal and unconditional in order to take the case out from the
statute of limitations. Gurenlian v. Gurenlian, 595 A.2d 145, 151 (Pa.Super. 1991).
                                                                                 2015-09486-0033 Opinion, Page 5




             Thus, in order to succeed under the acknowledgment doctrine,             a   plaintiff

must show actual evidence, not just conjecture, which would allow the court to

infer    a   promise to pay the remaining debt or an acknowledgement of the entire

balance. Huntingdon Fin.Corp v, Newtown Artesian Water Co., 659 A.2d 1052,

1054 (Pa.Super. 1995) However, Plaintiff herein failed to identify/allege facts from

which        a   jury could infer Defendant's constructive acknowledgement of the debt.
Plaintiff generically indicated that Defendant made partial payments over the
years. (Plaintiff's Answer to Defendant's Motion for Summary Judgment,

paragraphs             1   and 2) Plaintiff failed to present specific evidence that could suggest

to   a   jury that any such partial payments constituted           a   clear and unequivocal

acknowledgment of a larger debt. Cole, at 990.
             Summary judgment was also properly entered against the Plaintiff with

reference to his breach of contract claim on the 2002 oral loan for $35,000.00.

That is, it is well established that a loan premised upon an oral agreement
                                                                               is

                                                                         upon an
subject to a four (4) year statute of limitations (applying to an action
                                                                   Pa.C.S. Section
express contract not founded on an instrument in writing.) 42
                                                                              the oral
5525(3) Applying, this section to the case at bar, The parties entered into

agreement in 2002; the statute of limitations period ran four(4) years later
                                                                              in

2006; Plaintiff filed his action to enforce the 2002 oral agreement on April
                                                                             30,

2015, approximately nine (9) years after the statute expired.

             Further, summary judgment was likewise properly entered against the

Plaintiff with reference to his breach of contract claim on the 2003 oral loan for
$3,900.00. As indicated, supra,               a   loan premised upon an oral agreement is

subject to         a   four (4) year statute of limitations. 42 Pa.C.S. Section 5525(3)
(reference to an action upon an express contract not founded on an instrument
                                                                              in
                                                                                       2015-09486-0033 Opinion, Page   6




writing.) 42      Pa.C,S. Section 5525(3). Applying, Section 5525(3)                 to the case at bar,
the parties entered into the oral agreement in 2003; the statute of limitations

period ran four (4) years later in 2007; Plaintiff filed his action to enforce the 2003
oral agreement on April 30, 2015, approximately eight (8) years after the statute

expired.

            Once Defendant established that the statute of limitation had run on the

two    (2) oral loans cited above, the burden then shifted                  to the Plaintiff to identify a

genuine issue of material fact to counter the above. Again, Plaintiff did not meet

this burden.

            Plaintiff countered that the two (2) oral loans, supra, were not subject to                    a


four (4) year statute of limitations period because the loans were loan principle
re -advances under the Note, and therefore, subject to the                       twenty (20) year

statute of limitations. However, there          is   absolutely no language in the Note,

itself, which provides for such re -advances. (Please See, Defendant's Motion for
Summary Judgment, Exhibit #2 -Promissory Note) Thus, the alleged re -advances

could only be oral loans, or oral modifications to the Note. As such, the oral

agreements would again be under           a   four (4) year statute of limitations which

would have expired in 2011, before suit was filed. Please See, Gurenlian v.
Gurenlian, 595 A.2d 145, 150 (Pa.Super. 1991).

            Finally, assuming arguendo, that the appellate court finds that Plaintiff met

his burden of      proof and produced     a   question of fact relevant to the statute of

limitations issue, the trial court contends that summary judgment would still be
appropriate under judicial estoppel. As the court                   is   aware, judicial estoppel   is a

doctrine that prohibits      a   party from taking       a   position in    a   subsequent proceeding

that   is   inconsistent with the party's position in          a   prior judicial proceeding.

                                                     6
                                                                         2015-09486-0033 Opinion, Page   7




Widener University v. Estate of Boettner, 726 A.2d 1059, 1062 (Pa.Super. 1999)
          In   the case at bar, Plaintiff admitted that despite pledging full disclosure
when negotiating his property settlement in his previous divorce matter, he

omitted the loan/loans at issue from his list of assets in that action, (Please See,
Defendant's Reply Brief in Support of Summary Judgment, Exhibit A- Plaintiffs

deposition, pgs. 10-12; Exhibit      B   - Docket from Abucihazaleh v. Abughazaleh, No.
50-1997-DR-008864-DiFY-SB, Palm Beach County Court for the State of Florida;

Exhibit    C-   Court Order Pledging Full Disclosure.) Thus, under judicial estoppel,

Plaintiff should be precluded from attempting to collect on an outstanding debt
herein, when he purposefully/strategically indicated that such debt(s) did not

exist in his previous divorce action. Id.

      Accordingly, for the foregoing reasons, the trial court respectfully requests

that its' May 11, 2017, ruling be AFFIRMED.


                                              By the Court:




                                             The    HonoQ le Carolyn Tornetta Carluccio

Copies of the above Opinion
mailed on    /0.86-17    to:
Marc A. Zaid, Esquire
Andrew W. Bonekemper, Esquire
Daniel W. Yager, Esquire




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