J-S42031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WITSEN, BARBARA (BY DAVID               :   IN THE SUPERIOR COURT OF
 WITSEN, HER SON, HER ATTORNEY-          :        PENNSYLVANIA
 IN-FACT)                                :
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :   No. 635 EDA 2019
                                         :
 MICHAEL WITSEN AND KELLY                :
 WITSEN                                  :

             Appeal from the Order Entered February 1, 2019
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 2017-15923


BEFORE:    OTT, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                     FILED SEPTEMBER 13, 2019

     Barbara Witsen (Plaintiff), by her son and attorney-in-fact David Witsen,

appeals from an order of the Court of Common Pleas of Montgomery County

(trial court) granting summary judgment in a confession of judgment case in

favor of Kelly Witsen (Defendant). For the reasons set forth below, we affirm.

     This case arises out of note executed in 2002 (the Note) in which

Defendant and her then-husband, Michael Witsen, agreed to pay Defendant’s

father-in-law, William Witsen, $225,000 in 120 monthly installments, with the

last payment due June 1, 2012. Note, attached to Complaint for Confession

of Judgment as Ex. D. The Note stated that it was secured by identified real

property in Horsham, Pennsylvania and that it “authorize[d] a judgment to be

entered against [Michael Witsen and Defendant] before default and without


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S42031-19



notice of the entry of the judgment.” Id. at 1 (emphasis added). The Note

also contained a confession of judgment that stated:

       [T]he promisors do herby [sic] empower any attorney of any court
       of record within the United States or elsewhere, to appear for
       him/her and after one or more declarations filed, confess
       judgment against the promisors as of any term for the above
       sum with costs of suit and attorney’s fees . . . .

Id. at 2 (emphasis added).

       William Witsen passed away on June 23, 2015.            On May 30, 2017,

Plaintiff, William Witsen’s widow, filed the instant complaint for confession of

judgment against Defendant and Michael Witsen, who are now divorced,

asserting that Plaintiff is the assignee and holder of the Note as William

Witsen’s sole heir under his will.         On November 8, 2017, Plaintiff filed a

praecipe for a writ of execution on the confessed judgment directing the sheriff

to index the writ against Defendant and Michael Witsen as a lis pendens on

the property referenced in the Note. Praecipe for Writ of Execution Upon a

Confessed Judgment.

       On March 20, 2018, Defendant filed a petition to strike or open the

confessed judgment asserting that enforcement of the Note was barred by the

statute of limitations, that Plaintiff lacked standing to enforce the Note, and

that the confession of judgment in the Note was invalid.1 Plaintiff in response
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1 Although Michael Witsen was a defendant in the action and the judgment
was also entered against him, he did not seek to strike or open the confessed
judgment and apparently does not contest its validity. Michael Witsen’s Reply
to Defendant’s Motion to Consolidate ¶1. Michael Witsen’s only appearance



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disputed Defendant’s grounds for striking or opening the judgment and argued

that Defendant’s petition was untimely under Pa.R.C.P. 2959(a)(3). On July

18, 2018, the trial court entered an order denying the petition to strike, but

granting Defendant’s petition to open the judgment.         Trial Court Order,

7/18/18.2

       On December 4, 2018, Defendant filed a motion for summary judgment

seeking dismissal of Plaintiff’s complaint on the ground, inter alia, that

enforcement of the Note was barred by the four-year statute of limitations for

contract actions, 42 Pa.C.S. § 5525, because the action was filed almost five

years after the last payment was due under the Note.         Plaintiff argued in

response that the action was not time-barred because the Note was a

negotiable instrument subject to a six-year statute of limitations, 13 Pa.C.S.

§ 3118(a). This motion was assigned to a different judge than the judge who

had granted the petition to open the confessed judgment. On February 1,

2019, the trial court granted Defendant’s motion for summary judgment and

dismissed Plaintiff’s complaint on the ground that the Note was nonnegotiable

and that the action was therefore barred by the four-year contract statute of


____________________________________________


in this case consisted of opposing an unsuccessful motion filed by Defendant
that sought to consolidate the confession of judgment with the divorce
proceedings.
2 The trial court did not state its reasons for granting the petition to open in
its order, and the reasoning on which the order was based is not provided by
the trial court’s Pa.R.A.P. 1925(a) opinion, which was authored by a different
judge.

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limitations. Trial Court Order, 2/1/19; Trial Court Rule 1925(a) Opinion at 2-

6. Plaintiff timely filed this appeal on March 1, 2019.

      Plaintiff raises the following two issues in this appeal:

      I. Whether confession of judgment clause failing to contain
      warrant to confess judgment “at any time” is a negotiable
      instrument subject to a six year statute of limitations.

      II. Whether Defendant Kelly Witsen waived any statute of
      limitations by filing an untimely petition under Rule 2959(a)(3),
      without a [sic] ‘compelling reasons for the delay’.

Appellant’s Brief at 4 (unnecessary capitalization and material other than

Plaintiff’s issues omitted). Our standard of review of the trial court’s grant of

summary judgment is de novo and the scope of review is plenary. Pyeritz v.

Commonwealth, 32 A.3d 687, 692 (Pa. 2011).

      There is no dispute that Plaintiff’s claims under the Note were time-

barred unless the applicable statute of limitations is five years or longer. The

Note provided that the last payment was due June 1, 2012. Note at 1. Where

a note contains a date certain on which payment is due, the statute of

limitations begins to run on that date. Sovich v. Estate of Sovich, 55 A.3d

1161, 1165 (Pa. Super. 2012).      Plaintiff did not file this action until May 30,

2017, almost five years later.

      If the Note was nonnegotiable, Plaintiff’s right to enforce the Note is

subject to a four-year statute of limitations. Section 5525(a) of the Judicial

Code provides that




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       the following actions and proceedings must be commenced within
       four years:

                            *             *       *

        (7) An action upon a negotiable or nonnegotiable bond, note or
       other similar instrument in writing. Where 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.

       (8) An action upon a contract, obligation or liability founded upon
       a writing not specified in paragraph (7), under seal or otherwise,
       except an action subject to another limitation specified in this
       subchapter.

42 Pa.C.S. § 5525(a).3          In contrast, actions to enforce notes that are

negotiable instruments are subject to a six-year statute of limitations.     13

Pa.C.S. § 3102 (13 Pa.C.S. §§ 3101-3605 apply only to negotiable

instruments); 13 Pa.C.S. § 3118(a) (providing that “an action to enforce the

obligation of a party to pay a note payable at a definite time must be

commenced within six years after the due date or dates stated in the note or,

if a due date is accelerated, within six years after the accelerated due date”).

       We conclude that the trial court correctly held that the Note was

nonnegotiable and that Plaintiff’s action was therefore barred by the four-year

statute of limitations of 42 Pa.C.S. § 5525. The Note specifically states that

it “authorizes a judgment to be entered … before default” and its confession



____________________________________________


3 There is no claim that the Note was under seal or subject to 42 Pa.C.S. §
5529(b) (providing a 20-year statute of limitations for actions upon
instruments in writing under seal).

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of judgment clause authorizes confession of judgment against Defendant and

Michael Witsen “as of any term.” Note at 1 ¶2, at 2 Confession of Judgment.

Pennsylvania law is clear that a note is nonnegotiable if it provides that

judgment may be entered before default or that judgment may be entered “as

of any term” or “at any time” without limiting that power to confessing

judgment after payment is due.             Funds for Business Growth, Inc. v.

Woodland Marble & Tile Co., 278 A.2d 922, 923 n.* (Pa. 1971); Manor

Building Corp. v. Manor Complex Associates, Ltd., 645 A.2d 843, 846

(Pa. Super. 1994); Wolgin v. Mickman, 335 A.2d 824, 827 (Pa. Super.

1975); Cheltenham National Bank v. Snelling, 326 A.2d 557, 559-60 (Pa.

Super. 1974); Smith v. Lenchner, 205 A.2d 626, 628-29 (Pa. Super. 1964).

None of the cases argued by Plaintiff is to the contrary. Rather, those cases

either involved notes that expressly permitted confession of judgment only

after payment was due4 or did not hold that the note in question was

negotiable.5

       Plaintiff’s assertion that Defendant waived the statute of limitations is

without merit. A defendant may waive a statute of limitations defense by


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4Home Credit Co. v. Preston, 99 Pa. Super. 457, 459 (1930); Green v.
Dick & Shope, 72 Pa. Super. 266, 269 (1919).
5 Dollar Bank v. Northwood Cheese Co., 637 A.2d 309 (Pa. Super. 1994);
Triangle Building Supplies & Lumber Co. v. Zerman, 363 A.2d 1287 (Pa.
Super. 1976); Bittner v. McGrath, 142 A.2d 323 (Pa. Super. 1958); EFB
Real Estate Investment LLC v. Chin, 2016 Phila. Ct. Com. Pl. LEXIS 160
(No. CP-39-CR-2982-2014, filed June 28, 2016).

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failure to include it in a pleading. Croyle v. Dellape, 832 A.2d 466, 476 (Pa.

Super. 2003); Werner v. Werner, 573 A.2d 1119, 1121 (Pa. Super. 1990).

A defendant may also be estopped from asserting the statute of limitations if

he has made an affirmative misrepresentation or committed an affirmative act

of concealment that caused the plaintiff’s action to be untimely. Molineux v.

Reed, 532 A.2d 792, 794 (Pa. 1987); Lange v. Burd, 800 A.2d 336, 339 (Pa.

Super. 2002).        Neither of these situations is present here, however.

Defendant raised the statute of limitations in her first filing in this action, the

petition to strike or open. Petition to Strike or Open Confessed Judgment ¶¶6-

7. Any delay in filing that petition could not possibly have caused Plaintiff’s

failure to timely file an action on the Note, as Defendant’s alleged delay was

in 2017 and 2018, over a year after the statute of limitations had already

expired.

       To the extent that Plaintiff is contending instead that the trial court erred

in granting Defendant’s petition to open the confessed judgment, see

Appellant’s Brief at 2-3, 11-13,6 that argument likewise fails. Rule 2959 of

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6 A claim of error in the trial court’s July 18, 2018 order opening the confessed
judgment is encompassed by Plaintiff’s appeal from the February 1, 2019
summary judgment because that latter order is the only final, appealable
judgment in this case. A notice of appeal filed from the entry of a final order
draws into question any prior non-final orders that produced the judgment.
K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003); Scampone v. Grane
Healthcare Co., 169 A.3d 600, 610 n.5 (Pa. Super. 2017). See also
Commonwealth v. Walker, 185 A.3d 969, 977 n.4 (Pa. 2018) (requirement



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the Pennsylvania Rules of Civil Procedure sets forth the procedure for striking

off or opening confessed judgments and provides:

       If written notice is served upon the petitioner pursuant to Rule
       2956.1(c)(2) or Rule 2973.1(c) [governing execution on
       confessed judgments], the petition shall be filed within thirty days
       after such service. Unless the defendant can demonstrate that
       there were compelling reasons for the delay, a petition not timely
       filed shall be denied.

Pa.R.C.P. 2959(a)(3). This deadline is mandatory and the court must deny a

petition to strike or open after expiration of that 30-day period unless the

defendant shows a compelling reason for his failure to timely seek relief or the

confessed judgment is void. Driscoll v. Arena, ___ A.3d ___, ___, 2019 PA

Super 190, *5, *7-*9 (Nos. 226 EDA 2017, 228 EDA 2017, 286 EDA 2017,

filed June 17, 2019) (en banc). The fact that the confession of judgment was

barred by the statute of limitations makes the judgment voidable, not void,

and does not permit a court to grant an untimely petition to strike or open.

Id. at *7-*9.

       The 30-day deadline for filing a petition to strike or open a confessed

judgment, however, does not run from the date that the judgment or writ of

execution is filed or the date that the defendant has notice of the judgment or

learns that the plaintiff is seeking to execute. Magee v. J.G. Wentworth &



____________________________________________


of separate notices of appeal where multiple final orders are appealed “has no
impact on the rule that a party need only file a single notice of appeal to secure
review of all non-final orders that are rendered final and appealable by the
entry of a final order”).

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Co.,   761   A.2d   159,   161      (Pa.   Super.   2000);   Thomas   Associates

Investigative & Consulting Services, Inc. v. GPI LTD., Inc., 711 A.2d

506, 509 (Pa. Super. 1998). Rather, it begins to run only when the defendant

is served with written notice of execution. Pa.R.C.P. 2959(a)(3); Magee, 761

A.2d at 161; Thomas Associates Investigative & Consulting Services,

Inc., 711 A.2d at 509. Absent evidence in the record that the defendant was

served with a notice of execution and of the date of such service, a court

cannot find that a petition to strike or open a confessed judgment is barred

by Rule 2959(a)(3). Magee, 761 A.2d at 161 (lower court erred in finding

that appellant was time-barred from challenging confessed judgment because

“[n]owhere in the record have Appellees established that they served

[appellant] with notice of execution upon the confessed judgment” and

“therefore, the timeliness clock has not yet begun to run”).

       Here, the record shows that Plaintiff filed a praecipe for a writ of

execution on November 8, 2017, not that it was served on Defendant or the

date that notice of execution was served. Compare Driscoll, at *5 (noting

that the plaintiff “filed writs of execution and served written notice in accord

with Rule 2959(a)(3) on June 29, 2016,” more than 30 days before defendants

filed their petitions to strike).    No affidavit of service, proof of service, or




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docket entry showing service of a notice of execution appears anywhere in the

record and Plaintiff in her brief does not cite to any such evidence of service.7

       Rather, Plaintiff cites only to paragraph 3 of Defendant’s petition to

strike or open as the basis for her contention that Defendant was served with

the notice of execution on November 8, 2017. Appellant’s Brief at 11. In that

paragraph Defendant states that “a Writ of Execution was issued on November

8, 2017 while the divorcing couple was selling their marital residence” and

that “[i]t was only then learned that the Complaint in Confession of Judgment

had been filed earlier on May 30, 2017.” Petition to Strike or Open Confessed

Judgment ¶3. These statements only admit notice that Plaintiff was seeking

to execute on the judgment, not that Defendant was served on that date. The

fact that Defendant became aware of the writ of execution does not require

the conclusion that this information was obtained by service. The praecipe for

a writ of execution directed the sheriff to index the writ as a lis pendens on

the marital residence, and Defendant could have learned of the writ from the




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7 While Plaintiff made allegations in her answer to the Defendant’s petition to
strike or open that “[o]n November 8, 2017, written notice was served upon
[Defendant] pursuant to PA. Rule 2956.1(c)(2) and/or Pa. Rule 2973.1(c),”
Reply to Petition to Open/Strike Confessed Judgment ¶¶3, 18, Plaintiff
attached no documentation of the alleged service. Moreover, Plaintiff did not
endorse the answer with a notice to plead. Defendant’s failure to respond to
those allegations therefore cannot constitute an admission. Cooper v.
Church of St. Benedict, 954 A.2d 1216, 1221 (Pa. Super. 2008);
McCormick v. Allegheny General Hospital, 527 A.2d 1028, 1032 (Pa.
Super. 1987).

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property records or by oral notification, rather than by receipt of the written

notice that triggers the 30-day deadline under Rule 2959(a)(3).

      Because the trial court did not err in holding that Plaintiff’s action was

barred by the statute of limitations and Plaintiff has not shown that the trial

court erred in granting Defendant’s petition to open the confessed judgment,

we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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