J-E03003-18

                               2019 PA Super 190


 ROBERT W. DRISCOLL, JR.,                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JOHN A. ARENA                           :   No. 226 EDA 2017

            Appeal from the Order Entered December 19, 2016
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 03288, May Term, 2016

 ROBERT W. DRISCOLL, JR.,                :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JOHN A. ARENA                           :   No. 228 EDA 2017

            Appeal from the Order Entered December 30, 2016
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 03293, May Term, 2016

 ROBERT W. DRISCOLL JR.                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 THOMAS ARENA                            :   No. 286 EDA 2017

            Appeal from the Order Entered December 14, 2016
           In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): 03286 May Term 2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.
J-E03003-18



CONCURRING AND DISSENTING OPINION BY OTT, J.:FILED JUNE 17, 2019

       I concur with the Majority’s conclusion that the trial court erred in

determining Appellees’ petition to strike confessed judgments as untimely due

to   procedural    missteps.1       I   respectfully   dissent,   however,   from   its

determination that the documents constituted “sealed instruments” pursuant

to 42 Pa.C.S. § 5529(b)(1), and therefore, the judgments were void on their

face because the statute of limitations deprived the court of jurisdiction.

       Black’s Law Dictionary defines “seal” generally as “[a] design embossed

or stamped on paper to authenticate, confirm, or attest; an impression or sign

that has legal consequence when applied to an instrument.”               Black’s Law

Dictionary 1550 (10th ed. 2014).           In Beneficial Consumer Discount v.

Dailey, 644 A.2d 789 (Pa. Super. 1994), a panel of this Court stated:

       It is well-established that, although a vestige of the past, the
       contract under seal may still operate to lengthen the statute of
       limitation. The [appellants] argue forcefully-and we do not think
       anyone would disagree-that an ordinary consumer transaction
       hardly represents the solemnity that was once envisioned by a
       party signing a contract under seal. Yet, this [C]ourt has held, in
       accord with many cases written by our Supreme Court, that when
       a party signs a contract which contains a pre-printed word “SEAL,”
       that party has presumptively signed a contract under seal. Klein
       v. Reid, 422 A.2d 1143 (1980).

Id. at 790.2

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1 See Majority Opinion at 3-7.
2  Generally speaking, a contract under seal operates to lengthen the statute
of limitation and an instrument containing the word “seal” or its equivalent is



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       Here, as pointed out by the Majority, each of the promissory notes

contains a paragraph entitled “Waiver” which includes the following language:

“Borrower intends this to be a sealed instrument and to be legally bound

hereby.” See Majority Opinion at 9; Complaint in Confession of Judgment,

5/25/2016, at Exhibit A. The Majority finds this statement alone evinces the

parties created a sealed instrument under which they intended to be bound.

Majority Opinion at 9-10. I would conclude otherwise.

       “[T]his [C]ourt has held, in accord with many cases written by our

Supreme Court, that when a party signs [an instrument] which contains a pre-

printed word ‘SEAL,’ that party has presumptively signed [an instrument]

under seal.” In re Estate of Snyder, 13 A.3d 509, 513 (Pa. Super. 2011)

(citations omitted), appeal denied, 25 A.3d 329 (Pa. 2011). In finding that

the trial court had properly classified each of the pertinent instruments before

it as “an instrument in writing under seal” pursuant to 42 Pa.C.S. §

5529(b)(1), the panel first noted that all of the documents qualified as

“instruments” because each defined the rights, duties, entitlements, and

liabilities of the parties involved. Id. at 513, citing Black’s Law Dictionary 813

(Brian A. Garner ed., 8th ed. 2004) (stating that an instrument is “[a] written

legal document that defines rights, duties, entitlements, or liabilities, such as


____________________________________________


deemed a sealed instrument if the maker adopts the seal through his or her
signature. See Swaney v. Georges Township Road District, 164 A. 336
(Pa. 1932); Collins v. Tracy Grill & Bar Corp., 19 A.2d 617 (Pa. Super.
1941).

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a contract, will, promissory note,” or “in fact, any written or printed document

that may have to be interpreted by the Courts”).

      This Court stressed the documents memorializing both a $6,000.00

mortgage    and   a   $20,000.00   mortgage,    along   with   the   documents

memorializing the several bond and warrant securities underlying each

mortgage, “categorically specif[ied] that each instrument was signed under

seal.” In Re Estate of Snyder, 13 A.3d at 513. The panel concluded that

“[b]ecause each document specifies that it is under seal, our law presumes

that the signatories of each document have, in fact, signed an instrument

under seal.” Id. (emphasis added), citing Beneficial Consumer, 644 A.2d

790. Therefore, the panel held the 20-year statute of limitations time period

set forth in Section 5529(b)(1) was the applicable limitations period for the

facts in that case. Id. Similarly, in Osprey Portfolio, LLC v. Izett, 32 A.3d

793 (Pa. Super. 2011), the Pennsylvania Supreme Court noted the promissory

note at issue “included a confession of judgment clause and stated that it was

‘executed under seal’ with the designation ‘(SEAL)’ as part of the signature

line.” Id. at 274-75, 67 A.3d at 750.

      To the contrary, in the matter sub judice, there is no language anywhere

thereon to indicate the notes had been “signed under” or “given under seal,”

nor does the pre-printed word “SEAL” or other such mark appear anywhere

near either of the Appellees’ signatures. Furthermore, Appellant cited to no

case law, nor has our research uncovered any, to support the position that


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the single reference buried in the “Waiver” paragraph of the promissory notes

that Appellees intend the documents to be sealed instruments is sufficient to

presumptively create a sealed instrument.3

          While the Majority finds the language in the “Waiver” paragraph

overcomes such a burden of presumption with respect to a sealed instrument

because Beneficial Consumer did “not hold that the word ‘seal’ by the

signature line is required”4 and was “silent on the circumstances before us –

an explicit statement of the parties’ intent within the contract unaccompanied

by any mark at the signature line,”5 I would decline to expand the legal effect

of the contractual language to such an extent without more evidence. The

“Waiver” paragraph is one of nine paragraphs contained in the promissory

notes. It is located on the top of the second page of contract, and states in

full:

          WAIVER. The Borrower hereby waives presentment for payment,
          demand, notice of nonpayment, notice of protest and protest of
          this Promissory Note and all other notices in connection with the
          delivery, acceptance, performance, default or enforcement of the
          payment of this Promissory Note. The failure by Lender to
          exercise any right or remedy shall not be taken to waive the
          exercise of the same thereafter for the same or any subsequent
          default. All notices to Borrower shall be adequately given if mailed
          postage prepaid to the addresses appearing in Lender’s records.
          Borrower intends this to be a sealed instrument and to be legally


____________________________________________


3   See Trial Court Opinion, 12/14/2016, at 11.

4   Majority Opinion at 11.

5   Id.

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       bound hereby. All issues arising hereunder shall be governed by
       the laws of Pennsylvania.

Complaint in Confession of Judgment, 5/25/2016, at Exhibit A.          As noted

above, the “sealed” language and any reference to such intention to be sealed

is not included in any portion of the remainder of promissory note.           An

“intention” that something is to be a sealed instrument does not mean that it,

in fact, is one, for “what statute of limitations will apply to instruments under

seal if a seal is, for all purposes, not only surplusage but also meaningless?”

Toll v. Pioneer Sample Book Co., 94 A.2d 764, 766 (Pa. 1953); see also

Packer Soc. Hill Travel Agency, supra.

       As noted by the Majority, “[t]he paramount goal of contractual

interpretation is to ascertain and give effect to the intent of the parties.”

N.E.A. Cross, Inc. Nat’l Fuel Gas Supply Corp., 600 A.2d 228, 229 (Pa.

Super. 1991), appeal denied, 608 A.2d 31 (Pa. 1992).          The Majority also

determined the statement in the “Waiver” paragraph represented an explicit

assertion of the parties’ intent for the contract to be under seal. Without an

evidentiary hearing or other evidence regarding the issue, I am disinclined to

come to such a factual conclusion regarding the parties’ intent with respect to

that statement, particularly because it was only included in the “Waiver”

paragraph and not repeated somewhere else in the document.6

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6  It merits mention with regard to Appellant’s complaint, he attached two
letters from his legal counsel to Appellees regarding the promissory notes and



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       Moreover, I would find that, reading the contract as a whole, such a

sparse reference to the word, “sealed,” “hardly represents the solemnity that

[could be] envisioned by a party signing a contract under seal.” Beneficial

Consumer, 644 A.2d at 790.               I do not believe that lenders should be

permitted to lengthen the statute of limitations merely by adding the language

contained in the “Waiver” paragraph of the promissory note at issue. Such a

determination will have legal ramifications for all commercial loan transactions

and should not be made on a trial court record that is devoid of any testimony

as to the intent of the parties.

       Accordingly, I would not disturb the trial court’s finding that the omission

or absence of the word SEAL or initials L.S. at or near the signature block is a

necessary requirement for a promissory note to be a sealed instrument and,

therefore, the 20-year statute of limitations under Section 5529(b)(1) for

instruments in writing under seal is inapplicable.

       Judge Lazarus joins this concurring and dissenting opinion.




____________________________________________


Appellant’s own affidavit.   See Complaint in Confession of Judgment,
5/25/2016, at Exhibits C and D. None of these documents refer to the
promissory notes as sealed instruments.

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