Driscoll, R. v. Arena, J.

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
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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
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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.
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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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