Valley Natl. Bank v. Marchiano, P.

J-A16004-19
J-A16006-19
J-A16008-19
2019 Pa. Super. 322
VALLEY NATIONAL BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILIP M. & SANDRA E. MARCHIANO :
:
Appellants : No. 2002 MDA 2018
Appeal from the Order Entered November 9, 2018
In the Court of Common Pleas of Berks County Civil Division at No(s):
17-20530
*****
VALLEY NATIONAL BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN GABBETT AND SUSAN :
GABBETT :
: No. 1985 MDA 2018
Appellants :
Appeal from the Order Entered November 8, 2018
In the Court of Common Pleas of Berks County Civil Division at No(s):
17-20546
*****
VALLEY NATIONAL BANK : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
:
J-A16004-19
J-A16006-19
J-A16008-19
MARK A. RIVOLI AND KENDRA G. :
RIVOLI : No. 2087 MDA 2018
:
Appellants
Appeal from the Order Entered December 5, 2018
In the Court of Common Pleas of Berks County Civil Division at No(s):
17-20559
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS,* P.J.E.
OPINION BY LAZARUS, J.: FILED OCTOBER 24, 2019
In this consolidated appeal,1 Philip M. & Sandra E. Marchiano, Appellants
at 2002 MDA 2018, Brian & Susan Gabbett, Appellants at 1985 MDA 2018,
and Mark A. & Kendra G. Rivoli, Appellants at 2087 MDA 2018 (collectively
“Mortgagors”), appeal from orders granting summary judgment in favor of
Appellee, Valley National Bank (“Valley National”). After careful review, we
affirm.
All three cases originate from the same operative facts. In May 2007,
Brian Gabbett, as president of Twisted Ice Incorporated d/b/a/ Soft Pretzel
Factory (“TWI”), executed a promissory note to document a $265,000 small
business loan to TWI. The loan was secured by three mortgages on
Mortgagors’ properties. In November 2012, TWI defaulted on the loan. Valley
National accelerated the loan and sent Mortgagors demand letters on October
____________________________________________
* Former Justice specially assigned to the Superior Court
1 This Court sua sponte consolidated the appeals because they involve related
issues and parties. See Pa.R.A.P. 513 (permitting sua sponte consolidation).
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4, 2016. In November 2017, Valley National initiated mortgage foreclosure
actions against all Mortgagors. In July 2018, Valley National filed a motion
for summary judgment. In August 2018, Mortgagors filed an answer to Valley
National’s motion and filed a cross-motion for summary judgment. All parties
agreed that the loan was in default. Mortgagors’ raised the defense of the
statute of limitations.
On November 5, 2018, the trial court granted summary judgment in
favor of Valley National finding that the document was under seal and, thus,
subject to a twenty-year statute of limitations. These timely appeals followed.
Mortgagors raise the following issue for our review:
Whether the trial [court] committed an error of law or abused its
discretion or otherwise violated Appellants’ federal and state
constitutional rights to due process by granting [Valley National’s]
motion for summary judgment based [on] its conclusion that the
[mortgages] in controversy [were] instrument[s] signed under
seal, not subject to the four-year statute of limitations set forth at
42 Pa.C.S.A. § 5525.
Appellants’ brief, at 4.
Mortgagors challenge the trial court’s order granting summary judgment
in favor of Valley National. Our Supreme Court has clarified our role on
appellate review as follows:
On appellate review, [] an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
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tribunals. To the extent that this Court must resolve a question
of law, we shall review the grant of summary judgment in the
context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citation
omitted). “The application of the statute of limitations to an alleged cause of
action is a matter of law to be determined by the court.” Packer Soc’y Hill
Travel Agency, Inc. v. Presbyterian Univ. Med. Ctr., 635 A.2d 649, 651
(Pa. Super. 1993). We, therefore, review Mortgagors claim de novo. Id.
Section 5525(a)(7) of the Judicial Code provides a four-year statute of
limitations for “[a]n action upon a negotiable or nonnegotiable bond, note, or
other similar instrument in writing.” 42 Pa.C.S.A. § 5525(a)(7). However,
section 5529 states, in relevant part, “[n]otwithstanding section 5525[a](7),
. . . an action upon an instrument in writing under seal must be commenced
within 20 years.” 42 Pa.C.S.A. § 5529(b)(1) (emphasis added). Thus, the
proper limitation period hinges on whether the relevant documents were
“under seal.”
The days of actual sealing of legal documents, in its original sense
of the impression of an individual mark or device upon wax or
wafer, or even on the parchment or paper itself, have long gone
by. It is immaterial what device the impression bears[,] and the
same stamp may serve for several parties in the same deed. Not
only so, but the use of wax has almost entirely and even of wafers,
very largely ceased. In short[,] sealing has become constructive,
rather than actual, and is in a great degree a matter of intention.
Lorah ex rel. Evans v. Nissley, 27 A. 242, 242 (Pa. 1893) (citation omitted);
see also Collins v. Tracy Grill & Bar Corp., 19 A.2d 617, 620 (Pa. Super.
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1941) (“sealing has long since become constructive rather than actual and is
now largely a matter of intention”).
Here, after the signatures in each of the three instruments, an individual
acknowledgement read:
BE IT REMEMBERED, that on this 18th day of May, 2007[,] before
me, the subscriber personally appeared [Appellants], who
acknowledged under oath, to my satisfaction, that this person (or
if more than one, each person): (a) is named in and personally
signed this document; and (b) signed, sealed and delivered this
document as his or his act and deed.
Mortgage, 5/18/07, at 4 (emphasis added). Following the acknowledgment,
there was a notary seal and signature.
With respect to acknowledgments, our Supreme Court has held “[a]n
acknowledgment is a judicial act and is conclusive of the facts certified in the
absence of fraud.” Abraham v. Mihalich, 479 A.2d 601, 603 (Pa. Super.
1984) (citations omitted). The acknowledgments certified that the mortgages
were “signed, sealed and delivered.” Mortgagors have made no claim of fraud.
Therefore, we hold that the documents are constructively under seal. See id.
As the documents were under seal, a twenty-year statute of limitation
applies. See 42 Pa.C.S.A. § 5529(b)(1). Valley National commenced these
actions five years after TWI defaulted. Thus, Valley National timely
commenced the foreclosure actions and the trial court properly ordered
summary judgment in favor of Valley National.
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Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2019
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