Valley Natl. Bank v. Marchiano, P.

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 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.                        :
                                        :
                                        :
                                        :
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  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., 

 (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., 

(Pa. Super. 1993). We, therefore, review Mortgagors claim de novo. 

      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, 

 (Pa. 1893) (citation omitted);

see also Collins v. Tracy Grill & Bar Corp., 

 (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, 

 (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 

      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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