J-A22013-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH R. BIONDO, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

GREGORY LUTFY,

Appellee No. 50 EDA 2018

Appeal from the Order Dated December 1, 2017

In the Court of Common Pleas of Pike County

Civil Division at No(s): 262-2013-Civil

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 28, 2018

Joseph R. Biondo (“Appellant”) appeals from the December 1, 2017 

order granting summary judgment in favor of Appellee, Gregory Lutfy, and 

denying Appellant’s cross-motion to dismiss. After careful review, we affirm. 

The trial court summarized the relevant facts and procedural 

background of this case in its Pa.R.A.P. 1925(a) opinion:

This matter arrives before the [c]ourt as a dispute over an 

alleged monetary loan. On February 13, 2013, [Appellant] filed a 

complaint against [Appellee], alleging that [he] was indebted to 

Appellant based on a promissory note [in the principal amount of 

$60,000.00,] executed on August 2, 2004. On May 14, 2013, 

Appellant filed an amended complaint. Appellee filed an answer 

and new matter shortly thereafter. On June 25, 2013, Appellee 

filed a motion for judgment on the pleadings, alleging that the 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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applicable statute of limitations had expired. On November 14, 

2013, this [c]ourt denied Appellee’s motion for judgment on the 

pleadings and granted leave for Appellant to file an additional 

amended complaint.[1] 

Appellant filed a second amended complaint on December 

6, 2013. On April 19, 2017, following a lengthy period of 

discovery, Appellee filed a motion for summary judgment 

(“Motion”) and a brief in support thereof on June 5, 2017. On May 

8, 2017, Appellant filed preliminary objections to Appellee’s 

Motion. On May 26, [2017,] Appellee filed preliminary objections 

to Appellant’s preliminary objections. Argument on the Motion, 

Appellant’s preliminary objections thereto, and Appellee’s 

preliminary objections to those of the Appellant, was scheduled 

for August 16, 2017. 

On July 6, 2017, Appellant filed a praecipe to withdraw his 

preliminary objections, an answer to the motion, a brief in 

opposition thereto, a cross-motion to dismiss the Motion 

(“Appellant’s Cross-Motion”) with brief in support thereof, and an 

affidavit of [Appellant] (“Appellant’s Affidavit”). On August 1, 

2017, Appellee filed an answer to Appellant’s Cross-Motion and 

brief in opposition thereto. Argument was held on August 16, 

2017, and an order granting Appellee’s Motion was entered [on 

December 1, 2017].

[2]

 

Trial Court Opinion (“TCO”), 4/2/18, at 1-2 (unnecessary capitalization 

omitted). 

____________________________________________

1 The court further provided in its order:

After reviewing [Appellant’s] Amended Complaint, this [c]ourt 

finds that [Appellant] failed to plead sufficient facts showing that 

his claim is not barred by the statute of limitations. It is not 

enough to merely say that [Appellant] made annual demands for 

payment of the debt. To overcome the time-bar, [Appellant] must 

offer some evidence that [Appellee] acknowledged the debt. 

Trial Court Order, 11/14/13, at 3. 

2 The trial court granted summary judgment in favor of Appellee based on its 

finding that Appellant’s cause of action is barred by the statute of limitations. 

See Trial Court Order, 12/1/17, at 3-7. 
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On December 28, 2017, Appellant filed a notice of appeal, followed by a 

timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Herein, Appellant presents the following issues for 

our review: 

A. Did the trial court erroneously base its grant of summary 

judgment on oral testimony?

B. Are there material facts in dispute which preclude the entry of 

summary judgment?

C. Did the trial court erroneously disregard Appellant[’]s Affidavit 

in Opposition to the Motion for Summary Judgment? 

Appellant’s Brief at 2 (unnecessary capitalization omitted). 

Our standard of review with respect to a trial court’s decision to grant 

or deny a motion for summary judgment is well-settled: 

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law or 

abused its discretion. As with all questions of law, our review is 

plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. Where the non-moving party bears the burden 

of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment. Failure of a nonmoving party to adduce sufficient evidence on an issue essential 

to his case and on which it bears the burden of proof establishes 

the entitlement of the moving party to judgment as a matter of 

law. Lastly, we will view the record in the light most favorable to 

the non-moving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the 

moving party. 
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Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations 

omitted). 

Instantly, Appellant claims that the trial court erred in relying on his oral 

deposition testimony in its granting of Appellee’s motion for summary 

judgment. Appellant’s Brief at 7. Appellant’s claim is based on a 

misapplication of the long-standing rule established in Nanty-Glo v. 

American Surety Co., 136 A. 523 (Pa. 1932), which governs the use of oral 

testimony to determine the outcome of a case in motions practice:

However clear and indisputable may be the proof when it depends 

on oral testimony, it is nevertheless the province of the jury to 

decide, under instructions from the court, as to the law applicable 

to the facts, and subject to the salutary power of the court to 

award a new trial if they should deem the verdict contrary to the 

weight of the evidence. 

Id. at 524. 

Appellant asserts that the trial court was prohibited by the Nanty-Glo

rule from relying on his deposition testimony in granting summary judgment. 

We recognize that, “[i]n determining the existence or non-existence of a 

genuine issue of a material fact, courts are bound to adhere to the rule of 

Nanty-Glo[,] which holds that a court may not summarily enter a judgment 

where the evidence depends upon oral testimony.” DeArmitt v. New York 

Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013). However, as we explained 

in DeArmitt:

The Nanty-Glo rule means “the party moving for summary 

judgment may not rely solely upon its own testimonial affidavits 

or depositions, or those of its witnesses, to establish the nonexistence of genuine issues of material fact.” Dudley [v. USX 
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Corp.], 606 A.2d [916, 918 (Pa. Super. 1992)]. “Testimonial 

affidavits of the moving party or his witnesses, not documentary, 

even if uncontradicted, will not afford sufficient basis for the entry 

of summary judgment, since the credibility of the testimony is still 

a matter for the factfinder.” Penn Center House, [In. v. 

Hoffman], 553 A.2d [900, 903 (Pa. 1989)]. 

If, however, the moving party supports its motion for summary 

judgment with admissions by the opposing party, Nanty-Glo does 

not bar entry of summary judgment. InfoSAGE, Inc. v. Mellon 

Ventures, L.P., 896 A.2d 616, 631 (Pa. Super. 2006). 

Id. (emphasis added). 

In accordance with the Nanty-Glo rule, the trial court would have been 

precluded from granting summary judgment based solely upon oral testimony 

and/or affidavits of Appellee and Appellee’s witnesses. In the instant case, 

the record reveals that the lower court relied substantially on Appellant’s

deposition testimony; thus, the exception in Nanty-Glo cleary applies, and 

the entry of summary judgment is not barred. See TCO at 6 (citing Appellant’s 

deposition testimony in support of its decision). 

Next, Appellant argues that there are material facts in dispute, which 

precludes the entry of summary judgment. Specifically, Appellant avers that 

the parties are in dispute over whether a debt was created. Appellant’s Brief 

at 3, 13-15.3 Regardless,

[t]he issue presented by the Motion is whether [Appellee] is 

entitled to summary judgment when the action ... is based upon a 

note dated August 2, 2004, to be repaid in ninety (90) days, the 

initial complaint was filed on February 13, 2013, and the 

applicable statute of limitations is four (4) years.

____________________________________________

3 Appellant avers that the August 2, 2004 promissory note represents a debt 

owed to him by Appellee, whereas Appellee asserts that the $60,000.00 he 

received from Appellant was, in fact, compensation. Id.
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Trial Court Order, 12/1/17, at 3-4. The trial court held that Appellant failed 

to meet his burden to establish that his claim is not barred by the statute of 

limitations. Id. at 4. 

It has been well-established that:

The statute of limitations for a cause of action begins to run “from 

the time the cause of action accrued.” 42 Pa.C.S.[] § 5502(a). 

“In Pennsylvania, a cause of action accrues when the plaintiff 

could have first maintained the action to a successful conclusion.” 

Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 857 (2005). 

Selective Way Ins. Co. v. Hospitality Group Services, Inc., 119 A.3d 

1035, 1047 (Pa. Super. 2015). The statute of limitations applicable to “[a]n 

action upon a negotiable or nonnegotiable bond, note or other similar 

instrument in writing” is four years. 42 Pa.C.S. § 5525(a)(7). “Entry of 

summary judgment is proper where the plaintiff fails to plead facts sufficient 

to toll the statute, or admits facts sufficient to admit the limitations defense....” 

Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003) (internal citations 

omitted). 

In support of its finding that Appellant’s action is barred by the statute 

of limitations, the trial court opined: 

The evidence in this matter clearly shows that a promissory note 

was issued on August 2, 2004, and would become due and owing 

in ninety (90) days, or approximately November 4, 2004. 

Appellant’s initial Complaint was filed on February 13, 2013, more 

than eight (8) years after the indicated due date. Since the 

Statute of Limitations imposed on an action on a negotiable or 

nonnegotiable bond, note, or other similar instrument in writing is 

four (4) years, Appellant’s claim, without the application of the 

Acknowledgement Doctrine, is clearly barred. 
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Pursuant to the Acknowledgment Doctrine, the Statute of 

Limitations may be tolled when there is a clear, distinct, and 

unequivocal acknowledgement of a debt as an existing obligation. 

Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 659 

A.2d 1052, 1054 (Pa. Super. 1995), citing Gurenlian v. 

Gurenlian, 595 A.2d 145, 151 (Pa. Super. 1991). 

There must, however, be no uncertainty either in the 

acknowledgement or in the identification of the debt; and 

the acknowledgement must be plainly referable to the very 

debt upon which the action is based; and also must be 

consistent with a promise to pay on demand and not 

accompanied by other expressions indicating a mere 

willingness to pay at a future time. A simple declaration of 

an intention to discharge an obligation is not the equivalent 

of a promise to pay, but is more in the nature of a desire to 

do so, from which there is no implication of a promise. Id. 

TCO at 5-6. 

The trial court concluded that the evidence in the instant matter 

“indicates that the acknowledgment allegedly offered to [] Appellant by [] 

Appellee was far from clear, distinct, and unequivocal, thereby preventing the 

application of the Acknowledgement Doctrine.” Id. at 6. The court provides 

the following explanation in support of its decision: 

Appellant’s own deposition testimony indicates he could not recall 

any discussion regarding repayment at the time checks were 

provided to [] Appellee. Furthermore, Appellant failed to 

recognize the promissory note attached to his own Second 

Amended Complaint. Appellant also prepared and submitted an 

Affidavit with his Answer and Cross-motion to [Appellee’s] Motion, 

presumably to rehabilitate the problematic testimony he gave at 

deposition. A court, however, may disregard an affidavit sworn in 

response to a motion for summary judgment when it contradicts 

a fact. Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 65 (Pa. 

Super. 2005), citing Gruenwald v. Advanced Comput. 

Applications, Inc., 730 A.d 1004, 1009 (Pa. Super. 2005). We 

found Appellant’s Affidavit to lack credibility and chose to 

disregard it because the assertions contained therein contradicted 

his own statements of fact contained in his deposition testimony 
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and because it was filed in response to the Motion for Summary 

Judgment. 

Additionally, the specific acknowledgment averred by [] Appellant 

in his Complaint contained an expression indicating a mere 

willingness to pay at a future date:

That despite repeated due demands for payment thereof 

made annually in or about December of each year since 

December 2004 through December 2012 by [Appellant] to 

[Appellee], [Appellee] has reaffirmed and re-acknowledged 

the aforesaid debt by acknowledging the indebtedness, 

acknowledging owing the debt to [Appellant], admitting 

[Appellee] did not have the funds available from which to 

make payment thereof and agreeing to make payment in 

the future.

[Appellant’s] Second [Amended] Complaint ¶4. In accord with 

Huntington, an acknowledgment which would trigger the tolling 

of the statute of limitations must be akin to a promise to pay on 

demand and not a mere willingness to pay at a future time.

Therefore, we held that the Acknowledgment Doctrine was 

inapplicable in this case and that the Statute of Limitations was 

not tolled. Accordingly, Appellant’s cause of action, unsupported 

by the Acknowledgment Doctrine, was barred [by] the Statute of 

Limitations. 

There being no genuine issue of material fact regarding the 

Statute of Limitations, the applicable dates, or the application of 

the Acknowledgment Doctrine, and there being no allegations of 

partiality, bias, or ill will levied against the trial court, [w]e hold 

the order[,] dated December 1, 2017, was a sound application of 

the applicable law. 

TCO at 6-7 (citations to record omitted). After careful review, we discern no 

error of law or abuse of discretion by the trial court. 

Finally, Appellant argues that the trial court erred in finding Appellant’s

Affidavit contradicted his deposition testimony and, therefore, choosing to 

disregard his affidavit. Appellant’s Brief at 15-17. We deem Appellant’s claim 

to be meritless. “[A] party may file an affidavit to supplement the record in 
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order to avoid the entry of summary judgment. However, the trial court may 

then properly disregard the affidavit, and other exhibits, if it is not ‘wholly 

credible.’” Burger v. Owens Illinois, Inc., 966 A.2d 611, 620 (Pa. Super. 

2009). 

As noted supra, the trial court found the affidavit submitted by Appellant 

in response to the summary judgment motion to “lack credibility.” See TCO 

at 6. We have repeatedly declined to find an abuse of discretion where a trial 

court discounts affidavits in which an opposing party contradicts prior 

deposition testimony in an effort to overcome summary judgment. See

Stephens, supra at 65 (finding no abuse of discretion in grant of summary 

judgment where trial court disregarded affidavit that contradicted earlier 

deposition testimony); Gruenwald v. Advanced Computer Applications, 

Inc., 730 A.2d 1004, 1009 (Pa. Super. 1999) (stating that trial court may 

disregard affidavit sworn in response to summary judgment motion when it 

directly contradicts fact and the court therefore finds it not wholly credible); 

Lucera v. Johns-Manville Corp., 512 A.2d 661, 667 (Pa. Super. 1986) 

(concluding the trial court did not abuse its discretion in granting a motion for 

summary judgment where the court disregarded the appellant’s affidavit as 

not credible because the affidavit contradicted the appellant’s testimony at the 

non-jury trial). 

Here, during his deposition, Appellant did not even recognize the 

promissory note attached to his own second amended complaint, nor could he 

recall when the note was signed or whether he was present to witness the 
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execution of the note. See TCO at 6; N.T. Deposition, 1/10/17, at 36, 42. 

Moreoever, while being questioned by Appellee’s counsel, Appellant 

consistently stated that he could not recall any specific discussions with 

Appellee regarding repayment of the alleged debt:

Q. Was there any discussion with [Appellee] about repayment 

of the two $30,000 checks?

A. I can’t recall. 

...

Q. When was the first time you asked [Appellee] for payment?

A. Probably a year and a half later.

...

Q. Okay. So tell me about that conversation ... a year and a 

half later. 

A. I can’t remember the conversation. We had a conversation 

every year, December or January, about the profits of the 

firm and whether there would be bonuses. And as I 

mentioned, I don’t think there were ever any bonuses. 

...

Q. Okay. In 2005, what is your recollection, if any, of what 

[Appellee’s] response was to this discussion?

A. I don’t have – I don’t have any. I mean, what he said in 

2005, I have no idea. 

Q. All right. What about 2007? Do you have any idea about 

that?

A. No.

Q. What about 2008?

A. Generally, he said, you know, I can’t pay you until I get 

enough money, that kind of a – and I don’t know if those 

are his exact words, but something to that effect. And I 

understand that. 
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Q. Okay. Was there anything else, other than what you told 

me, that you recall [Appellee] saying during these 

discussions, at any time?

A. No, I don’t recall. 

N.T. Deposition at 47, 49, 52-53. 

Appellant’s subsequent affidavit filed in response to the motion for 

summary judgment succinctly describes the money allegedly loaned to 

Appellee and the note signed by Appellee in September of 2004. Moreover, 

Appellant claims that beginning in December of 2005, and each year through 

December of 2012, he asked Appellee about repaying the loan: “Each year 

[Appellee] specifically told [Appellant] that he knew he owed [Appellant]

money and that he would repay [him], but that he did not have the money to 

make payment then.” Appellant’s Affidavit 2 ¶5. Appellant’s affidavit 

contradicts his prior deposition testimony, in which he was unable to recall the 

details surrounding the execution of the note and/or any specifics about 

discussions with Appellee regarding repayment of the debt. Accordingly, the 

court was within its discretion to disregard Appellant’s affidavit. 4

For the reasons stated above, we conclude that Appellant failed to 

establish a genuine issue of material fact. Accordingly, we discern no error of 

law or abuse of discretion by the trial court, and we affirm the order granting 

Appellee’s motion for summary judgment. 

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4 Even if the court were to accept Appellant’s Affidavit, we note that Appellant’s 

cause of action would still be time-barred, as the affidavit merely proclaims a 

willingness on the part of Appellee to pay at a future time, which is not 

sufficient to trigger the tolling of the statute of limitations pursuant to the 

Acknowledgement Doctrine. See Huntingdon, supra.
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/18