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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JOSEPH R. BIONDO, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.
GREGORY LUT FY, Appellee No. 5 0 E DA 201 8

Appeal from the Order Dated December 1 , 201 7 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 2 8 , 2018 Joseph R. Biondo (“Appellant”) appeals f rom 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.
T he trial court summarized the relevant facts and procedural backgro und 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 Februar y 13, 2013, [Appellant] filed a c omplaint ag ainst [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 Ma y 14, 2013, Appellant filed an amended complaint. Appellee filed an a nswer and new m atter shortly thereafter. On J une 25, 2013, Appellee filed a motion for j udgment on the p leadings, alleging that the

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* Former Justice specially assigned to the Superior Court.J

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applicable statute of limitations had expired. On November 14, 2013, this [c]ourt denied Appellee’s m otion for judgment on the p leadings and gr anted leave for Appellant to file an additional amended complaint. [ 1 ] Appellant filed a s econd a mended c omplaint on December 6, 2013. On April 19, 2017, following a lengthy period of discovery, Appellee filed a motion for summary j udgment (“Motion”) and a b rief in s upport thereof on June 5, 2017. On May 8, 2017, Appellant filed p reliminary o bjections to Appellee’s Motion. On May 26, [2017,] Appellee filed p reliminary objections to Appellant’s p reliminary o bjections. Argum ent on the Motion, Appellant’s p r eliminary o bje ctions thereto, and Appellee’s preliminary o bjections to those of the Appellant, was scheduled for August 16, 2017. On J uly 6, 2017, Appellant filed a praecipe to w ithdraw his p reliminary o bjections, an a nswer to the motion, a brief in op po sition thereto, a cross

- m otion to dismiss the Motion (“A ppellant’s Cross

- Motion”) with b rief in s upport thereof, and an a ffidavit of [Appellant] (“Appellant’s Affidavit”). On August 1, 2017, Appellee filed an a nswer t o Appellant’s Cross

- Motion and b ri ef in o pposition thereto. Argument was held on August 16, 2017, and an o rder granting Appellee’s Motion was entered [on December 1, 2017]

. [ 2 ] Trial Court Opinion (“TCO”), 4/2/18, at 1

- 2 (unnecessary capitalization omitted)

.

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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 jud gment 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

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On Decemb er 28, 2017, Appel lant filed a n otice of a ppeal , followed by a timely court

- ordered Pa.R.A.P

. 1925(b) concise statement o f errors complained of on appeal. Herein, Appellant presents the following issues for
our review:
A. Did the trial court erroneously base its grant of su mmary 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 (unnece ssary 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 establish ed 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 judg ment 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 non

moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitl ement 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 hi s 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

m isappli cation of t he 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 o f a case in motions practice:
However clear and indis putable 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 rely ing on his deposition testimony in granting summ ary 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 affid avits or depositions, or those of its witnesses, to establish the non

existence of genuine issues of material fact.” Dudley [ v. USXJ

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Corp. ], 606 A.2d [916, 918 (Pa. Super. 1992)]. “Testimonial affidavits of the moving party or his witnesses, not documenta ry, 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, howeve r, 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 e ntry 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, whic h 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 is sue 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 statut e of limitations is four (4) years.

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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.J

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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.
I t 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 con clusion.” 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 stat ute of limitations applicable t o “[ a ] n action upon a negotiable or nonnegot iab le 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 limitation s 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 da te. 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.J

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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. S uper. 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 th e 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 ob ligation 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

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. 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 D octrine.” 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 problem atic 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. Ad vanced 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 deposit ion testimonyJ

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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 i ndebtedness, 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 Hunt ington , 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 t his 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 St atute 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 applic ation 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
A ffidavit contradicted his deposition testimony and , therefore, choosing to disregard his affidavit . Appellant’s B rief at 15

- 17. We d eem Appellant’s claim
to be meritless. “[A] party may file an affidavit to supplement the record inJ

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order to avoid the entry of s ummary 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 aff idavit submitted by Appellant in response to the summary judgment motion to “lack credibility.” See TCO

a t 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 discre tion 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 affi davit 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 di scretion 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 e ven 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 theJ

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execution of the note. See TCO at 6; N.T. Deposition, 1/10/17, at 36, 42. Moreoever, whi le being questioned by Appellee’s counsel, Appellant consistently stated that he could not recall any specific discussion s with Appellee regarding repayment of the alleged debt : Q. Was there any discussion with [Appellee] about repayment of the two $30,0 00 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 recoll ection, 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. Gener ally, 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.J

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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: “Eac h yea r [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 t hen.” 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 rega rding repayment of the debt. Accordingly , the court was within its discretion to disregard Appellant’s affidavit. 4
For the reas ons 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 affid avit 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