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AVERY v. KANE GAS LIGHT & HEATING CO.

March 11, 1975

Stuart B. AVERY, Executor of the Estate of Arthur S. Dewing, Deceased
v.
KANE GAS LIGHT AND HEATING COMPANY. EDWARD DURANT INVESTMENT COMPANY v. KANE GAS LIGHT AND HEATING COMPANY. Stuart B. AVERY, Executor of the Estate of Arthur S. Dewing, Deceased v. KINZUA OIL AND GAS CORPORATION et al.



The opinion of the court was delivered by: WEBER

 WEBER, District Judge.

 In each of these three cases, the defendants have moved for summary judgment in their favor on the issue of the statute of limitations as a bar to the claims.

 In Stuart B. Avery v. Kane Gas and Light Heating Company, 403 F. Supp. 14 Erie, all notes for which plaintiff claims judgment, attached to the complaint as Exhibits A-O, appear on their faces to be sealed instruments. Each note is signed by Fred M. Young, who was then both President and Treasurer of defendant Kane, to the left of the printed word "Seal". All notes are dated sometime in 1960. In Edward Durant Investment Company v. Kane Gas and Light Heating Company, 403 F. Supp. 14, two notes, reproduced as Exhibits 9 and 10 to the complaint, follow this pattern.

 Under Pennsylvania law, a presumption that the signer intended to adopt the printed word "Seal" as his own seal, or as the seal of the corporation on whose behalf he signed, arises when the signature is placed to the left of the seal. Koleff's Estate, 340 Pa. 423, 428, 16 A.2d 384 [1940]; Prestressed Structures, Inc. v. Bargain City v. United States, 413 Pa. 262, 196 A.2d 338 [1964]. By statute, a corporation is bound by instruments signed by its president and treasurer in spite of any internal by-laws or regulations of the corporation which would deny them the authority to bind the corporation unless the party dealing with the corporation had actual notice of such by-laws. 15 P.S. § 402. It is undisputed here that Fred Young was both president and treasurer of Kane Gas at the time he signed these notes.

 Plaintiff cannot offer any evidence either to rebut the presumption that Young here had intended to adopt the printed word seal as the seal of Kane Gas or that Arthur S. Dewing, the obligee on the notes in Civil Action No. 74-44 Erie or Edward Durant Investment Company, the obligee on the two sealed notes in Civil Action No. 74-58 Erie, had actual knowledge of any Kane Gas by-laws denying Young the authority to adopt a seal for the corporation. Both Young and Dewing, the only persons who would offer such evidence, are now dead.

 Therefore, we find that all notes in Civil Action No. 74-44 Erie and Notes 9 and 10 in Civil Action No. 74-58 Erie are sealed instruments under Pennsylvania law, the six year statute of limitations for contracts, 12 P.S. § 31 does not apply, and suit on these notes is timely. Parsons Trading Co. v. Dohan, 312 Pa. 464, 167 A. 310 [1933]. For all further conduct of this litigation, this matter is determined by the court to be a fact not in issue under Rule 56(d) of the Federal Rules of Civil Procedure.

 As to Exhibits 1-8 in the Edward Durant Investment Company suit, and as to the alleged obligation of defendants in Avery v. Kinzua, 403 F. Supp. 14, the plaintiff has alleged both oral and written acknowledgements by the defendants of these obligations within the six year statute of limitations for contracts. The court finds that the sufficiency of these alleged acknowledgements to remove the bar of the statute of limitations involves material issues of disputed facts and is therefore inappropriate for summary judgment at this time.

 ORDER

 And now this 11th day of March, 1975, it is ordered that all the defendants' motions for summary judgment in their favor on the issue of the statute of limitations are hereby denied.

 It is further ordered under Rule 56(d) of the Federal Rules of Civil Procedure that all notes in Civil Action No. 74-44 Erie and that those notes in Civil Action No. 74-58 Erie which contain the printed word "Seal", are to be deemed specialties for the further conduct of this litigation.

 ON MOTION TO REARGUE MEMORANDUM OPINION

 On March 11, 1975, we entered partial summary judgment in this case which barred the statute of limitations defense in these cases because the notes involved were under seal.

 Defendant has moved to re-argue its motions for summary judgment based on new decisions from the Court of Common Pleas of Allegheny County; Associates Consumer Discount Co. v. Gabriel et ux., 123 P.L.J. 159 [C.P.Allegheny County 1974]; and Associates Consumer Discount Co. v. Jeffress [C.P.Allegheny County No. 2800 of 1974, January ...


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