Sovich v. Estate of Sovich

Donahue, J.,

files a concurring opinion.

While I agree with the learned majority that the order of the trial court should be affirmed, I disagree regarding the reasons for doing so. Based upon my review of the *423record on appeal and the relevant statutory provisions, the written agreement at issue here is a negotiable instrument. The trial court thus did not err in ruling that appellant Richard Sovich’s action is barred by 13 Pa.C.S.A. § 3118, the applicable statute of limitations for negotiable instruments. Accordingly, I concur in the result.

As the majority correctly indicates, Pennsylvania’s uniform commercial code provides that a promise to pay a fixed amount of money is a negotiable instrument if it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. 13 Pa.C.S.A. § 3104(a). In this case, the second and third requisites are clearly satisfied, as the written agreement in question is payable at a definite time (five years) and contains no requirement of the obligor other than repayment.

Regarding the first requisite, the terms “payable on demand” and “payable on order” are defined in 13 Pa.C.S.A. §3109(a) and (b):

§3109. Payable to bearer or to order
(a) Payable to bearer. —A promise or order is payable to bearer if it:
(1) states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment;
*424(2) does not state a payee; or
(3) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(b) Payable to order. — A promise or order that is not payable to bearer is payable to order if it is payable:
(1) to the order of an identified person; or
(2) to an identified person or order

13 Pa.C.S.A. § 3109(a)-(b).

The written agreement at issue here is “payable to order” because it constitutes a promise that is payable to an identified person (the obligee Richard Sovich). 13 Pa.C.S.A. § 3109(b)(2). Contrary to the majority’s suggestion, nothing in sections 3104 or 3109 requires that the document indicate whether it is payable “to bearer” or “to order”. Moreover, I do not agree with the majority’s contention that the case of Manor Bldg. Corp. v. Manor Complex Assocs., 645 A.2d 843 (Pa. Super. 1994), adds a fourth requisite, namely that the parties must have intended for the note5 to be transferable. Instead, all that is required for a negotiable instrument is that it meets the applicable statutory definition.

Pursuant to 13 Pa.C.S.A. § 3118, the applicable statute of limitations to commence an action on a negotiable instrument is six years from the note’s payment date. In this case, appellant Richard Sovich had to file his claim on *425the note signed by Andrew Sovich, Jr. on and before July 26,1993. The trial court thus did not err in dismissing this action filed well beyond the expiration of the time period for doing so.

For the foregoing reasons, I concur only in the result reached by the majority.

. 13 Pa.C.S.A. § 3104(e) provides that a negotiable instrument is a “note” if it contains an unconditional promise to pay a fixed amount of money.