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HomeMy WebLinkAbout2005-561 Civil NATIONAL CITY BANK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. RUSSELL E. CLOUSER, and LISA M. CLOUSER, Defendants NO. 05-0561 CIVIL IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 EBERT, 1., February 1,2007. In this civil case, summary judgment was granted in favor of Plaintiff, a credit card company, and against Defendants, in the amount of $6,305.91 plus finance charges from November 26,2004, to the date of the judgment (December 7,2006). From the judgment, the pro se Defendants have filed an appeal to the Pennsylvania Commonwealth Court. The bases for appeal have been expressed in a "Statement of the Matters to the Appellate Court" as follows: 1. The trial court assumed facts not in evidence and rendered a judgment therefrom. 2. The trial court ignored Plaintiff s failure to establish standing. 3. The trial court ignored Plaintiffs violation of the Fair Credit Billing Act. 4. The trial court ignored the umebutted testimony of Defendant. 5. The trial court admitted into evidence statements of counsel as "facts" before the court. 6. The trial court ignored P.RE. Rule 602, requiring a competent fact witness to have personal knowledge, P.RE. Rule 605, prohibiting judges from testifying, P.RE. Rule 901, requiring evidence proffered for admission on the record to be authenticated and Rule 1002, requiring best evidence. 7. The trial court invaded the province of the jury through summary forensics; not allowing matters of fact to be decided by the trier of fact. 8. Appellant reserves the right to supplement the Statement of the Matters. 1 This opinion in support of the judgment is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Defendants applied for and received a credit card from Plaintiff with a $5,000.00 credit limit? During the first billing cycle of the card's use, in September and October, 2003, Defendants are alleged to have taken a $2,500.00 cash advance and made other charges, bringing the balance to $4,076.08? During the next few billing cycles, the following activity took place on the account: 4 New Balance $4,986.72 $5,061.10 $5,069.08 $4,937.82 $5,049.36 Billing Cycle 10/18 - 11/18/03 11/19 - 12/17/03 12/18/03 - 1/19/04 1/20 - 2/17/04 2/18 - 3/17/04 Charges Made $944.00 $134.60 $126.25 Minimum Payment Made $101.005 $124.006 $187.107 $195.088 9 F or the entire active period of use of this credit card account, which spans only from September 29,2003, to January 3,2004, one cash advance, 21 credit purchases and 3 minimum amount payments are listed on the account statement. The date of each purchase and the name of each entity from which a purchase was made is clearly delineated on monthly billing statements provided to the Defendants by the Plaintiff.10 On the account statement for the cycle ending March 17,2004, Defendants were notified that their account was 30 days past due and asked to remit the past due amount 1 Statement of the Matters Complained Of On Appeal. 2 See "Exhibit 1," page 1, attached to Plaintiff's Complaint (Account Statement with Closing Date 10/17/03). 3Id. 4 Balance accrual includes finance charges, late fees, etc. See individual statements attached to Complaint as "Exhibit 1." 5 "Exhibit 1," page 2 (Account Statement with Closing Date 11/18/03). 6 Id. at page 3 (Closing Date 12/17/03). 7 Id. at page 4 (Closing Date 1/19/04). 8 Id. at page 5 (Closing Date 2/17/04). 9 Id. at page 6 (Closing Date 3/17/04). 10 Id. at pages 1-4 (Closing Dates 10/17/03, 11/18/03, 12/17/03 and 1/19/04) 2 immediately. 11 Each of the next three statements (through June 16, 2004) informed Defendants that the account had been closed due to their failure to make any payment, and no charges or payments appear on those statements but for finance charges, over limit fees, and late fees.12 The last statement shows a balance due of $5,555.28 as of June 16, 2004.13 At the time the account was opened and continuing to this day the Defendants' address has been 11 Countryside Court, Camp Hill, P A 17011 indicating that each monthly statement would have reached the Defendants. Plaintiff initiated this action seeking to recover the balance owed by the Defendants on this credit card account, which, according to the Complaint, was $6,305.91 as of November 26,2004. Defendants responded by denying liability for the debt, alleging that the debt had been paid in full. Plaintiff responded with a set of interrogatories, a request for production of documents, and a request for admissions, 14 and provided copies of monthly account statements showing purchases made by the Defendants and the outstanding balance on the account. 15 In response to an interrogatory asking Defendants to "list the date( s) and amount(s) of all payments made by the Defendant, or on the Defendant's behalf, to the Plaintiff on the subject credit account," the Defendants responded that "[a]fter reasonable investigation, Defendants [sic] do not remember all the date( s) or amount( s) made by the Defendants" on the credit account.16 In its request for production of documents, Plaintiff requested that Defendants produce documentation showing payment on the account, supporting Defendants' denial that a balance is owed, and any other documents Defendants intended to introduce as evidence at trial. 17 Defendants produced no documents in response to these requests and have never supplemented their answers to these requests. 11 Id. at page 6 (Closing Date 3/17/04). 12 Id. at page 7-9. 13 Id. at page 9. 14 See "Exhibit 4," attached to Plaintiff's Complaint. 15 See "Exhibit 1," attached to Plaintiff's Complaint. 16 See "Response to Interrogatories," page 2, attached to Plaintiff's Complaint. 17 See "Response to Request for Admissions," attached to Plaintiff's Complaint. 3 In its request for admissions, Plaintiff requested that Defendants admit that the account statements were true and correct copies of the statements for Defendants' account, and admitting the requirement of monthly payment. Defendants denied these requests on the basis that they were disputing the debt. On June 2,2005, Judge Kevin A. Hess entered two orders in response to two different motions. The first was the Plaintiff s Motion to Determine Sufficiency of Defendants' Answers to Plaintiffs Request for Admissions filed May 23,2005. The second motion was Defendants' Motion to Compel Answers to Discovery filed May 6,2005. Judge Hess's orders gave the Defendants two very basic directives. He deferred ruling on the Plaintiff s Request for Admissions but did order the Defendants to respond to the Request for Admissions within 45 days. Additionally, on the Defendants' Motion to Compel he directed the Defendants to simply "produce an itemized list of entries in their account which they dispute within 45 days". Only after production of this list would National City Bank be required to produce any additional supporting documentation not provided in the monthly statements of the Defendants' credit card account. Defendants failed to comply with either Order, but filed the following "Response to Order of Court for Specific Items:" "After a reasonable investigation, the documents sought are no longer in Defendant's possession. As I cannot specify the specific amounts, and the length of time which has expired since the inception of this dispute, I must dispute all of them and request that the Plaintiff provide proof that the charges for which the Plaintiff is suing, the actual amount sued for, and how the Plaintiff arrived at that amount, be brought forward with the signed sales receipts and any other books and records which the Plaintiff has which show in fact that the Defendant is responsible for an amount that remains unpaid as Defendant contends still that multiple payments were not properly credited to the subject credit card account." The Plaintiff then filed a Motion for Sanctions pursuant to Pa.RC.P. 4019 which was heard on December 1,2005. The Plaintiffs requested the award of judgment in their favor and reasonable attorneys fees. The Court did not grant these specific requested sanctions and thus the case continued. 4 On March 23,2006, the Defendants appeared before a panel of arbitrators. After hearing, the arbitration panel entered an award for the Plaintiff in the full amount requested of $6,305.91, with interest at 6% per annum from November 26,2004.18 Defendants filed an appeal to this Court, requesting a jury trial. To date, the Defendants have never complied with the orders issued by Judge Hess on June 2, 2005. Plaintiffs subsequently moved for summary judgment. The Parties appeared for argument December 6, 2006, and the Plaintiff s Motion for Summary Judgment was granted. DISCUSSION A. Appellate Jurisdiction The Clousers' appeal in this case appears erroneously filed with the Pennsylvania Commonwealth Court, which lacks jurisdiction over the appeal.19 The Pennsylvania Superior Court has exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except those classes of appeals which are within the exclusive jurisdiction of the Supreme Court or Commonwealth Court. 42 Pa.C.S.A. 9742. However, an appeal taken to a court which does not have jurisdiction of the appeal must be transferred to the proper court, where the appeal shall be treated as if originally and timely filed. Pa.RA.P. 751,42 Pa.C.S.A. 95103. This opinion therefore treats the appeal as if properly filed with the Pennsylvania Superior Court. B. Entry of Summary Judgment Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 18 See "Exhibit 5," attached to Plaintiff's Complaint, judgment of arbitration board. 19 The Pennsylvania Commonwealth Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in, among other instances, all criminal actions for the violation of rules, regulations or orders of any Commonwealth agency or administered by any Commonwealth agency (42 Pa.C.S.A. ~762(a)(2), Com v. Tyson, 427 A.2d 283 (Pa. Cmwlth. 1981)); appeals from orders disposing of motions for the return or property pursuant to Pa.R.Crim.P. 588, in addition to jurisdiction under the Forfeiture Act (In re One 1988 Toyota Corolla, 675 A.2d 1290 (Pa. Cmwlth. 1996)); appeals from final orders of government agencies having statewide jurisdiction (42 Pa.C.S.A. ~763(a)); and appeals involving actions or proceedings when the application, interpretation, or enforcement of any home rule charter or local ordinance is at issue (42 Pa. C. SA ~762(a)( 4 )(i)(B)). 5 Pa.RC.P. 1035.2(1), Weiner v. American Honda Motor Co., 718 A.2d 305 (Pa. Super. 1998). The purpose of summary judgment is to avoid unnecessary trials and to eliminate the waste of time and resources of both litigants where a trial would be a useless formality. Curan v. Children's Service Center, Inc., 578 A.2d 8 (Pa. Super. 1990), appeal denied 585 A.2d 468 (Pa. 1991). The adverse party may not rest upon the mere allegations or denials in their pleadings. Pa.RC.P. 1035.3(a). In deciding whether summary judgment is proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in favor of the non-moving party. Telega v. Security Bureau, Inc., 719 A.2d 372 (Pa. Super. 1998). This Court is fully aware that summary judgment should not be granted lightly, and realizes the finality of such a ruling. But the gravity of the outcome does not outweigh the parties' responsibility to proceed before the Court with complete candor. The rule is often stated that "In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom". Curry v. Estate of Thompson, 481 A.2d 658 (Pa.Super. 1984). In this case, the issue then turns on "well- pleaded facts" and "reasonable inferences". This matter is not complex. The credit account in question was active less than 1 00 days. The complaint alleges one cash advance, 21 purchases, and 3 payments. In Judge Hess's June 2, 2005 order, he instructed the Defendants to simply list the items they disputed. They, in essence, replied that they have no recollection whatsoever of the use of this account. This is not a "well-pleaded fact" and as such it does not create a reasonable inference that the account was paid. What it amounts to is "mere allegation and denial". In short the Defendants have not set forth specific facts showing that there is a genuine issue for trial. Where a motion for summary judgment has been made and properly supported, the party seeking to avoid the imposition of summary judgment must show by specific 6 facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial. Marks v. Tasman, 589 A.2d 205 (Pa. 1991). Here, Defendants maintain total ignorance of their use of the credit card account, and therefore, ipso facto, the account was paid. Despite 18 months of attempted discovery, the Defendants have failed to produce anything but mere allegation and denial. Due to the absence of a genuine issue of material fact as to the balance owed by the Defendants, summary judgment was properly entered for the Plaintiff as a matter of law, and in furtherance of the legitimate judicial purpose of avoiding unnecessary trials and eliminating waste of time and resources. An examination of the Defendants "Statement of Matters to the Appellate Court" seems to imply that this matter was before a fact finding tribunal and not before a panel of judges in argument court on purely legal issues. For example, the Defendants claim the panel of Judges who heard the argument "assume facts not in evidence", "ignored the umebutted testimony of the Defendant", "admitted into evidence statements of counsel as "facts" before the Court" and "invaded the province of the jury through summary forensics". In the context of argument court these assertions are meaningless. Frankly, the Defendants in this case have been totally dilatory. The mere fact that these Defendants are appearing pro se does not afford them any special privilege. First Union Mortg. Corp. v. Frempong, 744 A.2d 327 (Pa. Super. 1999). A motion for summary judgment must be granted in favor of a moving party if the other party chooses to rest on his pleadings, unless a genuine issue of material fact is made out in the moving party's evidence taken alone. Curry v. Estate of Thompson, 481 A.2d 658 (Pa. Super. 1984). This Court finds that had the Defendants genuinely desired to comply with Judge Hess's June 2,2005 Order they could have well-plead some specific facts which would support their position and thereby create a "genuine issue of material fact". They did not do so, but rested on their denial. Despite the relatively short amount of time Defendants' account was open and active, and the small number of transactions - their feigned total loss of recollection regarding the use of this credit card is simply not a well-plead fact that creates a reasonable inference that the account was 7 paid. Courts are not powerless when confronted with such bad faith and delay. To the contrary, entry of summary judgment was not only proper but just. By the Court, M.L. Ebert, Jr., 1. James C. Warmbrodt, Esquire Attorney for Plaintiff Russell E. Clouser Lisa M. Clouser Plaintiffs 8