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Home My WebLink About2010-5080DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES, LLC, Plaintiff u SHARON L MORRISON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 2010 — 5080 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., September 7, 2011. In this debt collection action against a credit card debtor, Plaintiff Discover Bank has sued Defendant for an allegedly delinquent credit card balance of $7,649.82. For disposition at this time is a Motion for Summary Judgment filed by Plaintiff against Defendant. Oral argument was held on August 26, 2011. For the reasons stated in this opinion, Plaintiff's Motion for Summary Judgment will be granted. STATEMENT OF FACTS In this case, Plaintiff filed a seven -paragraph complaint on August 3, 2010, which alleged that Defendant failed to pay a credit card bill.' To its Complaint, Plaintiff attached an Exhibit entitled "Statement of Account," showing an "Amount Due" of $7649.82.2 Defendant filed a pro se answer on September 3, 2010, which stated, in its entirety: "I am on a program with Persels & associates for my Discover debt. I have made all my payments and do attend [sic] to make my payments until debt is settled. Thank You.,,3 ' Plaintiff's Complaint, ¶7, filed August 3, 2010. 2 Plaintiff s Complaint, Exhibit A, filed August 3, 2010. ' Defendant's Answer, filed September 10, 2010. On June 20, 2011, Plaintiff filed a Motion for Summary Judgment.4 On August 1, 2011, a praecipe to list the motion for argument was filed by Plaintiff.5 Over sixty days have passed since Plaintiff filed its motion for summary judgment, and Defendant has filed neither a response nor a brief in opposition.6 DISCUSSION Pennsylvania Rules of Civil Procedure 1035.1 through 1035.5 govern the summary judgment motion in this matter. Under Rule 1035.2: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. The burden of responding to a motion for summary judgment is set forth in Rule 1035.3: (a) The adverse party may not rest upon mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. Pa. R.C.P. No. 1035.3 (emphasis added). In responding to a motion for summary judgment, an adverse party under Rule 1035.2(b) may supplement the record or set forth the reasons why the party cannot 4 Plaintiff's Motion for Summary Judgment, filed June 20, 2011. s Praecipe for Listing Case for Argument, filed August 1, 2011. 6 Nor did Defendant appear at the oral argument on Plaintiff's motion. 2 present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence. As noted above, Defendant has failed to offer any response to the motion. Rule 1035.3(d) provides that "summary judgment may be entered against a party who does not respond." Pa. R.C.P. No. 1025.3(d). A motion for summary judgment will not, however, be automatically granted simply because the non-moving party has failed to respond. See Stilp v. Hafer, 701 A.2d 1387 (Pa. Cmmw. Ct. 1997), aff'd 553 Pa. 128, 718 A.2d 290 (1998). Rather, the evidentiary record must establish that the moving party is entitled to judgment as a matter of law. In this case, Plaintiff relies upon the (1) averments in its complaint, attached to which is a Statement of Account; (2) Defendant's response thereto, which admits the existence of an outstanding debt'; and (3) Plaintiff's Motion for Summary Judgment, attached to which is a copy of a Card Member Agreement, as well as numerous monthly Account Summary statements up to December of 2008,8 the earliest of which is dated December of 2003.9 Based upon the averments in Plaintiff's Complaint, Defendant's response thereto,10 and the essentially uncontested Motion for Summary Judgment, the facts, when taken in the light most favorable to the non-moving party, establish that Defendant requested and received a credit card issued by Plaintiff, used the card for her benefit, accumulating a balance due of $7,649.82, and had failed to make payment pursuant to the Card Member Agreement. Given the facts of record, the court must conclude that there Defendant's Answer makes a contention that she is working with a debt management company. Plaintiff avers, in its Motion for Summary Judgment, that there had been no settlement agreement made between the parties. Plaintiff's Motion for Summary Judgment, ¶4, filed June 20, 2011; see also Defendant's Answer, filed September 10, 2010. 8 The most recent statement indicates a balance of $7,649.82. See Card Account Summary, November 22, 2008, attached to Plaintiff's Motion for Summary Judgment, filed June 20, 2011. 9 Monthly Account Summaries, attached to Plaintiff's Motion for Summary Judgment, filed June 20, 2011. 10 See Pa. R.C.P. No 1029(b) ("[a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication"). 3 are no genuine issues of material fact at issue in this case and that Plaintiff has established its right to summary judgment as a matter of law. For the reasons stated above, the following order will be entered: ORDER OF COURT AND NOW, this 7th day of September, 2011, upon consideration of Plaintiff's Motion for Summary Judgment, and following argument held on August 26, 2011, Plaintiff's Motion for Summary Judgment is granted, and judgment is entered in favor of Plaintiff Discover Bank by its Servicing Agent DFS Services, LLC, and against Defendant Sharon L. Morrison in the amount of $7,649.82, with interest at the legal rate from the date of judgment, plus costs. Benjamin J. Cavallaro, Esq. Apothaker & Associates, P.C. 520 Fellowship Road, C 306 Mount Laurel, NJ 08054 Attorney for Plaintiff Sharon L. Morrison 243 Meals Dr. Carlisle, PA 17015 Defendant pro Se BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 0 DISCOVER BANK BY ITS SERVICING AGENT DFS SERVICES, LLC, Plaintiff V. SHARON L MORRISON, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION — LAW NO. 2010 — 5080 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., and OLER, J. ORDER OF COURT AND NOW, this 7th day of September, 2011, upon consideration of Plaintiff's Motion for Summary Judgment, and following argument held on August 26, 2011, Plaintiff's Motion for Summary Judgment is granted, and judgment is entered in favor of Plaintiff Discover Bank by its Servicing Agent DFS Services, LLC, and against Defendant Sharon L. Morrison in the amount of $7,649.82, with interest at the legal rate from the date of judgment, plus costs. BY THE COURT, J. Wesley Oler, Jr., J. Benjamin J. Cavallaro, Esq. Apothaker & Associates, P.C. 520 Fellowship Road, C 306 Mount Laurel, NJ 08054 Attorney for Plaintiff Sharon L. Morrison 243 Meals Dr. Carlisle, PA 17015 Defendant pro Se