HomeMy WebLinkAbout89-0848 civilCOMMERCE BANK,
Plaintiff
V.
RAYMOND E. MESSIMER and
RHEA F. MESSIMER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 848 CIVIL 1989
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY and OLER. JJ.
ORDER OF COURT
AND NOW, thise 14 day of December, 1993, after careful consideration of
Plaintiff's Motion for Summary Judgment, the Motion is GRANTED and the following
judgment is entered:
(I) Defendants are liable to Plaintiffs for $206,095.18 plus interest thereon at
the Commerce prime rate plus 2 points computed from July 13, 1993.
.;.
(II) This judgment is merged with the confessed judgment entered on March 8,
(III) The confessed judgment is conformed accordingly.
BY THE COURT,
. Wesley Oler, ( J.
Karen N. Connelly, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorneys for Commerce Bank
Scott W. Morgan, Esq.
Suite 500
10 South Market Square
Harrisburg, PA 17101
Attorney for Defendants
rc
COMMERCE BANK, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. CIVIL ACTION - LAW
RAYMOND E. MESSIMER and
RHEA F. MESSIMER,
Defendants NO. 848 CIVIL 1989
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE BAYLEY and OLER JJ.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a motion for summary judgment filed by
Commerce Bank (Plaintiff) in an action to conform its confessed judgment against
Raymond Messimer (Defendant -husband) and Rhea Messimer (Defendant -wife). For
the reasons set forth in this Opinion, Plaintiffs motion will be granted.
Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment
"shall be rendered if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law." In this regard, "[t]he moving party has the burden of proving the
nonexistence of any genuine issue of fact." Thompson Coal Co. v. Fine Coal Co., 488
Pa. 198, 204, 412 A.2d 466, 468-69 (1979). "The record must be examined in the light
most favorable to the nonmoving party." Schacter v. Albert, 212 Pa. Super. 58, 62, 239
A.2d 841, 843 (1968). Additionally, "[a]ll doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party." Thompson Coal Co. v.
Fine Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 469 (1979). A court should grant
No. 848 Civil 1989
summary judgment "only in the clearest of cases, where the right is clear and free from
doubt." Id. In light of this standard, the facts of the present case may be summarized
as follows:
Plaintiff is a Pennsylvania corporation maintaining offices at 100 Senate
Avenue, Camp Hill, Cumberland County, Pennsylvania.' Defendants are husband and
wife, residing at 605 St. Johns Drive, Camp Hill, Cumberland County, Pennsylvania.'
On March 3, 1987, Defendants executed a Guaranty Agreement (Guaranty) with
Plaintiff,3 purportedly obligating Defendants to pay upon default the then -existing
debt and any future indebtedness incurred by Messimer Associates to Plaintiff.'
Throughout 1987 and 1988, Messimer Associates executed several collateral notes.'
Thereafter, on March 8, 1989, a judgment in the amount of $180,000 was confessed
by the prothonotary in this Court in favor of Plaintiff and against Defendant pursuant
to authority in the Guaranty.'
` Plaintiff's Complaint To Conform Judgment, paragraph 1; Defendants' Answer with New
Matter to Complaint To Conform Judgment, paragraph 1.
' Plaintiff's Complaint To Conform Judgment, paragraph 2; Defendants' Answer with New
Matter to Complaint To Conform Judgment, paragraph 2.
3 Plaintiff's Complaint To Conform Judgment, paragraph 3, Exhibit A; Defendants'
Answer with New Matter to Complaint To Conform Judgment, paragraph 3.
4 Plaintiff's Complaint To Conform Judgment, paragraph 3.
b Plaintiff's Complaint To Conform Judgment, paragraphs 4, 5; copies of the notes are
found in Plaintiff's Complaint To Conform Confessed Judgment, Exhibits B and C.
' Plaintiff's Complaint To Conform Judgment, paragraph 6, Exhibit D.
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No. 848 Civil 1989
On July 14, 1992, Plaintiff filed the present complaint' to conform its confessed
judgment against Defendants pursuant to the Act of January 30, 1974, P.L. 13, §407,
as amended, 41 P.S. §407, and Pennsylvania Rules of Civil Procedure 2981 et seq.8
Defendants filed an answer with new matter to Plaintiff's complaint on September 4,
1992, and on that same day filed a petition to open and/or strike the confessed
judgment and to stay all execution proceedings.' The Plaintiff responded on
September 30, 1992, by filing a reply to Defendants' new matter and an answer with
new matter to Defendants' petition to open and/or strike. 10
Thereafter, no action having been taken by Defendants, on December 3, 1992,
Plaintiff filed a Praecipe for Rule as of Course to show cause why Defendants should
not proceed pursuant to Pennsylvania Rule of Civil Procedure 209 to take depositions
or list the case for argument." A Rule was issued by the prothonotary on December
3, 1992, returnable on or before January 6, 1993.12 Defendants failed to respond to
7 Plaintiff's Complaint To Conform Judgment, paragraph 9.
8 Plaintiff's Complaint To Conform Judgment, at 2.
9 See Defendants' Answer with New Matter to Complaint To Conform Judgment; Verified
Petition To Open and/or Strike the Confessed Judgment Entered Against Defendants Raymond
E. Messimer and Rhea F. Messimer and To Stay All Execution Proceedings.
to See Plaintiff Commerce Bank's Answer to Defendants' Petition To Open and/or Strike
Confessed Judgment and To Stay All Execution Proceedings with New Matter.
" See Plaintiff's Praecipe for Rule as of Course.
12 See Rule, December 16, 1992.
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No. 848 Civil 1989
the Rule and on January 20, 1993, Plaintiff petitioned the Court for a Rule
Absolute.13 The Rule Absolute was granted by the Honorable Edgar B. Bayley on
January 20, 1993, ordering Defendants to proceed to take depositions or order the
cause for argument within 15 days, at which time Plaintiff could list the cause for
argument. 14 The docket confirms that no action was taken by Defendants on this
matter and Plaintiff listed the cause for argument, which was scheduled for March 31,
1993.
According to Plaintiffs brief, Defendant -husband, unrepresented by counsel,
appeared at oral argument on March 31, 1993, and requested, on behalf of himself and
Defendant -wife, a continuance of the oral argument.15 A continuance was granted
on April 2, 1993, by the Honorable Kevin A. Hess, with the understanding that no
further continuance would be granted Defendant." Following argument on May 19,
1993, at which Defendants once again were pro se, Judge Hess denied Defendants'
petition to open and/or strike the judgment and permitted Plaintiff to proceed with its
is See Plaintiff -Respondent Commerce Bank's Motion Pursuant to Pa. R.C.P. No. 209 to
Make Rule Absolute.
14 See Rule Absolute, January 20, 1993.
is
4. Movant Commerce Bank's Brief in Support of its Motion for Summary Judgment, page
is Order of court, April 2, 1993, Commerce Bank v. Raymond E. Messimer and Rhea F.
Messimer, No. 848 Civil 1989.
EI
No. 848 Civil 1989
case. 17
On July 22, 1993, Plaintiff served a request for admissions pursuant to
Pennsylvania Rule of Civil Procedure 4014.18 Plaintiff alleges that Defendants failed
to respond to the request for admissions and on September 16, 1993, Plaintiff filed a
motion for summary judgment.19 Plaintiff contends that, pursuant to Pennsylvania
Rule of Civil Procedure 4014(b), since no admissions or denials were received within
30 days of the request, the facts in question have been admitted.20 These include the
fact of Defendants' liability to Plaintiff in the amount of $206,095.18, plus interest and
other charges as provided for in the Guaranty.21
On October 1, 1993, Defendants filed a response to Plaintiff' motion for
summary judgment and, in addition, served answers to Plaintiff's request for
admissions.' In their response, Defendants contend that they failed to answer this
request because they were unable to afford counsel, and that, as soon as they became
" Order of Court, May 24, 1993, Commerce Bank v. Raymond E. Messimer and Rhea F.
Messimer, No. 848 Civil 1989.
" See Proof of Service of Plaintiffs First Request for Admissions. A copy of the request
for admissions is attached to Plaintiffs Motion for Summary Judgment as Exhibit E.
1s Plaintiffs Motion for Summary Judgment, paragraph 13.
20 Plaintiffs Motion for Summary Judgment, paragraph 13-14.
21 Plaintiffs Motion for Summary Judgment, paragraph 13-14.
22 Defendants' Response to Motion for Summary Judgment. A copy of the answers are
attached to this Response, labeled Exhibit A.
5
No. 848 Civil 1989
able to retain counsel, the answers to the request for admissions were provided.23
Additionally, Defendants deny that they are liable for the debts of the business,
contending that they were unaware of most aspects of the loans to Messimer
Associates and that they were uninformed as to the legal significance of the
Guaranty.24
Plaintiff requests this Court to enter judgment against Defendants and in favor
of Plaintiff in the amount of $206,095.18, plus interest at the Commerce prime rate
plus 2 points computed from July 13, 1993, and to direct that such judgment merge
with the confessed judgment entered on March 8, 1989.25 Additionally, Plaintiff
requests the Court to conform, effective March 8, 1989, the confessed judgment to the
amount of the judgment merged with it and direct that execution and sale be made
thereon.20
Pennsylvania Rule of Civil Procedure 4014 contains provisions respecting a
request for admissions. Under the Rule, once such a request has been served on the
opposing party, "Whe matter is admitted unless, within thirty days after service of the
request, or within such shorter or longer time as the court may allow, the party to
23 Defendants' Response to Motion for Summary Judgment, paragraph 13.
24 Defendants' Response to Motion for Summary Judgment, paragraph 19.
25 Plaintiff's Motion for Summary Judgment.
26 Plaintiff's Motion for Summary Judgment.
No. 848 Civil 1989
whom the request is directed serves upon the party requesting the admission an
answer verified by the party or an objection ...." Pennsylvania Rule of Civil Procedure
4014(b). Upon service of a request for admissions, a party "may ignore the request,
in which case he will be held to have admitted the matters requested unqualifiedly."
Innovate, Inc. v. United Parcel Service, Inc., 275 Pa. Super. 276, 282, 418 A.2d 720, 723
(1980). Thus, in Innovate, the Superior Court held an entry of summary judgment to
have been proper in an action where, because of appellant's failure to answer
appellee's request for admissions, there remained no disputed issue of fact. Id. at 284,
418 A.2d at 724.
In Richard T. Byrnes Co., Inc. v. Buss Automation, Inc., 415 Pa. Super. 549, 609
A.2d 1360 (1992), the same Court held that when a party failed to respond to a request
for admissions within the established time frame because the admissions were
"unintelligible as well as self-contradictory," the party subjected itself to a deemed
admission of the facts contained therein. The Court noted that Pennsylvania Rule of
Civil Procedure 4014 "clearly states that the party receiving the request must respond
by answering or objecting." Id. at 564, 609 A.2d at 1367.
In the present case, Plaintiff served its request for admissions on July 22, 1993.
Defendants were required to respond within 30 days, but did not do so. Plaintiff filed
a motion for summary judgment on September 16, 1993. It was only after this motion
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No. 848 Civil 1989
was filed that Defendants, on October 2, 1993, served answers to Plaintiff's request.27
On the basis of the foregoing authority, the facts set forth in Plaintiffs request are
deemed to have been admitted.
In addition, Defendants' various factual allegations intended to dispute the
Guaranty's validity as to them are not relevant at this stage of the proceedings. The
issue of whether judgment should have been entered against Defendants on the
agreement was decided adversely to Defendants by Judge Hess at the conclusion of
proceedings on their petition to open or strike.
For the foregoing reasons, the following Order is entered:
ORDER OF COURT
AND NOW, this �'YL day of December, 1993, after careful consideration of
Plaintiff's Motion for Summary Judgment, the Motion is GRANTED and the following
judgment is entered:
(I) Defendants are liable to Plaintiffs for $206,095.18 plus interest thereon at
the Commerce prime rate plus 2 points computed from July 13, 1993.
(II) This judgment is merged with the confessed judgment entered on March 8,
27 Defendants' Response To Motion for Summary Judgment, Exhibit A.
Defendants have proceeded somewhat casually elsewhere in this case as well. For
instance, Plaintiff found it necessary to obtain a Rule and Rule Absolute, and finally list for
argument, Defendants' own petition to open and/or strike the judgment. Defendants then
appeared for argument without counsel, secured a continuance to obtain counsel, and then
appeared again for argument without counsel.
0
No. 848 Civil 1989
(III) The confessed judgment is conformed accordingly.
Karen N. Connelly, Esq.
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorneys for Commerce Bank
Scott W. Morgan, Esq.
Suite 500
10 South Market Square
Harrisburg, PA 17101
Attorney for Defendants
:rc
BY THE COURT,
le -6e- �1�7
J. Wesley Oler, J J.
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