HomeMy WebLinkAbout2011-9310
FIRST NATIONAL BANK OF OMAHA : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v. :
:
: CIVIL ACTION - LAW
JERRY HOPE :
Defendant :
: No. 11-9310
IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
BEFORE GUIDO, J., EBERT, J., and PECK, J.
ORDER OF COURT
th
AND NOW
, this 11 day of March, 2013, upon consideration of Plaintiff’s Motion
for Summary Judgment and brief in support thereof, and following oral argument held
on February 15, 2013,
IT ISHEREBY ORDERED AND DIRECTED
that Plaintiff’s Motion for Summary
GRANTED
Judgment is in the amount of $6,436.02, plus costs.
By the Court,
____________________
M.L. Ebert, Jr., J.
Burton Neil, Esq.
1060 Andrew Drive
Suite 170
West Chester, PA 19380
Attorney for Plaintiff
Jason M. Rettig, Esq.
301 Grant Street, Ste. 4300
Pittsburgh, PA 15219
Attorney for Defendant
FIRST NATIONAL BANK OF OMAHA : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v. :
:
: CIVIL ACTION - LAW
JERRY HOPE :
Defendant :
: No. 11-9310
IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
BEFORE GUIDO, J., EBERT, J., and PECK, J.
OPINION AND ORDER OF COURT
Ebert, J., March 11, 2013,
In this civil case, Plaintiff has sued Defendant to recover past due balances owed
on a credit card in the amount of $6,436.02. For the reasons set forth in this opinion,
Plaintiff’s Motion for Summary Judgment is granted.
Statement of Facts and Procedural History
Plaintiff, First National Bank of Omaha, is a national bank engaged in various
types of banking business including consumer lending through the issuance of credit
1
cards. Defendant, Jerry Hope, resides at 15 West Circle, Camp Hill, Cumberland
2
County, Pennsylvania. Plaintiff issued a credit card to Defendant on or about February
3
11, 1992, and Defendant obtained extensions of credit through the use of the account.
Plaintiff mailed to Defendant monthly billing statements which reflect the extensions of
credit, Defendant’s payments, finance or other charges, the new balance, and the
1
Amended Complaint, filed August 29, 2012, ¶ 3
2
Amended Complaint, ¶ 2.
3
Amended Complaint, ¶ 4, 6.
4
payment due date. Defendant had a $0.00 balance on the account as reflected by the
5
statement with a closing date of November 17, 2005. Defendant also retained a $0.00
balance on the account as of April 2006, as reflected by the statement with a closing
6
date of April 18, 2006. Defendant’s monthly activity, since April 2006 using Plaintiff’s
credit card is as follows:
7
Billing Cycle Charges Made New Balance Payment Made
3/06 – 4/18/06 $10.95 $10.95 $0.00
4/06 – 5/17/06 $0.00 $0.00 $10.95
8
5/06 – 6/06
6/06 – 7/18/06 $551.98 $551.98 $0.00
7/06 – 8/17/06 $197.20 $185.46 $563.72
8/06 – 9/18/06 $187.99 $342.71 $35.00
9/06 – 10/18/06 $219.99 $544.26 $25.00
10/06 – 11/17/06 $19.95 $547.20 $25.00
11/06 – 12/19/06 $140.95 $146.51 $547.20
12/06 – 1/18/07 $245.90 $245.90 $146.51
1/07 – 2/15/07 $252.95 $302.01 $200.00
2/07 – 3/19/07 $140.95 $398.10 $50.00
3/07 – 4/16/07 $12.95 $215.59 $200.00
4/07 – 5/18/07 $316.95 $320.87 $215.59
5/07 – 6/18/07 $140.95 $366.97 $100.00
6/07 – 7/18/07 $220.95 $342.87 $250.00
7/07 – 8/17/07 $12.95 $149.51 $210.00
8/07 – 9/18/07 $268.95 $397.89 $25.00
9/07 – 10/18/07 $12.95 $391.76 $25.00
10/07 – 11/19/07 $156.95 $456.09 $100.00
11/07 – 12/18/07 $236.95 $599.52 $100.00
12/07 – 1/17/08 $58.90 $567.22 $100.00
1/07 – 2/15/08 $268.95 $744.28 $100.00
2/08 – 3/19/08 $28.95 $684.39 $100.00
3/08 – 4/17/08 $172.95 $615.27 $250.00
4/08 – 5/16/08 $252.95 $778.57 $100.00
5/08 – 6/17/08 $91.25 $679.64 $200.00
6/08 – 7/17/08 $188.95 $843.32 $35.00
4
Amended Complaint, ¶ 6.
5
Amended Complaint, ¶ 5, Pl. Ex. A.
6
Amended Complaint, Pl. Ex. B, p. 3.
7
New Balance includes finance charges, late fees, etc. See individual statements attached to Plaintiff’s Amended
Complaint as Exhibit B.
8
This monthly statement was not attached as part of Pl. Ex. B. It is not necessary for a plaintiff to attach each and
every monthly statement, rather a plaintiff must attach the statements which show the individual charges and fees
requested. See Arrow Financial Services LLC v. Witmer, p. 8, No. 09-6197 (Cumb. Co. May 13, 2010) (Ebert J.).
2
7/08 – 8/18/08 $139.26 $894.69 $100.00
8/08 – 9/17/08 $12.95 $817.99 $100.00
9/08 – 10/17/08 $172.94 $901.58 $100.00
10/08 – 11/18/08 $203.25 $1,017.96 $100.00
11/08 – 12/18/08 $116.93 $1,047.79 $100.00
12/08 – 1/16/09 $76.95 $1,037.33 $100.00
1/09 – 2/17/09 $100.95 $1,052.20 $100.00
2/09 – 3/19/09 $172.95 $1,137.83 $100.00
3/09 – 4/17/09 $68.95 $715.73 $500.00
4/09 – 5/19/09 $84.95 $711.45 $100.00
5/09 – 6/18/09 $164.95 $808.23 $80.00
6/09 – 7/20/09 $140.95 $762.48 $200.00
7/09 – 8/19/09 $228.95 $983.64 $20.00
8/09 – 9/18/09 $156.95 $1,055.81 $100.00
9/09 – 10/20/09 $30.95 $1,002.91 $100.00
10/09 – 11/18/09 $1,236.95 $1,765.21 $500.00
11/09 – 12/18/09 $2,296.79 $4,021.44 $100.00
12/09 – 1/20/10 $14.95 $4,008.99 $100.00
1/10 – 2/17/10 $14.95 $3,847.50 $235.00
2/10 – 3/19/10 $289.52 $4,053.44 $150.00
3/10 – 4/19/10 $74.95 $4,047.10 $150.00
4/10 – 5/19/10 $458.52 $4,450.99 $125.00
5/10 – 6/18/10 $14.95 $4,413.69 $125.00
6/10 – 7/20/10 $79.95 $4,456.64 $116.00
7/10 – 8/19/10 $274.95 $4,682.06 $125.00
8/10 – 9/20/10 $14.95 $4,653.69 $125.00
9/10 – 10/20/10 $74.95 $4,655.50 $150.00
10/10 – 11/18/10 $204.95 $4,785.42 $150.00
11/10 – 12/20/10 $154.52 $4,726.28 $300.00
12/10 – 1/20/11 $178.69 $4,837.29 $150.00
1/11 – 2/17/11 $14.95 $4,574.13 $350.00
2/11 – 3/21/11 $225.28 $4,530.22 $350.00
3/11 – 4/20/11 $1,371.83 $5,679.26 $300.00
4/11 – 5/19/11 $845.01 $6,375.81 $250.00
5/11 – 6/20/11 $14.95 $6,252.87 $250.00
6/11 – 7/20/11 $14.95 $6,170.69 $200.00
7/11 – 8/19/11 $14.95 $6,137.83 $175.00
8/11 – 9/20/11 $14.95 $6,296.63 $0.00
9/11 – 10/20/11 $0.00 $6,436.02 $0.00
10/11 – 11/18/11 $0.00 $6,436.02 $0.00
11/11 – 12/20/11 $0.00 $6,436.02 $0.00
Plaintiff initiated this action seeking to recover the balance owed by the
Defendant on this credit card account, which according to the Amended Complaint and
3
9
accompanying statements, was $6,436.02 as of December 20, 2011. After Plaintiff’s
initial Complaint, Defendant filed Preliminary Objections which were granted by the
10
Honorable Christylee L. Peck. Plaintiff then filed an Amended Complaint on August
11
29, 2012. Defendant filed an Answer to the Amended Complaint on October 1,
12
2012. Defendant admitted that he opened the credit card account with Plaintiff and
received extensions of credit, but claimed that he “does not have sufficient information
13
to admit or deny facts” for most of the other allegations. Defendant also denied
Plaintiff’s allegation that he assented to the account balance by making payments or
14
retaining statements without paying, without stating the reasons for his denial.
15
Plaintiff filed a Motion for Summary Judgment on December 14, 2012. Over thirty
days has passed since Plaintiff’s Motion for Summary Judgment was filed and no
response or brief in opposition has been filed by Defendant. Argument on this matter
was held on February 15, 2013.
Discussion
As provided in Pa.R.C.P. 1035.3 there is a burden placed on the non-moving
party to respond to a summary judgment motion. Pa.R.C.P. 1035.3 states:
“(a) Except as provided in subdivision (e), the adverse party may not rest
upon the 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
9
Amended Complaint; See also Complaint, filed December 19, 2011.
10
See Defendant’s Preliminary Objections, filed January 3, 2012 and Order of Court, filed July 13, 2012.
11
Amended Complaint
12
Answer, filed October 1, 2012.
13
Answer
14
Amended Complaint, ¶ 11 and Answer, ¶ 11.
15
Plaintiff’s Motion for Summary Judgment, filed December 14, 2012. See attached Ex. A.
4
“(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.”
(emphasis added).
Pa.C.R.P. 1035.3(d) allows for summary judgment to be entered against a party who
has not responded. However, in order to grant summary judgment, the evidentiary
record still must show that the moving party is entitled to judgment as a matter of law,
even when the non-moving party has failed to respond. See Discover Bank v.
th
Anderson, 4 Pa. D. & C. 5353, 356 (Lancaster Co. 2008).
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. Pa.R.C.P. 1035.2(1), see also Weiner v. American Honda Motor, Co.,
718 A.2d 305, 307 (Pa. Super. 1998). The court must construe the facts in the light
most favorable to the non-moving party and must resolve all doubts and reasonable
inferences as to the existence of genuine issues of material fact in favor of the non-
moving party. Talega v. Security Bureau, Inc., 719 A.2d 372, 374 (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 of Wyoming County, Inc., 578 A.2d 8, 9 (Pa. Super.
1990).
This matter is not complex. Defendant obtained a credit card from the Plaintiff in
1992 and for the relevance of this matter, used the card actively from March 2006 to
July 2011 to conduct financial transactions, and failed to make the necessary payments
on the account. Defendant directly admitted in his Answer that he opened a credit card
5
16
with Plaintiff and obtained extensions of credit from Plaintiff. Defendant either denied
without affirmatively stating a reason for denial, or claimed insufficient information to
answer the remainder of Plaintiff’s allegations, including when Defendant made his last
payment to Plaintiff.
Pa.R.C.P. 1029(b) states:
“[a]verments in a pleading to which a responsive pleading is required are
admitted when not denied specifically or by necessary implication. A general
denial…except as provided by subdivisions (c) [relating to insufficient information
after reasonable investigation] and (e) [relating to actions seeking monetary relief
for bodily injury, death, and property damage] of this rule, shall have the effect of
an admission.” (emphasis added).
Defendant makes one general denial in his Answer to Plaintiff’s allegation that he
assented to the account balance by making payments or retaining statements without
17
paying. Defendant does not specifically state his reasons for denying or what he
believes occurred instead and therefore this general denial is treated as an admission.
See Swift v. Milner, 538 A.2d 28, 31-32 (Pa. Super. 1988) (holding that an answer
which merely states the word “denied” is treated as a general denial resulting in an
admission).
Defendant attempts to rely on Pa.R.C.P. 1029(c)(1) and claims insufficient
information for the remainder of Plaintiff’s allegations. However, a defendant may not
rely on Pa.R.C.P. 1029(c)(1) without first conducting a reasonable investigation.
Furthermore, a defendant may not rely on having insufficient information to make a
specific denial “when it is clear that the defendant must know whether a particular
allegation is true”. Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978). It is clear
that, in this case, Defendant must know information regarding when his last payment
16
Answer, filed October 1, 2012, ¶ 1-4, 6.
17
See Amended Complaint, ¶ 11 and Answer, ¶ 11.
6
was made to Plaintiff and what the balance of the account is, because this is information
that only the Plaintiff and Defendant would have access to. See New York Guardian
Mortg. Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). Defendant was provided
with account statements by Plaintiff and should have been able to admit or specifically
deny Plaintiff’s allegations after a reasonable investigation. Therefore, Defendant’s
responses of insufficient information will be treated as admissions and Defendant is
deemed to have admitted all of Plaintiff’s allegations.
Finally, if a non-moving party chooses to rest on the pleadings, summary
judgment must be granted in favor of the moving party, “unless a genuine issue of fact
is made out in the moving party’s evidence taken by itself.” Curry v. Estate of
Thompson, 481 A.2d 658, 660 (Pa. Super. 1984). In looking at Plaintiff’s evidence,
Defendant’s admission in opening the credit card account, Defendant’s other deemed
admissions, and Defendant’s lack of response to the summary judgment motion, it is
clear that no genuine issue of material fact exists and summary judgment is proper.
Accordingly the following Order will be entered:
ORDER OF COURT
th
AND NOW
, this 11 day of March, 2013, upon consideration of Plaintiff’s Motion
for Summary Judgment and brief in support thereof, and following oral argument held
on February 15, 2013,
7
IT ISHEREBY ORDERED AND DIRECTED
that Plaintiff’s Motion for Summary
GRANTED
Judgment is in the amount of $6,436.02, plus costs.
By the Court,
____________________
M.L. Ebert, Jr., J.
Burton Neil, Esq.
1060 Andrew Drive
Suite 170
West Chester, PA 19380
Attorney for Plaintiff
Jason M. Rettig, Esq.
301 Grant Street, Ste. 4300
Pittsburgh, PA 15219
Attorney for Defendant
8