J-A32008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT E. GARDNER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
I.C. SYSTEM, INC.
Appellee No. 2468 EDA 2013
Appeal from the Order Entered August 5, 2013
In the Court of Common Pleas of Montgomery County
Civil Division at No. 11-18837
BEFORE: PANELLA, J., OLSON, J., FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015
Appellant, Robert E Gardner, appeals from the order granting
summary judgment in favor of Appellee, I.C. System, Inc. We affirm.
Appellee is a debt collector that attempted to collect a debt obligation
from Appellant on behalf of Bank of America by making telephone calls to his
residence. On July 12, 2011, Appellant filed the following Complaint in the
Court of Common Pleas. We quote it in its entirety:
1. The plaintiff resides at the above address.
2. The defendant has offices at the above address.
3. In an effort to collected [sic] an alleged debt the
defendant violated the following laws:
____________________________________________
Former Justice specially assigned to the Superior Court.
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a. Pennsylvania Unfair Trade Practices and Consumer
Protection Law, 73 Pa.C.S. Section 201-1 et seq.
[“CPL”].
b. Pennsylvania Fair Credit Extension Uniformity Act,
73 Pa.C.S. Section 227.01 et seq. [“FCEUA”].
4. As a result of the defendant’s conduct the plaintiff
suffered damages that may be recovered under the
above stated laws.
WHEREFORE, the plaintiff requests judgment, attorney’s
fees and costs in an amount not in excess of twenty
thousand ($20,000) dollars.
The Complaint contained no supporting facts or allegations, and did
not specify which provisions of the cited statutes had been allegedly
violated. Appellee filed an answer and new matter denying that it had
violated the cited statutes. Appellant responded to the new matter with
general denials and a repeated summary allegation that Appellee had
“engaged in a per se violation.” Plaintiff’s Reply to New Matter, dated
9/12/2011.
During the discovery period, Appellant objected to Appellee’s
interrogatories, requests for production of documents, and requests for
admissions by stating that each discovery request was “irrelevant and
harassment” because Appellee had “engaged in a per se violation.”
Plaintiff’s Objection to the Defendant’s Requests for Production of
Documents, dated 9/26/11; Plaintiff’s Objection to the Defendant’s Request
for Admissions, dated 9/26/11; and Plaintiff’s Objection to the Defendant’s
Interrogatories, dated 9/26/11. Appellee filed a motion to compel discovery
responses, which the trial court granted. Appellant responded to the
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discovery requests by stating that Appellee had violated the CPL and the
FCEUA by calling him “thirty five to forty times,” and stated that his
damages from Appellee’s unanswered phone calls were “stress, anxiety, Not
pick up phone [sic]” Plaintiff’s Answer to Interrogatories, dated 4/5/12. He
admitted that he had failed to pay the balance due on his Bank of America
credit card; that he had not actually spoken to Appellee by telephone; and
that he had not incurred any ascertainable loss of money as a result of
Appellee’s conduct. See Plaintiff’s Answers to Request for Admissions, dated
4/5/12. In response to Appellee’s request for production of documents,
Appellant submitted copies of notices received from several debt collectors
other than Appellee, and provided a copy of a monthly statement from Bank
of America showing his outstanding credit card balance as of June 2009.
Appellee filed a motion for summary judgment. Appellant responded
with an Answer to the Motion, in which he stated that Appellee had
contacted him personally despite Appellant’s having sent notice that he was
represented by counsel. After oral argument, the trial court granted
summary judgment in favor of Appellee.
Appellant timely appealed to this Court, raising the following issues:
A. Is a per se violation actionable?
B. Must there be actual damages to proceed with a per se
violation?
C. May a jury determine the damaged [sic] in a per se
violation?
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Appellant’s Brief at 3.
In a one-and-a-half page argument,1 Appellant avers that because
Appellee ignored his “warn[ing] to cease all contact with” Appellant, Appellee
committed a “per se” violation of the FCEUA. Appellant’s Brief at 5, citing 73
P.S. § 2270. In support, he cites to Exhibits “A” and “B.” However, there
are no exhibits annexed to his brief and there are no citations to the
reproduced record indicating where those exhibits might otherwise be found.
Appellant fails to cite case law or other authority to support his argument,
and provides no analysis which would enable this Court to provide
meaningful review of the issues raised.2
Appellant has utterly failed to comply with the Pa.R.A.P. 2119. We thus
conclude his argument on appeal is waived. See, e.g., Coulter v.
Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014), appeal denied, 403
WAL 2014 (Pa. filed Dec. 10, 2014) (observing that Pa.R.A.P. 2119 requires
that argument be developed for each issue raised with citation to authority
in support of each contention, and appellate arguments which fail to adhere
to Rule 2119 may be considered waived).
____________________________________________
1
John J. O’Brien, III, Esquire, has represented Appellant throughout this
litigation.
2
In fact, Appellant’s “argument” section of his brief is identical to both his
Pa.R.A.P. 1925(b) statement and his Memorandum of Law filed in opposition
to Appellee’s summary judgment motion.
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Even without our waiver determination, we would affirm the trial
court’s order. Our review of the record reveals that, like his appellate brief,
Appellant’s pleadings and his responses to pleadings and discovery requests
were also procedurally and substantively inadequate. Accordingly, we would
have found that the trial court properly granted summary judgment to
Appellee.
The standards pertaining to summary judgment are well-settled:
A motion for summary judgment is based on an evidentiary
record that entitles the moving party to a judgment as a matter
of law. In considering the merits of a motion for summary
judgment, a court views the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Finally, the court may grant summary judgment
only when the right to such a judgment is clear and free from
doubt. An appellate court may reverse the granting of a motion
for summary judgment if there has been an error of law or an
abuse of discretion.
Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa.
2005) (citations omitted). See also Pa.R.C.P. 1035.2.
Once a summary judgment motion is filed, the non-moving party
(here, Appellant) bears the burden of proving that there is a genuine issue
of material fact precluding summary judgment. Where the non-moving
party bears the burden of proof on an issue, he or she may not merely rely
on his pleadings or answers but rather must set forth specific facts
demonstrating a genuine issue of fact. See Bank of America, N.A. v.
Gibson, 102 A.3d 462, 464 (Pa. Super. 2014); Pa.R.C.P. 1035.3. “Failure of
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a non-moving party to adduce sufficient evidence on an issue essential to its
case and on which it bears the burden of proof ... establishes the entitlement
of the moving party to judgment as a matter of law.” Young v.
Commonwealth Dep’t of Transportation, 744 A.2d 1276, 1277 (Pa.
2000).
The trial court here correctly observed that Appellant’s four-line
Complaint “was procedurally and substantively flawed,” and that his
responses to Appellee’s discovery requests “were similarly insufficient under
the law and the applicable Pennsylvania Rules of Civil Procedure [such that
Appellant] failed to supply a sufficient factual basis to support his claims.”
Trial Court Opinion, dated 3/8/14, at 1 - 2. Moreover, our review of the
record supports the trial court’s conclusion that Appellant had failed to
provide any evidence in the form of affidavits or exhibits which would
provide the requisite prima facie evidentiary basis necessary to survive
summary judgment. Because Appellant failed supply the necessary
evidentiary support, we conclude that the trial court did not abuse its
discretion or err as a matter of law in granting Appellee’s motion for
summary judgment.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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Gardner, R. v. I.C. System Inc.
Combined Opinion