J-S21040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RIDESAFELY.COM, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALIOUNE THIAM,
Appellant No. 2867 EDA 2014
Appeal from the Order Entered September 25, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 14030661
BEFORE: BOWES, JENKINS and PLATT,*JJ.
DISSENTING MEMORANDUM BY BOWES, J.: FILED JUNE 18, 2015
I disagree with my distinguished colleagues that Appellant waived his
claim that the lack of a direct relation between the warrant of attorney and
the signature rendered the confession of judgment unenforceable.
Furthermore, I find merit in Appellant’s position and believe the confessed
judgment should have been opened on that basis. Hence, I respectfully
dissent.
Appellant, who appeared pro se, pled that he never voluntarily,
intelligently and knowingly gave up his right to notice and a hearing prior to
* Retired Senior Judge assigned to the Superior Court.
J-S21040-15
entry of judgment. Answer to Confession of Judgement Claim, at 2 ¶12. 1 In
his memorandum of law accompanying the pleading, Appellant specified that
he never saw the purchase order prior to signing it and the confession of
judgment clause was not presented in a conspicuous manner. Memorandum
of Laws for Petition to Strike/Open Confessed Judgment, at unnumbered 4.
He contended that RideSafely should have been required to produce the
original or a photo static copy of the screen that captured the document in
the form in which it was presented to the user. Id.
Appellant’s averment was sufficient under Pa.R.C.P. 2959 to apprise
RideSafely of his contention that the warrant of attorney was not
conspicuously displayed when he affixed his electronic signature. Indeed,
such notice was conferred as evidenced by Ridesafely’s response: “The
Agreement was presented to Defendant in a conspicuous manner.”
Plaintiff’s Response in Opposition to Defendant’s Petition to Strike or Open
Confessed Judgment, at 2 ¶6.
Moreover, prior to the hearing, Appellant filed a supplemental
memorandum in which he captured screenshots that depicted the screen
when he was “‘supposedly’ presented with the contract” that contained the
cognovit clause. Additional Memorandum of Laws for Petition to Strike the
____________________________________________
1
The Answer was properly treated by the court as a motion to strike and/or
open a confessed judgment.
-2-
J-S21040-15
Confession of Judgment, 8/21/14, at 2. The screenshot when he clicked the
“confirm” button and affixed his signature does not display the purchase
order containing the confession of judgment clause. RideSafely merely
noted the presence on the screen of a hyperlink to a purchase order
agreement but did not advise that it contained a confession of judgment
clause. Appellant contended that a confession of judgment clause that is
visible only after one accesses the document in which it appears via
hyperlink is not conspicuous. Further, he argued that by clicking on the
“confirm” button, it was not clear that he was affixing his signature to the
hyperlinked purchase order agreement rather than merely confirming the bid
that appeared on the screen. Id. at 3. Appellant cited L.B. Foster Co. v.
Tri-W Construction Co., Inc., supra, for the proposition that the warrant
of attorney authorizing confession of judgment was unenforceable under
Pennsylvania law as it was not placed conspicuously on the same page as
the signature. Appellant sufficiently articulated below the issue he argues on
appeal and waiver is not justified on this record.
Before turning to the merits of Appellant’s argument, I would point out
that confession of judgment clauses have been described as “the most
powerful and drastic document known to civil law.” Cutler Corporation v.
Latshaw, 97 A.2d 234, 236 (Pa. 1953). Since such a clause deprives a
party of his or her day in court and permits a creditor to obtain an
enforceable judgment against a debtor without benefit of trial or a defense,
-3-
J-S21040-15
it is not favored. It is “equivalent to a warrior of old entering a combat by
discarding his shield and breaking his sword.” Id. Consequently, “the law
jealously insists on proof that this helplessness and impoverishment was
voluntarily accepted and consciously assumed." Id.; see also Scott
Factors, Inc. v. Hartley, 228 A.2d 887 (Pa. 1967).
Courts strictly scrutinize confession of judgment clauses due to the
constitutional due process concerns associated with their enforcement. See
Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138 (Pa.Super. 1985). In
Frantz Tractor Co. v. Wyoming Valley Nursery, 120 A.2d 303, 305 (Pa.
1956), our High Court affirmed the trial court’s striking of a confessed
judgment based on a warrant of attorney located on the reverse side of a
commercial lease that consisted of twenty-one paragraphs “so finely printed
as not to be readily legible and so close in type as to be blurred.” Id. The
confession of judgment clause was located in the last half of the eighteenth
paragraph; the lessee’s signature was located on the front page. Our
Supreme Court reiterated:
Where a lease contains a warrant of attorney, the signature of
the lessee must bear such direct relation to the provision
authorizing the warrant as to leave no doubt that the lessee
signed, conscious of the fact that he was thereby conferring
upon the lessor a warrant to confess judgment against him for a
breach of a covenant of the lease. A general reference in the
body of an executed lease to terms and conditions to be found
outside the agreement is insufficient to bind the lessee to a
warrant of attorney not contained in the body of the lease unless
the lessee signs the warrant where it does appear. In short, a
warrant of attorney to confess judgment is not to be foisted
-4-
J-S21040-15
upon anyone by implication or by general and nonspecific
reference.
Id.
Thus, in order to be enforceable even between commercial entities,
the warrant of attorney authorizing confession of judgment must be
conspicuous and signed, and the signature “must bear a direct relation to
the warrant of attorney and may not be implied." L. B. Foster Co. v. Tri-W
Const. Co., supra at 20. There should be no doubt that the person signing
the warrant was conscious of the fact that he was consenting to the
confession of judgment against him in the event of breach.
The Uniform Commercial Code, 13 Pa.C.S. §1201(10) defines
conspicuous “[w]ith reference to a term,” as “so written, displayed or
presented that a reasonable person against which it is to operate ought to
have noticed it.” A conspicuous term includes
(i) A heading in capitals equal to or greater in size than the
surrounding text, or in contrasting type, font or color to
the surrounding text of the same or lesser size;
(ii) Language in the body of a record or display in larger
type than the surrounding text, in contrasting type, font
or color to the surrounding text of the same size, or set
off from surrounding text of the same size by symbols
or other marks that call attention to the language.
13 Pa.C.S. §1201(10)(i-ii). See also Moscatiello v. Pittsburgh
Contractors Equipment Co., 595 A.2d 1190, (Pa.Super. 1991) (“A term or
clause is ‘conspicuous’ when it is ‘so written that a reasonable person
-5-
J-S21040-15
against whom it is to operate ought to have noticed it . . . . Language in the
body of a form is conspicuous if it is in larger or other contrasting type or
color . . . .’”).
In Graystone Bank v. Grove Estates, LP., 58 A.3d 1277, 1283
(Pa.Super. 2012), this Court recently held that a “warrant of attorney that
appeared conspicuously in all caps on the very bottom of the penultimate
page of the agreement and immediately preced[ing]” the signature at the
top of the following final page, sufficed. Generally, where the clause is clear
and conspicuous and the signature of the debtor appears in direct relation to
the confession of judgment clause, we have enforced such clauses as
between business entities. We enforced a conspicuous confession of
judgment clause in a commercial lease in Ferrick v. Bianchini, 69 A.3d
642, 647-648 (Pa.Super. 2013), finding the "clear manifestation of consent
that is required to sustain the validity of a cognovit clause," not a situation
where the warrant was "foisted upon anyone by implication or by general
and nonspecific reference."
The instant appeal presents novel issues because it involves an online
transaction. The purchase order appended by RideSafely to the complaint in
confession of judgment is a three-page document consisting of eighteen
paragraphs. This is apparently a hard copy version of the purchase order on
the RideSafely website. Paragraph 17 provides:
-6-
J-S21040-15
17. “PENALTY FOR VIOLATION OF PARAGRAPH 2/ CONFESSION
OF JUDGMENT: Buyer covenants and agrees that if he files or
initiates an action either against Ridesafely.com and/or against
any of its affiliated dealers in any jurisdiction other than
Philadelphia, Pennsylvania, Ridesafely.com and/or its affiliated
dealer may cause judgment to be entered against the Buyer, and
for that purpose of that the Buyer hereby authorizes and
empowers Ridesafely.com and/or its affiliated dealer or any
Prothonotary, Clerk of Court or attorney of any court of record to
appeal for and confess judgment against the Buyer and agrees
that Ridesafely.com and/or its affiliated dealer may commence
an action pursuant to Pennsylvania Rules of Civil Procedure No.
2950 et. seq. for the recovery from the Buyer of the amount of
monies, which shall be the greater of the two – either the
amount claimed by the Buyer in an action which was initiated in
violation of Paragraph 2 of this Agreement or the amount of
money the Buyer has set as the “Price” in this Agreement
(Paragraph “ORDER” of this Agreement) together with any and
all outstanding fees incurred by the Buyer and any and all
storage and/or late fees accumulated by the Buyer, as well as
for interest and costs and attorney’s commission of 15% (fifteen
per cent), for which thereto, shall be sufficient warrant. Neither
the right to institute an action pursuant to Pennsylvania Rules of
Civil Procedure No 2950 et. seq., nor the authority to confess
judgment granted herein shall be exhausted by one or more
exercises thereof, but successive complaints may be filed and
successive judgments may be entered for the afore-described
sums five days or more after they become due as prescribed in
this agreement. No judgment shall be filed by Ridesafely.com
and/or its affiliated dealer without at least (30) days written
notice, certified mail returned receipt requested, and opportunity
to the Buyer to cure any such default by discontinuing the
action/litigation/suit, which is/was filed and/or initiated in
violation of Paragraph 2 of this Agreement and dismissing it with
prejudice.
Purchase Agreement at unnumbered 3, ¶17.
-7-
J-S21040-15
Notably, the paragraph containing the warrant of attorney is no more
conspicuous than the remaining paragraphs of the document.2 The warrant
of attorney authorizing confession of judgment is located in the middle of a
long paragraph and the language is not bolded or capitalized. Just as
important in my opinion are the screenshots from the RideSafely website.
They revealed that the actual purchase order agreement containing the
warrant of attorney was not displayed on the screen when Appellant clicked
the “confirm” button and electronically signed the document.3 The purchase
order was accessible only by hyperlink and Appellant maintained that he
never saw it. At best, he argued, the hyperlink operated as a reference to
the document that contained the warrant of attorney. Thus, Appellant
contended, the purchase order itself was not conspicuous when he clicked
the button and affixed his signature, and furthermore, the signature was not
affixed in direct relation to the confession of judgment clause. At the
September 4, 2014 hearing, RideSafely’s only rebuttal was that, “The
____________________________________________
2
Appellant did not argue that the confession of judgment clause should be
stricken as inconspicuous on its face due to the lack of capital or bold letters.
3
In ruling on a petition to open a judgment, “matters dehors the record filed
by the party in whose favor the warrant is given, i.e., testimony,
depositions, admissions, and other evidence, may be considered by the
court.” Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683
A.2d 269, 273 (Pa. 1996)
-8-
J-S21040-15
contract was available on the website for his review, very clear and plain.”
N.T. Hearing, 9/4/14, at 7.
On the record before me, I believe the confessed judgment should
have been opened. Appellant offered evidence that the purchase order
agreement containing the confession of judgment clause was not displayed
on the screen when he signed the purchase order. It was only accessible by
clicking on a hyperlink. I agree with Appellant that this situation is
analogous to the one where such a clause appears outside the body of a
lease in an addendum that was not separately signed but only referenced in
the original agreement. We found the latter to be invalid and unenforceable
in Hazer v. Zabala, 26 A.3d 1166, 1170-1171 (Pa.Super. 2011). See also
Frantz Tractor Co., supra at 305 (general reference in the body of an
equipment rental agreement to terms and conditions on the reverse side was
insufficient to bind the lessee to a warrant of attorney contained on the
reverse side).
The trial court did not address whether the warrant of attorney was
sufficiently conspicuous and directly related to Appellant’s signature as to be
legally enforceable. Instead, the court characterized the dispute as hinging
on the credibility of Appellant’s representation that he did not see or sign the
contract and did not waive any right to institute suit in Minnesota. In order
to resolve that credibility issue, the Court stated that Appellant would have
to appear in person in Philadelphia, and when Appellant responded that he
-9-
J-S21040-15
could not do so, the court immediately denied the petition to strike and/or
open.
Under Pennsylvania law, whether the confession of judgment clause
was clear and conspicuous and the signature sufficiently related to the
clause to be valid and enforceable is a question of law. See Midwest Fin.
Acceptance Corp. v. Lopez, 78 A.3d 614 (Pa.Super. 2013) (holding that
the legal effect or enforceability of a contract provision presents a question
of law accorded full appellate review). The truth of Appellant’s
representation that he did not see or read the clause was immaterial to the
resolution of this issue and the trial court erred in reducing the issue to one
of credibility. See Hazer, supra at 1171.
I would also note the following. The instant online transaction
involved Appellant, a natural person, and RideSafely, a business entity
engaged in brokering the sale of salvage motor vehicles. Appellant accessed
the RideSafely website and secured the services of the broker to bid on and
purchase his desired vehicle. In doing so, Appellant confirmed the contract
by clicking the confirm button on the screen that contained the hyperlink.
That action operated to place his electronic signature on the bid confirmation
contract displayed on the computer screen as well as on the purchase order
that was in the hyperlink. That electronic signature on the purchase order
was relied upon by RideSafely to confess judgment against him for the
“price” stated on the face of the purchase order, plus fees, attorney’s fees,
- 10 -
J-S21040-15
and costs, if the Buyer violated the choice of forum clause in paragraph two
of the purchase order, which designated Philadelphia Pennsylvania as the
exclusive forum. Appellant paid in full for the vehicle. Thus, there was no
credit advanced and there was no default.
As the Majority correctly concludes, this was not a consumer credit
transaction within the meaning of Pa.R.C.P. 2950 and Willits v. Fryer, 734
A.2d 425 (Pa.Super. 1999), since there was no financing arrangement
between the parties. Thus, Appellant’s reliance upon the rule’s prohibition
against confession of judgment clauses in consumer credit transactions is
misplaced. However, I believe our Unfair Trade Practice and Consumer
Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq. provides the legal
support Appellant was seeking. Pursuant to the UTPCPL, 73 P.S. § 201-
2(4)(xviii), use of “a contract, form or any other document related to a
consumer transaction which contains a confessed judgment clause that
waives the consumer's right to assert a legal defense to an action” is an
unfair or deceptive act or practice. I submit that the UTPCPL renders a
warrant of attorney authorizing confession of judgment in a consumer
contract such as the one herein invalid and unenforceable.
What is particularly troubling herein is that Appellant paid for the
vehicle and owes RideSafely nothing. RideSafely is being permitted to
confess judgment when Appellant does not owe a debt. The amount of the
confessed judgment even exceeds the price Appellant paid for the vehicle.
- 11 -
J-S21040-15
This draconian penalty purports to be damages due to Appellant’s breach of
the contract by filing suit in another state. There is not a scintilla of proof
that RideSafely incurred damages close to the amount of the confessed
judgment, and I find this clause repugnant and unenforceable. I believe that
the judgment entered in this case was obtained without due process and
should not be accorded full faith and credit in any court in this nation.
For the foregoing reasons, I believe the warrant of attorney used to
confess judgment against Appellant was invalid and unenforceable, and that
the trial court erred in refusing to open the confessed judgment. Hence, I
dissent.
- 12 -