J-A11041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICOLE J. GAWRON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CITADEL FEDERAL CREDIT UNION :
:
Appellee : No. 1536 MDA 2017
Appeal from the Order Entered September 1, 2017
in the Court of Common Pleas of Luzerne County
Civil Division at No.: 2013-12093
BEFORE: STABILE, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 07, 2018
Appellant, Nicole J. Gawron, appeals from the order granting the motion
for summary judgment of Appellee, Citadel Federal Credit Union, in this breach
of contract motor vehicle repossession action. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s December 6, 2017 opinion.
On February 16, 2009, the parties entered into a Motor
Vehicle Installment Sales Contract (the “Contract”)[,] which
required Appellant to pay to Appellee sixty (60) payments in the
amount of $341.82 beginning on March 20, 2009. The loan was
in connection with the purchase of a 2005 Nissan Altima and the
Contract granted Appellee a security interest in said vehicle.
Pursuant to the Contract, Appellant would be in default if she failed
to make a payment on or before the due date or failed to keep a
promise made in the Contract. One such promise Appellant made
to Appellee in the Contract was that she would not move the
vehicle from the address listed in the Contract . . . to a new place
of permanent garaging without advance notice to Appellee. In an
event of default, Appellee could accelerate the loan and/or
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* Retired Senior Judge assigned to the Superior Court.
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repossess the vehicle. Upon repossession of the vehicle, Appellant
would not have the right to reinstate the Contract, but could
redeem the vehicle or it would be sold to pay expenses and any
amounts remaining due on the loan. In the event that the vehicle
is repossessed, the Contract provides that Appellant must pay the
costs of repossessing, storing, repairing, preparing for sale, and
selling the vehicle. Finally, the Contract allows Appellee to delay
enforcing its rights without losing such rights.
According to Appellee’s records, Appellant was in default for
nonpayment under the Contract as early as December 4, 2012,
and Appellant admitted in court filings and her deposition that she
had defaulted on the loan. ([See] Amended Complaint, Ex. B, p.
8, number 50; [] [Appellant’s] Depo., [3/09/17,] p.8, 11[).] As
of December 12, 2012, Appellant was fifty-three (53) days late on
her loan payments and owed a total of $682.82. Appellee’s
records also indicate that it made several unsuccessful attempts
to reach Appellant by phone during this time period. As a result
of the default, Appellee initiated the repossession process on or
about December 12, 2012. Appellee attempted to locate
Appellant and the vehicle on numerous occasions between
December 2012 and February 2013, incurring $512.50 in fees.
According to Appellant, she had moved from the original address
in the Contract and her new home was where the vehicle was
parked. Appellant was unsure of the date upon which she notified
Appellee of her change of address. As of February 13, 2013,
Appellant paid off her past due balance on the loan; however, in
a conversation with Appellee, Appellant both acknowledged the
start of the repossession process and refused to pay the $512.50
in fees.
During various phone calls with Appellee after February 13,
2013, Appellant was again advised that she must pay the $512.50
in fees to stop the repossession. In the absence of any payments,
Appellee’s agent repossessed Appellant’s vehicle on March 4,
2013. On March 5, 2013, prior to Appellee’s notification that the
vehicle had been repossessed, Appellant contacted Appellee and
was told again that she must pay the $512.50 in fees to stop the
repossession. According to Appellant, she was aware of the
repossession at the time she called Appellee, but did not inform
Appellee. This was the first time Appellant agreed to pay the
repossession fees to Appellee. Appellant was instructed to deposit
an amount and to contact Appellee once that was done. When
Appellant called Appellee again, she confirmed that her vehicle
had already been repossessed and was told that changed the
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situation. Appellee explained to Appellant that she would now
have to go through the redemption process. Immediately after
talking to Appellee, Appellant withdrew the money she had
previously deposited to cover the fees associated with the initial
repossession. After Appellant refused to make any payments to
redeem the vehicle, Appellee sold the vehicle to a third party on
April 24, 2013.
(Trial Court Opinion, 12/06/17, at 11-15) (most record citations omitted).
On November 7, 2013, Appellant filed a complaint against Appellee in
connection with the financing and repossession of her vehicle. Appellee filed
preliminary objections, which the trial court granted in part. On September
10, 2014, Appellant filed an amended complaint alleging breach of contract,
unjust enrichment, fraud, negligent misrepresentation, fraudulent
concealment, and violations of the Unfair Trade Practices and Consumer
Protection Law (UTPCPL).1 The trial court denied Appellee’s preliminary
objections on March 17, 2016. On October 5, 2016, Appellee filed a motion
for judgment on the pleadings, which the trial court denied, after argument,
on December 6, 2016.
After the parties completed discovery, Appellee filed a motion for
summary judgment arguing that there are not material facts in dispute and it
is entitled to judgment as a matter of law. (See Motion for Summary
Judgment, 4/17/17, at 8). It explained that Appellant does not dispute the
terms of the agreement, and that she defaulted under the agreement by failing
to make payments when due. (See id.). Therefore, Appellee alleged that
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1 73 P.S. §§ 201-1—201-9.3.
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Appellant “failed to produce any evidence that [Appellee] acted improperly by
any means[,]” and “[t]here are no genuine issues of material fact that warrant
the submission of this case to a jury.” (Id. at 9, ¶¶ 55-56).
Appellant filed a brief in opposition to the motion for summary judgment
on May 16, 2017, arguing that there are genuine issues of material, but failing
to identify any specific issues of fact arising from the record or set forth the
evidence in the record of the facts necessary to establish the causes of action
in her amended complaint. (See Brief in Opposition to Motion for Summary
Judgment, 5/16/17, at 1-7).
On August 23, 2017, the court conducted a hearing on the motion for
summary judgment.2 On September 1, 2017, the court entered an order
granting Appellee’s motion for summary judgment. Appellant filed a timely
notice of appeal. On October 23, 2017, pursuant to the court’s order,
Appellant filed a concise statement of errors complained of on appeal. The
trial court issued its opinion on December 6, 2017.3
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2The hearing also concerned a motion for sanctions that Appellee filed on June
22, 2017.
3 The trial court concludes that Appellant waived all issues for appeal because
her statement, which spanned two pages and raised eleven numbered issues,
was not concise. (See Trial Ct. Op., at 17-20). However, the court recognized
that the ultimate issue raised on appeal was a claim that it erred in granting
summary judgment, (see id. at 21), and addressed that issue in its opinion.
(See id. at 21-27). Thus, we do not find waiver because the statement
includes the issue raised on appeal, the trial court has addressed the issue,
and our appellate review has not been hampered. See Co. Image Knitware,
Ltd. v. Mothers Work, Inc., 909 A.2d 324, 329 n.5 (Pa. Super. 2006),
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Appellant raises three questions on appeal.4
[1.] Did the court below err as a matter of law in dismissing
[Appellant’s] amended complaint against [Appellee] for
breach of contract, fraud or intentional deceit, fraudulent
concealment, negligent misrepresentation, and failure to
comply with [the UTPCPL]?
[2.] Did the court below err as a matter of law in dismissing
[Appellant’s] amended complaint by failing to find that
[Appellant] had established that material facts remained in
dispute as to whether the actions of [Appellee] constituted
a violation of its duty of good faith and fair dealing in its
performance and enforcement of the contract between the
parties?
[3.] Did the court below err as a matter of law in granting
[Appellee’s] motion for summary judgment?
(Appellant’s Brief, at 4-5) (unnecessary capitalization omitted).
Appellant’s questions all concern one issue, whether the trial court erred
when it granted Appellee’s motion for summary judgment. 5 (See id. at 21-
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appeal denied, 929 A.2d 645 (Pa. 2007) (declining to find waiver for eleven-
page statement containing several simple declarations of alleged fact, where
statement included issues raised, trial court addressed issues, and appellate
review was not hampered).
4 Although Appellant’s brief contains four questions, the first concerns whether
the trial court erred in concluding that she waived her issues because of a
lengthy concise statement. (See Appellant’s Brief, at 4). Because we have
already discussed the concise statement, and concluded that we will not find
waiver, we do not re-address this question. (See supra, at 4 n.3).
5 Although presented as three separate questions, Appellant’s concerns all
address her allegation that the trial court erred when it granted Appellee’s
motion for summary judgment. The argument portion of her brief combines
them into one issue. (See Appellant’s Brief, at 21-29). Thus, we combine the
three questions into one issue for our discussion as well.
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29). Specifically, she claims that issues of material fact remain, which would
bar summary judgment.6 We disagree.
Our standard of review of an order granting summary judgment is well
settled.
As has been oft declared by this Court, summary judgment
is appropriate only in those cases where the record clearly
demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law.
When considering a motion for summary judgment, the trial court
must take all facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party. In so doing,
the trial court must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party, and, thus,
may only grant summary judgment where the right to such
judgment is clear and free from all doubt.
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6 Appellant’s brief fails to identify the elements necessary to establish the
causes of actions raised, or how evidence in the record would establish those
elements. (See Appellant’s Brief, at 21-29).
Furthermore, we observe that Appellant’s response to the motion for
summary judgment fails to set forth which evidence would establish her
causes of action, or detail which specific issues of material fact she claims
would preclude judgment, in defiance of the requirements set forth in Rule of
Civil Procedure 1035.3. (See Brief in Opposition to Motion for Summary
Judgment, at 1-7); Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143–44
(Pa. Super. 2001) (“Where a motion for summary judgment is based upon
insufficient evidence of facts, the adverse party must come forward with
evidence essential to preserve the cause of action.”) (citation omitted).
Notably, Appellant’s response fails even to specify which causes of action she
raised raised in her Amended Complaint. (See Brief in Opposition to Motion
for Summary Judgment, at 1-7). Thus, the Rules of Civil Procedure would
have permitted the trial court to enter summary judgment in favor of Appellee,
the moving party, based on Appellant’s failure to respond appropriately to the
summary judgment. See Pa.R.C.P. 1035.3(a), (d); Payton v. Pennsylvania
Sling Co., 710 A.2d 1221, 1224 (Pa. Super. 1998) (“[T]he failure to respond
appropriately permits the entry of judgment in favor of the moving party, but
does not require such.”) (citation omitted).
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On appellate review, then, an appellate court may reverse
a grant of summary judgment if there has been an error of law or
an abuse of discretion. But the issue as to whether there are no
genuine issues as to any material fact presents a question of law,
and therefore, on that question our standard of review is de novo.
This means we need not defer to the determinations made by the
lower tribunals. To the extent that this Court must resolve a
question of law, we shall review the grant of summary judgment
in the context of the entire record.
High v. Pennsy Supply, Inc., 154 A.3d 341, 345 (Pa. Super. 2017), appeal
denied, 171 A.3d 1287 (Pa. 2017) (citations omitted).
Here, the trial court reasoned that Appellant’s causes of action are all
based on the premise that her vehicle was illegally repossessed, and
concluded that, aside from the unjust enrichment claim, all “counts in
Appellant’s [a]mended [c]omplaint fail because the allegations which form the
basis of the causes of action have been disproved by Appellant’s own
testimony at her deposition.” (Trial Ct. Op., at 22). We agree with the trial
court.
The first count in Appellant’s amended complaint alleged a breach of
contract claim against Appellee, claiming that Appellee breached its
agreement with Appellant by declaring her loan in default and repossessing
the vehicle when the loan was current. (See Amended Complaint, at 5-6).
“To successfully maintain a cause of action for breach of contract the plaintiff
must establish: (1) the existence of a contract, including its essential terms,
(2) a breach of a duty imposed by the contract, and (3) resultant damages.”
Albert v. Erie Ins. Exch., 65 A.3d 923, 928 (Pa. Super. 2013) (citation
omitted).
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Upon review, we conclude that Appellant has failed to show a genuine
issue of material fact with respect to whether Appellee breached the Contract.
Based on Appellant’s admissions, she breached the Contract and was in
default beginning in December 2012, when she failed to make timely
payments. (See Appellant’s Deposition, at 8, 11; see also Contract, 2/16/09,
Additional Terms and Conditions ¶¶ 13). The Contract is clear that because
Appellant was in default, Appellee had the right to repossess the vehicle, and
charge Appellant the costs of repossession. (See Contract, at Additional
Terms and Conditions ¶¶ 14-15). Therefore, we conclude that the trial court
did not abuse its discretion or commit an error of law in deciding that Appellee
was entitled to judgment on count one. See High, supra at 345.
The second count in the amended complaint alleged an unjust
enrichment claim against Appellee. (See Amended Complaint, at 6). “A cause
of action for unjust enrichment arises only when a transaction is not subject
to a written or express contract.” Northeast Fence & Iron Works, Inc. v.
Murphy Quigley Co., Inc., 933 A.2d 664, 668 (Pa. Super. 2007), appeal
denied, 947 A.2d 737 (Pa. 2008) (citation omitted). Here, the trial court
concluded that “Appellant has admitted the existence of a written contract
between the parties, [therefore,] she cannot sustain a cause of action for
unjust enrichment.” (Trial Ct. Op., at 22) (case and record citation omitted).
We agree. Thus, we conclude that the trial court did not err or abuse its
discretion in deciding that Appellee was entitled to judgment as a matter of
law with respect to count two. See High, supra at 345.
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The third, fourth, and fifth counts in the amended complaint alleged
fraud, negligent misrepresentation, and fraudulent concealment claims
against Appellee, for misrepresentations purportedly made by Appellee with
respect to repossession of the vehicle. (See Amended Complaint, at 6-9).
“To prove a claim for common law fraud, a party must show: (1) a
representation; (2) material to the transaction at issue; (3) made falsely,
with either knowledge or reckless disregard of its falsity; (4) with the intent
[of] misleading another person or inducing justifiable reliance; and (5) an
injury caused by the reliance.” DeArmitt v. New York Life Ins. Co., 73
A.3d 578, 591 (Pa. Super. 2013) (citations and internal quotation marks
omitted; emphases added).
“Negligent misrepresentation requires proof of: (1) a
misrepresentation of a material fact; (2) made under circumstances in
which the misrepresenter ought to have known its falsity; (3) with an intent
to induce another to act on it; and (4) which results in injury to a party acting
in justifiable reliance on the misrepresentation.” Milliken v. Jacono, 60 A.3d
133, 141 (Pa. Super. 2012) (en banc), aff’d, 103 A.3d 806 (Pa. 2014) (citation
omitted; emphasis added).
The Restatement Second of Torts defines fraudulent concealment as
follows: “One party to a transaction who by concealment or other action
intentionally prevents the other from acquiring material information is subject
to the same liability to the other, for pecuniary loss as though he had stated
the nonexistence of the matter that the other was thus prevented from
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discovering.” Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539,
549 (Pa. Super. 2005) (citation omitted; emphasis added).
In the instant case, Appellant admitted that she defaulted under the
Contract by failing to make timely payments. Her claim that Appellee
promised to return the vehicle to her if she paid the $512.50 fee associated
with initiating repossession, is belied by her deposition testimony wherein she
admitted that she was not told by Appellee that she would get her vehicle back
if she paid the fee. (See Appellant’s Deposition, at 78-81). During her
deposition, Appellant also admitted that she did not tell Appellee that the
vehicle had been repossessed before she offered to pay the $512.50 fee. (See
id. at 64).
Therefore, viewing the evidence in the light most favorable to Appellant
as the non-moving party, we conclude that Appellant has not demonstrated
that there is an issue of material fact with respect to her causes of action for
fraud, negligent misrepresentation, or fraudulent concealment, because the
evidence does not establish a misrepresentation, misleading statement, or
concealment on behalf of Appellee. See DeArmitt, supra at 591; Milliken,
supra at 141; Youndt, supra at 549; see also High, supra at 345. Thus,
the trial court did not abuse its discretion or commit an error of law in
concluding that Appellee was entitled to judgment on counts three, four, and
five.
Finally, the sixth count in the amended complaint alleged that Appellee
violated the UTPCPL. (See Amended Complaint, at 9-10). “The UTPCPL
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provides a private right of action for anyone who suffers any ascertainable
loss of money or property as a result of an unlawful method, act or practice.”
DeArmitt, supra at 591 (citation and internal quotation marks omitted). “To
recover damages under the UTPCPL, a plaintiff must demonstrate an
ascertainable loss as a result of the defendant’s prohibited action.” Id. at
593 (some emphasis in original; citation and internal quotation marks
omitted).
Appellant has failed to identify any evidence or a genuine issue of
material fact with respect to Appellee’s having taken any prohibited action.
Rather, because the evidence demonstrates Appellant defaulted on the
contract, Appellee’s repossession of the vehicle, and holding Appellant
accountable for the costs incurred to do so, were all specifically permitted by
the Contract. (See Contract, at Additional Terms and Conditions ¶¶ 14-15).
Therefore, we conclude that Appellee was entitled to judgment in its favor
with respect to Appellant’s UTPCPL claim. See DeArmitt, supra at 591.
Accordingly, the trial court did not err or abuse its discretion in granting
summary judgment with respect to count six. See High, supra at 345.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2018
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