J-A19013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO EQUIPMENT FINANCE, : IN THE SUPERIOR COURT OF
INC. : PENNSYLVANIA
:
:
v. :
:
:
DOOR SERVICE, INC. :
: No. 3274 EDA 2018
Appellant :
Appeal from the Judgment Entered October 15, 2018
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2017-28092
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 19, 2019
Door Service, Inc., stopped making payments on an installment
payment agreement to Wells Fargo Equipment Finance, Inc., because software
Door Services purchased from a third party with the loan money allegedly did
not work as expected. Wells Fargo brought the instant lawsuit claiming that
Door Services had defaulted on its obligation under the agreement, and owed
over $50,000 in principal, interest, and late fees. The installment payment
agreement between the parties contained a disclaimer of any lender liability
arising from the software purchased with the loan. It also contained a forum
selection clause choosing Pennsylvania as the chosen forum for future
lawsuits.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A19013-19
After Door Services filed its answer, Wells Fargo filed a motion for
summary judgment, which the trial court granted. Appellant asserts the trial
court erred by granting of summary judgment. We affirm on the basis of the
trial court opinion.1
Door Services raised four issues on appeal.
1. Was it an error of law to grant a motion for summary judgment
when the record showed that fact issues existed and discovery
was not complete?
2. Was it an error of law not to apply Illinois law to this action
under 42 P.S. 5327?
3. Was it an error of law to split the cause of action under the
jurisdiction of at least two (2) states?
4. Was it an error of law to overlook the plaintiff’s failure to file a
motion on the sufficiency of the objections to the requests for
admission?
Door Services, Inc.’s Brief, at 3 (unnecessary capitalization omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to the issues Door Services has raised on appeal. The
trial court opinion properly disposes of Door Services’ arguments, and we
adopt it as our own. See Trial Ct. Op., at 3-5 (concluding that claims trial
court should have applied Illinois law were waived for failing to raise before
trial court and would lack merit; claim trial court erred in granting summary
____________________________________________
1 In its opinion, the trial court fully and correctly sets forth the relevant facts
and procedural history of this case. Therefore, we have not restated them at
length here. See Trial Court Opinion, 01/01/19, at 1-2.
-2-
J-A19013-19
judgment was meritless because Wells Fargo’s predecessor had no duty to
investigate software; trial court properly granted summary judgment where
no triable issue of fact existed, even without Door Services’ responses to Wells
Fargo’s request for admissions).
Accordingly, we affirm on the basis of the trial court opinion.
Judgment affirmed.
President Judge Emeritus Stevens joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
-3-
Circulated 10/31/2019
2017-28092-0025 02:11Page
Opinion, PM 1
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA
CIVIL DIVISION
WELLS FARGO EQUIPMENT NO. 17-28092
FINANCE, INC., successor by
assignment to Marlin Leasing
Corporation
Plaintiff
v. 2017-28092-0025 11912019 3:52 PM # 12133382
Rcpt#Z3560035 Fee:S0.00 Opirrion
Main (Public)
DOOR SERVICE, INC. Mon!Co Prolhonotary
Defendant
OPINION
SILOW, J. JANUARY _L, 2019
Door Service, Inc. ("defendant") appeals from the Order dated October 12,
2018, which granted the motion for summary judgment of Wells Fargo
Equipment Finance, Inc. ("plaintiff'). For the reasons set forth below, the
Order should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is the successor-in-interest to Marlin Leasing Corporation
("Marlin"). Plaintiffs Motion for Summary Judgment ("MSJ"), filed 8/ 1/ 18,
Exh. l(B). It is a Minnesota corporation registered to do business in
Pennsylvania.
Defendant is an Illinois corporation that entered into an installment
payment agreement ("agreement") with Marlin in March 2016 to finance
defendant's acquisition of certain software and related services from non-party
Advanced Systems Group, Inc. ("ASG"). MSJ, Exh. l(A). The agreement
2017-28092-0025 Opinion, Page 2
required defendant, inter alia, to make 60 monthly payments of $1, 110.03 to
Marlin. Id. It also contained a disclaimer by Marlin of any liability relating to
the software defendant purchased from non-party ASG, and a provision
requiring that suits relating to the agreement be brought exclusively in
Pennsylvania state or federal court. Id. at ,i,i 4(a)-(c), 18.
Plaintiff brought the instant lawsuit in Montgomery County in December
2017, alleging defendant had defaulted on its payment obligation under the
agreement. The complaint alleged a balance owing of $50,050.42, which
included principal, late fees and interest as of November 30, 2017.
Defendant, through counsel, filed an answer to the complaint with new
matter. Plaintiff answered the new matter and later filed a motion for summary
judgment, which this court granted. Defendant appealed and produced a
statement of issues under Pennsylvania Rule of Appellate Procedure l 925(b).
II. ISSUES
Defendant's statement of issues, as recast here, appears to raise the
following issues:
1. Whether the product defendant obtained with
the financing provided by plaintiff did not work for its
intended purpose?
2. Whether Illinois law applies to this case?
3. Whether the case belongs in Illinois?
4. Whether, under Illinois law, plaintiff's
predecessor-in-interest had a duty to determine if the
product defendant purchased worked for its intended
use?
2
2017-28092-0025 Opinion, Page 3
5. Whether defendant received proper credit for
loan payments?
6. Whether fact issues preclude the entry of
summary judgment?
III. DISCUSSION
1. This court properly entered summary judgment in favor of
plaintiff.
A party may move for summary judgment "whenever there is no genuine
issue of any material fact as to a necessary element of the cause of action or
defense which could be established by additional discovery or expert report].]"
Pa. R.Civ.P. 1035.2(1). The Pennsylvania Superior Court further has explained
that:
[w]hen 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.
Wells Fargo Bank, N.A. v. Joseph, 183 A.3d 1009, 1012 (Pa. Super. 2018),
reargument denied (May 11, 2018) (citation omitted). "The party opposing the
motion for summary judgment must produce evidence essential to the cause of
action, without merely resting upon the allegations or denials in the pleadings."
Id. (citing Pa. R.Civ.P. 1035.3(a)).
The claims made by defendant in paragraphs two and three of its
statement of issues have been waived. Pa. R.A.P. 302 (issues not raised before
the trial court are waived on appeal). Defendant did not develop them in its
3
2017-28092-0025 Opinion, Page 4
answer to the motion for summary judgment or its one-page memorandum of
law.' Moreover, the parties' agreement expressly provides for jurisdiction in
Pennsylvania. Defendant has come forward with no evidentiary basis to
override that contractual agreement. As such, to the extent the issues are not
waived, they lack merit.
Similarly, the issues contained in paragraphs one and four fail for lack of
development. Defendant presented no basis in its opposition to the motion for
summary judgment for the proposition that plaintiffs predecessor had a duty
to investigate the product for which it was providing financing.
Defendant's last two issues may be read to challenge this court's
determination that no triable issue of fact exists. The summary judgment
record detailed above makes clear, however, that (1) plaintiff is the successor-
in-interest to Marlin, (2) Marlin extended financing to defendant for the latter's
acquisition of software and related services from third-party ASG, (3) Marlin
disclaimed any liability related to the purchase, (4) the parties agreed to have
suits related to the finance agreement heard in Pennsylvania and (5) defendant
breached its repayment obligation under the financing agreement, leaving an
amount due of $50,050.42 in principal, interest and late fees.
To the extent defendant asserts in its statement of issues that plaintiff
did not give it proper credit on payments made, the claim is waived because
1 While defendant filed a "Praecipe Notice of Illinois Law" on January 8, 2018, it
made no reference to Illinois Jaw whatsoever in its answer to the motion for
summary judgment or its memorandum of law. Indeed, defendant's scant
citations in its answer and memorandum were to Pennsylvania Superior Court
decisional law and Pennsylvania Rules of Civil Procedure.
4
2017-28092-0025 Opinion, Page 5
defendant did not make such an argument in its answer to the motion for
summary judgment or its memorandum of law. Moreover, defendant has not
come forward with evidence of which, if any, payments were not properly
credited. Indeed, in response to the allegation in plaintiffs complaint regarding
the amount due (Complaint, 12/4/ 17, ii 11), defendant merely asserted it was
not in default, and did not contest plaintiff's calculation of the amount due.
Finally, defendant contends this court could not grant summary
judgment based on its objections to plaintiffs requests for admissions. The
summary judgment record detailed above, including the pleadings and exhibits
attached to the complaint, makes clear plaintiffs entitlement to relief, even
without reference to defendant's responses to plaintiff's requests for
admissions.
III. CONCLUSION
Based upon the foregoing, the Order granting plaintiffs motion for
summary judgment should be affirmed.
Sent on i