Judges Opinions, — July 16, 2012 9:55 — 0 Comments

Capital One Bank vs. Nolt

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

CAPITAL ONE BANK (USA), NA, :

            Plaintiff,                                              :

                                                                        :          

            v.                                                         :           No. 2010-01519

                                                                        :

JODY A. NOLT,                                            :

            Defendant                                           :

 

ORDER OF COURT

            AND NOW, to wit, this 24th day of May, 2012, upon careful consideration of the outstanding applications currently before the Court for disposition at the above-stated action number, the legal memoranda lodged by the parties with regard to those applications, and the record of this case, we hereby Order as follows, consistent with the attached Opinion:

            I.          Plaintiff’s Preliminary Objections to Defendant’s Affirmative Defenses and Counterclaim pleading are sustained.  The Counterclaim portion of that pleading is dismissed with prejudice.

            II.        Defendant’s Motion to Compel is respectfully denied.

            III.       Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction is respectfully denied.

            IV.       Defendant’s Motion to Dismiss for Lack of Subject Matter or Territorial Jurisdiction is respectfully denied.

            V.        Defendant’s  Motion to Dismiss for Lack of Evidence is respectfully denied.

            VI.       Plaintiff’s Motion for Summary Judgment is granted.  The Prothonotary of Lebanon County is directed to enter judgment on behalf of Plaintiff and against Defendant in the principal amount of $16,268.68.

            VII.     Defendant’s Objection to Status Conference is respectfully denied as moot.

                                                                                    BY THE COURT:

 

                                                                                    ____________________________, P.J.

                                                                                    John C. Tylwalk

 

JCT/aa

pc:       James C. Warmbrodt, Esq. (Regular Mail at Weltman, Weinberg & Reis Co.,   L.P.A., 1400 Koppers Building, 436 Seventh Avenue, Pittsburgh, PA  15219)

            Jody A. Nolt (Regular Mail at P.O. Box 64, Kleinfeltersville, PA  17039)

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

CAPITAL ONE BANK (USA), NA, :

            Plaintiff,                                              :

                                                                        :          

            v.                                                         :           No. 2010-01519

                                                                        :

JODY A. NOLT,                                            :

            Defendant                                           :

 

APPEARANCES:

 

JAMES C. WARMBRODT, ESQUIRE                  For Plaintiff

Weltman, Weinberg & Reis Co., L.P.A.

 

PRO SE                                                                      For Defendant

 

OPINION BY TYLWALK, P.J., MAY 24, 2012:

            No fewer than seven (7) applications are pending before the Court for disposition in what at first blush appears to be a straightforward case in which Plaintiff is attempting to recover an alleged credit card debt from Defendant.  On June 28, 2010, Plaintiff filed a Complaint alleging that Defendant incurred a balance using a credit card issued by Plaintiff and that Defendant failed to make all payments when due.  Plaintiff sought judgment in the amount of $16,628.68 as of May 13, 2010, interest and costs.  On July 19, 2010, Defendant filed Preliminary Objections to the Complaint.  On August 20, 2010, Plaintiff filed an Amended Complaint.  On September 2, 2010, Defendant filed Preliminary Objections to the Amended Complaint.  Accordingly, on October 12, 2010, Plaintiff filed a Second Amended Complaint.[1]  On December 2, 2010, Defendant lodged Preliminary Objections to the Second Amended Complaint.  By Order and Opinion dated February 7, 2011, we overruled the Preliminary Objections lodged by Defendant and directed Defendant to file an Answer to the Second Amended Complaint within twenty (20) days.

On February 25, 2011, Defendant filed her Answer to the Second Amended Complaint consistent with this Court’s directive of February 7, 2011.  Over three (3) months later, on May 26, 2011, Defendant filed an “Affirmative Defenses and Counterclaim” pleading, essentially setting forth some boilerplate affirmative defenses and bringing claims against Plaintiff for multiple violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.  On June 16, 2011, Plaintiff filed Preliminary Objections to Defendant’s Affirmative Defenses and Counterclaim pleading.  On June 27, 2011, Defendant filed a Motion to Compel Plaintiff to provide her with a completed “validation letter.”  Further, on July 21, 2011, Defendant filed a “Motion to Dismiss on [the basis of] Lack of Subject Matter Jurisdiction.”  On September 19, 2011, Plaintiff filed a Motion for Summary Judgment.  On October 7, 2011, Defendant filed her response to Plaintiff’s Motion for Summary Judgment, as well as a “Motion to Dismiss for Lack of Subject Matter or Territorial Jurisdiction.”  On October 21, 2011, Defendant filed a “Motion to Dismiss for Lack of Evidence.”  On November 4, 2011, Plaintiff filed a Praecipe for Status Conference, to which Defendant filed an Objection on November 23, 2011.

All of the above-stated applications have been listed for disposition through Argument Court.  The parties have filed legal memoranda setting forth their respective positions as to these applications, and they now are ripe for this Court’s disposition.

 

 

I.  Plaintiff’s Preliminary Objections to Defendant’s Affirmative Defenses and Counterclaim Pleading.

 

Plaintiff filed Preliminary Objections to Defendant’s Affirmative Defenses and Counterclaim pleading on several bases.  First, Plaintiff argues that this pleading fails to conform to law or to rule of court because Defendant filed it without seeking leave of court or Plaintiff’s consent and failed to verify it.  Any party may file a preliminary objection to a pleading on the basis that the pleading fails to conform to law or to rule of court.  Pa.R.C.P. Rule 1028(a)(2).  An answer to a pleading must be filed within twenty (20) days after service of the pleading.  Pa.R.C.P. Rule 1026(a).  Pa.R.C.P. Rule 1031(a) provides that a defendant may set forth in his or her answer under the heading “counterclaim” any cause of action cognizable in a civil action that the defendant has against the plaintiff at the time of filing the answer.

The procedures for amending an existing pleading are set forth at Pa.R.C.P. Rule 1033, which provides, in relevant part:

“A party, either by filed consent of the adverse party or by leave of court, may at                                   any time change the form of action, correct the name of a party or amend his                                    pleading.  The amended pleading may aver transactions or occurrences which                             have happened before or after the filing of the original pleading, even though they                     give rise to a new cause of action or defense.”

 

Leave to amend a pleading lies within the sound discretion of the trial court, and the right to amend should be granted liberally at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party.  Werner v. Zazyczny, 681 A.2d 1331, 1338 (Pa. 1996), citing Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983).  Although amendments of pleadings shall be allowed liberally, all of the formal requirements have not been abandoned.  Jackson v. Richards 5 & 10 Inc., 433 A.2d 888, 891 n. 4 (Pa.Super. 1981).  A formal motion requesting leave of court to amend is required.  Id.  It is not an abuse of the trial court’s discretion to enforce the rules of civil procedure, as the rules are essential to the orderly and equal administration of justice.  Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 344 (Pa. 1995).

Pa.R.C.P. Rule 1024(a) provides that every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signor’s personal knowledge, information or belief.  Before dismissing a pleading on the basis of a defective verification, the Court should afford the pleader the ability to amend the pleading.  Lewis v. Erie Ins. Exch., 421 A.2d 1214, 1217 (Pa.Super. 1980).

In this case, Defendant timely filed her Answer to Plaintiff’s Second Amended Complaint.  Over three (3) months after filing her Answer and after the permissible timeframe afforded by the Court in our Order of February 7, 2011 had expired, Defendant filed her Affirmative Defenses and Counterclaim pleading.  Defendant filed this pleading without obtaining consent from Plaintiff or seeking leave of court to amend her Answer.  Even in response to Plaintiff’s Preliminary Objections, Defendant has not requested that this Court allow her to amend her Answer.  Further, Defendant failed to append a signed verification to the pleading.  There is no question that the Affirmative Defenses and Counterclaims pleading fails to conform to law or to rule of court on the bases alleged by Plaintiff.  While Plaintiff correctly and appropriately recognizes the deficiencies of the Affirmative Defenses and Counterclaim pleading, we ordinarily would sustain the Preliminary Objections and would afford Defendant leave to file a motion seeking permission to amend her Answer to include the Counterclaim and to provide a proper verification to her pleading, should the amendment be granted by the Court.  Such a directive would be consistent with the policy of liberally allowing amendment of pleadings and would afford Plaintiff the opportunity to establish any prejudice it would suffer if amendment were permitted.

However, amendment of a pleading should be withheld if there is no reasonable possibility that the amendment will be successful.  Spain v. Vicente, 461 A.2d 833, 837 (Pa.Super. 1983), citing Mace v. Senior Adult Activities Ctr. of Montgomery County, 423 A.2d 390, 391 (Pa.Super. 1980).  Allowing amendment that has no reasonable possibility of affording relief would be futile, would cause delay, and would waste the resources of the Court and the opposing party in having to defend against the proposed amendment.  Noll by Noll v. Harrisburg Area YMCA, 643 A.2d 81, 84 (Pa. 1994), citing Tanner v. Allstate Ins. Co., 467 A.2d 1164, 1167 (Pa.Super. 1983).

In the Counterclaim portion of this pleading, Defendant alleges that Plaintiff violated the FDCPA.  The FDCPA seeks to eliminate abusive debt collection practices by debt collectors.  Schaffhauser v. Citibank (South Dakota) N.A., 2007 WL 2815728 * 3 (M.D.Pa. 2007), citing 15 U.S.C. § 1692(e).  To curb such abuses, the FDCPA imposes liability for certain acts taken by debt collectors and creditors.  Id.  A creditor who seeks to collect a debt in its own name and whose principal business is not debt collection is not subject to the FDCPA.  Schaffhauser at * 3, citing Aubert v. Am. Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir. 1998).

Defendant alleges Plaintiff, largely through the actions of Plaintiff’s counsel, violated the FDCPA in attempting to collect the debt alleged.  However, Plaintiff extends credit to its cardholders and collects debts that are owed by its cardholders.  Therefore, Plaintiff is attempting to collect a debt that it is alleging is owed to Plaintiff, not to a third party.  Further, Plaintiff’s principal business is providing credit services, not debt collection services.  As such, Plaintiff is not subject to the requirements of the FDCPA.  Accordingly, even accepting Defendant’s allegations in her Affirmative Defenses and Counterclaim pleading as true, Defendant cannot recover against Plaintiff as a matter of law based upon FDCPA violations.

Further, Defendant alleges in the most part that it was the action of Plaintiff’s counsel, not that of Plaintiff itself, that violated the FDCPA.  However, Plaintiff’s counsel is not a captioned party in this case.  Rather, Plaintiff’s counsel is representing Plaintiff in the within attempt to collect the debt alleged to be owed to Plaintiff.  Plaintiff’s counsel is not acting on its own behalf or in its own name to recover its own debt.  The allegations Defendant makes pertaining to Plaintiff’s counsel are legally and factually insufficient to establish Plaintiff’s liability for FDCPA violations even if Plaintiff were subject to the FDCPA.

Additionally, in count I of Defendant’s Counterclaim, she includes a boilerplate allegation that Plaintiff violated the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), 73 P.S. § 2270.1 et seq.  Defendant alleges almost as an afterthought that Plaintiff violated both the FDCPA and § 2270.4(b)(5)(ii) of the FCEUA by falsely representing the character, the amount or legal status of the debt.  Defendant avers in support of both violations:  “Plaintiff alleged that there was a debt owing, but failed to evidence the character, amount or legal status of the alleged debt.”

Fashioned after the FDCPA, Pennsylvania’s FCEUA prohibits unfair methods of competition and unfair or deceptive practices regarding the collection of debts.  Sherk v. Countrywide Home Loans, Inc., 2009 WL 2412750 * 7 (E.D.Pa. 2009), citing 73 P.S. § 2270.2.  The FCEUA is Pennsylvania’s counterpart to the FDCPA.  Sherk at * 7, citing Gigli v. Palisades Collection, L.L.C., 2008 WL 3853295 * 11 (M.D.Pa. 2008).  Defendant offers no factual allegations in support of a FCEUA violation independent of its allegations as to the FDCPA violations alleged.  Boilerplate FCEUA violations fail as a matter of law for the same reasons that FDCPA violations fail. Bolick v. DRS Services, LLC, 2011 WL 4359987 * 2 n. 26 (E.D. Pa. 2011), citing Sherk at * 7.  Additionally, while Defendant alleges in support of both her FDCPA and FCEUA violations that Plaintiff failed to evidence the character, the amount and the legal status of the debt, Defendant makes no factual allegations as to the manner in which Plaintiff falsely represented any of these matters.  A failure to evidence is not the same as falsely evidencing.  For all of these reasons, affording Defendant leave to file a motion to amend her Answer to include the Counterclaims sought would be an exercise in futility, as it would present no reasonable chance of success.  Accordingly, we will sustain Plaintiff’s Preliminary Objections to Defendant’s Affirmative Defenses and Counterclaim pleading and will dismiss the Counterclaim portion of that pleading with prejudice. [2]

II.  Defendant’s Motion to Compel Discovery.

In Defendant’s Motion to Compel Discovery, Defendant avers that she sent a letter to Plaintiff on April 5, 2011 requesting that Plaintiff produce a “validation letter.”  Defendant also avers that she asked Plaintiff to complete a disclosure request form that was sent with her letter.  Defendant argues that Plaintiff failed to respond to her request for discovery within the required timeframe under the FDCPA.

As explained above, Plaintiff is not subject to the FDCPA.  As such, any timeframes referenced in the FDCPA are not applicable in this case.  Pa.R.C.P. Rule 4005(a) provides that any party may serve on any other party written interrogatories.  Pa.R.C.P. Rule 4009.1 permits any party to serve a request on another party to produce designated documents.  Pa.R.C.P. Rule 4009.11(b) sets forth requirements for requests for production of documents:

“The request shall set forth in numbered paragraphs the items to be produced                            either by individual item or by category, and describe each item or category with                          reasonable particularity.  Each paragraph shall seek only a single item or a single                                   category of items.  The request shall be prepared in such fashion that sufficient                                 space is provided immediately after each paragraph for insertion of the answer.”

 

On motion of a party, the Court may make an appropriate order if a party in response to a request for production or inspection of a document fails to produce or to permit inspection of the document.  Pa.R.C.P. Rule 4019(a)(vii).

In this case, Defendant sent a letter to Plaintiff requesting that Plaintiff produce a “validation letter” and complete and return an attached disclosure request form. The letter was not captioned as “interrogatories” or “request for production of documents,” nor did the letter make any reference to “interrogatories” or “request for production of documents.”  Since the letter opens by thanking Plaintiff’s counsel for its recent inquiry and by directing Plaintiff counsel’s to limit its communication with her to writing only, the letter actually appears to be a response from Defendant to a communication by Plaintiff’s counsel as opposed to requests for discovery.  The letter does not advise Plaintiff of the timeframe in which it is required to return its responses, nor does it advise Plaintiff of the potential consequence of failing to respond within a designated timeframe.  The letter fails to comply with the Pennsylvania Rules of Civil Procedure relating to discovery requests so significantly that it cannot be reasonably construed as a request for discovery.  This is especially so in light of the fact that the same letter by which Defendant requests information from Plaintiff also advised Plaintiff, “Be advised that you have the right to remain silent.”  Since the letter cannot be construed as a request for discovery subject to the Rules of Civil Procedure to which Plaintiff has failed to respond, we will deny Defendant’s Motion to Compel Discovery.

III.  Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Defendant argues in her Motion to Dismiss for Lack of Subject Matter Jurisdiction that Plaintiff’s counsel is a debt collector who is required to validate debt under the FDCPA.  Defendant again re-hashes the manner in which Plaintiff’s counsel have violated the FDCPA.  Defendant does not explain why she believes we have no subject matter jurisdiction over Plaintiff’s claims.

Defendant filed Preliminary Objections to the Second Amended Complaint, asserting that this Court lacks jurisdiction over Plaintiff’s claims.  We overruled those Preliminary Objections by Order and Opinion of February 7, 2011.  Defendant cannot attempt to re-litigate this issue by re-presenting it in an independent motion.  Further, as we explained in our Opinion of February 7, 2011, jurisdiction over the subject matter of a case relates to the competency of a court to hear and to determine controversies of the general nature of the matter involved.  Fraisar v. Gillis, 892 A.2d 74, 77 (Pa.Cmwlth. 2006), citing McGinley v. Scott, 164 A.2d 424, 427 (Pa. 1960).  The fact that a court of common pleas is competent to handle the general class of case allows a finding of subject matter jurisdiction regardless of whether the Court ultimately grants relief in the case.  Hade v. Nationwide Ins. Co., 503 A.2d 980, 981 (Pa.Super. 1986) (overruled on other grounds), citing Schifano v. Schifano, 471 A.2d 839, 843 (Pa.Super. 1984).  Courts of Common Pleas in this Commonwealth have the ability to adjudicate a claim that a party failed to pay a debt incurred using a credit card.  Defendant offers no legal authority whatsoever for the proposition that Pennsylvania’s Courts of Common Pleas are not competent to adjudicate such a claim.  In fact, Defendant offers no argument whatsoever that we have no subject matter jurisdiction over Plaintiff’s claims.  Accordingly, we will deny Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction.

IV.    Defendant’s Motion to Dismiss for Lack of Subject Matter or Territorial Jurisdiction.

In this Motion to Dismiss, Defendant argues that Plaintiff is outside of its jurisdiction to bring this action in the Commonwealth of Pennsylvania.  Defendant argues that Plaintiff is a Virginia corporation with its principal place of business in Virginia.  Defendant also argues that the credit card agreement, which she acknowledges she has received, indicates that the agreement is to be construed according to Virginia law.  On these bases, Defendant argues that this Court has no jurisdiction over Plaintiff.  Defendant again asserts that Plaintiff’s counsel is a debt collector and acting in violation of the FDCPA.

Again, Defendant lodged a Preliminary Objection to the Second Amended Complaint challenging the jurisdiction of this Court over Plaintiff’s claims.  We overruled that Objection by Order and Opinion of February 7, 2011.  Defendant is attempting to re-litigate an issue we have already addressed.

Additionally, 42 Pa.C.S. § 5322(e) permits a Pennsylvania court to dismiss a matter when the interests of substantial justice call for the case to be heard in a forum outside of Pennsylvania.  Terra Equities, Inc., v. First Am. Title Ins. Co., 2000 WL 33278212 * 3 (Pa.Com.Pl. 2000).  Pa.R.C.P. Rule 1006, which governs changes of venue within Pennsylvania, and § 5322(e) are derived from the common law doctrine forum non conveniens, such that legal authority addressing Rule 1006 is relevant to addressing whether the interests of substantial justice call for a case to be heard in a forum outside of Pennsylvania.  Terra Equities, Inc., at * 3, citing Jones v. Borden, Inc., 687 A.2d 392, 394 (Pa.Super. 1996).

It is well-settled that a plaintiff’s choice of forum is given great weight.  Terra Equities, Inc., at * 5, citing Shears v. Rigley, 623 A.2d 821, 824 (Pa.Super. 1993).  Dismissal of an action based upon forum non conveniens first requires that the defendant establish that there is an alternative forum available to the plaintiff.  Terra Equities, Inc., at * 4, citing Farley v. McDonnell Douglas Truck Services, Inc., 638 A.2d 1027, 1030 (Pa.Super. 1994).  If the defendant establishes the existence of an alternative forum available to the plaintiff, the defendant has the burden of demonstrating that the plaintiff’s choice of forum is vexatious or oppressive.  Terra Equities, Inc., at * 4, citing Dulaney v. Consolidated Rail Corp., 715 A.2d 1217, 1219 (Pa.Super. 1998).

In this case, it appears that Defendant is asserting that the appropriate forum in which to have Plaintiff’s claims litigated would be Virginia because Plaintiff is a Virginia corporation and the credit card agreement specifies it is to be interpreted pursuant to Virginia law.  However, the fact that a plaintiff is not a resident of the forum it chose for its action is irrelevant to a forum non conveniens determination.  Walls v. Phoenix Ins. Co., 979 A.2d 847, 851 (Pa.Super. 2009), citing Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264 (Pa.Super. 2004).  Since the law affords a plaintiff a choice of where to file suit, it is understood that a plaintiff considered his or her inconvenience before choosing a forum in which to litigate, and the Court may not abrogate that choice lightly.  Id.

While the Commonwealth of Virginia may have been an alternative forum available to Plaintiff to pursue its claims against Defendant, Defendant has not carried her burden of establishing the availability of that forum to Plaintiff to pursue its claims in light of the fact that Defendant lives in Pennsylvania and likely obtained and utilized the credit card from her home state of Pennsylvania.  Moreover, Defendant has not provided any allegations, much less evidence, that Plaintiff’s choice to lodge its claims in Pennsylvania was designed to harass Defendant or is in any way oppressive to Defendant.  For all of these reasons, we will deny Defendant’s Motion to Dismiss for Lack of Subject Matter or Territorial Jurisdiction.

V.  Defendant’s Motion to Dismiss for Lack of Evidence.

In Defendant’s Motion to Dismiss for Lack of Evidence, Defendant argues that Plaintiff failed to attach a copy of an assignment to prove that it is the owner of the account it is attempting to collect.  Further, Defendant argues that Plaintiff failed to produce the signed cardholder agreement and questions the authenticity of the credit card agreement.

Again, Defendant previously presented a Preliminary Objection to the Second Amended Complaint asserting that Plaintiff was not the real party in interest.  We overruled that Preliminary Objection, and Defendant will not be permitted to attempt to re-litigate this issue.  Further, Plaintiff alleges that it issued the credit card in question to Defendant.  Therefore, it is not alleged that Plaintiff acquired an interest in the account through an assignment.  With regard to Defendant’s assertion that Plaintiff failed to attach a signed cardholder agreement to the Second Amended Complaint, she did not file a Preliminary Objection on this issue and thus did not preserve it.  Regardless, this Court previously has held that Pa.R.C.P. Rule 1019(i) does not require that a writing attached to a pleading that is alleged to form the basis for a claim contain the signatures of the parties.  Rather, Rule 1019(i) merely requires that a copy of the writing forming the basis for the claim, or the material part thereof, be attached to the pleading.  CACH v. Abbott, L.C.C.C.P. No. 2008-00409 * 7 (September 7, 2010).  For all of these reasons, we will deny Defendant’s Motion to Dismiss for Lack of Evidence.

VI.  Plaintiff’s Motion for Summary Judgment.

In its Motion for Summary Judgment, Plaintiff argues that Defendant’s Answer to the Second Amended Complaint is comprised of general denials that render the allegations of the Second Amended Complaint admitted.  Further, Plaintiff argues that the responses provided by Defendant to Requests for Admissions fail to fairly meet the substance of the requested admission and should be deemed admitted as a result.  Plaintiff submits that in light of the admissions resulting from Defendant’s Answer to the Second Amended Complaint and Requests for Admissions, no genuine issue of material fact remains for trial.

Pa.R.C.P. Rule 1035.2 delineates instances in which a party may move for summary judgment.  Rule 1035.2 provides:

“After the relevant pleadings are closed, but within such time as not to                                        unreasonably delay trial, any party may move for summary judgment in whole or                                    in part as a matter of law

 

(1) 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, or

 

(2) if, after the completion of discovery relevant to the motion, including the                                production of expert reports, an adverse party who will bear the burden of proof at                         trial has failed to produce evidence of facts essential to the cause of action or                                  defense which in a jury trial would require the issues to be submitted to a jury.”

 

Accordingly, the entry of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file indicate that no genuine issue of material fact exists for trial.  Atkinson v. Haug, 622 A.2d 983, 985 (Pa.Super. 1993), citing Penn Ctr. House, Inc., v. Hoffman, 553 A.2d 900, 903 (Pa. 1989).

Further, Pa.R.C.P. Rule 1035.3 requires that an adverse party to a motion for summary judgment file a response to the motion for summary judgment.  Rule 1035.3 provides, in relevant part:

“(a)…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

 

(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.”

 

Therefore, when a motion for summary judgment is made and supported, the adverse party may not rest on allegations or denials of his or her pleadings but must set forth in his or her response specific facts in dispute.  Kniaz v. Benton Borough, 642 A.2d 551, 553 (Pa.Cmwlth. 1994).  The purpose of this rule is to allow the moving party to “pierce the pleadings” and thus require the non-moving party to disclose the facts supporting his or her defense.  Elder v. Nationwide Ins. Co., 599 A.2d 996, 1000 (Pa.Super. 1991), citing Samarin v. GAF Corp., 571 A.2d 398, 402 (Pa.Super. 1989).

In considering a motion for summary judgment, the Court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings and give her the benefit of all reasonable inferences drawn from those well-pleaded facts.  Atkinson at 985, citing Larsen v. Philadelphia Newspapers, Inc., 602 A.2d 324, 327 (Pa.Super. 1991).  The Court must ignore controverted facts contained in the pleadings and restrict its review to material filed in support of and in opposition to a motion for summary judgment and to those allegations in the pleadings that are controverted.  Atkinson at 985, citing Overly v. Kass, 554 A.2d 970, 972 (Pa.Super. 1989).  The mere fact that a party fails to submit counter-affidavits does not automatically render summary judgment appropriate.  Rather, it is preliminarily imperative that the record dispel the existence of any genuine issues of fact.  Atkinson at 986, citing Knecht v. Citizens & Northern Bank, 528 A.2d 203, 206 (Pa.Super. 1987).  The Court must resolve all doubts against the moving party and examine the record in the light most favorable to the nonmoving party.  Summary judgment may be granted only in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.  Bullman v. Giuntoli, 761 A.2d 566, 569 (Pa.Super. 2000), citing Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa.Super. 1998).

In support of its Motion for Summary Judgment, Plaintiff argues that Defendant has admitted the allegations of the Second Amended Complaint by virtue of her responses in her Answers to the Second Amended Complaint and the Requests for Admissions.  While Plaintiff does not indicate the theory of recovery upon which it seeks relief in count I of the Second Amended Complaint, it appears that the allegations set forth therein potentially could provide relief pursuant to a Breach of Contract theory of liability. [3]  To recover pursuant to a cause of action in Breach of Contract, a plaintiff must prove the following elements: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages.  Corestates Bank, N.A., v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super. 1999).  Accordingly, we must examine the record in the light most favorable to Defendant to determine whether any genuine issues of material fact exist regarding Plaintiff’s entitlement to judgment on this basis.

We first examine the pleadings to determine whether there are any uncontroverted facts established therein.  Pa.R.C.P. Rule 1029 delineates the requirements of a responsive pleading and the effect of failing to respond appropriately to a pleading.  Rule 1029 provides, in relevant part:

“(a) A responsive pleading shall admit or deny each averment of fact in the                                 preceding pleading or any part thereof to which it is responsive….

 

(b) Averments in a pleading to which a responsive pleading is required are                                 admitted when not denied specifically or by necessary implication.  A general                               denial or a demand for proof, except as provided by subdivisions (c) and (e) of                                   this rule, shall have the effect of an admission.[4]

 

(c) A statement by a party that after reasonable investigation the party is without                                    knowledge or information sufficient to form a belief as to the truth of an averment                       shall have the effect of a denial.”

 

(Footnote added).  Therefore, pursuant to Rule 1029(b), a party filing an answer to a complaint must specifically, or by necessary implication, deny all factual averments in the complaint unless the party is able to invoke an exception pursuant to Rule 1029(c).  Cercone v. Cercone, 386 A.2d 1, 3-4 (Pa.Super. 1978), citing Stimely v. Dutchmen Mobile Homes, 361 A.2d 733, 736 (Pa.Super. 1976).  If a responder fails to make a specific denial of a factual averment, the responder will be deemed to have admitted the factual averment.  Cercone at 4.

In her Answer, Defendant admits her identity and address.  (Answer at paragraph 2).  To the allegation that Defendant applied for and received a credit card issued by Plaintiff that is governed by the written credit card agreement attached to the Second Amended Complaint that required her to pay the minimum amount due by the date stated on monthly payment coupons, Defendant replies that she is not in possession of any debt instruments, that Plaintiff must prove the debtor-creditor relationship, the allegations are conclusions of law that are denied and objects to the authenticity of the attachments.  (Answer at paragraphs 4, 5).  These allegations are not conclusions of law to which no response was required.  To the contrary, whether Defendant applied for and was issued a credit card by Plaintiff that was governed by the terms of the written agreement Plaintiff attached to the Second Amended Complaint are issues of fact to which specific responses were required.  These are matters of which Defendant has or should have knowledge.  Apart from Plaintiff, Defendant arguably is the only party who would know whether she, in fact, applied for and received a credit card from Plaintiff and whether that credit card was governed by the writing attached to the Second Amended Complaint.  New York Guardian Mortgage Corp., v. Dietzel, 524 A.2d 951, 952 (Pa.Super. 1987).

To the allegation that Defendant used the account to purchase goods, merchandise and services, Defendant responds that the allegation is a conclusion of law to which no response is required and denies being in default to Defendant in any amount.  (Answer at paragraph 6).  The allegation is not a conclusion of law to which no response was required.  Further, the denial of default in any amount is not responsive to the allegation that Defendant used the account to make any purchases.  Again, Defendant is one of the only individuals who would know or should know whether or not she used the credit card to make any purchases.

The Second Amended Complaint alleges that correct copies of account statements from June 6, 2008 until August 5, 2009 are attached to the Second Amended Complaint, to which Defendant responds that the allegations are conclusions of law to which no response was required, denies the allegation and objects to the authenticity of the statements.  (Answer at paragraph 7).  Similarly, whether any or none of the charges contained upon the statements are correct as presented is a factual matter to which a specific response was required.  Plaintiff further averred in the Second Amended Complaint that Defendant made a last payment on the account on January 28, 2009 of $500.00.  Defendant denies being in default to Plaintiff and denies owing Plaintiff any amount and denies the allegations as conclusions of law.  (Answer at paragraph 9).  However, Defendant’s denial provides no indication whatsoever as to whether or not she made a last payment on the account on January 28, 2009 of $500.00.  Again, this is information of which Defendant has or should have knowledge.  To the allegation that the outstanding balance due and owing on the account as of August 5, 2009 was $16,367.11, Defendant responds that the allegation is a conclusion of law, that she does not have sufficient knowledge or information to answer this allegation, and she denies any indebtedness of $16,367.11.  (Answer at paragraph 11).  However, the outstanding balance, if any, is a factual issue to which a specific response was required.  While Defendant denies any indebtedness of $16,367.11, Defendant fails to provide any information regarding the balance that she believes is outstanding, if any.  Although Defendant denies being in default to Plaintiff in any amount and denies owing Plaintiff any amount various places in her Answer to the Second Amended Complaint, Defendant provides no factual information whatsoever in support of her denials, such as whether there is no amount due and no outstanding debt owing because she never received and used the credit card or she made all payments as due on the credit card leaving no outstanding balance.  We are constrained to conclude that Defendant’s general denials to specific factual allegations of the Second Amended Complaint have resulted in the admission of these facts, including the existence of a contract, its essential terms, a breach of the contract and resultant damages.

We note that Defendant raises several affirmative defenses in her Affirmative Defenses pleading, therein asserting that Plaintiff lacks standing and the capacity to sue, the Complaint fails to state a claim upon which relief may be granted and Plaintiff has come to Court with unclean hands.  An affirmative defense requires the averment of facts extrinsic to a plaintiff’s claim for relief.  Coldren v. Peterman, 763 A.2d 905, 908 (Pa.Super. 2000), citing Falcione v. Cornell Sch. Dist., 557 A.2d 425, 428 (Pa.Super. 1989).  Defendant failed to aver any facts in support of her boilerplate affirmative defenses.  Her failure to substantiate her boilerplate conclusions of law with any factual allegations is insufficient to create any controverted issues of fact for trial.

Plaintiff also argues that Defendant’s responses to Requests for Admission have resulted in the admission of the requisite facts entitling Plaintiff to relief.  In this case, Plaintiff served a second Request for Admissions and Request for Production of Documents upon Defendant, seeking admission or denial of facts relevant to this action, including whether Defendant received an attached solicitation offer for the credit card in question, whether she responded to the solicitation via telephone, whether she resides at the address listed on attached statements of account, whether the purchases and payments reflected on attached account statements are correctly identified, whether she made no payment on the credit card account since January 28, 2009, whether she submitted any written dispute to the accuracy of the billing, whether she owns the checking account upon which various attached checks were drawn making payments on the account, whether those attached checks bear her signature and whether the balance of the account as stated is correct.

Defendant filed a response to the request for admissions, asserting that she denies and objects to the requests on the bases that they are outside of the scope of permissible discovery, the information sought is irrelevant and is not reasonably calculated to lead to the discovery of admissible evidence, the requests are compound in nature, the requests are sought in bad faith and would cause unreasonable annoyance, embarrassment, oppression, burden and expense to Defendant and Plaintiff failed to respond to a validation.  We view these responses as objections, as opposed to answers, to the Requests for Admissions.  The information sought in the Requests for Admissions clearly is relevant to Plaintiff’s claims against Defendant, and under no circumstance to we deem the request for admissions regarding this information improper or inappropriate.  As such, Defendant’s objections to providing answers to the Requests for Admissions are without merit.  However, these objections do not result in the admission of the factual allegations set forth in the requests as suggested by Plaintiff.  Normally, we would overrule the objections and direct Defendant to provide full and complete responses to all of the requests for admissions within a specified timeframe.  However, in light of the fact that Defendant has admitted the requisite matters to entitle Plaintiff to relief under a Breach of a
Contract theory of liability by virtue of her general denials in her Answer, it would be a fruitless exercise to provide Defendant with another opportunity to provide responses to the requests for admission on matters that already have been established.

Finally, in response to Plaintiff’s Motion for Summary Judgment and the uncontroverted matters established in the pleadings, Defendant filed an Answer to that Motion on October 7, 2011 objecting to the Motion on the bases that Plaintiff is outside of its jurisdiction to bring the cause of action, Plaintiff has failed to aver an action for an account stated and there is no “wet ink contract.”  Defendant has produced no affidavits, depositions, admissions or answers to interrogatories supporting the existence of any genuine issues of fact for trial.  In fact, Defendant identifies no facts of record, in her Response to the Motion for Summary Judgment or otherwise, upon which we can conclude that any genuine issue of material fact remains.

Viewing the record in the light most favorable to Defendant, the uncontroverted allegations of the pleadings and the record of this case establish the existence of a contract, including its essential terms, a breach of that contract and resultant damages.  Accordingly, Plaintiff is entitled to judgment as a matter of law.  We will grant Plaintiff’s Motion for Summary Judgment and will direct that the Prothonotary of Lebanon County enter judgment on behalf of Plaintiff and against Defendant in the principal amount of $16,268.68.[5]

 

 

VII.  Defendant’s Objection to Status Conference.

In light of our disposition of Plaintiff’s Motion for Summary Judgment, the Objection to Status Conference lodged by Defendant will be denied as moot.

We will enter an appropriate Order.



[1] The Second Amended Complaint seeks judgment in the principal amount of $16,367.11 as of August 5, 2009.  Plaintiff’s later Motion for Summary Judgment seeks judgment in the principal amount of $16,268.68 as of June 28, 2010.

[2] The Affirmative Defenses part of the pleading consists of boilerplate affirmative defenses and conclusions of law, some of which reflect allegations made in Defendant’s Answer to the Second Amended Complaint.  Accordingly, we will not strike that portion of the Affirmative Defenses pleading and will view it as a supplement to Defendant’s Answer to the Second Amended Complaint.

 

[3] In count II of the Second Amended Complaint, Plaintiff seeks to recover under an Unjust Enrichment theory of liability.  An Unjust Enrichment claim requires proof of benefits conferred on a defendant by the plaintiff, appreciation of the benefits by the defendant and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.  Stoeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 833 (Pa.Super. 2008), citing Styer v. Hugo, 619 A.2d 347, 350 (Pa.Super. 1993).  Unjust enrichment is inapplicable if a written or express contract exists.  DTK Ventures, L.P., v. Russo, 2006 WL 2988463 * 7 (Pa.Com.Pl. 2006), citing Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super. 1999).  However, a plaintiff is free to pursue alternative theories of recovery, including claims for breach of contract and unjust enrichment.  Gonzalez v. Old Kent Mortgage Co., 2000 WL 1469313 * 6 (E.D.Pa. 2000).  Since we find below that no genuine issue of material fact exists regarding the fact that a written contract exists between the parties, Plaintiff cannot recover pursuant to an Unjust Enrichment theory of liability.

[4] Rule 1029(e) involves responsive pleading to an action seeking monetary relief for bodily injury, death or property damage and is not implicated in the within action to recover a credit card debt.

[5] We recognize that uncontroverted allegations of the pleadings established an account balance of $16,367.11 as of August 5, 2009.  Since Plaintiff’s Motion for Summary Judgment requests entry of judgment in the principal amount of $16,268.68 as of June 28, 2010, we award judgment in that lesser principal amount.  Additionally, while Plaintiff sought interest and costs in its Second Amended Complaint, Plaintiff does not request an award of interest or costs in its Motion for Summary Judgment.  Accordingly, our Order will not include an award of interest or costs.

 

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