Discover Bank v. Bagdis, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DISCOVER BANK C/O DB SERVICING IN THE SUPERIOR COURT OF
CORPORATION, PENNSYLVANIA
Appellee
v.
PAMELA M. BAGDIS,
Appellant No. 2274 EDA 2014
Appeal from the Order Entered July 11, 2014
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2013-21232
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 28, 2015
Appellant, Pamela M. Bagdis, appeals pro se from the court’s order
granting the motion of Appellee, Discover Bank c/o DB Serving Corporation,
and entering judgment against her in the amount of $2,269.62, plus interest
and costs. We affirm.
We take the following facts from our independent review of the record
and the trial court’s February 2, 2015 opinion. On November 9, 2012,
Appellee commenced an action in the magisterial district court against
Appellant as a result of her failure to pay the balance due on a Discover
credit card pursuant to the cardmember agreement. On June 14, 2013, the
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*
Retired Senior Judge assigned to the Superior Court.
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magisterial district judge (MDJ) entered judgment in Appellee’s favor, and
against Appellant, in the amount of $2,369.62 plus fees. Appellant had
failed to appear for the MDJ hearing, but timely filed an appeal de novo in
the trial court on July 8, 2013, and filed a contemporaneous praecipe for rule
to file complaint. Appellee filed a timely complaint on July 26, 2013, and
Appellant filed preliminary objections on September 30, 2013.
Thereafter, on October 8, 2013, [Appellee] filed an amended
complaint alleging causes of action for breach of contract,
account stated, and unjust enrichment against [Appellant] . . . .
[Appellant] filed preliminary objections to [Appellee’s] amended
complaint which [the] court dismissed by order [filed on]
January [27], 2014 [for her failure to file a supporting brief
pursuant to the Montgomery County local rules]. In addition to
dismissing [Appellant’s] preliminary objections, the court
ordered her to file an answer within twenty days. (See Order,
1/27/14). [Appellant] never filed an answer.
Instead, [twenty-seven days later,] on February 18, 2014,
[Appellant] filed a motion to reconsider seeking review of her
previously dismissed preliminary objections based on her claim
that she was unaware of local rules of procedure on which [the]
court had relied in dismissing her preliminary objections. The
court, in its discretion, denied [Appellant’s] motion to reconsider.
On March 10, 2014, [Appellee] filed a motion for judgment on
the pleadings. After argument and a thorough review of the
parties’ submissions[,] the [trial court] granted [Appellee’s]
motion for judgment on the pleadings by order [filed on] July
[11], 2014. [Appellant] filed a timely notice of appeal on August
6, 2014. Thereafter, on August 26, 2014, [Appellant] filed and
served . . . her concise statement of [errors] complained of on
appeal[,] [see Pa.R.A.P. 1925(b)], asserting that the court erred
in granting judgment to [Appellee] for a variety of reasons[. The
trial court filed its Rule 1925(a) opinion on February 2, 2015.]
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(Trial Court Opinion, 2/02/15, at 1-2) (footnotes omitted; case citation
formatting provided; emphasis, quotation marks, and some capitalization
omitted).
Appellant raises four issues for our review:
(I) Did [Appellee] comply with the rules for service to properly
establish in personam jurisdiction before the entry of judgment
against [Appellant]?
(II) Can [Appellee], a foreign corporation “doing business” in
the Commonwealth of Pennsylvania, initiate litigation in the
courts of the Commonwealth without a certificate of authority?
Or in the alternative, can an action be sustained by a
different party, DB Servicing Corporation, itself a foreign
corporation with respect to Pennsylvania, also operating without
a certificate of authority, when the captioned plaintiff, Discover
Bank, has no knowledge of the factual averments of the
complaint?
(III) Is it appropriate to enter judgment in favor of [Appellee]
when [Appellee] has not even established a prima facie cause of
action upon which any relief can be granted?
(IV) Is it an abuse of discretion for the court to dismiss a
motion for reconsideration, and then close the pleadings and
render judgment, especially when jurisdiction has not been
established?
(Appellant’s Brief, at 2-4) (some capitalization omitted).1
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1
The questions involved section of Appellant’s brief violates Pennsylvania
Rule of Appellate Procedure 2116(a), which provides that an appellate brief
“must state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.” Pa.R.A.P.
2116(a). Here, Appellant’s four questions span three pages because they
contain impermissible detail and argument. (See Appellant’s Brief, at 2-4).
(Footnote Continued Next Page)
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Our standard of review of a trial court’s grant of a motion for judgment
on the pleadings is well-settled:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on
the pleadings is similar to a demurrer. It may be entered when
there are no disputed issues of fact and the moving party is
entitled to judgment as a matter of law.
Appellate review of an order granting a motion for
judgment on the pleadings is plenary. The appellate court will
apply the same standard employed by the trial court. A trial
court must confine its consideration to the pleadings and
relevant documents. The court must accept as true all well
pleaded statements of fact, admissions, and any documents
properly attached to the pleadings presented by the party
against whom the motion is filed, considering only those facts
which were specifically admitted.
We will affirm the grant of such a motion only when the
moving party’s right to succeed is certain and the case is so free
from doubt that the trial would clearly be a fruitless exercise.
_______________________
(Footnote Continued)
We are cognizant of the fact that Appellant is proceeding pro se.
However:
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
Wilkins v. Marisco, 903 A.2d 1281, 1284-85 (Pa. Super. 2006), appeal
denied, 918 A.2d 747 (Pa. 2007) (citation omitted).
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S.W. Energy Prod. Co. v. Forest Resources, LLC, 83 A.3d 177, 185 (Pa.
Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014) (citation omitted).
Here, Appellant’s first two claims, that she was not properly served
and that Appellee could not litigate in the Commonwealth, (see Appellant’s
Brief, at 2-3), are improper issues in a motion for judgment on the pleadings
because they require the examination of issues outside of the pleadings.
See S.W. Energy, supra at 185.
Additionally, for the sake of completeness, we note that Appellant’s
claims challenging the court’s in personam jurisdiction, (see Appellant’s
Brief, at 10-17), are disingenuous and waived where she voluntarily
submitted herself to the court’s jurisdiction by filing an appeal de novo from
the MDJ’s judgment. Additionally, by filing an appeal de novo instead of a
petition for writ of certiorari, Appellant was precluded from challenging in the
trial court any alleged irregularities in the magisterial district court. (See id.
at 14-15); see also Gladstone Partners, L.P. v. Overland Enterprise,
Inc., 950 A.2d 1011, 1014-15 (Pa. Super. 2008). Further, any claim that
Appellee could not commence litigation for a debt because it is a foreign
corporation doing business without a certificate of authority, (see
Appellant’s Brief, at 17-22), lacks merit because “[a] foreign association is
not ‘doing business’ solely because it resorts to the courts of Pennsylvania to
recover an indebtedness[.]” 15 Pa.C.S.A. § 403, Committee comment.
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Moreover, to the extent that Appellant’s issues are meant as
challenges to the dismissal of her preliminary objections, (see Appellant’s
Preliminary Objections to Amended Complaint, 10/28/13, at unnumbered
pages 1-5), we observe that the court dismissed the preliminary objections
for Appellant’s failure to file a supporting brief. (See Order, 1/27/14); see
also Mont. Co. R.C.P. 1028(c)(1)(b)(2), (c)(4)(a) (court may dismiss
preliminary objections for failure to file a brief). We discern no error in the
court’s exercise of its discretion, and reiterate to Appellant that “any person
choosing to represent [her]self in a legal proceeding must, to a reasonable
extent, assume that [her] lack of expertise and legal training will be [her]
undoing.” Wilkins, supra at 1285 (citation omitted); see also Discover
Bank v. Stucka, 33 A.3d 82, 86 (Pa. Super. 2011) (standard of review for
decision on preliminary objections is for error of law). Also, the court
properly denied Appellant’s motion for reconsideration of the dismissal
because the one page motion merely stated that the preliminary objections
should not have been dismissed because she was proceeding pro se and
unaware of the local rules. (See Motion to Reconsider, 2/18/14, at 1); see
also Wilkins, supra at 1285. Therefore, Appellant’s first and second issues
do not merit relief.
In Appellant’s third claim, she alleges that Appellee “failed to establish
the elements of a prima facie case.” (Appellant’s Brief, at 22). This issue
lacks merit.
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It is well-settled that:
A complaint must apprise the defendant of the nature and
extent of the plaintiff’s claim so that the defendant has notice of
what the plaintiff intends to prove at trial and may prepare to
meet such proof with his own evidence. In a claim for breach of
contract, the plaintiff must allege that there was a contract, the
defendant breached it, and plaintiff[] suffered damages from the
breach.[2]
Rule 1019(i) of the Pennsylvania Rules of Civil Procedure
provides as follows:
(i) When any claim or defense is based upon a
writing, the pleader shall attach a copy of the
writing, or the material part thereof, but if the
writing or copy is not accessible to the pleader, it is
sufficient so to state, together with the reason, and
to set forth the substance in writing.
Pa.R.C.P. 1019(i).
Stucka, supra at 86-87 (case citations and quotation marks omitted).
Further, pursuant to Pennsylvania Rule of Civil Procedure 1029(b), the
failure to file a responsive pleading results in the admission of all material
facts in the complaint. See Pa.R.C.P. 1029(b).
Here, when the court dismissed Appellant’s preliminary objections to
Appellee’s amended complaint, it expressly ordered her to file an answer to
the amended complaint within twenty days. (See Order, 1/27/14).
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2
Although Appellee’s amended complaint also contained counts for account
stated and unjust enrichment, (see Amended Complaint, 10/08/13, at 5-6),
the court based its decision on its finding that Appellee established a claim
for breach of contract. (See Trial Ct. Op., at 4). Therefore, we confine our
analysis to that cause of action.
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Appellant failed to do so and, therefore, all material facts averred in the
amended complaint are deemed admitted. See Pa.R.C.P. 1029(b).
However, our inquiry does not end there, because we are required to
consider whether the material facts support a judgment in Appellee’s favor
as a matter of law. See S.W. Energy, supra at 185. We conclude that
they do.
The trial court found:
Th[e] admitted material facts are as follows: [Appellant], having
received the Cardmember Agreement and all of its terms and
conditions, accepted and used the Discover card issued by
[Appellee], and thereafter breached the Cardmember Agreement
by failing to pay a balance of $2,269.62. (See Amended
Complaint, 10/08/13, at 1-4, ¶¶ 1-14). In addition, [Appellee]
attached copies of [Appellant’s] executed application for a
Discover Card, as well as all of the Cardmember Agreements
applicable to [Appellant’s] account. (See id. at 3, ¶¶ 6-7; see
id. at Exhibits A and B). . . .
(Trial Ct. Op., at 4) (some citations omitted; record citation formatting
provided).
After our own independent review of the amended complaint and the
documents attached thereto, we agree with the court that Appellee
established a claim for breach of contract, see Stucka, supra, at 87, and
that “trial would [have been] a fruitless exercise.” (Trial Ct. Op., at 4).
Therefore, we conclude that the trial court properly granted Appellee’s
motion for judgment on the pleadings and entered judgment against
Appellant in the amount of $2,269.62, plus interest and costs. See S.W.
Energy, supra at 185. Appellant’s third issue does not merit relief.
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In her fourth issue, Appellant argues that the court abused its
discretion when it dismissed her preliminary objections, closed the pleadings
thereafter, and granted judgment to Appellee. (See Appellant’s Brief, at 26-
29). Appellant’s issue lacks merit.
As already noted, the Montgomery County Rules of Civil Procedure
granted the trial court the discretion to dismiss Appellant’s October 28, 2013
preliminary objections, which it properly did three months later on January
27, 2014. (See Order, 1/27/14). Additionally, we are not persuaded by
Appellant’s reliance on Stucka, because the case is factually distinguishable
to the one before us. (See Appellant’s Brief, at 27-28). In that case, the
trial court denied Discover Bank’s motion for reconsideration of an order
denying the bank the opportunity to file a second amended complaint to add
alternate theories of relief pursuant to Pennsylvania Rule of Civil Procedure
1033. See Stucka, supra at 88. In deciding that the trial court abused its
discretion, a panel of this Court focused on the permissive nature of
Pennsylvania Rule of Civil Procedure 1033, the fact that the second amended
complaint put the defendants on notice of the claims against them, and that
they would suffer no prejudice. See id. These facts are inapplicable to
those presented here.
Further, in spite of Appellant’s claim to the contrary, the pleadings
already were closed when Appellee filed its motion for judgment on the
pleadings on March 10, 2014 because she failed to file an answer to the
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amended complaint within twenty days of the court’s January 27, 2014 order
directing her to do so. (See id.). Finally, as discussed more fully above, we
conclude that the court properly granted judgment on the pleadings to
Appellee. Therefore, Appellant’s fourth issue lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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