Ridesafely.com, Inc. v. Thiam, A. ( 2015 )

J-S21040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RIDESAFELY.COM, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALIOUNE THIAM,
Appellant No. 2867 EDA 2014
Appeal from the Order Entered September 25, 2014
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 14030661
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JUNE 18, 2015
Appellant, Alioune Thiam, appeals pro se from the order denying his
petition to open or strike a confessed judgment entered against him by
Appellee, RideSafely.com, Inc. We affirm.
Appellant is a resident of Minnesota. He is a software engineer with
more than fifteen years’ experience, and currently is the senior principal
software engineer at Symantec Corporation, by whom he has been
employed for over ten years. Appellee is a corporation that operates a
website as a broker to allow the public to participate in auto auctions with
Insurance Auto Auction, Inc. On April 30, 2013, Appellant placed a bid on
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S21040-15
Appellee’s website for the purchase of a vehicle. The purchase order
agreement (Agreement) was signed the same day1 as a prerequisite to
registering with the website and placing the bid, and Appellant was notified
on May 1, 2013 that he was the highest bidder. On May 3, 2013, Appellant
paid for the vehicle in full.
The Agreement contained a choice of venue clause which required that
the parties litigate any issues arising under the Agreement in Philadelphia
County, Pennsylvania. Specifically, paragraph two of the Agreement stated:
Choice of Law and Forum─The undersigned hereby agrees that,
any and all litigation arising out of this Agreement, order,
transaction[,] which involves in any way [Appellee] and/or its
affiliates shall be litigated in the Commonwealth of Pennsylvania
and under the laws of Pennsylvania with the agreed upon venue
being Philadelphia County. See paragraph 17 for detailed
description of penalties arising out of the breach of this
paragraph.
(Purchase Order Agreement, 4/30/13, at unnumbered page 1 ¶ 2)
(capitalization omitted).
Paragraph seventeen of the Agreement provided, in pertinent part:
17. PENALTY FOR VIOLATION OF PARAGRAPH 2/CONFESSION
OF JUDGMENT. Buyer covenants and agrees that if he files or
initiates an action either against [Appellee] . . . in any
jurisdiction other than Philadelphia, Pennsylvania, [Appellee] . . .
may cause judgment to be entered against the Buyer, and for
that purpose[,] . . . Buyer hereby authorizes and empowers
[Appellee] . . . to appeal for and confess judgment against the
Buyer . . . for the recovery . . . [of] the Amount of money the
____________________________________________
1
The electronic signature on the Agreement contained the name, “Allen
Thiam.”
-2-
J-S21040-15
Buyer has set as the “Price” in this Agreement . . . together with
any and all outstanding fees incurred by the Buyer and any and
all storage and/or late fees accumulated by the Buyer, as well as
for interest and costs and attorney’s commission of 15%. . . .
(Id. at unnumbered page 3 ¶ 17).
Appellant instituted litigation in Minnesota against Appellee seeking the
return of money paid for the vehicle. On February 7, 2014, Appellee
confessed judgment against Appellant as a result of the violation of the
venue clause of the Agreement.
The trial court’s December 5, 2014 opinion aptly sets forth the ensuing
procedural background:
On March 6, 2014, Appellant filed a motion to open and/or
strike confessed judgment. In the motion, Appellant averred
that he had purchased a vehicle through Appellee’s website for
personal use, and argued that the [Agreement] did not bear his
signature and he did not voluntarily, knowingly, or intelligently
give up his right to notice and a hearing prior to the entry of
judgment.
On March 21, 2014, Appellee filed its response to
Appellant’s motion. In the response, Appellee denied that
Appellant had not received notice, as Appellee had served notice
via certified mail return receipt requested on October 30, 2013,
and that Appellant had accepted the [A]greement by electronic
signature.
On March 31, 2014, Appellant filed a surreply, arguing that
he had never seen the [Agreement] or purchase [o]rder prior to
the case or signed it, and that he was not a party to the
[Agreement].
On May 9, 2014, [the trial court] issued a [r]ule to [s]how
[c]ause why the relief requested should not be granted.
On September 4, 2014 [the trial court] held a hearing on
the merits of the petition. Appellant, a resident of the state of
-3-
J-S21040-15
Minnesota[,] who stated he could not attend the hearing,
testified by telephone and appeared pro se. Appellant argued
that the confession of judgment was unlawful because he did not
sign it, the name on the [Agreement] was not his name, and the
amount in the [Agreement] is not the amount for which he
purchased the vehicle in question.
Appellee, however, averred that the purchase order
[A]greement did bear Appellant’s electronic signature and name,
and that the [Agreement] was available on the website clearly
for his review. The [A]greement contained language restricting
any lawsuit brought under the contract to the jurisdiction of the
courts of Pennsylvania; however, Appellant had filed suit in
Minnesota and had received notice that he had thirty (30) days
to withdraw the suit before a confession of judgment was
entered. In his answers to Appellee’s interrogatories, Appellant
had acknowledged that he had signed the [A]greement, received
the product purchased, and paid in full. Appellee had received
payment in full from Appellant.
Appellant again insisted that he had not seen or signed the
[Agreement] and had not waived his right to bring suit in
Minnesota. [The trial court] informed Appellant that if the basis
upon which he challenged the judgment was that he had not
signed the [Agreement] and had not seen it, then he would need
to come to [c]ourt so his credibility could be judged. Appellant
responded that he could not come to Philadelphia.
(Trial Court Opinion, 12/05/14, at 1-3 (record citations omitted).
Following the hearing, the trial court denied Appellant’s petition to
strike or open judgment. On September 29, 2014, Appellant timely
appealed.2
Appellant raises four questions for our review:
____________________________________________
2
Pursuant to the trial court’s order, Appellant filed a timely Rule 1925(b)
statement of errors complained of on appeal on October 19, 2014. See
Pa.R.A.P. 1925(b). The court filed an opinion on December 5, 2014. See
Pa.R.A.P. 1925(a).
-4-
J-S21040-15
1. Can a [c]onfession of [j]udgment be filed against a person
who is not a holder or assignee of the instrument containing
the warrant of attorney?
2. Can a [c]onfession of [j]udgment be valid when the party
against whom the judgment is entered did not sign the
instrument?
3. Can a [c]onfession of [j]udgment be valid in a consumer
credit transaction?
4. Whether the lack of direct relation between the warrant of
attorney and signature of executor nullify the [c]onfession of
[j]udgment[?]
(Appellant’s Brief, at 4) (emphasis omitted).
We first note that “[a] party waives all defenses and objections which
are not included in the petition [to strike/open] or answer.” Midwest Fin.
Acceptance Corp. v. Lopez, 78 A.3d 614, 626 (Pa. Super. 2013) (citing
Pa.R.C.P. 2959(c)). Here, Appellant filed both an answer and a petition to
open or strike in response to the complaint for confession of judgment.
Neither document contains an allegation that Appellee improperly filed the
confession of judgment against him because he is “not a holder or assignee
of the instrument containing the warrant of attorney” or that “the lack of
direct relation between the warrant of attorney and signature of executor
nullif[ies] the [c]onfession of [j]udgment.” (Appellant’s Brief, at 4; see also
Answer to Confession of Judgement Claim, 3/06/14, at unnumbered pages
1-2; Petition to Strike or Open, 3/06/14, at unnumbered page 1).
Therefore, Appellant’s first and fourth issues are waived. See Midwest,
supra at 626.
-5-
J-S21040-15
In Appellant’s second issue he argues that, because the electronic
signature on the Agreement is not his, the court erred in denying his petition
to open or strike the confession of judgment. (See Appellant’s Brief, at 4,
14-17). This issue does not merit relief.
Our standard of review of this issue is well-settled:
We review a trial court’s order denying a petition to strike
a confessed judgment to determine whether the record is
sufficient to sustain the judgment. A petition to strike a
judgment may be granted only if a fatal defect or irregularity
appears on the face of the record. Similarly, we review [an]
order denying [an] Appellant’s petition to open [a] confessed
judgment for an abuse of discretion.
Graystone Bank v. Grove Estates, L.P., 58 A.3d 1277, 1281-82 (Pa.
Super. 2012), affirmed, 81 A.3d 880 (Pa. 2013) (citation omitted).
We first observe that Appellant’s second issue goes only to his petition
to the extent that it requested the court to open the judgment because he
disputes a factual averment in the complaint and confession of judgment.
See Midwest, supra at 623 (observing, “if the truth of the factual
averments contained in [the complaint in confession of judgment and
attached exhibits] are disputed, then the remedy is by proceeding to open
the judgment, not to strike it.”) (citation and internal quotation marks
omitted); see also Graystone, supra at 1282. Moreover, we conclude that
the trial court properly denied Appellant’s request that it strike the
judgment.
In considering the merits of a petition to strike, the court
will be limited to a review of only the record as filed by the party
-6-
J-S21040-15
in whose favor the warrant is given, i.e., the complaint and the
documents which contain confession of judgment clauses.
Matters dehors the record filed by the party in whose favor the
warrant is given will not be considered. If the record is self-
sustaining, the judgment will not be stricken. . . .
Graystone Bank, supra at 1282 (citation omitted).
Pennsylvania Rule of Civil Procedure 2952 provides, in pertinent part:
(a) The complaint [for confession of judgment] shall contain the
following:
(1) the names and last known addresses of the parties;
(2) the original or a photostatic copy or like reproduction
of the instrument showing the defendant’s signature; . . .
(3) an averment that judgment is not being entered by
confession against a natural person in connection with a
consumer credit transaction;
(4) a statement of any assignment of the instrument;
(5) either a statement that judgment has not been entered
on the instrument in any jurisdiction or if it has been entered an
identification of the proceedings;
(6) if the judgment may be entered only after a default or
the occurrence of a condition precedent, an averment of the
default or of the occurrence of the condition precedent;
(7) an itemized computation of the amount then due,
based on matters outside the instrument if necessary, which
may include interest and attorneys’ fees authorized by the
instrument;
(8) a demand for judgment as authorized by the warrant;
(9) if the instrument is more than twenty years old, or if
the original or a photostatic copy or like reproduction of the
instrument showing the defendant’s signature is not attached to
the complaint, an application for a court order granting leave to
enter judgment after notice;
-7-
J-S21040-15
(10) signature and verification in accordance with the rules
relating to a civil action.
Pa.R.C.P. 2952(a) (notes omitted).
Further,
We have noted the need for strict adherence to rules
governing confessed judgments. . . . This is so because a
warrant of attorney to confess judgment confers such plenary
power on the donee in respect of the adjudication of his own
claims that certain specific formalities are to be observed in
order to effectuate the granting of such a power. Accordingly,
[a] Pennsylvania warrant of attorney must be signed. And it will
be construed strictly against the party to be benefited by it,
rather than against the party having drafted it. A warrant of
attorney to confess judgment must be self-sustaining and to be
self-sustaining the warrant must be in writing and signed by the
person to be bound by it. The requisite signature must bear a
direct relation to the warrant of attorney and may not be
implied.
Graystone Bank, supra at 1282 (citations and quotation marks omitted).
Here, the trial court found:
. . . [T]here was no fatal defect requiring the reversal of
judgment. The contract clearly stated that the venue for
litigation would be in Pennsylvania; Appellant instituted legal
action in Minnesota, allowing for the confession of judgment
under Paragraph 2 of the [A]greement. The contract was
electronically signed by Appellant, who paid the purchase price
[for the vehicle] in full. Appellant was properly served with
notice. . . .
(Trial Ct. Op., at unnumbered page 4). Our independent review of the
record supports the trial court’s findings.
First, the warrant of attorney was conspicuously stated in the
Agreement, and Appellant’s electronic signature appears directly below it.
-8-
J-S21040-15
(See Purchase Order Agreement, 4/30/13, at unnumbered page 3). Also,
the complaint contains the names and addresses of the parties, a copy of
the Agreement containing the warrant of attorney, and an averment that
judgment has not been previously entered. (See Complaint in Confession of
Judgment, 2/07/14, at unnumbered pages 1-2 ¶¶ 1-6; see also Purchase
Order Agreement, 4/30/13, at unnumbered page 3). The complaint
additionally avers that Appellant violated the Agreement, thus triggering
Appellee’s right to confess judgment; that he was served with notice; that
venue is properly in Philadelphia County, Pennsylvania; that judgment has
not previously been entered, and is not being entered against a natural
person in connection with a consumer credit transaction; and that the
Agreement is less than twenty years old. (See Complaint in Confession of
Judgment, 2/07/14, at unnumbered page 2 ¶¶ 4-8, 10 and unnumbered
page 3 ¶ 11). Finally, the complaint contains an itemized computation of the
amount due under the Agreement and is signed by Appellee’s counsel. (See
id. at unnumbered pages 2 ¶ 9, 3).
Therefore, after our independent review we conclude that the trial
court properly found that there was no fatal defect on the face of the record
-9-
J-S21040-15
requiring that the confession of judgment be stricken. See Graystone
Bank, supra at 1281-82.3
We next turn to the court’s denial of the petition inasmuch as it
requested that the judgment be opened.
____________________________________________
3
Moreover, we are not legally persuaded by the cases on which Appellant
relies. For example, Appellant cites Scott Factors, Inc. v. Hartley, 228
A.2d 887 (Pa. 1967), in support of his argument that the judgment must be
stricken because it “must be executed [in] the exact manner agreed upon
between the parties.” (Appellant’s Brief, at 11; see also Appellant’s Reply
Brief, at 4-5). First, we note that Appellee fully complied with the warrant of
attorney’s unambiguous terms, as discussed more fully above. Additionally,
in Scott, the Court applied the general rule that warrants of attorney must
be strictly construed to the well-settled principle that, “once a judgment has
been entered under a warrant of attorney, the authority to use the warrant
vanishes and the warrant cannot again be exercised.” Scott, supra at 889.
Applying these rules to the facts of the case before it, the Court concluded
that, even though the first judgment had not been entered pursuant to the
precise provisions of the warrant of attorney, the court should have stricken
off a second judgment filed under the same warrant. See id. Here, there is
no allegation that the warrant of attorney previously had been exhausted.
Also, we find the case of Centennial Bank v. Germantown-Stevens
Academy, 419 A.2d 698 (Pa. Super. 1980), on which Appellant relies,
unpersuasive. (See Appellant’s Brief, at 12-13). Centennial Bank involved
two corporations and premised its holding on the legal principle that a
second corporation that assumes the rights and burdens of a first
corporation “is bound by a warrant of attorney . . . executed by said first
corporation [provided that] [t]he fact of succession, [is] set forth in the
complaint . . . or otherwise appear[s] clearly and unambiguously on the
record.” Centennial Bank, supra at 699-700 (citations omitted).
Appellant is not a corporation, and there is no issue of succession involved
here. This case is not persuasive.
The remainder of the cases on which Appellant relies in support of this
argument are either not pertinent or stand for general legal principles
enunciated above, and we decline to address them here because such would
be repetitious. (See Appellant’s Brief, at 11-13, 15-17).
- 10 -
J-S21040-15
In reviewing a trial court’s order on a petition to open a
confessed judgment, we have the following standard of review:
A petition to open judgment is an appeal to the
equitable powers of the court. As such it is
committed to the sound discretion of the hearing
court and will not be disturbed absent a manifest
abuse of discretion.
. . . [A] court acting in equity should open a confessed
judgment only when the petitioner acts promptly, alleges a
meritorious defense and presents sufficient evidence of that
defense to require submission of the issues to the jury.
PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002), appeal denied,
815 A.2d 634 (Pa. 2002) (citations omitted).4
Here, Appellant argues that he “presented enough believable evidence
that belonged to a jury to decide.” (Appellant’s Brief, at 19). We disagree.
First, the record reveals that, although the electronic signature on the
Agreement identifies Appellant as “Alan Thiam,” Appellant admits that he
purchased the vehicle, which was identified by the Agreement as bearing
VIN number 1GYS4BEF8BR113404, on May 3, 2013 after placing a bid for it
on Appellee’s website on April 30, 2013. (See Answer to Confession of
Judgement Claim, 3/06/14, at unnumbered page 1 ¶¶ 6-8). Indeed, our
review of the record reveals that Appellant was required to agree to the
____________________________________________
4
The parties do not argue the timeliness of Appellant’s petition, which was
filed within days of the entry of the confession of judgment. Therefore, we
will confine our analysis to the question of whether Appellant alleges a
meritorious defense and presented sufficient evidence to require submission
of the issues to a jury. See PNC Bank, supra at 638.
- 11 -
J-S21040-15
terms of the purchase order and deposit agreements before he could
complete his bid on the car. (See Appellant’s Discovery Information,
8/27/14, at unnumbered page 6). At the hearing on Appellant’s petition,
Appellee’s counsel stated that, in Appellant’s answers to interrogatories, he
admitted that he signed the Agreement. (See N.T. Hearing, 9/04/14, at 7-
8). Appellant did not deny this allegation. (See id.). Nor did he offer any
evidence in support of his bald claim that the electronic signature, which was
located on the same page as the warrant of attorney, was not his. (See id.
at 3-13).
Therefore, we conclude that the trial court did not manifestly abuse its
discretion when it denied Appellant’s petition to open where he failed to raise
a meritorious defense to the confession of judgment or “present[] sufficient
evidence of that defense to require submission of the issues to the jury.”
PNC Bank, supra at 638.5 Appellant’s issue fails.6
____________________________________________
5
Appellant claims that the court made an impermissible credibility decision
when it denied his petition. (See Appellant’s Brief, at 18). We are cognizant
that the trial court stated that it would require Appellant’s presence at the
hearing on his petition in order to judge his credibility. (See N.T. Hearing,
9/04/14, at 11). However, there is no evidence that the trial court based its
final decision on a credibility determination, where Appellant failed to
present any evidence requiring “submission of the issues to the jury.” PNC
Bank, supra at 638 (citation omitted); (see N.T. Hearing, 9/04/13, at 3-
13; Appellant’s Discovery Information, 8/27/14, at unnumbered pages 1-11;
see also Trial Ct. Op., at unnumbered pages 1-4).
6
Moreover, we find it disingenuous at best that Appellant, who styles
himself as “a software engineering expert with more than 15 years[’]
(Footnote Continued Next Page)
- 12 -
J-S21040-15
In his third issue, Appellant argues that his purchase of the vehicle
constituted “a consumer credit transaction and cannot be confessed.”
(Appellant’s Brief, at 17). This issue lacks merit.
It is well-settled that judgments by confession are an improper remedy
for the default of a consumer credit transaction. See, e.g. Willits v. Fryer,
734 A.2d 425, 427-28 (Pa. Super. 1999); see also Pa.R.C.P. 2952(a)(3).
Pursuant to Pennsylvania Rule of Civil Procedure 2950, a consumer credit
transaction is “a credit transaction in which the party to whom credit is
offered or extended is a natural person and the money, property or
services which are the subject of the transaction are primarily for personal,
family or household purposes.” Pa.R.C.P. 2950 (emphasis added).
Here, the record reflects that Appellee did not extend Appellant any
credit. Appellant placed a bid for the vehicle on Appellee’s website on April
30, 2013, executed the Agreement the same day, was notified on May 1,
2013 that he had placed the winning bid, and paid for the car in full two
days later, on May 3, 2013. (See Answer to Confession of Judgement
Claim, 3/06/14, at unnumbered pages 1-2). Appellee was the broker for the
sale, not a lending institution. Therefore, because Appellee did not offer or
_______________________
(Footnote Continued)
experience[,]” (Appellant’s Discovery Information, 8/27/14, at unnumbered
page 1), would not understand the import of the website’s conspicuous
language, “BY CLICKING THE CONFIRM BUTTON YOU AGREE TO THE TERMS
OF THE . . . PURCHASE ORDER AGREEMENT[.]” (Id. at unnumbered page
6) (emphasis in original).
- 13 -
J-S21040-15
extend any credit to Appellant, his purchase of the vehicle did not constitute
a consumer credit transaction, and his argument that Appellee improperly
confessed judgment must fail.7 See Pa.R.C.P. 2950. Appellant’s third issue
lacks merit.
Order affirmed.
Judge Jenkins joins the Memorandum.
Judge Bowes files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
____________________________________________
7
Appellant purports to rely on Willits in support of his argument that he
and Appellee engaged in a credit transaction. (See Appellant’s Brief, at 17-
18). This reliance is misplaced. The Willits Court found that a promissory
note between a lender and consumer, that contained terms for monthly
payments of closing costs in the sale of a home, was a consumer credit
transaction precluding confession of judgment. See Willits, supra at 427-
28. However, as explained above, this case does not involve any extension
of credit.
- 14 -