Dodson, J. v. Global Tel-Link Corporation

J-S43025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIUS W. DODSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GLOBAL TEL-LINK CORPORATION : No. 118 MDA 2019
Appeal from the Order Entered December 18, 2018
In the Court of Common Pleas of Huntingdon County Civil Division at
No(s): CP-31-CV-673-2017
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 08, 2019
Appellant, Julius W. Dodson, appeals pro se from the December 18,
2018 Order granting summary judgment in favor of Appellee, Global Tel-Link
Corporation. After careful review, we affirm.
The relevant facts and procedural history are as follows. On September
27, 2015, Appellant, an inmate at SCI-Smithfield, purchased a tablet device
from the prison commissary. Appellee had supplied the tablet to the
commissary. The tablet included a 90-day battery warranty and a 1-year
device warranty. As a user of the tablet, Appellant agreed to the tablet’s
terms and conditions, which included a disclaimer of all implied warranties. 1
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1 In particular, the warranties contained the following provision: “[Appellee]
disclaim[s] all warranties, express or implied, including, without limitation,
any implied warranties or merchantability [or] fitness for a particular
purpose.” [Appellee] End User License Agreement at ¶ 11.
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* Former Justice specially assigned to the Superior Court.
J-S43025-19
On November 21, 2016, after both the battery and device warranties
had expired, Appellant submitted a warranty claim and sent his tablet to
Appellee for evaluation. Upon receipt of the tablet, Appellee determined that
it no longer worked, but, because it was no longer under warranty, returned
it to Appellant unrepaired.
Appellant initiated this lawsuit on May 12, 2017, by filing a pro se
“Complaint in Arbitration.” In the Complaint, Appellant alleged that Appellee
had “engage[d] in a breach of expressed and implied warranties of
merchantability and fitness for a particular purpose” and was liable for treble
damages under the Unfair Trade Practices and Consumer Protection Law
[“UTPCPL”].” Complaint, 5/12/17, at 1. He asserted that this “damages
controversy is less than $50,000 [], the jurisdictional amount pursuant to the
Pennsylvania Uniform Arbitration Act.” Id. Appellant claimed that Appellee
had engaged in “unfair or deceptive acts or practices” by: (1) “[f]ailing to
comply with the terms of the written guarantee or warranty;” and (2) “us[ing]
a contract related to a consumer transaction which contained a confessed
judgment clause that waived [Appellant’s] right to assert a legal defense to
an action.” Id. at 6-7. Appellant sought court-mandated compulsory
arbitration pursuant to 42 Pa.C.S. § 7361. Id. at 1.
Appellee failed to timely answer the Complaint, and on October 25,
2017, Appellant filed a Praecipe for Entry of Default Judgment. On November
2, 2017, Appellee filed a Petition to Open and Vacate Default Judgment, which
the trial court granted on March 5, 2018. Appellee filed an Answer and New
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Matter to Appellant’s “Complaint for Arbitration” on March 13, 2018. Appellant
answered Appellee’s New Matter on May 14, 2018.
On August 15, 2018, Appellant filed a “Praecipe for Reference to a Board
of Arbitration,” seeking an arbitration hearing through the trial court’s
compulsory arbitration program. On August 27, 2018, the trial court
appointed three lawyers as arbitrators and, on October 9, 2018, the court set
an arbitration date.
On October 25, 2018, Appellee filed a Motion for Continuance of
Arbitration Hearing and a Motion for Summary Judgment. Appellee argued in
the Motion for Summary Judgment that Appellant “failed to generate any
evidence that supports his claims” and Appellant’s claims fails either as a
matter of law or because he cannot possibly meet the elements required to
prove each claim. Motion, 10/25/18, at ¶ 1-2.
On October 31, 2018, the trial court entered an Order continuing the
arbitration hearing until disposition of Appellee’s Motion for Summary
Judgment. On December 10, 2018, Appellant filed a “Petition to Compel
Arbitration in Objection to [Appellee’s] Summary Judgment Motion.” In his
Petition, Appellant claimed, for the first time, that he sought arbitration
pursuant to the arbitration clause contained in the warranty agreement
between him and Appellee.
Appellee filed a Memorandum in Opposition to Appellant’s Petition to
Compel Arbitration on December 18, 2018. In the Memorandum, Appellee
argued that the trial court should deny Appellant’s Petition while its Motion for
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Summary Judgment is pending. It also noted that Appellant waived his right
to seek arbitration under the terms of the product warranty by filing a lawsuit
raising breach of warranty and UTPCPL claims. Memorandum, 12/18/18, at 1
n.1.
On December 18, 2018, the trial court denied Appellant’s Petition to
Compel Arbitration and granted Appellee’s Motion for Summary Judgment,
finding that Appellant had “misunderst[ood] the difference between the
statutory compulsory arbitration contemplated in 42 Pa.C.S. § 7361, and the
binding arbitration clause contained in his product warranty for [the tablet].”
Trial Ct. Op., 3/4/19. The court, therefore, concluded that Appellant was not
actually seeking a legal judgment, but rather resolution of his claims through
private arbitration.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Whether the trial court erred in failing to compel [Appellee] into
arbitration in violation of the arbitration agreement?
2. Whether the trial court erred in finding that summary judgment
was an adequate procedure thus ignoring the binding
arbitration agreement between the parties?
3. Whether the trial court abused its discretion by accepting
[Appellee’s] December 18, 2018 “so called” “Memorandum in
Opposition to [Appellant’s] Petition to Compel Arbitration” thus
introducing new claims and not allowing [Appellant] an
opportunity to object or respond as the trial court granted
summary judgment on the same date there[after]?
Appellant’s Brief at 4.
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Although Appellant purports to raise three issues on appeal, the
argument section of his appellate Brief contains only two enumerated sections,
which correlate to the first two questions presented in his Statement of
Questions Involved.2 In the first section, Appellant alleges that the trial court
erred in failed to compel arbitration because the parties have a valid
arbitration agreement, the controversy between them falls within its scope,
and it requires arbitration of all controversies arising under it. Id. at 9-10.
In the second section, Appellant claims that the trial court erred in granting
summary judgment because it ignored the binding arbitration agreement
between the parties. Id.at 10-11.
We consider Appellant’s issues mindful of the following.
Our standard of review on an appeal from the grant of a motion
for summary judgment is well-settled. A reviewing court may
disturb the order of the trial court only where it is established that
the court committed an error of law or abused its discretion. As
with all questions of law, our review is plenary.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)
(citations omitted).
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered.
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of [its] cause of action.
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2We, therefore, consider Appellant’s third issue abandoned. Cook v. Cook,
186 A.3d 1015, 1018 n.1 (Pa. 2018).
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Summary judgment is proper 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. Thus, a record that supports summary
judgment will either (1) show the material facts are undisputed or
(2) contain insufficient evidence of facts to make out a prima facie
cause of action or defense and, therefore, there is no issue to be
submitted to the jury.
H & R Block E. Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 248–49 (Pa. Super.
2013) (citation omitted).
Appellant’s Complaint purported to raise an implied warranty claim, an
express warranty claim, and a claim that Appellee had violated the UTPCPL.
To recover for the breach of the implied warranty of merchantability, a buyer
must prove: (1) the existence of the implied warranty; (2) a breach of the
warranty; (3) a loss; and (4) a causal connection between the defendant’s
breach and the buyer’s loss. See 13 Pa.C.S. § 2314, Comment 13.
In Pennsylvania, express warranties are created as follows: “(1) Any
affirmation of fact or promise made by the seller to the buyer which relates to
the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise[;] (2) Any
description of the goods which is made part of the basis of the bargain creates
an express warranty that the goods shall conform to the description.” 13
Pa.C.S. § 2313(a)(1-2). In order to create an express warranty, “the seller
must expressly communicate the terms of the warranty to the buyer in such
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a manner that the buyer understands those terms and accepts them.”
Goodman v. PPG Industries Inc., 849 A.2d 1239, 1243 (Pa. Super. 2004).
“The UTPCPL is Pennsylvania’s consumer protection law and seeks to
prevent unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce[.]” DeArmitt v. New
York Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013). “The purpose of the
UTPCPL is to protect the public from unfair or deceptive business practices.”
Id. This Court has stated
The UTPCPL provides a private right of action for anyone who
“suffers any ascertainable loss of money or property” as a result
of an unlawful method, act or practice. 73 P.S. § 201-9.2(a).
Upon a finding of liability, the court has the discretion to award
“up to three times the actual damages sustained” and provide any
additional relief the court deems proper. Id.
Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,
151 (Pa. Super. 2012) (citation omitted). Further, the court may award costs
and attorney’s fees to a prevailing plaintiff in a UTPCPL action, in addition to
other relief provided. 73 P.S. § 201-9.2(a).
As noted above, the record supports the entry of summary judgment
where, as here, there are no genuine issues of material fact in dispute and the
plaintiff has failed to adduce sufficient facts to make out a prima facie cause
of action. H & R Block, 69 A.3d at 248-49.
Appellant does not argue on appeal that there are any genuine issues
of material fact in dispute which would preclude entry of summary judgment
in Appellee’s favor, and our review of the record confirms that none exist.
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Because the warranty period on Appellant’s tablet had expired by the time he
submitted the product for a warranty claim, Appellant’s express warranty
claim is meritless. Additionally, in using his tablet, Appellant agreed to
Appellee’s End User Agreement, which included a disclaimer of, inter alia, “all
warranties, express or implied, including, without limitation, any implied
warranties of merchantability, [or] fitness for a particular purpose.” Appellee
End User Agreement at ¶ 11. Last, with respect to his UTPCPL claim, Appellant
did not generate evidence to support the misrepresentation, reliance, or
“ascertainable loss of money” elements of the claim.
In light of Appellant’s failure to present evidence in support of his claims
and the absence of any issues of material fact as to the elements of those
claims, we conclude that the trial court did not err or abuse its discretion in
concluding that Appellee is entitled to judgment as matter of law.
Moreover, we agree with the trial court that Appellant appears to have
“misunderst[ood] the difference between the statutory compulsory arbitration
contemplated in 42 Pa.C.S. § 7361, and the binding arbitration clause
contained in his product warranty for [the tablet].” Trial Ct. Op., 3/4/19. In
his Complaint, Appellant initially invoked his claim for arbitration pursuant to
42 Pa.C.S. § 7361 (Compulsory arbitration), asserting that the amount in
controversy was below the $50,000 jurisdictional threshold. Not until much
later, in his Petition to Compel Arbitration, did Appellant suggest that what he
actually sought was a private arbitration pursuant to the terms of the
agreement between the parties. Once the trial court recognized that Appellant
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was seeking a private remedy, the court properly entered summary judgment
in favor of Appellee.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/08/2019
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