Burton, F. v. Innovative DTV Solutions Inc.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANKIE G. BURTON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
INNOVATIVE DTV SOLUTIONS, INC.
No. 1462 WDA 2016
Appeal from the Order January 14, 2016
in the Court of Common Pleas of Clearfield County
Civil Division at No(s): 2017-2013-CD, EB-9790
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MAY 24, 2017
Appellant, Frankie G. Burton, appeals pro se from the order entered
January 14, 2016, granting summary judgment in favor of Appellee,
Innovative DTV Solutions, Inc., and dismissing his complaint with prejudice.
We affirm.
We adopt the following statement of facts from the trial court’s
opinion, which in turn is supported by the record. See Trial Court Opinion
(TCO), 1/15/16, at 1-8.
In October 2012, Appellant, an inmate incarcerated at SCI-Houtzdale,
purchased a television from Appellee. The television came with a one-year
limited warranty, which provided that for a period of ninety days from the
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*
Retired Senior Judge assigned to the Superior Court.
J-S16029-17
original date of purchase, Appellee would repair or replace the defective
product and, for a period of one year after the original purchase, Appellee
would supply new or rebuilt replacements for defective parts. The warranty
also provided that the customer must return the unit to Appellee and that
Appellee will not be responsible for delays or unprocessed claims resulting
from a purchaser’s failure to provide necessary information.
On June 14, 2013, Appellant notified prison officials that the television
was malfunctioning. Appellant was placed on the “callout list” to return the
television, but missed the callout without explanation. Approximately one
week later, Appellant was again placed on a “callout list,” but the prison was
on lockdown. Appellant’s subsequent grievance request was denied due to
his failure to report for the June 14 callout.
In October 2013, Appellant filed a complaint in the magisterial district
court of Clearfield County against Appellee as well as the Department of
Corrections (“DOC”) and the Bureau of Correctional Industries (“BCI”). BCI
and the DOC were dismissed from the action by the magisterial district
judge, and Appellant separately appealed from this order, docketed at 2014-
73-CD.
In November 2013, Appellant obtained a default judgment against
Appellee. Appellee appealed the default judgment to the Court of Common
Pleas of Clearfield County. Appellant responded by filing a complaint, which
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generally averred that Appellee had breached the express warranty of the
television.1 Appellee filed an answer and new matter to the complaint.
In October 2015, the court issued an order that stated that all motions
for summary judgment should be filed by December 1, 2015. In November
2015, Appellant timely filed a motion for summary judgment, which the
court denied. On December 21, 2015, Appellee filed its own motion for
summary judgment, averring that because Appellant had not complied with
the obligations of the warranty, Appellee was entitled to judgment as a
matter of law. The court granted Appellee’s motion and dismissed the
complaint with prejudice.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court did not issue a responsive opinion.
On appeal, Appellant raises the following questions for our review:
1.A. Whether the trial court erred and/or abused its discretion in
allowing [Appellee] to file an untimely motion for summary
judgment beyond the thirty (30) days ordered to do so where
[Appellee] had already filed an answer in opposition to
Appellant’s motion for summary judgment, and for dismissing
Appellant’s motion to strike Appellee’s untimely motion?
1.B. Should this honorable Court dismiss/strike [Appellee’s]
untimely motion for summary judgment from [its] review of this
matter?
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1
We would note that the pleadings below are nearly indecipherable. It
appears that the trial court construed Appellant’s pleadings as an attempt to
raise a claim for breach of express warranty.
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2.A. Whether the trial court erred and/or abused its discretion by
improperly and prematurely granting the Appellee’s untimely
motion for summary judgment based upon the pleadings and
submissions presented in the case, and their inclusion of
claims/argument not previously raised, thereby prejudicing
Appellant, and whether Appellant presented genuine issues of
material facts essential in establishing the underlying cause of
action against [Appellee], entitling him to summary judgment as
a matter of law?
2.B. Whether [Appellee] breached its guaranteed written
expressed and implied warranty of merchantability with respect
to a defective 19” RCA television, in [violation] of the Magnuson-
Moss Warranty—Federal Trade Commission [Improvement] Act;
the warranty provision of [the] Pennsylvania Uniform
Commercial Code; and Pennsylvania Unfair Trade Practice and
Consumer Protection laws?
3. Whether the default judgment entered against [Appellee] by
the magisterial district judge should have been upheld in this
case, and whether Appellant was entitled to payment, cost,
damages, legal/litigation expenses, and interest incurred in the
case[?]
4. Whether Appellant established an underlying cause of action
on liability against [Appellees] Bureau of Correctional Industries
(PCI)/Department of Corrections [DOC], to have had them
joined in summary judgment?
Appellant’s Brief at x-xi (unnecessary capitalization omitted).2
With regard to such motions,
the standards which govern summary judgment are well settled.
When a party seeks summary judgment, a court shall enter
judgment whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or defense
that could be established by additional discovery. A motion for
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2
Appellant raised a fifth issue which he designated as withdrawn on appeal.
See Appellant’s Brief at xi.
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summary judgment is based on an evidentiary record that
entitles the moving party to a judgment as a matter of law. In
considering the merits of a motion for summary judgment, a
court views 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.
Finally, the court may grant summary judgment only when the
right to such a judgment is clear and free from doubt. An
appellate court may reverse the granting of a motion for
summary judgment if there has been an error of law or an abuse
of discretion . . . .
Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa.
2005) (citations omitted). To the extent this Court must resolve a question
of law, we shall review the grant of summary judgment in the context of the
entire record. Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015).
Appellant first argues that the court erred in allowing Appellee to file
untimely a motion for summary judgment, despite having issued an order
that motions for summary judgment were to be filed no later than December
1, 2015. See Appellant’s Brief at 6. He avers he suffered prejudice as a
result, as he was not given a full and fair opportunity to oppose the motion.
Id. at 8-9. In a separate claim, which we will treat as a prayer for relief,
Appellant also requests that we strike Appellee’s motion for summary
judgment from our review of this matter. Id. at 9.
A motion for summary judgment may be filed after relevant pleadings
are closed, but within such time as to not unreasonably delay trial. See
Pa.R.C.P. 1035.2. The rules do not provide a specific time limitation beyond
“unreasonable delay,” and further, the trial court may disregard errors or
defects of procedure which do not affect the substantial rights of the parties.
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See Pa.R.C.P. 126, 1035.2. Nevertheless, it is generally improper, for
instance, for the trial court to accept a motion for summary judgment on the
morning of trial or after a jury has been empaneled. See, e.g.,
DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 366–67 (Pa.
Super. 2003).
Here, Appellee acknowledged that its motion had been filed after
December 1, 2015, but justified its untimely filing in light of information
contained in appendixes to Appellant’s motion for summary judgment. This
information included Appellant’s affidavit and inmate grievance forms
indicating Appellant’s awareness that he had missed the “callout.” In our
view, the trial court properly exercised its discretion to consider a motion for
summary judgment beyond the deadline imposed. It did not unreasonably
delay trial and, as Appellant was afforded an opportunity to respond, he
incurred no prejudice. See Pa.R.C.P. 126, 1035.2. Accordingly, no relief is
due.
Next, Appellant claims that the trial court abused its discretion by
granting Appellee’s motion for summary judgment. See Appellant’s Brief at
10. Appellant contends that the granting of summary judgment was in error
where Appellee raised claims not previously raised, and where Appellant had
raised genuine issues of material fact. Id.As discussed above, summary judgment is proper only where no
genuine issue of material fact remains, and summary judgment is
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appropriate as a matter of law. See Swords, 883 A.2d at 567. Here, we
note that
pleadings must define the issues and thus every act or
performance essential to that end must be set forth in the
complaint. The purpose behind the rules of pleading is to enable
parties to ascertain, by utilizing their own professional discretion,
the claims and defenses asserted in the case. This purpose
would be thwarted if courts, rather than the parties, were
burdened with the responsibility of deciphering the causes of
action from a pleading of facts which obscurely support the
claim.
While it is not necessary that the complaint identify the specific
legal theory of the underlying claim, it must apprise the
defendant of the claim being asserted and summarize the
essential facts to support that claim. If a plaintiff fails to
properly plead a separate cause of action, the cause he did not
plead is waived.
Grossman v. Barke, 868 A.2d 561, 568 (Pa. Super. 2005) (internal citation
omitted).
Appellant pleaded, generally, that he purchased a defective television
manufactured by Appellee and that Appellee did nothing to rectify or resolve
the problem, despite Appellant’s letters directed to the company. Neither
the complaint, nor subsequent pleadings identified a specific cause of action
Appellant sought to raise.
Based upon the above, Appellant has, at best, pleaded a cause of
action for breach of express warranty. See, e.g., Grossman, 868 A.2d at
568; see also Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1,
35 (Pa. 2011). To prove such a claim, Appellant must establish that 1) the
defendant breached or failed to meet its warranty promise; 2) the breach
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was the proximate cause of the plaintiff’s harm; and 3) the amount of the
resulting damages. Samuel-Basset, 34 A.3d at 35.
Here, the warranty required that Appellant return the television within
one year to be entitled to the applicable warranty protections. By his own
admission, Appellant failed to do so. Regardless of the reason, the record is
clear that the television was not returned within one year, through no fault
of Appellee. Accordingly, Appellee possessed no obligation under the
warranty. Thus, there was no genuine issue of material fact remaining, and
Appellee was entitled to judgment as a matter of law. See Swords, 883
A.2d at 567.
Next, Appellant claims that Appellee breached its guaranteed written
expressed and implied warrant of merchantability, violated the Magnuson-
Moss Act, the Pennsylvania Uniform Commercial Code, and the Pennsylvania
Unfair Trade Practice and Consumer Protection Laws. See Appellant’s Brief
at 18. Although Appellant raised these issues in his brief in support of his
motion for summary judgment, he did not plead these claims as causes of
action in his complaint. See Pa.R.A.P. 302; see also Grossman, 868 A.2d
at 568. Accordingly, Appellant has waived these issues for failure to
properly raise and plead them in the trial court;
Next, Appellant claims that the default judgment entered against
Appellee in the magisterial district court “should have been upheld” where
Appellee “failed to give an adequate explanation for failure to respond to
Appellant’s initial civil complaint.” See Appellant’s Brief at 24. However, the
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cases Appellant cites either do not involve default judgements or do not
involve appeals from default judgments at the magisterial district court level.
Appellant has waived this argument for failure to properly develop it and cite
to pertinent authorities in support of said argument. See Pa.R.A.P. 2119(a)-
(c); see also Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super.
2012) (“[T]he argument portion of an appellate brief must be developed
with a pertinent discussion of the point which includes citations to the
relevant authority.”)
Finally, Appellant argues that he established an underlying cause of
action against the DOC and BCI and that those parties should have been
joined for purposes of summary judgment. See Appellant’s Brief at 24-26.
This Court does not have jurisdiction to hear claims regarding these
agencies. See 42 Pa.C.S. § 762.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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