Caterpillar Financial Services v. Get Er Done

J-A08020-22
2022 PA Super 196CATERPILLAR FINANCIAL SERVICES : IN THE SUPERIOR COURT OF
CORPORATION : PENNSYLVANIA
:
Appellee :
v. :
:
GET ER DONE DRILLING, INC. :
:
Appellant : No. 202 WDA 2021
:
Appeal from the Judgment Dated January 11, 2021
In the Court of Common Pleas of Greene County Civil Division at No(s):
A.D. No. 206 of 2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
OPINION BY LAZARUS, J.: FILED: NOVEMBER 18, 2022
Get ‘Er Done Drilling, Inc. (“Get ‘Er Done”) appeals from the judgment,
entered in the Court of Common Pleas of Greene County, denying its motion
for summary judgment, granting the motion for summary judgment filed by
Caterpillar Financial Services Corporation (“Caterpillar”), and entering
judgment in favor of Caterpillar. Upon careful review, we affirm.
The trial court set forth the relevant background of this matter as
follows:
[Get ‘Er Done] entered into an installment sale contract on June
19, 2014 with Cleveland Brothers Equipment Co, Inc., for the
purchase of [a hydraulic excavator]. Cleveland Brothers then
assigned its rights under [the] agreement to [Caterpillar].
Additionally, on June 28, 2015, [Get ‘Er Done] entered into a
master loan and security agreement with [Caterpillar] for the
purchase of [a Ditch Witch directional drill]. . . . [Get ‘Er Done]
made only a portion of the payments owed and eventually
surrendered [both pieces of equipment] to [Caterpillar,] which
exercised its right as a secured creditor to sell the equipment and
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apply the proceeds from the sale to [Get ‘Er Done’s] debt.
[Following the sale of the equipment, Caterpillar claimed
deficiencies on the excavator in the amount of $47,647.44 and on
the directional drill in the amount of $447,335.35. As a result,
Caterpillar] filed suit claiming breach of contract for [Get ‘Er
Done’s] failure to make payments under the first and second
security agreements (Counts I and II), and [for] unjust
enrichment, for [Get ‘Er Done] retaining “the financial benefits
that [it] derived only by virtue of [Caterpillar’s] financial efforts.”
Trial Court Order, 1/11/21, at 1-2 (unnecessary capitalization and citation to
record omitted).
Get ‘Er Done filed an answer, new matter, and counterclaims for fraud,
breach of fiduciary duty, breach of contract and conversion. Caterpillar filed
preliminary objections, after which the trial court struck Get ‘Er Done’s
counterclaims for fraud, breach of fiduciary duty, and one count of breach of
contract. On February 25, 2019, Get ‘Er Done filed an amended counterclaim,
asserting claims for breach of contract and conversion, in response to which
Caterpillar filed an answer and new matter. Following discovery, which the
court extended by six months at Get ‘Er Done’s request, both parties filed
motions for summary judgment with accompanying briefs.
After oral argument, the trial court denied Get ‘Er Done’s motion for
summary judgment, dismissed its remaining counterclaims, and granted
Caterpillar’s motion for summary judgment. The court entered judgment in
favor of Caterpillar as follows: (1) the amount of $38,337.03, plus interest,
on the first security agreement; (2) the amount of $491,024.65, plus interest,
on the second security agreement; and (3) costs of suit. See Trial Court
Order, 1/11/21, at 8.
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On January 21, 2021, Get ‘Er Done filed a motion for reconsideration
and, on January 22, 2021, filed a separate motion for reconsideration and
motion to strike the affidavit of Duane Hronik.1 Caterpillar opposed both
motions. On February 9, 2021, Get ‘Er Done filed a timely notice of appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court did not rule on Get ‘Er Done’s motions for
reconsideration. Get ‘Er Done now raises the following claims for our review:
1. Did the [trial] court err in considering inadmissible and
unsupported opinion [] and hearsay evidence at summary
judgment from undisclosed witnesses?
2. Did the [trial] court err in relying on evidence which was clearly
controverted by evidence of [Get ‘Er Done]?
3. Did the [trial] court err in finding the sale of [Get ‘Er Done’s]
AT60 drill was public?
4. Did the [trial] court err in [sic] the sale of [Get ‘Er Done’s]
equipment was done with sufficient [sic] to [Get ‘Er Done]?
Brief of Appellant, at 12 (renumbered for ease of disposition; unnecessary
capitalization omitted).
In reviewing an order granting summary judgment, our scope of
review is plenary, and our standard of review is the same as that
applied by the trial court. Our Supreme Court has stated the
applicable standard of review as follows: [A]n appellate court may
reverse the entry of summary judgment only where it finds that
the lower court erred in concluding that the matter presented no
genuine issue as to any material fact and that it is clear that the
moving party was entitled to a judgment as a matter of law. In
making this assessment, we review the record in the light most
favorable to the nonmoving party, and all doubts as to the
____________________________________________
1 Hronik is a senior paralegal at Iron Planet, Inc., the online marketplace
through which Caterpillar auctioned the Ditch Witch Directional Drill.
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existence of a genuine issue of material fact must be resolved
against the moving party. As our inquiry involves solely questions
of law, our review is de novo.
Therefore, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.
Patel v. Kandola Real Estate, LP, 271 A.3d 421, 426 (Pa. Super. 2021)
(citation omitted).
To survive a motion for summary judgment, the non-moving party may
not rely merely upon the controverted allegations of the pleadings, “but must
set forth specific facts by way of affidavit, or in some other way as provided
by the rule, demonstrating that a genuine issue exists.” Salerno v.
Philadelphia Newspapers, Inc., 546 A.2d 1168, 1171 (Pa. Super. 1988)
Get ‘Er Done first asserts that the trial court erred in considering
inadmissible and unsupported opinion and hearsay evidence from undisclosed
witnesses. Specifically, Get ‘Er Done challenges two affidavits submitted by
Caterpillar in support of its motion for summary judgment. The first affidavit
was provided by Stephanie Floyd, a Special Accounts Representative II at
Caterpillar, and set forth information regarding the parties’ security
agreements, Get ‘Er Done’s default thereon, and the amounts owed as a result
of the defaults. The second affidavit was executed by Duane Hronik, a senior
paralegal at Iron Planet, Inc., the online marketplace through which Caterpillar
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auctioned the Ditch Witch directional drill. Hronik’s affidavit set forth the
details of the online auction.
Get ‘Er Done argues that the affidavits are “wrought with evidentiary
issues and should not have been afforded any weight or consideration.” Brief
of Appellant, at 21. In particular, Get ‘Er Done claims that the affidavits do
not comply with the “strict requirements concerning affidavits [that] are used
in support of a motion for summary judgment.” Id. at 22. Get ‘Er Done
asserts that “the affiants did not testify as to the preparation or storage or
accuracy of the records” they relied upon in their affidavits, such as would
“justify a presumption of trustworthiness.” Id. at 23. Accordingly, Get ‘Er
Done argues that the trial court erred in relying upon the affidavits in granting
summary judgment in favor of Caterpillar. Finally, Get ‘Er Done claims that
Caterpillar did not disclose the identity of the affiants during discovery, which
would “prevent them from testifying under Pa.R.C.P. 4019(i).” Id. at 24.
We begin by noting that, to the extent Get ‘Er Done challenges the
contents of the affidavits, this argument has been waived for failure to raise
it in the trial court. The sole objection Get ‘Er Done raised to the affidavits in
response to Caterpillar’s motion for summary judgment was that the affiants
were not disclosed pursuant to Rule 4019(i) and that Floyd’s affidavit
contained opinions, rendering her an expert witness whose identity was not
disclosed pursuant to Pa.R.C.P. 4003.5(b).2 See generally, Defendant’s
____________________________________________
2Get ‘Er Done has abandoned on appeal any argument that Floyd’s affidavit
amounted to expert testimony.
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Answer to Plaintiff’s [Amended] Motion For Summary Judgment, 12/7/20;
Defendant’s Brief in Opposition to Plaintiff’s Motion For Summary Judgment,
12/7/20. “The Superior Court, as an error-correcting court, may not purport
to reverse a trial court’s order where the [] basis for a finding of error is a
claim that the responsible party never gave the trial court an opportunity to
consider.” Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004), quoting
Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership,
764 A.2d 1100, 1105 (Pa. Super. 2000). As such, arguments not raised
initially before the trial court in opposition to summary judgment cannot be
raised for the first time on appeal. Devine, 863 A.2d at 1169. Accordingly,
the sole argument preserved by Get ‘Er Done relating to the affidavits is that
the witnesses were not disclosed during discovery and are prevented from
testifying pursuant to Rule 4019(i).
Get ‘Er Done’s argument on this claim consists of the following:
Further, the fact that these purported witnesses were never
disclosed should be considered against [Caterpillar]. These
individuals would not have been permitted to testify[,] as their
identities were concealed during discovery. This would prevent
them from testifying under [Rule] 4019(i). It is implicit in the
context of a summary judgment ruling that the [c]ourt should not
consider otherwise inadmissible testimony.
Brief of Appellant, at 24.
Pennsylvania Rule of Civil Procedure 4019 addresses discovery
sanctions. Subsection (i) provides as follows:
(i) A witness whose identity has not been revealed as provided in
this chapter shall not be permitted to testify on behalf of the
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defaulting party at the trial of the action. However, if the failure
to disclose the identity of the witness is the result of extenuating
circumstances beyond the control of the defaulting party, the
court may grant a continuance or other appropriate relief.
Pa.R.C.P. 4019(i).
As Caterpillar correctly notes, this rule, by its terms, is only applicable
to preclude the testimony of a witness at trial, not to bar the submission of
an affidavit at the summary judgment stage, and Get ‘Er Done has cited to no
case law holding otherwise. Nor did Get ‘Er Done ever file a motion for
discovery sanctions pursuant to Rule 4019 in the trial court. In any event,
Get ‘Er Done had actual notice of the involvement of Iron Planet and of the
Floyd affidavit3 at the time discovery was extended for six months—at Get ‘Er
Done’s request—on January 29, 2020, yet chose not to depose either Floyd or
a representative of Iron Planet. Accordingly, Get ‘Er Done is entitled to no
relief on this claim.
Next, Get ‘Er Done claims that the trial court erred in disregarding the
“expert report” of Dan Durkin, “which was the only adequately supported
valuation of the equipment.” Brief of Appellant, at 24. Durkin valued the
directional drill at between $440,000 and $550,000, yet the court found the
actual sale price of the drill, in the amount of $150,500, to be reasonable.4
____________________________________________
3 Caterpillar provided notice to Get ‘Er Done of Iron Planet’s involvement in
the sale of the directional drill in 2016, and again in 2017, when it mailed
notices of sale to Get ‘Er Done. See Plaintiff’s Amended Motion for Summary
Judgment, 8/17/20, at Exhibit I. In addition, a copy of the Floyd affidavit was
attached to Caterpillar’s original motion for summary judgment, filed on
January 15, 2020, after which the court extended the discovery deadline by
six months. See Trial Court Order, 1/29/20.
4 Durkin’s report does not discuss the value of the hydraulic excavator.
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Get ‘Er Done asserts that Durkin’s report “raises a significant factual issue
which the [c]ourt should have preserved for trial.” Id. at 25.
In response, Caterpillar contends that the Durkin report “is not
competent expert testimony under Pennsylvania law.” Brief of Appellee, at
20. First, Caterpillar argues that the report is merely “an unsworn,
unsupported expression of value submitted by . . . a heavy equipment
salesman who has sold equipment to [Perry Rowan, Get ‘Er Done’s owner] for
many years.” Id. Caterpillar asserts that the report is “inherently unreliable
on its face and fails to meet the requirements of the Pennsylvania Rules of
Civil Procedure and . . . Evidence.” Id. Durkin “failed to submit credentials
to the [c]ourt or the parties that would justify qualification as an expert” and,
thus, Get ‘Er Done’s characterization of the document as an “expert report” is
“legally deficient and factually unavailing.” Id. at 21.
Moreover, Caterpillar argues, Durkin lacked any basis to opine on the
value of the drill at the time it was repossessed and sold at auction. Durkin
never personally examined the drill or even reviewed any documentation
related to the drill. Rather, Durkin’s report indicates that his valuation is based
on “the condition [of the drill] as it was related to [him].” Report of Dan
Durkin, (undated), at [2]. Caterpillar further notes that Durkin fails to identify
the source of his information and that it could not have come from Rowan,
who testified at his deposition that he never spoke to Durkin about the report.
See Rowan Deposition, 7/8/20, at 91. Finally, Caterpillar argues that Durkin
is not an impartial witness, as he continues to maintain a longstanding
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business relationship selling equipment to Rowan and/or Rowan’s employers.
We agree with Caterpillar that Durkin’s report lacks the proper foundation
required of expert testimony and, as such, was properly disregarded by the
trial court.
Pennsylvania Rule of Evidence 702 governs the admissibility of expert
testimony and provides as follows:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
At the summary judgment stage, a trial court is required to take
all facts of record, and all reasonable inferences therefrom, in a
light most favorable to the non-moving party. This clearly
includes all expert testimony and reports submitted by the
nonmoving party or provided during discovery; and, so long as
the conclusions contained within those reports are
sufficiently supported, the trial judge cannot sua sponte assail
them in an order and opinion granting summary judgment.
Contrarily, the trial judge must defer to those conclusions, and
should those conclusions be disputed, resolution of that dispute
must be left to the trier of fact.
Wright v. Eastman, 63 A.3d 281, 292 (Pa. Super. 2013) (citations omitted;
emphasis added).
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Pennsylvania Rule of Evidence 705 requires that “[i]f an expert states
an opinion the expert must state the facts or data on which the opinion is
based.” Pa.R.E. 705. “[E]xpert testimony must be based on more than mere
personal belief, and must be supported by reference to facts, testimony or
empirical data.” Snizavich v. Rohm & Haas Co., 83 A.3d 191, 195 (Pa.
Super. 2013) (citations omitted). At the summary judgment stage, a trial
court must evaluate expert reports submitted by the non-moving party in a
light most favorable to the non-moving party, so long as the conclusions
contained within those reports are sufficiently supported. Summers
v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (emphasis added).
Here, Durkin stated the basis for his opinion as to the value of the
directional drill as follows:
I have reviewed the sales documents for the Ditchwitch [] drill[.]
I have further examined the market value, as of 2016[,] for th[is]
item[], including sales receipts and my personal experience in the
drilling supply industry to formulate the following opinions to a
reasonable degree of certainty. I have also examined the Iron
Planet auction website for its practices [and] procedures for sale.
...
After reviewing the equipment and [its] condition with the
Defendants[’] representative, Mr. Rowan, in the condition as it
was related to me, should have warranted a price in the range
of $440,000.00 to $550,000.00.
...
I have been working for and selling underground construction
equipment for Ditch Witch Mid-States for more than 15 years now
and my research and valuation for FMV (fair market value) for
above said equipment comes from my experience and researching
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wholesalers and brokers specific to directional drills and support
equipment such as MTI, HDD Broker, Machinery Trader & Source
HDD. l believe these valuations are fair asking prices even as of
today’s market demand.
Durkin Report, at 2.
As a preliminary matter, we note that Durkin provided the court with no
credentials to establish his competency as an expert in the valuation of used
construction equipment. Durkin’s sole stated qualification is that he has been
“working for and selling underground construction equipment for Ditch Witch
Mid-States for more than 15 years.” Durkin Report, (undated), at 2. While it
is well-established that a witness may be qualified to render an expert opinion
based on training and experience alone, see Miller v. Brass Rail Tavern,
Inc., 664 A.2d 525, 528 (Pa. 1995), Durkin provides no additional details
regarding his training or experience, nor does he indicate that he possesses
any expertise in the appraisal and resale of used equipment.
More important, however, is the fact that Durkin provides no basis for
his opinion as to the value of the drill “by reference to facts, testimony, or
empirical data.” Snizavich, supra. In fact, the record demonstrates that
Durkin opined as to the drill’s value without ever inspecting the equipment.
While Durkin suggests in his report that Rowan “related” to him the condition
of the drill, Rowan denied that he ever discussed this matter with Durkin, see
Rowan Deposition, 7/8/20, at 91, and, even if he had, Rowan’s self-interested
description of the drill’s condition could not form the factual basis of an
admissible expert opinion. Accordingly, because Durkin’s conclusions were
not sufficiently supported, Summers, supra, the trial court was within its
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discretion to disregard the Durkin report in ruling on Caterpillar’s motion for
summary judgment.
Finally, Get ‘Er Done raises two interrelated challenges to the validity of
the sale of the directional drill.5 Specifically, Get ‘Er Done claims that the trial
court erred in finding the sale of the directional drill by auction on the website
Iron Planet was a public sale because it was only advertised by email to the
subscriber members of Iron Planet. Brief of Appellant, at 19. As such, Get
‘Er Done argues the sale was a private one. Get ‘Er Done further argues that
Caterpillar’s notice of public sale was deficient, as the sale occurred seven
days prior to the date indicated on the notice. No relief is due.
Section 9610 of the Commercial Code (“Code”) provides for the
disposition of collateral following a default, in relevant part, as follows:
(a) Disposition after default.--After default, a secured party may
sell, lease, license or otherwise dispose of any or all of the
collateral in its present condition or following any commercially
reasonable preparation or processing.
(b) Commercially reasonable disposition.--Every aspect of a
disposition of collateral, including the method, manner, time,
____________________________________________
5 Get ‘Er Done also purports to challenge the validity of the notice of private
sale with respect to the excavator, asserting that it was not mailed to the
correct address and Rowan “testified he does not recall ever receiving the
notice.” Brief of Appellant, at 21. This claim is patently meritless. Rowan
acknowledged that the address to which notice was sent—240 Kovalcheck[s]
Road, Carmichaels, PA 15320—was, in fact, the corporate address of Get ‘Er
Done. The erroneous inclusion by Caterpillar of an “s” at the end of the word
“Kovalcheck” is insufficient to invalidate the notice. Moreover, Rowan testified
that “I’m not saying [the notices] didn’t come. I’m saying I didn’t see them .
. . probably because I didn’t open up the mail and look at them. . . .
Sometimes I don’t get to my mail for 30, 40 days.” Rowan Deposition, 7/8/20,
at 39.
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place and other terms, must be commercially reasonable. If
commercially reasonable, a secured party may dispose of
collateral by public or private proceedings, by one or more
contracts, as a unit or in parcels and at any time and place and on
any terms.
13 Pa.C.S.A. §§ 9610(a) & (b). The terms “public sale” and “private sale” are
not defined in the Code.
Section 9611 of the Code requires that a secured party disposing of
collateral shall provide the debtor a reasonable authenticated notification of
disposition. Id. at § 9611. In a non-consumer goods transaction, such as
that at issue here, a notification of disposition sent “after default and ten days
or more before the earliest time of disposition set forth in the notification is
sent within a reasonable time before the disposition.” Id. at § 9612(b).
Section 9613 of the Code governs the form of notice for the disposition of
collateral and provides, in relevant part, as follows:
Except in a consumer-goods transaction, the following rules apply:
(1) The contents of a notification of disposition are sufficient if the
notification:
(i) describes the debtor and the secured party;
(ii) describes the collateral which is the subject of the
intended disposition;
(iii) states the method of intended disposition;
(iv) states that the debtor is entitled to an accounting of the
unpaid indebtedness and states the charge, if any, for an
accounting; and
(v) states the time and place of a public disposition or
the time after which any other disposition [i.e.,
private sale] is to be made.
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(2) Whether the contents of a notification which lacks any of the
information specified in paragraph (1) are nevertheless sufficient
is a question of fact.
(3) The contents of a notification providing substantially the
information specified in paragraph (1) are sufficient even if the
notification includes:
(i) information not specified by that paragraph; or
(ii) minor errors which are not seriously misleading.
Id. at § 9613. The purpose of requiring notification is to give the debtor a
reasonable period of time in which to exercise his option to participate in the
sale or otherwise to protect his interest. Reuter v. Citizens & N. Bank, 599
A.2d 673, 678 (Pa. Super. 1991).
Here, Caterpillar sent notice of public sale to Get ‘Er Done at its
corporate address, see Rowan Deposition, 7/8/20, at 39, on October 2, 2017.
The notice stated, in relevant part, as follows:
[Caterpillar will sell the drill] at public auction by Iron Planet, Inc.,
an online auction company (via Internet public auction). The
unit(s) can be previewed on the Iron Planet Internet Site
(www.ironplanet.com) from 10/23/2017 through 11/02/2017.
The auction will begin 11/02/2017 sometime after 8:00[ a.m.] at
(www.ironplanet.com). All instructions regarding the auction may
be found on the Iron Planet web site. The auction will close at
5:00[ p.m.], 11/02/2017. At that time, all sales will be final.
Notice of Public Sale, 10/2/17.
The online auction house utilized by Caterpillar, Iron Planet, “provides
an online marketplace connecting motivated sellers and buyers of heavy
machinery and other industrial assets from around the world.” Duane Hronik
Affidavit, 9/14/20, at ¶ 11. It regularly auctions drilling equipment and, “in
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the last several years . . . has sold a total of 31 directional drills generating
gross transaction value of over $3 million.” Id. The auction at which Get ‘Er
Done’s drill was offered for sale was marketed from October 5, 2017 through
October 26, 2017 via email advertisements sent to Iron Planet’s 1.4 million
registered account holders, as well as to the 1.5 million subscribers to Iron
Planet’s promotional news bulletins. Id. at ¶¶ 5, 6. The auction web pages
were viewed over 4 million times in the weeks leading up to the auction by
individuals from around the world, including the United States, Canada,
Mexico, Colombia, Peru, and the Philippines. Id. at ¶ 7. The webpage for the
directional drill was viewed approximately 370 times. Id. at ¶ 8.
Approximately 160,000 individuals attended the auction, at which
approximately 13,000 bids were placed on items available for sale. Id. at ¶
9. The directional drill itself received 100 bids from 19 different bidders
around the globe. Id. at ¶ 10. The online auction was held between October
12, 2017 and October 26, 2017. Id. at ¶ 4.
As to the valuation of the equipment, Caterpillar offered the Floyd
affidavit, in which the affiant stated that the values of the excavator and
directional drill were determined using an internal Caterpillar Financial system
called the Valuations Management Tool (VAT). The VAT “contains matrices
specific to each Caterpillar model . . . [and] provide[s] a value specific to the
model, model year, estimated hours, configuration or attachments, and
application.” Floyd Affidavit, 1/13/20, at ¶ 22. The values within the VAT “are
based on a detailed analysis of the past five years of public auction data,
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Caterpillar Dealer sales data, and Cat Financial Remarketing sales data, and
is updated annually.” Id. Floyd averred that the VAT valued the directional
drill at $145,500 and that it ultimately sold at online auction for $150,500.
Id. at 27, 28.
We can discern no error in the trial court’s conclusion that the sale of
the directional drill constituted a public sale and that the notice provided to
Get ‘Er Done was sufficient. The cases relied upon by Get ‘Er Done are readily
distinguishable from the instant matter. See Fidelity Consumer Discount
Co. v. Clark, 482 A.2d 580, 583 (Pa. Super. 1984) (holding unpublicized sales
of two repossessed automobiles not public, where sole evidence as to nature
of sales consisted of testimony that “the sales were ‘for anybody that wanted
to look at it.’”); Coy v. Ford Motor Credit Co., 618 A.2d 1024 (Pa. Super.
1993) (holding sale of repossessed automobile at unadvertised auction open
only to automobile dealers not “public” sale under the Code).
Conversely, here, Caterpillar utilized the power of the internet to
advertise the auction to a worldwide audience of at least 1.4 million—and up
to 2.9 million—people who were registered users of Iron Planet’s website
and/or subscribers to its newsletters. See Hronik Affidavit, 9/14/20, at ¶¶ 5,
6. As noted above, approximately 160,000 individuals from around the world
attended the auction at which the drill was sold. The drill itself received 370
views and 100 bids. Importantly, Get ‘Er Done presented no evidence that
would have created a genuine issue of material fact as to the commercial
reasonableness of the online auction. Although we have found no case law
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specifically addressing the question of whether an online auction may
constitute a “public sale” as contemplated by the Code, because the auction
in this case reached a sufficiently broad worldwide audience and garnered a
substantial number of views and bids, we conclude that the trial court did not
err in finding it to be a public sale.
As to the sufficiency of the notice of public sale, we conclude that the
discrepancy in dates was immaterial. Pursuant to the Code, a notification of
disposition sent “ten days or more before the earliest time of disposition set
forth in the notification is sent within a reasonable time before the disposition.”
13 Pa.C.S.A. § 9612(b). Here, the notice of public sale was dated October 2,
2017. The auction began ten days later, on October 12, 2017, and concluded
on October 26, 2017. See Hronik Affidavit, 9/14/20, at ¶ 4. As such, Get ‘Er
Done had sufficient opportunity to visit the Iron Planet website and submit a
bid had it chosen to do so.
Moreover, as noted above, the primary purpose of the notice provision
is to give the debtor a reasonable period of time in which to exercise his option
to participate in the sale or otherwise to protect his interest. Reuter, supra.Here, Rowan does not argue that he was prevented from making an offer for
the drill because he was misinformed regarding the dates of the auction. In
fact, Rowan testified at his deposition that: (1) he did not even see the notice
of sale because he often does not look at his mail, see Rowan Deposition,
7/8/20 at 40; (2) he was unable to make the payments on the equipment
because his money “ran out,” id. at 33; and (3) he had previously attempted
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to find a buyer for the equipment, but had been unsuccessful in doing so. See
id. at 59-63. Accordingly, Rowan was not prejudiced by the erroneous dates
contained in the notice of public sale.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2022
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