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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(s): 14030661


BEFORE: BOWES, JENKINS and PLATT,*JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                      FILED JUNE 18, 2015

      I disagree with my distinguished colleagues that Appellant waived his

claim that the lack of a direct relation between the warrant of attorney and

the   signature   rendered   the     confession   of   judgment   unenforceable.

Furthermore, I find merit in Appellant’s position and believe the confessed

judgment should have been opened on that basis.            Hence, I respectfully

dissent.

      Appellant, who appeared pro se, pled that he never voluntarily,

intelligently and knowingly gave up his right to notice and a hearing prior to




* Retired Senior Judge assigned to the Superior Court.
J-S21040-15



entry of judgment. Answer to Confession of Judgement Claim, at 2 ¶12. 1 In

his memorandum of law accompanying the pleading, Appellant specified that

he never saw the purchase order prior to signing it and the confession of

judgment clause was not presented in a conspicuous manner. Memorandum

of Laws for Petition to Strike/Open Confessed Judgment, at unnumbered 4.

He contended that RideSafely should have been required to produce the

original or a photo static copy of the screen that captured the document in

the form in which it was presented to the user. Id.

       Appellant’s averment was sufficient under Pa.R.C.P. 2959 to apprise

RideSafely of his contention that the warrant of attorney was not

conspicuously displayed when he affixed his electronic signature.            Indeed,

such notice was conferred as evidenced by Ridesafely’s response: “The

Agreement      was    presented     to   Defendant   in   a   conspicuous   manner.”

Plaintiff’s Response in Opposition to Defendant’s Petition to Strike or Open

Confessed Judgment, at 2 ¶6.

       Moreover, prior to the hearing, Appellant filed a supplemental

memorandum in which he captured screenshots that depicted the screen

when he was “‘supposedly’ presented with the contract” that contained the

cognovit clause. Additional Memorandum of Laws for Petition to Strike the

____________________________________________


1
  The Answer was properly treated by the court as a motion to strike and/or
open a confessed judgment.



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Confession of Judgment, 8/21/14, at 2. The screenshot when he clicked the

“confirm” button and affixed his signature does not display the purchase

order containing the confession of judgment clause.        RideSafely merely

noted the presence on the screen of a hyperlink to a purchase order

agreement but did not advise that it contained a confession of judgment

clause.   Appellant contended that a confession of judgment clause that is

visible only after one accesses the document in which it appears via

hyperlink is not conspicuous.    Further, he argued that by clicking on the

“confirm” button, it was not clear that he was affixing his signature to the

hyperlinked purchase order agreement rather than merely confirming the bid

that appeared on the screen. Id. at 3. Appellant cited L.B. Foster Co. v.

Tri-W Construction Co., Inc., supra, for the proposition that the warrant

of attorney authorizing confession of judgment was unenforceable under

Pennsylvania law as it was not placed conspicuously on the same page as

the signature. Appellant sufficiently articulated below the issue he argues on

appeal and waiver is not justified on this record.

      Before turning to the merits of Appellant’s argument, I would point out

that confession of judgment clauses have been described as “the most

powerful and drastic document known to civil law.” Cutler Corporation v.

Latshaw, 97 A.2d 234, 236 (Pa. 1953).         Since such a clause deprives a

party of his or her day in court and permits a creditor to obtain an

enforceable judgment against a debtor without benefit of trial or a defense,

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it is not favored. It is “equivalent to a warrior of old entering a combat by

discarding his shield and breaking his sword.” Id. Consequently, “the law

jealously insists on proof that this helplessness and impoverishment was

voluntarily accepted and consciously assumed."        Id.; see also Scott

Factors, Inc. v. Hartley, 228 A.2d 887 (Pa. 1967).

     Courts strictly scrutinize confession of judgment clauses due to the

constitutional due process concerns associated with their enforcement. See

Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138 (Pa.Super. 1985). In

Frantz Tractor Co. v. Wyoming Valley Nursery, 120 A.2d 303, 305 (Pa.

1956), our High Court affirmed the trial court’s striking of a confessed

judgment based on a warrant of attorney located on the reverse side of a

commercial lease that consisted of twenty-one paragraphs “so finely printed

as not to be readily legible and so close in type as to be blurred.” Id. The

confession of judgment clause was located in the last half of the eighteenth

paragraph; the lessee’s signature was located on the front page.         Our

Supreme Court reiterated:

     Where a lease contains a warrant of attorney, the signature of
     the lessee must bear such direct relation to the provision
     authorizing the warrant as to leave no doubt that the lessee
     signed, conscious of the fact that he was thereby conferring
     upon the lessor a warrant to confess judgment against him for a
     breach of a covenant of the lease. A general reference in the
     body of an executed lease to terms and conditions to be found
     outside the agreement is insufficient to bind the lessee to a
     warrant of attorney not contained in the body of the lease unless
     the lessee signs the warrant where it does appear. In short, a
     warrant of attorney to confess judgment is not to be foisted

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       upon anyone by implication or by general and nonspecific
       reference.

Id.

       Thus, in order to be enforceable even between commercial entities,

the warrant of attorney authorizing confession of judgment must be

conspicuous and signed, and the signature “must bear a direct relation to

the warrant of attorney and may not be implied." L. B. Foster Co. v. Tri-W

Const. Co., supra at 20. There should be no doubt that the person signing

the warrant was conscious of the fact that he was consenting to the

confession of judgment against him in the event of breach.

       The    Uniform   Commercial    Code,   13    Pa.C.S.   §1201(10)   defines

conspicuous “[w]ith reference to a term,” as “so written, displayed or

presented that a reasonable person against which it is to operate ought to

have noticed it.” A conspicuous term includes

       (i)      A heading in capitals equal to or greater in size than the
                surrounding text, or in contrasting type, font or color to
                the surrounding text of the same or lesser size;

       (ii)     Language in the body of a record or display in larger
                type than the surrounding text, in contrasting type, font
                or color to the surrounding text of the same size, or set
                off from surrounding text of the same size by symbols
                or other marks that call attention to the language.

13    Pa.C.S.   §1201(10)(i-ii).     See   also    Moscatiello   v.   Pittsburgh

Contractors Equipment Co., 595 A.2d 1190, (Pa.Super. 1991) (“A term or

clause is ‘conspicuous’ when it is ‘so written that a reasonable person



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against whom it is to operate ought to have noticed it . . . . Language in the

body of a form is conspicuous if it is in larger or other contrasting type or

color . . . .’”).

       In Graystone Bank v. Grove Estates, LP., 58 A.3d 1277, 1283

(Pa.Super. 2012), this Court recently held that a “warrant of attorney that

appeared conspicuously in all caps on the very bottom of the penultimate

page of the agreement and immediately preced[ing]” the signature at the

top of the following final page, sufficed. Generally, where the clause is clear

and conspicuous and the signature of the debtor appears in direct relation to

the confession of judgment clause, we have enforced such clauses as

between business entities.      We enforced a conspicuous confession of

judgment clause in a commercial lease in Ferrick v. Bianchini, 69 A.3d

642, 647-648 (Pa.Super. 2013), finding the "clear manifestation of consent

that is required to sustain the validity of a cognovit clause," not a situation

where the warrant was "foisted upon anyone by implication or by general

and nonspecific reference."

       The instant appeal presents novel issues because it involves an online

transaction. The purchase order appended by RideSafely to the complaint in

confession of judgment is a three-page document consisting of eighteen

paragraphs. This is apparently a hard copy version of the purchase order on

the RideSafely website. Paragraph 17 provides:




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     17. “PENALTY FOR VIOLATION OF PARAGRAPH 2/ CONFESSION
     OF JUDGMENT: Buyer covenants and agrees that if he files or
     initiates an action either against Ridesafely.com and/or against
     any of its affiliated dealers in any jurisdiction other than
     Philadelphia, Pennsylvania, Ridesafely.com and/or its affiliated
     dealer may cause judgment to be entered against the Buyer, and
     for that purpose of that the Buyer hereby authorizes and
     empowers Ridesafely.com and/or its affiliated dealer or any
     Prothonotary, Clerk of Court or attorney of any court of record to
     appeal for and confess judgment against the Buyer and agrees
     that Ridesafely.com and/or its affiliated dealer may commence
     an action pursuant to Pennsylvania Rules of Civil Procedure No.
     2950 et. seq. for the recovery from the Buyer of the amount of
     monies, which shall be the greater of the two – either the
     amount claimed by the Buyer in an action which was initiated in
     violation of Paragraph 2 of this Agreement or the amount of
     money the Buyer has set as the “Price” in this Agreement
     (Paragraph “ORDER” of 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% (fifteen
     per cent), for which thereto, shall be sufficient warrant. Neither
     the right to institute an action pursuant to Pennsylvania Rules of
     Civil Procedure No 2950 et. seq., nor the authority to confess
     judgment granted herein shall be exhausted by one or more
     exercises thereof, but successive complaints may be filed and
     successive judgments may be entered for the afore-described
     sums five days or more after they become due as prescribed in
     this agreement. No judgment shall be filed by Ridesafely.com
     and/or its affiliated dealer without at least (30) days written
     notice, certified mail returned receipt requested, and opportunity
     to the Buyer to cure any such default by discontinuing the
     action/litigation/suit, which is/was filed and/or initiated in
     violation of Paragraph 2 of this Agreement and dismissing it with
     prejudice.

Purchase Agreement at unnumbered 3, ¶17.




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       Notably, the paragraph containing the warrant of attorney is no more

conspicuous than the remaining paragraphs of the document.2 The warrant

of attorney authorizing confession of judgment is located in the middle of a

long paragraph and the language is not bolded or capitalized.            Just as

important in my opinion are the screenshots from the RideSafely website.

They revealed that the actual purchase order agreement containing the

warrant of attorney was not displayed on the screen when Appellant clicked

the “confirm” button and electronically signed the document.3 The purchase

order was accessible only by hyperlink and Appellant maintained that he

never saw it. At best, he argued, the hyperlink operated as a reference to

the document that contained the warrant of attorney.            Thus, Appellant

contended, the purchase order itself was not conspicuous when he clicked

the button and affixed his signature, and furthermore, the signature was not

affixed in direct relation to the confession of judgment clause.         At the

September 4, 2014 hearing, RideSafely’s only rebuttal was that, “The



____________________________________________


2
  Appellant did not argue that the confession of judgment clause should be
stricken as inconspicuous on its face due to the lack of capital or bold letters.
3
 In ruling on a petition to open a judgment, “matters dehors the record filed
by the party in whose favor the warrant is given, i.e., testimony,
depositions, admissions, and other evidence, may be considered by the
court.” Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683
A.2d 269, 273 (Pa. 1996)



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contract was available on the website for his review, very clear and plain.”

N.T. Hearing, 9/4/14, at 7.

      On the record before me, I believe the confessed judgment should

have been opened.      Appellant offered evidence that the purchase order

agreement containing the confession of judgment clause was not displayed

on the screen when he signed the purchase order. It was only accessible by

clicking on a hyperlink.      I agree with Appellant that this situation is

analogous to the one where such a clause appears outside the body of a

lease in an addendum that was not separately signed but only referenced in

the original agreement. We found the latter to be invalid and unenforceable

in Hazer v. Zabala, 26 A.3d 1166, 1170-1171 (Pa.Super. 2011). See also

Frantz Tractor Co., supra at 305 (general reference in the body of an

equipment rental agreement to terms and conditions on the reverse side was

insufficient to bind the lessee to a warrant of attorney contained on the

reverse side).

      The trial court did not address whether the warrant of attorney was

sufficiently conspicuous and directly related to Appellant’s signature as to be

legally enforceable. Instead, the court characterized the dispute as hinging

on the credibility of Appellant’s representation that he did not see or sign the

contract and did not waive any right to institute suit in Minnesota. In order

to resolve that credibility issue, the Court stated that Appellant would have

to appear in person in Philadelphia, and when Appellant responded that he

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could not do so, the court immediately denied the petition to strike and/or

open.

        Under Pennsylvania law, whether the confession of judgment clause

was clear and conspicuous and the signature sufficiently related to the

clause to be valid and enforceable is a question of law. See Midwest Fin.

Acceptance Corp. v. Lopez, 78 A.3d 614 (Pa.Super. 2013) (holding that

the legal effect or enforceability of a contract provision presents a question

of   law   accorded   full   appellate    review).    The   truth   of   Appellant’s

representation that he did not see or read the clause was immaterial to the

resolution of this issue and the trial court erred in reducing the issue to one

of credibility. See Hazer, supra at 1171.

        I would also note the following.          The instant online transaction

involved Appellant, a natural person, and RideSafely, a business entity

engaged in brokering the sale of salvage motor vehicles. Appellant accessed

the RideSafely website and secured the services of the broker to bid on and

purchase his desired vehicle. In doing so, Appellant confirmed the contract

by clicking the confirm button on the screen that contained the hyperlink.

That action operated to place his electronic signature on the bid confirmation

contract displayed on the computer screen as well as on the purchase order

that was in the hyperlink. That electronic signature on the purchase order

was relied upon by RideSafely to confess judgment against him for the

“price” stated on the face of the purchase order, plus fees, attorney’s fees,

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and costs, if the Buyer violated the choice of forum clause in paragraph two

of the purchase order, which designated Philadelphia Pennsylvania as the

exclusive forum. Appellant paid in full for the vehicle. Thus, there was no

credit advanced and there was no default.

     As the Majority correctly concludes, this was not a consumer credit

transaction within the meaning of Pa.R.C.P. 2950 and Willits v. Fryer, 734

A.2d 425 (Pa.Super. 1999), since there was no financing arrangement

between the parties. Thus, Appellant’s reliance upon the rule’s prohibition

against confession of judgment clauses in consumer credit transactions is

misplaced.    However, I believe our Unfair Trade Practice and Consumer

Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq. provides the legal

support Appellant was seeking.    Pursuant to the UTPCPL, 73 P.S. § 201-

2(4)(xviii), use of “a contract, form or any other document related to a

consumer transaction which contains a confessed judgment clause that

waives the consumer's right to assert a legal defense to an action” is an

unfair or deceptive act or practice.   I submit that the UTPCPL renders a

warrant of attorney authorizing confession of judgment in a consumer

contract such as the one herein invalid and unenforceable.

     What is particularly troubling herein is that Appellant paid for the

vehicle and owes RideSafely nothing.        RideSafely is being permitted to

confess judgment when Appellant does not owe a debt. The amount of the

confessed judgment even exceeds the price Appellant paid for the vehicle.

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This draconian penalty purports to be damages due to Appellant’s breach of

the contract by filing suit in another state. There is not a scintilla of proof

that RideSafely incurred damages close to the amount of the confessed

judgment, and I find this clause repugnant and unenforceable. I believe that

the judgment entered in this case was obtained without due process and

should not be accorded full faith and credit in any court in this nation.

      For the foregoing reasons, I believe the warrant of attorney used to

confess judgment against Appellant was invalid and unenforceable, and that

the trial court erred in refusing to open the confessed judgment. Hence, I

dissent.




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