J-A19013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    WELLS FARGO EQUIPMENT FINANCE, :           IN THE SUPERIOR COURT OF
    INC.                           :                PENNSYLVANIA
                                   :
                                   :
             v.                    :
                                   :
                                   :
    DOOR SERVICE, INC.             :
                                   :           No. 3274 EDA 2018
                   Appellant       :

              Appeal from the Judgment Entered October 15, 2018
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2017-28092


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                     FILED NOVEMBER 19, 2019

        Door Service, Inc., stopped making payments on an installment

payment agreement to Wells Fargo Equipment Finance, Inc., because software

Door Services purchased from a third party with the loan money allegedly did

not work as expected. Wells Fargo brought the instant lawsuit claiming that

Door Services had defaulted on its obligation under the agreement, and owed

over $50,000 in principal, interest, and late fees. The installment payment

agreement between the parties contained a disclaimer of any lender liability

arising from the software purchased with the loan. It also contained a forum

selection clause choosing Pennsylvania as the chosen forum for future

lawsuits.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A19013-19



       After Door Services filed its answer, Wells Fargo filed a motion for

summary judgment, which the trial court granted. Appellant asserts the trial

court erred by granting of summary judgment. We affirm on the basis of the

trial court opinion.1

       Door Services raised four issues on appeal.

       1. Was it an error of law to grant a motion for summary judgment
          when the record showed that fact issues existed and discovery
          was not complete?

       2. Was it an error of law not to apply Illinois law to this action
          under 42 P.S. 5327?

       3. Was it an error of law to split the cause of action under the
          jurisdiction of at least two (2) states?

       4. Was it an error of law to overlook the plaintiff’s failure to file a
          motion on the sufficiency of the objections to the requests for
          admission?

Door Services, Inc.’s Brief, at 3 (unnecessary capitalization omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that there is no merit to the issues Door Services has raised on appeal. The

trial court opinion properly disposes of Door Services’ arguments, and we

adopt it as our own. See Trial Ct. Op., at 3-5 (concluding that claims trial

court should have applied Illinois law were waived for failing to raise before

trial court and would lack merit; claim trial court erred in granting summary


____________________________________________


1 In its opinion, the trial court fully and correctly sets forth the relevant facts
and procedural history of this case. Therefore, we have not restated them at
length here. See Trial Court Opinion, 01/01/19, at 1-2.

                                           -2-
J-A19013-19



judgment was meritless because Wells Fargo’s predecessor had no duty to

investigate software; trial court properly granted summary judgment where

no triable issue of fact existed, even without Door Services’ responses to Wells

Fargo’s request for admissions).

      Accordingly, we affirm on the basis of the trial court opinion.

      Judgment affirmed.

      President Judge Emeritus Stevens joins the memorandum.

      Judge Kunselman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




                                     -3-
                                                                          Circulated 10/31/2019
                                                                        2017-28092-0025         02:11Page
                                                                                            Opinion, PM 1




     IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,
                         PENNSYLVANIA
                         CIVIL DIVISION


WELLS FARGO EQUIPMENT                                                         NO. 17-28092
FINANCE, INC., successor by
assignment to Marlin Leasing
Corporation
      Plaintiff

      v.                                      2017-28092-0025 11912019 3:52 PM # 12133382
                                              Rcpt#Z3560035 Fee:S0.00 Opirrion
                                              Main (Public)
DOOR SERVICE, INC.                            Mon!Co Prolhonotary

    Defendant

                                 OPINION

SILOW, J.                                                       JANUARY _L, 2019


      Door Service, Inc. ("defendant") appeals from the Order dated October 12,

2018, which granted the motion for summary judgment of Wells Fargo

Equipment Finance, Inc. ("plaintiff'). For the reasons set forth below, the

Order should be affirmed.

I.    FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      Plaintiff is the successor-in-interest to Marlin Leasing Corporation

("Marlin"). Plaintiffs Motion for Summary Judgment ("MSJ"), filed 8/ 1/ 18,

Exh. l(B). It is a Minnesota corporation registered to do business in

Pennsylvania.

      Defendant is an Illinois corporation that entered into an installment

payment agreement ("agreement") with Marlin in March 2016 to finance

defendant's acquisition of certain software and related services from non-party

Advanced Systems Group, Inc. ("ASG"). MSJ, Exh. l(A). The agreement
                                                                 2017-28092-0025 Opinion, Page 2




required defendant, inter alia, to make 60 monthly payments of $1, 110.03 to

Marlin. Id. It also contained a disclaimer by Marlin of any liability relating to

the software defendant purchased from non-party ASG, and a provision

requiring that suits relating to the agreement be brought exclusively in

Pennsylvania state or federal court. Id. at ,i,i 4(a)-(c), 18.

      Plaintiff brought the instant lawsuit in Montgomery County in December

2017, alleging defendant had defaulted on its payment obligation under the

agreement. The complaint alleged a balance owing of $50,050.42, which

included principal, late fees and interest as of November 30, 2017.

      Defendant, through counsel, filed an answer to the complaint with new

matter. Plaintiff answered the new matter and later filed a motion for summary

judgment, which this court granted. Defendant appealed and produced a

statement of issues under Pennsylvania Rule of Appellate Procedure l 925(b).

II.   ISSUES

      Defendant's statement of issues, as recast here, appears to raise the

following issues:

              1.    Whether the product defendant obtained with
             the financing provided by plaintiff did not work for its
             intended purpose?

             2.     Whether Illinois law applies to this case?

             3.     Whether the case belongs in Illinois?

             4.    Whether, under Illinois law, plaintiff's
             predecessor-in-interest had a duty to determine if the
             product defendant purchased worked for its intended
             use?




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                                                                2017-28092-0025 Opinion, Page 3




              5.    Whether defendant received proper credit for
              loan payments?

              6.  Whether fact issues preclude the entry of
              summary judgment?

III.    DISCUSSION

        1.   This court properly entered summary judgment in favor of
             plaintiff.

        A party may move for summary judgment "whenever there is no genuine

issue of any material fact as to a necessary element of the cause of action or

defense which could be established by additional discovery or expert report].]"

Pa. R.Civ.P. 1035.2(1). The Pennsylvania Superior Court further has explained

that:

             [w]hen considering a motion for summary judgment,
             the trial court must take all. facts of record and
             reasonable inferences therefrom in a light most
             favorable to the non-moving party. In so doing, the
             trial court must resolve all doubts as to the existence
             of a genuine issue of material fact against the moving
             party, and, thus, may only grant summary judgment
             where the right to such judgment is clear and free
             from all doubt.

Wells Fargo Bank, N.A. v. Joseph, 183 A.3d 1009, 1012 (Pa. Super. 2018),

reargument denied (May 11, 2018) (citation omitted). "The party opposing the

motion for summary judgment must produce evidence essential to the cause of

action, without merely resting upon the allegations or denials in the pleadings."

Id. (citing Pa. R.Civ.P. 1035.3(a)).

        The claims made by defendant in paragraphs two and three of its

statement of issues have been waived. Pa. R.A.P. 302 (issues not raised before

the trial court are waived on appeal). Defendant did not develop them in its

                                        3
                                                                 2017-28092-0025 Opinion, Page 4




answer to the motion for summary judgment or its one-page memorandum of

law.' Moreover, the parties' agreement expressly provides for jurisdiction in

Pennsylvania. Defendant has come forward with no evidentiary basis to

override that contractual agreement. As such, to the extent the issues are not

waived, they lack merit.

      Similarly, the issues contained in paragraphs one and four fail for lack of

development. Defendant presented no basis in its opposition to the motion for

summary judgment for the proposition that plaintiffs predecessor had a duty

to investigate the product for which it was providing financing.

      Defendant's last two issues may be read to challenge this court's

determination that no triable issue of fact exists. The summary judgment

record detailed above makes clear, however, that (1) plaintiff is the successor-

in-interest to Marlin, (2) Marlin extended financing to defendant for the latter's

acquisition of software and related services from third-party ASG, (3) Marlin

disclaimed any liability related to the purchase, (4) the parties agreed to have

suits related to the finance agreement heard in Pennsylvania and (5) defendant

breached its repayment obligation under the financing agreement, leaving an

amount due of $50,050.42 in principal, interest and late fees.

      To the extent defendant asserts in its statement of issues that plaintiff

did not give it proper credit on payments made, the claim is waived because


1 While defendant filed a "Praecipe Notice of Illinois Law" on January 8, 2018, it
made no reference to Illinois Jaw whatsoever in its answer to the motion for
summary judgment or its memorandum of law. Indeed, defendant's scant
citations in its answer and memorandum were to Pennsylvania Superior Court
decisional law and Pennsylvania Rules of Civil Procedure.

                                         4
                                                                2017-28092-0025 Opinion, Page 5




defendant did not make such an argument in its answer to the motion for

summary judgment or its memorandum of law. Moreover, defendant has not

come forward with evidence of which, if any, payments were not properly

credited. Indeed, in response to the allegation in plaintiffs complaint regarding

the amount due (Complaint, 12/4/ 17,    ii 11), defendant merely asserted it was
not in default, and did not contest plaintiff's calculation of the amount due.

       Finally, defendant contends this court could not grant summary

judgment based on its objections to plaintiffs requests for admissions. The

summary judgment record detailed above, including the pleadings and exhibits

attached to the complaint, makes clear plaintiffs entitlement to relief, even

without reference to defendant's responses to plaintiff's requests for

admissions.

III.   CONCLUSION

       Based upon the foregoing, the Order granting plaintiffs motion for

summary judgment should be affirmed.




Sent on i   <r/
                  t°lto
Prothon tary (Original)
Phillip D. Berger, Esq.
J      J. O'Brien, Esq.




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