J-A32008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT E. GARDNER                                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

I.C. SYSTEM, INC.

                            Appellee                    No. 2468 EDA 2013


                  Appeal from the Order Entered August 5, 2013
              In the Court of Common Pleas of Montgomery County
                          Civil Division at No. 11-18837


BEFORE: PANELLA, J., OLSON, J., FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                              FILED MARCH 09, 2015

        Appellant, Robert E Gardner, appeals from the order granting

summary judgment in favor of Appellee, I.C. System, Inc. We affirm.

        Appellee is a debt collector that attempted to collect a debt obligation

from Appellant on behalf of Bank of America by making telephone calls to his

residence. On July 12, 2011, Appellant filed the following Complaint in the

Court of Common Pleas. We quote it in its entirety:

               1. The plaintiff resides at the above address.

               2. The defendant has offices at the above address.

               3. In an effort to collected [sic] an alleged debt the
                  defendant violated the following laws:


____________________________________________



    Former Justice specially assigned to the Superior Court.
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                  a. Pennsylvania Unfair Trade Practices and Consumer
                     Protection Law, 73 Pa.C.S. Section 201-1 et seq.
                     [“CPL”].
                  b. Pennsylvania Fair Credit Extension Uniformity Act,
                     73 Pa.C.S. Section 227.01 et seq. [“FCEUA”].

               4. As a result of the defendant’s conduct the plaintiff
                  suffered damages that may be recovered under the
                  above stated laws.

                WHEREFORE, the plaintiff requests judgment, attorney’s
                fees and costs in an amount not in excess of twenty
                thousand ($20,000) dollars.

       The Complaint contained no supporting facts or allegations, and did

not specify which provisions of the cited statutes had been allegedly

violated.     Appellee filed an answer and new matter denying that it had

violated the cited statutes.         Appellant responded to the new matter with

general denials and a repeated summary allegation that Appellee had

“engaged in a per se violation.”           Plaintiff’s Reply to New Matter, dated

9/12/2011.

       During    the   discovery      period,   Appellant   objected   to   Appellee’s

interrogatories, requests for production of documents, and requests for

admissions by stating that each discovery request was “irrelevant and

harassment” because Appellee had “engaged in a per se violation.”

Plaintiff’s   Objection   to   the    Defendant’s    Requests   for    Production   of

Documents, dated 9/26/11; Plaintiff’s Objection to the Defendant’s Request

for Admissions, dated 9/26/11; and Plaintiff’s Objection to the Defendant’s

Interrogatories, dated 9/26/11. Appellee filed a motion to compel discovery

responses, which the trial court granted.             Appellant responded to the


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discovery requests by stating that Appellee had violated the CPL and the

FCEUA by calling him “thirty five to forty times,” and stated that his

damages from Appellee’s unanswered phone calls were “stress, anxiety, Not

pick up phone [sic]” Plaintiff’s Answer to Interrogatories, dated 4/5/12. He

admitted that he had failed to pay the balance due on his Bank of America

credit card; that he had not actually spoken to Appellee by telephone; and

that he had not incurred any ascertainable loss of money as a result of

Appellee’s conduct. See Plaintiff’s Answers to Request for Admissions, dated

4/5/12. In response to Appellee’s request for production of documents,

Appellant submitted copies of notices received from several debt collectors

other than Appellee, and provided a copy of a monthly statement from Bank

of America showing his outstanding credit card balance as of June 2009.

     Appellee filed a motion for summary judgment. Appellant responded

with an Answer to the Motion, in which he stated that Appellee had

contacted him personally despite Appellant’s having sent notice that he was

represented by counsel.     After oral argument, the trial court granted

summary judgment in favor of Appellee.

     Appellant timely appealed to this Court, raising the following issues:

            A. Is a per se violation actionable?

            B. Must there be actual damages to proceed with a per se
               violation?

            C. May a jury determine the damaged [sic] in a per se
               violation?



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Appellant’s Brief at 3.

       In a one-and-a-half page argument,1 Appellant avers that because

Appellee ignored his “warn[ing] to cease all contact with” Appellant, Appellee

committed a “per se” violation of the FCEUA. Appellant’s Brief at 5, citing 73

P.S. § 2270. In support, he cites to Exhibits “A” and “B.” However, there

are no exhibits annexed to his brief and there are no citations to the

reproduced record indicating where those exhibits might otherwise be found.

Appellant fails to cite case law or other authority to support his argument,

and provides no analysis which would enable this Court to provide

meaningful review of the issues raised.2

       Appellant has utterly failed to comply with the Pa.R.A.P. 2119. We thus

conclude his argument on appeal is waived. See, e.g., Coulter v.

Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014), appeal denied, 403

WAL 2014 (Pa. filed Dec. 10, 2014) (observing that Pa.R.A.P. 2119 requires

that argument be developed for each issue raised with citation to authority

in support of each contention, and appellate arguments which fail to adhere

to Rule 2119 may be considered waived).


____________________________________________


1
   John J. O’Brien, III, Esquire, has represented Appellant throughout this
litigation.
2
  In fact, Appellant’s “argument” section of his brief is identical to both his
Pa.R.A.P. 1925(b) statement and his Memorandum of Law filed in opposition
to Appellee’s summary judgment motion.



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      Even without our waiver determination, we would affirm the trial

court’s order. Our review of the record reveals that, like his appellate brief,

Appellant’s pleadings and his responses to pleadings and discovery requests

were also procedurally and substantively inadequate. Accordingly, we would

have found that the trial court properly granted summary judgment to

Appellee.

      The standards pertaining to summary judgment are well-settled:

      A motion for 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 non-moving 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). See also Pa.R.C.P. 1035.2.

      Once a summary judgment motion is filed, the non-moving party

(here, Appellant) bears the burden of proving that there is a genuine issue

of material fact precluding summary judgment.         Where the non-moving

party bears the burden of proof on an issue, he or she may not merely rely

on his pleadings or answers but rather must set forth specific facts

demonstrating a genuine issue of fact.      See Bank of America, N.A. v.

Gibson, 102 A.3d 462, 464 (Pa. Super. 2014); Pa.R.C.P. 1035.3. “Failure of


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a non-moving party to adduce sufficient evidence on an issue essential to its

case and on which it bears the burden of proof ... establishes the entitlement

of the moving party to judgment as a matter of law.” Young v.

Commonwealth Dep’t of Transportation, 744 A.2d 1276, 1277 (Pa.

2000).

      The trial court here correctly observed that Appellant’s four-line

Complaint “was procedurally and substantively flawed,” and that his

responses to Appellee’s discovery requests “were similarly insufficient under

the law and the applicable Pennsylvania Rules of Civil Procedure [such that

Appellant] failed to supply a sufficient factual basis to support his claims.”

Trial Court Opinion, dated 3/8/14, at 1 - 2. Moreover, our review of the

record supports the trial court’s conclusion that Appellant had failed to

provide any evidence in the form of affidavits or exhibits which would

provide the requisite prima facie evidentiary basis necessary to survive

summary judgment.        Because Appellant failed supply the necessary

evidentiary support, we conclude that the trial court did not abuse its

discretion or err as a matter of law in granting Appellee’s motion for

summary judgment.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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