J-S16029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*
    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?
____________________________________________


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
____________________________________________


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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