J-A11041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 NICOLE J. GAWRON                          :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
              v.                           :
                                           :
 CITADEL FEDERAL CREDIT UNION              :
                                           :
                    Appellee               :       No. 1536 MDA 2017


              Appeal from the Order Entered September 1, 2017
               in the Court of Common Pleas of Luzerne County
                       Civil Division at No.: 2013-12093


BEFORE:    STABILE, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 07, 2018

      Appellant, Nicole J. Gawron, appeals from the order granting the motion

for summary judgment of Appellee, Citadel Federal Credit Union, in this breach

of contract motor vehicle repossession action. We affirm.

      We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s December 6, 2017 opinion.

            On February 16, 2009, the parties entered into a Motor
      Vehicle Installment Sales Contract (the “Contract”)[,] which
      required Appellant to pay to Appellee sixty (60) payments in the
      amount of $341.82 beginning on March 20, 2009. The loan was
      in connection with the purchase of a 2005 Nissan Altima and the
      Contract granted Appellee a security interest in said vehicle.
      Pursuant to the Contract, Appellant would be in default if she failed
      to make a payment on or before the due date or failed to keep a
      promise made in the Contract. One such promise Appellant made
      to Appellee in the Contract was that she would not move the
      vehicle from the address listed in the Contract . . . to a new place
      of permanent garaging without advance notice to Appellee. In an
      event of default, Appellee could accelerate the loan and/or

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A11041-18


     repossess the vehicle. Upon repossession of the vehicle, Appellant
     would not have the right to reinstate the Contract, but could
     redeem the vehicle or it would be sold to pay expenses and any
     amounts remaining due on the loan. In the event that the vehicle
     is repossessed, the Contract provides that Appellant must pay the
     costs of repossessing, storing, repairing, preparing for sale, and
     selling the vehicle. Finally, the Contract allows Appellee to delay
     enforcing its rights without losing such rights.

            According to Appellee’s records, Appellant was in default for
     nonpayment under the Contract as early as December 4, 2012,
     and Appellant admitted in court filings and her deposition that she
     had defaulted on the loan. ([See] Amended Complaint, Ex. B, p.
     8, number 50; [] [Appellant’s] Depo., [3/09/17,] p.8, 11[).] As
     of December 12, 2012, Appellant was fifty-three (53) days late on
     her loan payments and owed a total of $682.82. Appellee’s
     records also indicate that it made several unsuccessful attempts
     to reach Appellant by phone during this time period. As a result
     of the default, Appellee initiated the repossession process on or
     about December 12, 2012.           Appellee attempted to locate
     Appellant and the vehicle on numerous occasions between
     December 2012 and February 2013, incurring $512.50 in fees.
     According to Appellant, she had moved from the original address
     in the Contract and her new home was where the vehicle was
     parked. Appellant was unsure of the date upon which she notified
     Appellee of her change of address. As of February 13, 2013,
     Appellant paid off her past due balance on the loan; however, in
     a conversation with Appellee, Appellant both acknowledged the
     start of the repossession process and refused to pay the $512.50
     in fees.

           During various phone calls with Appellee after February 13,
     2013, Appellant was again advised that she must pay the $512.50
     in fees to stop the repossession. In the absence of any payments,
     Appellee’s agent repossessed Appellant’s vehicle on March 4,
     2013. On March 5, 2013, prior to Appellee’s notification that the
     vehicle had been repossessed, Appellant contacted Appellee and
     was told again that she must pay the $512.50 in fees to stop the
     repossession. According to Appellant, she was aware of the
     repossession at the time she called Appellee, but did not inform
     Appellee. This was the first time Appellant agreed to pay the
     repossession fees to Appellee. Appellant was instructed to deposit
     an amount and to contact Appellee once that was done. When
     Appellant called Appellee again, she confirmed that her vehicle
     had already been repossessed and was told that changed the

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J-A11041-18


       situation. Appellee explained to Appellant that she would now
       have to go through the redemption process. Immediately after
       talking to Appellee, Appellant withdrew the money she had
       previously deposited to cover the fees associated with the initial
       repossession. After Appellant refused to make any payments to
       redeem the vehicle, Appellee sold the vehicle to a third party on
       April 24, 2013.

(Trial Court Opinion, 12/06/17, at 11-15) (most record citations omitted).

       On November 7, 2013, Appellant filed a complaint against Appellee in

connection with the financing and repossession of her vehicle. Appellee filed

preliminary objections, which the trial court granted in part. On September

10, 2014, Appellant filed an amended complaint alleging breach of contract,

unjust    enrichment,       fraud,     negligent   misrepresentation,   fraudulent

concealment, and violations of the Unfair Trade Practices and Consumer

Protection Law (UTPCPL).1          The trial court denied Appellee’s preliminary

objections on March 17, 2016. On October 5, 2016, Appellee filed a motion

for judgment on the pleadings, which the trial court denied, after argument,

on December 6, 2016.

       After the parties completed discovery, Appellee filed a motion for

summary judgment arguing that there are not material facts in dispute and it

is entitled to judgment as a matter of law.            (See Motion for Summary

Judgment, 4/17/17, at 8). It explained that Appellant does not dispute the

terms of the agreement, and that she defaulted under the agreement by failing

to make payments when due. (See id.). Therefore, Appellee alleged that

____________________________________________


1   73 P.S. §§ 201-1—201-9.3.


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Appellant “failed to produce any evidence that [Appellee] acted improperly by

any means[,]” and “[t]here are no genuine issues of material fact that warrant

the submission of this case to a jury.” (Id. at 9, ¶¶ 55-56).

       Appellant filed a brief in opposition to the motion for summary judgment

on May 16, 2017, arguing that there are genuine issues of material, but failing

to identify any specific issues of fact arising from the record or set forth the

evidence in the record of the facts necessary to establish the causes of action

in her amended complaint. (See Brief in Opposition to Motion for Summary

Judgment, 5/16/17, at 1-7).

       On August 23, 2017, the court conducted a hearing on the motion for

summary judgment.2          On September 1, 2017, the court entered an order

granting Appellee’s motion for summary judgment. Appellant filed a timely

notice of appeal.       On October 23, 2017, pursuant to the court’s order,

Appellant filed a concise statement of errors complained of on appeal. The

trial court issued its opinion on December 6, 2017.3
____________________________________________


2The hearing also concerned a motion for sanctions that Appellee filed on June
22, 2017.

3 The trial court concludes that Appellant waived all issues for appeal because
her statement, which spanned two pages and raised eleven numbered issues,
was not concise. (See Trial Ct. Op., at 17-20). However, the court recognized
that the ultimate issue raised on appeal was a claim that it erred in granting
summary judgment, (see id. at 21), and addressed that issue in its opinion.
(See id. at 21-27). Thus, we do not find waiver because the statement
includes the issue raised on appeal, the trial court has addressed the issue,
and our appellate review has not been hampered. See Co. Image Knitware,
Ltd. v. Mothers Work, Inc., 909 A.2d 324, 329 n.5 (Pa. Super. 2006),



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J-A11041-18



       Appellant raises three questions on appeal.4

       [1.]   Did the court below err as a matter of law in dismissing
              [Appellant’s] amended complaint against [Appellee] for
              breach of contract, fraud or intentional deceit, fraudulent
              concealment, negligent misrepresentation, and failure to
              comply with [the UTPCPL]?

       [2.]   Did the court below err as a matter of law in dismissing
              [Appellant’s] amended complaint by failing to find that
              [Appellant] had established that material facts remained in
              dispute as to whether the actions of [Appellee] constituted
              a violation of its duty of good faith and fair dealing in its
              performance and enforcement of the contract between the
              parties?

       [3.]   Did the court below err as a matter of law in granting
              [Appellee’s] motion for summary judgment?

(Appellant’s Brief, at 4-5) (unnecessary capitalization omitted).

       Appellant’s questions all concern one issue, whether the trial court erred

when it granted Appellee’s motion for summary judgment. 5 (See id. at 21-
____________________________________________


appeal denied, 929 A.2d 645 (Pa. 2007) (declining to find waiver for eleven-
page statement containing several simple declarations of alleged fact, where
statement included issues raised, trial court addressed issues, and appellate
review was not hampered).

4 Although Appellant’s brief contains four questions, the first concerns whether
the trial court erred in concluding that she waived her issues because of a
lengthy concise statement. (See Appellant’s Brief, at 4). Because we have
already discussed the concise statement, and concluded that we will not find
waiver, we do not re-address this question. (See supra, at 4 n.3).

5 Although presented as three separate questions, Appellant’s concerns all
address her allegation that the trial court erred when it granted Appellee’s
motion for summary judgment. The argument portion of her brief combines
them into one issue. (See Appellant’s Brief, at 21-29). Thus, we combine the
three questions into one issue for our discussion as well.



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J-A11041-18



29). Specifically, she claims that issues of material fact remain, which would

bar summary judgment.6 We disagree.

       Our standard of review of an order granting summary judgment is well

settled.

              As has been oft declared by this Court, summary judgment
       is appropriate only in those cases where the record clearly
       demonstrates that there is no genuine issue of material fact and
       that the moving party is entitled to judgment as a matter of law.
       When 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.

____________________________________________


6 Appellant’s brief fails to identify the elements necessary to establish the
causes of actions raised, or how evidence in the record would establish those
elements. (See Appellant’s Brief, at 21-29).

       Furthermore, we observe that Appellant’s response to the motion for
summary judgment fails to set forth which evidence would establish her
causes of action, or detail which specific issues of material fact she claims
would preclude judgment, in defiance of the requirements set forth in Rule of
Civil Procedure 1035.3. (See Brief in Opposition to Motion for Summary
Judgment, at 1-7); Grandelli v. Methodist Hosp., 777 A.2d 1138, 1143–44
(Pa. Super. 2001) (“Where a motion for summary judgment is based upon
insufficient evidence of facts, the adverse party must come forward with
evidence essential to preserve the cause of action.”) (citation omitted).
Notably, Appellant’s response fails even to specify which causes of action she
raised raised in her Amended Complaint. (See Brief in Opposition to Motion
for Summary Judgment, at 1-7). Thus, the Rules of Civil Procedure would
have permitted the trial court to enter summary judgment in favor of Appellee,
the moving party, based on Appellant’s failure to respond appropriately to the
summary judgment. See Pa.R.C.P. 1035.3(a), (d); Payton v. Pennsylvania
Sling Co., 710 A.2d 1221, 1224 (Pa. Super. 1998) (“[T]he failure to respond
appropriately permits the entry of judgment in favor of the moving party, but
does not require such.”) (citation omitted).

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J-A11041-18


               On appellate review, then, an appellate court may reverse
         a grant of summary judgment if there has been an error of law or
         an abuse of discretion. But the issue as to whether there are no
         genuine issues as to any material fact presents a question of law,
         and therefore, on that question our standard of review is de novo.
         This means we need not defer to the determinations made by the
         lower tribunals. To the extent that this Court must resolve a
         question of law, we shall review the grant of summary judgment
         in the context of the entire record.

High v. Pennsy Supply, Inc., 154 A.3d 341, 345 (Pa. Super. 2017), appeal

denied, 171 A.3d 1287 (Pa. 2017) (citations omitted).

         Here, the trial court reasoned that Appellant’s causes of action are all

based on the premise that her vehicle was illegally repossessed, and

concluded that, aside from the unjust enrichment claim, all “counts in

Appellant’s [a]mended [c]omplaint fail because the allegations which form the

basis of the causes of action have been disproved by Appellant’s own

testimony at her deposition.” (Trial Ct. Op., at 22). We agree with the trial

court.

         The first count in Appellant’s amended complaint alleged a breach of

contract claim against Appellee, claiming that Appellee breached its

agreement with Appellant by declaring her loan in default and repossessing

the vehicle when the loan was current. (See Amended Complaint, at 5-6).

“To successfully maintain a cause of action for breach of contract the plaintiff

must establish: (1) the existence of a contract, including its essential terms,

(2) a breach of a duty imposed by the contract, and (3) resultant damages.”

Albert v. Erie Ins. Exch., 65 A.3d 923, 928 (Pa. Super. 2013) (citation

omitted).


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J-A11041-18



      Upon review, we conclude that Appellant has failed to show a genuine

issue of material fact with respect to whether Appellee breached the Contract.

Based on Appellant’s admissions, she breached the Contract and was in

default beginning in December 2012, when she failed to make timely

payments. (See Appellant’s Deposition, at 8, 11; see also Contract, 2/16/09,

Additional Terms and Conditions ¶¶ 13). The Contract is clear that because

Appellant was in default, Appellee had the right to repossess the vehicle, and

charge Appellant the costs of repossession.      (See Contract, at Additional

Terms and Conditions ¶¶ 14-15). Therefore, we conclude that the trial court

did not abuse its discretion or commit an error of law in deciding that Appellee

was entitled to judgment on count one. See High, supra at 345.

      The second count in the amended complaint alleged an unjust

enrichment claim against Appellee. (See Amended Complaint, at 6). “A cause

of action for unjust enrichment arises only when a transaction is not subject

to a written or express contract.” Northeast Fence & Iron Works, Inc. v.

Murphy Quigley Co., Inc., 933 A.2d 664, 668 (Pa. Super. 2007), appeal

denied, 947 A.2d 737 (Pa. 2008) (citation omitted).       Here, the trial court

concluded that “Appellant has admitted the existence of a written contract

between the parties, [therefore,] she cannot sustain a cause of action for

unjust enrichment.” (Trial Ct. Op., at 22) (case and record citation omitted).

We agree.   Thus, we conclude that the trial court did not err or abuse its

discretion in deciding that Appellee was entitled to judgment as a matter of

law with respect to count two. See High, supra at 345.

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J-A11041-18



      The third, fourth, and fifth counts in the amended complaint alleged

fraud, negligent misrepresentation, and fraudulent concealment claims

against Appellee, for misrepresentations purportedly made by Appellee with

respect to repossession of the vehicle. (See Amended Complaint, at 6-9).

      “To prove a claim for common law fraud, a party must show: (1) a

representation; (2) material to the transaction at issue; (3) made falsely,

with either knowledge or reckless disregard of its falsity; (4) with the intent

[of] misleading another person or inducing justifiable reliance; and (5) an

injury caused by the reliance.” DeArmitt v. New York Life Ins. Co., 73

A.3d 578, 591 (Pa. Super. 2013) (citations and internal quotation marks

omitted; emphases added).

      “Negligent     misrepresentation      requires    proof    of:    (1)    a

misrepresentation of a material fact; (2) made under circumstances in

which the misrepresenter ought to have known its falsity; (3) with an intent

to induce another to act on it; and (4) which results in injury to a party acting

in justifiable reliance on the misrepresentation.” Milliken v. Jacono, 60 A.3d

133, 141 (Pa. Super. 2012) (en banc), aff’d, 103 A.3d 806 (Pa. 2014) (citation

omitted; emphasis added).

      The Restatement Second of Torts defines fraudulent concealment as

follows: “One party to a transaction who by concealment or other action

intentionally prevents the other from acquiring material information is subject

to the same liability to the other, for pecuniary loss as though he had stated

the nonexistence of the matter that the other was thus prevented from

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discovering.” Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539,

549 (Pa. Super. 2005) (citation omitted; emphasis added).

        In the instant case, Appellant admitted that she defaulted under the

Contract by failing to make timely payments.          Her claim that Appellee

promised to return the vehicle to her if she paid the $512.50 fee associated

with initiating repossession, is belied by her deposition testimony wherein she

admitted that she was not told by Appellee that she would get her vehicle back

if she paid the fee.    (See Appellant’s Deposition, at 78-81).     During her

deposition, Appellant also admitted that she did not tell Appellee that the

vehicle had been repossessed before she offered to pay the $512.50 fee. (See

id. at 64).

        Therefore, viewing the evidence in the light most favorable to Appellant

as the non-moving party, we conclude that Appellant has not demonstrated

that there is an issue of material fact with respect to her causes of action for

fraud, negligent misrepresentation, or fraudulent concealment, because the

evidence does not establish a misrepresentation, misleading statement, or

concealment on behalf of Appellee. See DeArmitt, supra at 591; Milliken,

supra at 141; Youndt, supra at 549; see also High, supra at 345. Thus,

the trial court did not abuse its discretion or commit an error of law in

concluding that Appellee was entitled to judgment on counts three, four, and

five.

        Finally, the sixth count in the amended complaint alleged that Appellee

violated the UTPCPL.      (See Amended Complaint, at 9-10).       “The UTPCPL

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provides a private right of action for anyone who suffers any ascertainable

loss of money or property as a result of an unlawful method, act or practice.”

DeArmitt, supra at 591 (citation and internal quotation marks omitted). “To

recover damages under the UTPCPL, a plaintiff must demonstrate an

ascertainable loss as a result of the defendant’s prohibited action.” Id. at

593 (some emphasis in original; citation and internal quotation marks

omitted).

      Appellant has failed to identify any evidence or a genuine issue of

material fact with respect to Appellee’s having taken any prohibited action.

Rather, because the evidence demonstrates Appellant defaulted on the

contract, Appellee’s repossession of the vehicle, and holding Appellant

accountable for the costs incurred to do so, were all specifically permitted by

the Contract. (See Contract, at Additional Terms and Conditions ¶¶ 14-15).

Therefore, we conclude that Appellee was entitled to judgment in its favor

with respect to Appellant’s UTPCPL claim.     See DeArmitt, supra at 591.

Accordingly, the trial court did not err or abuse its discretion in granting

summary judgment with respect to count six. See High, supra at 345.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2018


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