J-S43025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JULIUS W. DODSON                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    GLOBAL TEL-LINK CORPORATION                :   No. 118 MDA 2019

              Appeal from the Order Entered December 18, 2018
     In the Court of Common Pleas of Huntingdon County Civil Division at
                         No(s): CP-31-CV-673-2017


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 08, 2019

       Appellant, Julius W. Dodson, appeals pro se from the December 18,

2018 Order granting summary judgment in favor of Appellee, Global Tel-Link

Corporation. After careful review, we affirm.

       The relevant facts and procedural history are as follows. On September

27, 2015, Appellant, an inmate at SCI-Smithfield, purchased a tablet device

from the prison commissary.             Appellee had supplied the tablet to the

commissary.      The tablet included a 90-day battery warranty and a 1-year

device warranty.      As a user of the tablet, Appellant agreed to the tablet’s

terms and conditions, which included a disclaimer of all implied warranties. 1


____________________________________________


1 In particular, the warranties contained the following provision: “[Appellee]
disclaim[s] all warranties, express or implied, including, without limitation,
any implied warranties or merchantability [or] fitness for a particular
purpose.” [Appellee] End User License Agreement at ¶ 11.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      On November 21, 2016, after both the battery and device warranties

had expired, Appellant submitted a warranty claim and sent his tablet to

Appellee for evaluation. Upon receipt of the tablet, Appellee determined that

it no longer worked, but, because it was no longer under warranty, returned

it to Appellant unrepaired.

      Appellant initiated this lawsuit on May 12, 2017, by filing a pro se

“Complaint in Arbitration.” In the Complaint, Appellant alleged that Appellee

had “engage[d] in a breach of expressed and implied warranties of

merchantability and fitness for a particular purpose” and was liable for treble

damages under the Unfair Trade Practices and Consumer Protection Law

[“UTPCPL”].”   Complaint, 5/12/17, at 1.     He asserted that this “damages

controversy is less than $50,000 [], the jurisdictional amount pursuant to the

Pennsylvania Uniform Arbitration Act.” Id. Appellant claimed that Appellee

had engaged in “unfair or deceptive acts or practices” by: (1) “[f]ailing to

comply with the terms of the written guarantee or warranty;” and (2) “us[ing]

a contract related to a consumer transaction which contained a confessed

judgment clause that waived [Appellant’s] right to assert a legal defense to

an action.”    Id. at 6-7.    Appellant sought court-mandated compulsory

arbitration pursuant to 42 Pa.C.S. § 7361. Id. at 1.

      Appellee failed to timely answer the Complaint, and on October 25,

2017, Appellant filed a Praecipe for Entry of Default Judgment. On November

2, 2017, Appellee filed a Petition to Open and Vacate Default Judgment, which

the trial court granted on March 5, 2018. Appellee filed an Answer and New

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Matter to Appellant’s “Complaint for Arbitration” on March 13, 2018. Appellant

answered Appellee’s New Matter on May 14, 2018.

      On August 15, 2018, Appellant filed a “Praecipe for Reference to a Board

of Arbitration,” seeking an arbitration hearing through the trial court’s

compulsory arbitration program.       On August 27, 2018, the trial court

appointed three lawyers as arbitrators and, on October 9, 2018, the court set

an arbitration date.

      On October 25, 2018, Appellee filed a Motion for Continuance of

Arbitration Hearing and a Motion for Summary Judgment. Appellee argued in

the Motion for Summary Judgment that Appellant “failed to generate any

evidence that supports his claims” and Appellant’s claims fails either as a

matter of law or because he cannot possibly meet the elements required to

prove each claim. Motion, 10/25/18, at ¶ 1-2.

      On October 31, 2018, the trial court entered an Order continuing the

arbitration hearing until disposition of Appellee’s Motion for Summary

Judgment.    On December 10, 2018, Appellant filed a “Petition to Compel

Arbitration in Objection to [Appellee’s] Summary Judgment Motion.” In his

Petition, Appellant claimed, for the first time, that he sought arbitration

pursuant to the arbitration clause contained in the warranty agreement

between him and Appellee.

      Appellee filed a Memorandum in Opposition to Appellant’s Petition to

Compel Arbitration on December 18, 2018. In the Memorandum, Appellee

argued that the trial court should deny Appellant’s Petition while its Motion for

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Summary Judgment is pending. It also noted that Appellant waived his right

to seek arbitration under the terms of the product warranty by filing a lawsuit

raising breach of warranty and UTPCPL claims. Memorandum, 12/18/18, at 1

n.1.

       On December 18, 2018, the trial court denied Appellant’s Petition to

Compel Arbitration and granted Appellee’s Motion for Summary Judgment,

finding that Appellant had “misunderst[ood] the difference between the

statutory compulsory arbitration contemplated in 42 Pa.C.S. § 7361, and the

binding arbitration clause contained in his product warranty for [the tablet].”

Trial Ct. Op., 3/4/19. The court, therefore, concluded that Appellant was not

actually seeking a legal judgment, but rather resolution of his claims through

private arbitration.

       This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Whether the trial court erred in failing to compel [Appellee] into
          arbitration in violation of the arbitration agreement?

       2. Whether the trial court erred in finding that summary judgment
          was an adequate procedure thus ignoring the binding
          arbitration agreement between the parties?

       3. Whether the trial court abused its discretion by accepting
          [Appellee’s] December 18, 2018 “so called” “Memorandum in
          Opposition to [Appellant’s] Petition to Compel Arbitration” thus
          introducing new claims and not allowing [Appellant] an
          opportunity to object or respond as the trial court granted
          summary judgment on the same date there[after]?

Appellant’s Brief at 4.


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       Although Appellant purports to raise three issues on appeal, the

argument section of his appellate Brief contains only two enumerated sections,

which correlate to the first two questions presented in his Statement of

Questions Involved.2 In the first section, Appellant alleges that the trial court

erred in failed to compel arbitration because the parties have a valid

arbitration agreement, the controversy between them falls within its scope,

and it requires arbitration of all controversies arising under it. Id. at 9-10.

In the second section, Appellant claims that the trial court erred in granting

summary judgment because it ignored the binding arbitration agreement

between the parties. Id.at 10-11.

       We consider Appellant’s issues mindful of the following.

       Our standard of review on an appeal from the grant of a motion
       for summary judgment is well-settled. A reviewing court may
       disturb the order of the trial court only where it is established that
       the court committed an error of law or abused its discretion. As
       with all questions of law, our review is plenary.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014)

(citations omitted).

       We view 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. Only
       where there is no genuine issue as to any material fact and it is
       clear that the moving party is entitled to a judgment as a matter
       of law will summary judgment be entered.

       Motions for summary judgment necessarily and directly implicate
       the plaintiff’s proof of the elements of [its] cause of action.
____________________________________________


2We, therefore, consider Appellant’s third issue abandoned. Cook v. Cook,
186 A.3d 1015, 1018 n.1 (Pa. 2018).

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      Summary judgment is proper if, after the completion of discovery
      relevant to the motion, including the production of expert reports,
      an adverse party who will bear the burden of proof at trial has
      failed to produce evidence of facts essential to the cause of action
      or defense which in a jury trial would require the issues to be
      submitted to a jury. Thus, a record that supports summary
      judgment will either (1) show the material facts are undisputed or
      (2) contain insufficient evidence of facts to make out a prima facie
      cause of action or defense and, therefore, there is no issue to be
      submitted to the jury.

H & R Block E. Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 248–49 (Pa. Super.

2013) (citation omitted).

      Appellant’s Complaint purported to raise an implied warranty claim, an

express warranty claim, and a claim that Appellee had violated the UTPCPL.

To recover for the breach of the implied warranty of merchantability, a buyer

must prove: (1) the existence of the implied warranty; (2) a breach of the

warranty; (3) a loss; and (4) a causal connection between the defendant’s

breach and the buyer’s loss. See 13 Pa.C.S. § 2314, Comment 13.

      In Pennsylvania, express warranties are created as follows: “(1) Any

affirmation of fact or promise made by the seller to the buyer which relates to

the goods and becomes part of the basis of the bargain creates an express

warranty that the goods shall conform to the affirmation or promise[;] (2) Any

description of the goods which is made part of the basis of the bargain creates

an express warranty that the goods shall conform to the description.”        13

Pa.C.S. § 2313(a)(1-2). In order to create an express warranty, “the seller

must expressly communicate the terms of the warranty to the buyer in such




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a manner that the buyer understands those terms and accepts them.”

Goodman v. PPG Industries Inc., 849 A.2d 1239, 1243 (Pa. Super. 2004).

      “The UTPCPL is Pennsylvania’s consumer protection law and seeks to

prevent unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce[.]”       DeArmitt v. New

York Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013). “The purpose of the

UTPCPL is to protect the public from unfair or deceptive business practices.”

Id. This Court has stated

      The UTPCPL 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. 73 P.S. § 201-9.2(a).
      Upon a finding of liability, the court has the discretion to award
      “up to three times the actual damages sustained” and provide any
      additional relief the court deems proper. Id.

Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,

151 (Pa. Super. 2012) (citation omitted). Further, the court may award costs

and attorney’s fees to a prevailing plaintiff in a UTPCPL action, in addition to

other relief provided. 73 P.S. § 201-9.2(a).

      As noted above, the record supports the entry of summary judgment

where, as here, there are no genuine issues of material fact in dispute and the

plaintiff has failed to adduce sufficient facts to make out a prima facie cause

of action. H & R Block, 69 A.3d at 248-49.

      Appellant does not argue on appeal that there are any genuine issues

of material fact in dispute which would preclude entry of summary judgment

in Appellee’s favor, and our review of the record confirms that none exist.


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Because the warranty period on Appellant’s tablet had expired by the time he

submitted the product for a warranty claim, Appellant’s express warranty

claim is meritless.   Additionally, in using his tablet, Appellant agreed to

Appellee’s End User Agreement, which included a disclaimer of, inter alia, “all

warranties, express or implied, including, without limitation, any implied

warranties of merchantability, [or] fitness for a particular purpose.” Appellee

End User Agreement at ¶ 11. Last, with respect to his UTPCPL claim, Appellant

did not generate evidence to support the misrepresentation, reliance, or

“ascertainable loss of money” elements of the claim.

      In light of Appellant’s failure to present evidence in support of his claims

and the absence of any issues of material fact as to the elements of those

claims, we conclude that the trial court did not err or abuse its discretion in

concluding that Appellee is entitled to judgment as matter of law.

      Moreover, we agree with the trial court that Appellant appears to have

“misunderst[ood] the difference between the statutory compulsory arbitration

contemplated in 42 Pa.C.S. § 7361, and the binding arbitration clause

contained in his product warranty for [the tablet].” Trial Ct. Op., 3/4/19. In

his Complaint, Appellant initially invoked his claim for arbitration pursuant to

42 Pa.C.S. § 7361 (Compulsory arbitration), asserting that the amount in

controversy was below the $50,000 jurisdictional threshold. Not until much

later, in his Petition to Compel Arbitration, did Appellant suggest that what he

actually sought was a private arbitration pursuant to the terms of the

agreement between the parties. Once the trial court recognized that Appellant

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was seeking a private remedy, the court properly entered summary judgment

in favor of Appellee.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/08/2019




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