J-S96022-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WESBANCO BANK, INC.                           IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                   v.

JAMES W. BEATTIE, JR. AND ANGELIA M.
BEATTIE

APPEAL OF: JAMES W. BEATTIE, JR.

                                                   No. 739 WDA 2016


                Appeal from the Order Entered April 18, 2016
              In the Court of Common Pleas of Cambria County
                      Civil Division at No(s): 2013-3649



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                      FILED FEBRUARY 21, 2017

     James W. Beattie, Jr., appeals pro se from the April 18, 2016 order

granting   summary      judgment   to   Appellee   WesBanco    Bank,   Inc.

(“WesBanco”). We affirm.

     On October 28, 2013, WesBanco instituted this lawsuit against Beattie

and Angelia M. Beattie, and it averred the following.   On August 3, 2006,

defendants obtained a loan in the amount of $22,950 to purchase a vehicle.

Defendants agreed to repay the debt pursuant to a retail installment

contract and security agreement with Rhones Travel Trailers, Inc. The

agreement in question was assigned to WesBanco. The loan was secured by

a 2004 Holiday Rambler, and required monthly payments of $255.28.
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     The complaint continued as follows.        On February 6, 2013, the

defendants defaulted under the agreement by ceasing to make any

payments. WesBanco sent defendants a notice that they were in default and

had the right to cure. A copy of the notice was attached to the complaint.

Beattie subsequently voluntarily relinquished the collateral, and WesBanco

sold it at a public auction, applying the auction proceeds to the outstanding

balance on the defendants’ loan. It sent defendants a notice of its plan to

sell the vehicle as well as a report about the sale; those two documents

were also attached to the complaint.      The Holiday Rambler was sold for

$5,000.

     Following the sale, there was a deficiency balance on the loan in the

amount of $10,649.90.     After WesBanco’s repeated demands for payment

were ignored, it brought this lawsuit, requesting the outstanding loan

balance, prejudgment interest of 8.54% as outlined in the agreement, and

post-judgment interest.

     Personal service was effectuated by the sheriff on Angelia M. Beattie;

she failed to file an answer, resulting in a default judgment being entered

against her. On October 14, 2014, WesBanco filed a praecipe to reinstate

the complaint, and then the sheriff personally served the complaint on

Beattie. Proceeding pro se, Beattie filed an answer denying receipt of any of

the notices. After service of interrogatories and requests for admissions by

both parties, WesBanco filed a motion for summary judgment on March 11,

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2016, noting that the record established both its compliance with the

applicable law and that Beattie owed the money under the agreement.

Beattie filed a motion for judgment on the pleadings and to strike the

summary judgment request. This appeal followed the grant of WesBanco’s

motion and the denial of Beattie’s motions.

      Beattie raises these issues for our review:

      1. Whether the collections court erred as a matter of law, abused
      its discretion and committed reversible errors in denying
      appellant's motion to strike WesBanco's motion for summary
      judgment for failing to serve the defendant, Mr. Beattie with
      their motion.

      2. Whether the collections court erred as a matter of law, abused
      its discretion and committed reversible errors in granting
      WesBanco's motion for summary judgment where genuine issue
      of material fact must be resolved against the moving party.

      3. Whether the collections court erred as a matter of law, abused
      its discretion and committed reversible errors in denying
      appellant's motion for [judgment on the pleadings] where no
      genuine issue of material [fact] exists.

Appellant’s brief at 3.

      Beattie first assails the court’s failure to grant his motion to strike

WesBanco’s motion for summary judgment. We review a trial court’s denial

of a pretrial motion for an abuse of discretion. In this context, “an abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonably, or the result of partiality, prejudice, bias, or ill will, as shown




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by the evidence or the record, discretion is abused.” WMI Group, Inc. v.

Fox, 109 A.3d 740, 748 (Pa.Super. 2015).

      Beattie contends the trial court erred in failing to strike WesBanco’s

motion for summary judgment since he never received a copy of that

motion.   He argues that the certificate of service attached to WesBanco’s

motion for summary judgment failed to indicate when the motion was

delivered, and thus, he maintains that there is no proof he ever received the

document.    As such, Beattie concludes, he did not receive a full and fair

opportunity to brief and argue the issues raised by WesBanco.

      The trial court reviewed the various mailings sent by WesBanco to

Beattie, and noted Beattie’s responses thereto, including his motion for

judgment on the pleadings and his motion to strike WesBanco’s motion for

summary judgment. The court observed that Beattie’s sole argument at the

hearing was that he never received WesBanco’s motion for summary

judgment.     In denying Beattie’s two motions, the court found that,

“[d]espite [Beattie’s] claims of procedural defects, such as deficient service

of [WesBanco’s] Motion, [Beattie] nonetheless filed a Motion to Strike the

same.” Trial Court Opinion, 6/20/16, at 5. Implicit in the court’s decision is

that it found Beattie’s testimony that he had not received WesBanco’s

motion for summary judgment incredible. We discern no abuse of discretion

in this regard.




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        Herein, WesBanco filed its motion for summary judgment on March 11,

2016.     The certificate of service appended to that filing accurately lists

Beattie’s home address, but fails to provide the date of service. 1 On April 4,

2016, Beattie filed a motion for judgment on the pleadings.                         In that

document Beattie avers that he received a communication from the

Prothonotary     on     March    29,    2016,   at   his   home     address,       regarding

WesBanco’s motion for summary judgment and scheduling the matter for a

hearing    on   April   15,     2016.     Beattie    attached     that   letter,    and   its

corresponding envelope marked with his home address, to his motion.

Clearly, at the time Beattie filed his motion for judgment on the pleadings,

he was well aware that WesBanco had filed a motion for summary judgment.

Moreover, on April 11, 2016, Beattie filed the at-issue motion to strike

claiming he had not received WesBanco’s motion for summary judgment or

brief in support.

        We do not find that the lack of a date on the certificate of service

attached to WesBanco’s motion for summary judgment renders the

document so infirm as to question whether service was effectuated.

Beattie’s name and address are listed accurately on the certificate of service.

____________________________________________


1
   Following the hearing on the motion for summary judgment, WesBanco
filed an amended certificate of service averring that service of its motion for
summary judgment had been provided to James W. Beattie, Jr., on March 9,
2016.



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Furthermore, the motion was filed and stamped by the court on March 11,

2016, and Beattie conceded he subsequently received notice from the

Prothonotary regarding that motion at the same address.                  In light of the

evidence of record, we find the court did not abuse its discretion in denying

Beattie’s motion to strike WesBanco’s motion for summary judgment.2

       Next,   Beattie    contends     that    the   trial   court   erred   in   granting

WesBanco’s motion for summary judgment.                  An order granting summary

judgment will be reversed if the trial court committed an error of law or

clearly abused its discretion.       Malanchuk v. Sivchuk, 148 A.3d 860, 865

(Pa.Super. 2016). Moreover,

       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.


____________________________________________


2
  In various portions of his brief, Beattie asserts that the trial court erred in
permitting WesBanco to argue its motion for summary judgment. Relying
on local court rules, Beattie argues that WesBanco should have been
precluded from oral argument since it failed to serve him a copy of its
motion for summary judgment and the briefs in support of its position. As
we find the record supports the trial court’s implicit finding that Beattie had
received those documents, we need not address this contention.



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Id. (internal citations and quotation marks omitted). The decision relating

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 . . . [t]his means we need not defer to the determinations made by the

lower tribunals.”    Id. at 865-866 (citation omitted).   As such, “if there is

evidence that would allow a fact-finder to render a verdict in favor of the

non-moving party, then summary judgment should be denied.” Id. (citation

omitted).

      Beattie’s argument is multi-faceted.    He first argues that there is a

genuine issue of material fact regarding whether WesBanco had authority to

pursue a deficiency judgment following the sale of the 2004 Holiday

Rambler.    Beattie notes that the copy of the installment sales agreement

attached to WesBanco’s complaint is illegible, but insofar as it is legible, it

does not contain a provision permitting the recovery of the deficiency

balance.    He maintains that the then-enacted Motor Vehicle Sales Finance

Act, 69 P.S. §§ 601 et seq. (repealed by 2013 P.L. 1081, No. 98, § 9(3),

effective   Dec.    1, 2014),   required WesBanco    to   include   a   provision

authorizing the recovery of a deficiency balance within the agreement.

      Instantly, we note that the copy of the agreement attached to

WesBanco’s complaint does utilize an unusually small font.          We caution

parties from employing such a diminutive text size in their attachments to

pleadings. That said, in this case, we are able to distinguish the text of the

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provisions maintained within the agreement.          Nevertheless, Beattie’s

assertions are unavailing as the Motor Vehicle Sales Finance Act provides for

a statutory right to recover a deficiency balance, and therefore, that

provision need not be explicitly included in the terms of the agreement.

Section 626 of the Act permits a seller to “bring an action or proceeding

against the buyer for a deficiency, as provided in section twenty-seven

hereof, unless there shall have been a public or private sale of the

repossessed motor vehicle and collateral security.” 69 P.S. § 626. Under §

627, “if the proceeds of the resale mentioned in section twenty-six above are

not sufficient to defray the expenses thereof . . . the seller or holder may

recover the deficiency from the buyer or from any one [sic] who has

succeeded to the obligations of the buyer.” 69 P.S. § 627. Hence, Beattie is

not entitled to relief.

      Next, Beattie asserts that WesBanco failed to properly notify him of his

default and his right to cure that default pursuant to 69 P.S. § 2102.        He

argues first that WesBanco failed to provide him with any notice, or

alternatively, that the notice provided was deficient.   He claims the notice

did not provide him with adequate time to cure the default, it did not state

the holder’s contact information or the contact information where payment

could be made, it did not disclose where the collateral was stored, and it was

not sent by certified mail.

      The Motor Vehicle Sales Finance Act provides, in pertinent part, that

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      A seller or holder may not accelerate the maturity of a retail
      installment contract, commence any legal action or repossess
      without legal process unless the buyer is in default and unless
      the seller or holder shall provide the buyer with notice, sent by
      certified mail, to the buyer’s last known address or delivered
      personally to the residence of the buyer, informing the buyer (1)
      of his right to cure the default upon payment of the amount in
      default plus delinquency or deferral charges within twenty-one
      (21) days of the date of receipt of such notice, (2) the name,
      address and telephone number of the seller or holder, (3) total
      amount due, including amount of delinquency charges, (4) exact
      date by which the amount due must be paid, (5) name, address
      and telephone number of the person to whom payment must be
      made, and (6) other performance necessary to cure a default
      arising from other than nonpayment herein and the buyer is
      given the rights so specified.

69 P.S. § 2102.

      Here, WesBanco proffered a copy of its February 6, 2013 notice of

default and right to cure default.      The letter, which was addressed to

Beattie’s home address, informed him that he had a right to cure his default

by remitting a payment on or before February 18, 2013, a span of eighteen

days. The letter contained WesBanco’s name and address and the telephone

number by which Beattie could contact the claim adjustor in order to remit

payment. The total charges due were noted, including late fees. Finally, the

document provided that if Beattie failed to tender the amount owed,

WesBanco could commence suit or proceed against the collateral. There was

no indication that the letter was sent by certified mail.

      Upon reviewing the record, we find that the letter posted by WesBanco

substantially conforms with the requirements of the Motor Vehicle Sales



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Finance Act to place Beattie on notice that WesBanco intended to collect on

his outstanding debt.        Although the letter provides only an eighteen day

period to cure his default, Beattie offered no evidence that he attempted to

do so within the twenty-one day period, and that WesBanco rejected that

attempt.         Thus, Beattie has not shown that he was prejudiced by

WesBanco’s error.          In addition, the record indicates Beattie voluntarily

surrendered the collateral to WesBanco on or about March 13, 2013, and

therefore, any argument that he was unaware of WesBanco’s intent to

repossess the 2004 Holiday Rambler is rebuffed by his subsequent actions.

      Beattie raises similar challenges to WesBanco’s March 13, 2013 notice

of its intent to sell the vehicle, albeit, under 13 Pa.C.S. § 9614 of the

Pennsylvania Uniform Commercial Code. The relevant provision of the PUCC

states,

   In a consumer-goods transaction, the following rules apply:

   (1)         A notification of disposition must provide the following
               information:

         (i)     The information specified in section 9613(1) (relating to
                 contents and form of notification before disposition of
                 collateral: general);

      (ii)       A description of any liability for a deficiency of the person
                 to which the notification is sent;

     (iii)       a telephone number from which the amount must be paid
                 to the secured party to redeem the collateral under section
                 9623 (relating to right to redeem collateral) is available;
                 and



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     (iv)   a telephone number or mailing address from which
            additional information concerning the disposition and the
            obligation secured is available.

   (2)      A particular phrasing of the notification is not required.

13 Pa. C.S. § 9614(1) and (2).          Section 9613(1) delineates standard

information, such as the names of the debtor, the description of the

collateral, and intended disposition. The provision continues to state, “[t]he

contents of a notification which lacks any of the information specified in

paragraph (1) are sufficient even if the notification includes . . . minor errors

which are not seriously misleading.” 13 Pa.C.S. 9613(3).

      We observe that WesBanco’s March 13, 2013 notice of its plan to sell

the collateral references the wrong date for the original agreement and an

erroneous date of default.    Notwithstanding those minor errors, the letter

was addressed to Beattie at his home address, made reference to the 2004

Holiday Rambler, indicated the time and place of the sale, provided an

itemized recounting of the debt owed, and offered a name and number of a

WesBanco representative. We do not find any of Beattie’s claimed errors so

misleading as to invalidate WesBanco’s service of notice. Furthermore, we

reiterate that Beattie’s subsequent voluntary surrender of the vehicle

indicates he was aware of WesBanco’s intent to claim and resell the 2004

Holiday Rambler.

      In summary, even when viewing the evidence in the light most

favorable to Beattie as the non-moving party, we find no genuine issue of

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material fact to support his position.     WesBanco proffered uncontradicted

evidence that Beattie entered into a retail installment contract on August 3,

2006, with Rhones Travel Trailers, Inc., in the principal amount of $22,950,

plus interest accruing at a rate of 8.54% per annum. That agreement was

assigned   to   WesBanco   and      secured by    the   2004    Holiday Rambler.

Thereafter, Beattie defaulted on his payments. Accordingly, the trial court

properly granted summary judgment in favor of WesBanco.

      Lastly, Beattie challenges the trial court’s denial of his motion for

judgment on the pleadings.       Our review of a court’s decision to deny a

motion for judgment on the pleadings is well-settled.          We apply the same

standard as the trial court which

      confines its consideration to the pleadings and documents
      properly attached thereto. We review to determine whether the
      trial court’s action respecting the motion for judgment on the
      pleadings was based on a clear error of law or whether there
      were facts disclosed by the pleadings which should properly go
      to the jury.

Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 101 (Pa.Super. 2016)

(citation omitted).   Judgment on the pleadings is proper only where the

pleadings evidence that there are no material facts in dispute such that a

trial by jury would be unnecessary.              Katzin v. Cent. Appalachia

Petroleum, 39 A.3d 307, 309 (Pa.Super. 2012).

      Beattie’s contentions in this regard are two-fold. On the one hand, he

cites to a case from the United States District Court for the Eastern District



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of Pennsylvania for the proposition that a judgment on the pleadings may be

converted into a motion for summary judgment if it references matters

outside the pleadings. On the other hand, he simply asserts that his brief

sets forth the many ways in which WesBanco failed to provide him proper

notice, and for those reasons, he is entitled to judgment on the pleadings.

      The trial court denied Beattie’s motion for judgment on the pleadings,

in part, because Beattie “impermissibly request[ed] the court to consider

discovery outside of the pleadings and not attached thereto[.]” Trial Court

Opinion, 6/20/16, at 5.    Nonetheless, we observe that this Court is not

bound by the decisions of the federal district courts.   Moreover, the case

Beattie offers for our consideration, Brennan v. National Telephone

Directory Corp., 850 F.Supp. 331 (E.D.Pa. 1994), relies on the Federal

Rules of Civil Procedure, which do not apply to our proceedings.        Thus,

based on our disposition above, having found that summary judgment was

properly granted in favor of WesBanco, we discern no error in the trial

court’s denial of Beattie’s motion for judgment on the pleadings.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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