J-S51038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DISCOVER BANK C/O DB SERVICING                    IN THE SUPERIOR COURT OF
CORPORATION,                                            PENNSYLVANIA

                            Appellee

                       v.

PAMELA M. BAGDIS,

                            Appellant                 No. 2274 EDA 2014


                  Appeal from the Order Entered July 11, 2014
             in the Court of Common Pleas of Montgomery County
                       Civil Division at No.: 2013-21232


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED AUGUST 28, 2015

        Appellant, Pamela M. Bagdis, appeals pro se from the court’s order

granting the motion of Appellee, Discover Bank c/o DB Serving Corporation,

and entering judgment against her in the amount of $2,269.62, plus interest

and costs. We affirm.

        We take the following facts from our independent review of the record

and the trial court’s February 2, 2015 opinion.       On November 9, 2012,

Appellee commenced an action in the magisterial district court against

Appellant as a result of her failure to pay the balance due on a Discover

credit card pursuant to the cardmember agreement. On June 14, 2013, the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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magisterial district judge (MDJ) entered judgment in Appellee’s favor, and

against Appellant, in the amount of $2,369.62 plus fees.         Appellant had

failed to appear for the MDJ hearing, but timely filed an appeal de novo in

the trial court on July 8, 2013, and filed a contemporaneous praecipe for rule

to file complaint.   Appellee filed a timely complaint on July 26, 2013, and

Appellant filed preliminary objections on September 30, 2013.

      Thereafter, on October 8, 2013, [Appellee] filed an amended
      complaint alleging causes of action for breach of contract,
      account stated, and unjust enrichment against [Appellant] . . . .
      [Appellant] filed preliminary objections to [Appellee’s] amended
      complaint which [the] court dismissed by order [filed on]
      January [27], 2014 [for her failure to file a supporting brief
      pursuant to the Montgomery County local rules]. In addition to
      dismissing [Appellant’s] preliminary objections, the court
      ordered her to file an answer within twenty days. (See Order,
      1/27/14). [Appellant] never filed an answer.

             Instead, [twenty-seven days later,] on February 18, 2014,
      [Appellant] filed a motion to reconsider seeking review of her
      previously dismissed preliminary objections based on her claim
      that she was unaware of local rules of procedure on which [the]
      court had relied in dismissing her preliminary objections. The
      court, in its discretion, denied [Appellant’s] motion to reconsider.
      On March 10, 2014, [Appellee] filed a motion for judgment on
      the pleadings. After argument and a thorough review of the
      parties’ submissions[,] the [trial court] granted [Appellee’s]
      motion for judgment on the pleadings by order [filed on] July
      [11], 2014. [Appellant] filed a timely notice of appeal on August
      6, 2014. Thereafter, on August 26, 2014, [Appellant] filed and
      served . . . her concise statement of [errors] complained of on
      appeal[,] [see Pa.R.A.P. 1925(b)], asserting that the court erred
      in granting judgment to [Appellee] for a variety of reasons[. The
      trial court filed its Rule 1925(a) opinion on February 2, 2015.]




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(Trial Court Opinion, 2/02/15, at 1-2) (footnotes omitted; case citation

formatting provided; emphasis, quotation marks, and some capitalization

omitted).

       Appellant raises four issues for our review:

       (I)   Did [Appellee] comply with the rules for service to properly
       establish in personam jurisdiction before the entry of judgment
       against [Appellant]?

       (II) Can [Appellee], a foreign corporation “doing business” in
       the Commonwealth of Pennsylvania, initiate litigation in the
       courts of the Commonwealth without a certificate of authority?

              Or in the alternative, can an action be sustained by a
       different party, DB Servicing Corporation, itself a foreign
       corporation with respect to Pennsylvania, also operating without
       a certificate of authority, when the captioned plaintiff, Discover
       Bank, has no knowledge of the factual averments of the
       complaint?

       (III) Is it appropriate to enter judgment in favor of [Appellee]
       when [Appellee] has not even established a prima facie cause of
       action upon which any relief can be granted?

       (IV) Is it an abuse of discretion for the court to dismiss a
       motion for reconsideration, and then close the pleadings and
       render judgment, especially when jurisdiction has not been
       established?

(Appellant’s Brief, at 2-4) (some capitalization omitted).1

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1
  The questions involved section of Appellant’s brief violates Pennsylvania
Rule of Appellate Procedure 2116(a), which provides that an appellate brief
“must state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.”         Pa.R.A.P.
2116(a). Here, Appellant’s four questions span three pages because they
contain impermissible detail and argument. (See Appellant’s Brief, at 2-4).

(Footnote Continued Next Page)


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      Our standard of review of a trial court’s grant of a motion for judgment

on the pleadings is well-settled:

             Entry of judgment on the pleadings is permitted under
      Pennsylvania Rule of Civil Procedure 1034, which provides that
      “after the pleadings are closed, but within such time as not to
      unreasonably delay trial, any party may move for judgment on
      the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on
      the pleadings is similar to a demurrer. It may be entered when
      there are no disputed issues of fact and the moving party is
      entitled to judgment as a matter of law.

            Appellate review of an order granting a motion for
      judgment on the pleadings is plenary. The appellate court will
      apply the same standard employed by the trial court. A trial
      court must confine its consideration to the pleadings and
      relevant documents. The court must accept as true all well
      pleaded statements of fact, admissions, and any documents
      properly attached to the pleadings presented by the party
      against whom the motion is filed, considering only those facts
      which were specifically admitted.

           We will affirm the grant of such a motion only when the
      moving party’s right to succeed is certain and the case is so free
      from doubt that the trial would clearly be a fruitless exercise.



                       _______________________
(Footnote Continued)

    We are cognizant of the fact that Appellant is proceeding pro se.
However:

      Although this Court is willing to liberally construe materials filed
      by a pro se litigant, pro se status confers no special benefit upon
      the appellant. To the contrary, any person choosing to represent
      himself in a legal proceeding must, to a reasonable extent,
      assume that his lack of expertise and legal training will be his
      undoing.

Wilkins v. Marisco, 903 A.2d 1281, 1284-85 (Pa. Super. 2006), appeal
denied, 918 A.2d 747 (Pa. 2007) (citation omitted).



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S.W. Energy Prod. Co. v. Forest Resources, LLC, 83 A.3d 177, 185 (Pa.

Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014) (citation omitted).

      Here, Appellant’s first two claims, that she was not properly served

and that Appellee could not litigate in the Commonwealth, (see Appellant’s

Brief, at 2-3), are improper issues in a motion for judgment on the pleadings

because they require the examination of issues outside of the pleadings.

See S.W. Energy, supra at 185.

      Additionally, for the sake of completeness, we note that Appellant’s

claims challenging the court’s in personam jurisdiction, (see Appellant’s

Brief, at 10-17), are disingenuous and waived where she voluntarily

submitted herself to the court’s jurisdiction by filing an appeal de novo from

the MDJ’s judgment. Additionally, by filing an appeal de novo instead of a

petition for writ of certiorari, Appellant was precluded from challenging in the

trial court any alleged irregularities in the magisterial district court. (See id.

at 14-15); see also Gladstone Partners, L.P. v. Overland Enterprise,

Inc., 950 A.2d 1011, 1014-15 (Pa. Super. 2008). Further, any claim that

Appellee could not commence litigation for a debt because it is a foreign

corporation   doing   business   without    a   certificate   of   authority,   (see

Appellant’s Brief, at 17-22), lacks merit because “[a] foreign association is

not ‘doing business’ solely because it resorts to the courts of Pennsylvania to

recover an indebtedness[.]” 15 Pa.C.S.A. § 403, Committee comment.




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      Moreover, to the extent that Appellant’s issues are meant as

challenges to the dismissal of her preliminary objections, (see Appellant’s

Preliminary Objections to Amended Complaint, 10/28/13, at unnumbered

pages 1-5), we observe that the court dismissed the preliminary objections

for Appellant’s failure to file a supporting brief. (See Order, 1/27/14); see

also Mont. Co. R.C.P. 1028(c)(1)(b)(2), (c)(4)(a) (court may dismiss

preliminary objections for failure to file a brief). We discern no error in the

court’s exercise of its discretion, and reiterate to Appellant that “any person

choosing to represent [her]self in a legal proceeding must, to a reasonable

extent, assume that [her] lack of expertise and legal training will be [her]

undoing.”   Wilkins, supra at 1285 (citation omitted); see also Discover

Bank v. Stucka, 33 A.3d 82, 86 (Pa. Super. 2011) (standard of review for

decision on preliminary objections is for error of law).       Also, the court

properly denied Appellant’s motion for reconsideration of the dismissal

because the one page motion merely stated that the preliminary objections

should not have been dismissed because she was proceeding pro se and

unaware of the local rules. (See Motion to Reconsider, 2/18/14, at 1); see

also Wilkins, supra at 1285. Therefore, Appellant’s first and second issues

do not merit relief.

      In Appellant’s third claim, she alleges that Appellee “failed to establish

the elements of a prima facie case.” (Appellant’s Brief, at 22). This issue

lacks merit.


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       It is well-settled that:

             A complaint must apprise the defendant of the nature and
       extent of the plaintiff’s claim so that the defendant has notice of
       what the plaintiff intends to prove at trial and may prepare to
       meet such proof with his own evidence. In a claim for breach of
       contract, the plaintiff must allege that there was a contract, the
       defendant breached it, and plaintiff[] suffered damages from the
       breach.[2]

             Rule 1019(i) of the Pennsylvania Rules of Civil Procedure
       provides as follows:

              (i) When any claim or defense is based upon a
              writing, the pleader shall attach a copy of the
              writing, or the material part thereof, but if the
              writing or copy is not accessible to the pleader, it is
              sufficient so to state, together with the reason, and
              to set forth the substance in writing.

       Pa.R.C.P. 1019(i).

Stucka, supra at 86-87 (case citations and quotation marks omitted).

Further, pursuant to Pennsylvania Rule of Civil Procedure 1029(b), the

failure to file a responsive pleading results in the admission of all material

facts in the complaint. See Pa.R.C.P. 1029(b).

       Here, when the court dismissed Appellant’s preliminary objections to

Appellee’s amended complaint, it expressly ordered her to file an answer to

the amended complaint within twenty days.              (See Order, 1/27/14).

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2
  Although Appellee’s amended complaint also contained counts for account
stated and unjust enrichment, (see Amended Complaint, 10/08/13, at 5-6),
the court based its decision on its finding that Appellee established a claim
for breach of contract. (See Trial Ct. Op., at 4). Therefore, we confine our
analysis to that cause of action.



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Appellant failed to do so and, therefore, all material facts averred in the

amended complaint are deemed admitted. See Pa.R.C.P. 1029(b).

     However, our inquiry does not end there, because we are required to

consider whether the material facts support a judgment in Appellee’s favor

as a matter of law.   See S.W. Energy, supra at 185.       We conclude that

they do.

     The trial court found:

     Th[e] admitted material facts are as follows: [Appellant], having
     received the Cardmember Agreement and all of its terms and
     conditions, accepted and used the Discover card issued by
     [Appellee], and thereafter breached the Cardmember Agreement
     by failing to pay a balance of $2,269.62.        (See Amended
     Complaint, 10/08/13, at 1-4, ¶¶ 1-14). In addition, [Appellee]
     attached copies of [Appellant’s] executed application for a
     Discover Card, as well as all of the Cardmember Agreements
     applicable to [Appellant’s] account. (See id. at 3, ¶¶ 6-7; see
     id. at Exhibits A and B). . . .

(Trial Ct. Op., at 4) (some citations omitted; record citation formatting

provided).

     After our own independent review of the amended complaint and the

documents attached thereto, we agree with the court that Appellee

established a claim for breach of contract, see Stucka, supra, at 87, and

that “trial would [have been] a fruitless exercise.”   (Trial Ct. Op., at 4).

Therefore, we conclude that the trial court properly granted Appellee’s

motion for judgment on the pleadings and entered judgment against

Appellant in the amount of $2,269.62, plus interest and costs.    See S.W.

Energy, supra at 185. Appellant’s third issue does not merit relief.

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      In her fourth issue, Appellant argues that the court abused its

discretion when it dismissed her preliminary objections, closed the pleadings

thereafter, and granted judgment to Appellee. (See Appellant’s Brief, at 26-

29). Appellant’s issue lacks merit.

      As already noted, the Montgomery County Rules of Civil Procedure

granted the trial court the discretion to dismiss Appellant’s October 28, 2013

preliminary objections, which it properly did three months later on January

27, 2014.   (See Order, 1/27/14).       Additionally, we are not persuaded by

Appellant’s reliance on Stucka, because the case is factually distinguishable

to the one before us. (See Appellant’s Brief, at 27-28). In that case, the

trial court denied Discover Bank’s motion for reconsideration of an order

denying the bank the opportunity to file a second amended complaint to add

alternate theories of relief pursuant to Pennsylvania Rule of Civil Procedure

1033. See Stucka, supra at 88. In deciding that the trial court abused its

discretion, a panel of this Court focused on the permissive nature of

Pennsylvania Rule of Civil Procedure 1033, the fact that the second amended

complaint put the defendants on notice of the claims against them, and that

they would suffer no prejudice.       See id.   These facts are inapplicable to

those presented here.

      Further, in spite of Appellant’s claim to the contrary, the pleadings

already were closed when Appellee filed its motion for judgment on the

pleadings on March 10, 2014 because she failed to file an answer to the


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amended complaint within twenty days of the court’s January 27, 2014 order

directing her to do so. (See id.). Finally, as discussed more fully above, we

conclude that the court properly granted judgment on the pleadings to

Appellee. Therefore, Appellant’s fourth issue lacks merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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