D'Happart, S. v. First Commonwealth Bank
Pa. Super. Ct.
Opinion
J-A08008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SCOTT A. D’HAPPART AND : IN THE SUPERIOR COURT OF
CHRISTINA M. D’HAPPART : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 580 WDA 2021
FIRST COMMONWEALTH BANK :
Appeal from the Order Entered May 4, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 20-010758
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: July 8, 2022
Appellants, Scott A. d’Happart and Christina M. d’Happart, appeal from
the trial court’s May 4, 2021 order sustaining Appellee’s, First Commonwealth
Bank (“FCB”), preliminary objections and dismissing Appellants’ complaint
with prejudice. We affirm.
The trial court summarized the background of this matter as follows:
PROCEDURAL HISTORY
[Appellants] filed a class action complaint on behalf of themselves
and other persons similarly situated on October 13, 2020[,]
against [FCB], in the Allegheny County Court of Common Pleas
Civil Division. In their complaint, [Appellants] allege five separate
counts: Count I: statutory damages under 13 Pa.C.S.[] §
9625(c)(2) on behalf of the pre-sale notice subclass for violation
of 13 Pa.C.S.[] §§ 9610, 9614[,] and 12 Pa.C.S.[] § 6256(c);
Count II: statutory damages under 13 Pa.C.S.[] § 9625(c)(2) on
behalf of the improper expenses subclass for violation of 13
Pa.C.S.[] §§ 9610, 9614[,] and 12 Pa.C.S.[] § 6256(c); Count III:
statutory damages under 13 Pa.C.S.[] § 9625(e)(5) on behalf of
the disposition notice subclass for violation of 13 Pa.C.S.[] §§
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9610 and 9616[,] and 12 Pa.C.S.[] § 6261(d); Count IV: statutory
damages for breach of contract on behalf of the pre-sale notice
subclass pursuant to 13 Pa.C.S.[] §§ 9610 and 9625; Count V:
statutory damages for conversion on behalf of the pre-sale notice
subclass pursuant to 13 Pa.C.S.[] §§ 9610 and 9625. By order of
court dated November 19, 2020, this case was assigned to the
Commerce and Complex Litigation Center, to be overseen by this
court.
In response to the complaint, [FCB] filed preliminary objections
on December 16, 2020[,] as well as a brief in support of
preliminary objections. [Appellants] filed an answer to [FCB’s]
preliminary objections on February 5, 2021. [FCB] filed a reply
brief on February 26, 2021. On March 11, 2021, this court heard
the parties’ arguments on [FCB’s] preliminary objections. On May
4, 2021, this court issued an order sustaining [FCB’s] preliminary
objections and dismissing [Appellants’] complaint with prejudice.
On May 5, 2021, [Appellants] filed a notice of appeal…, appealing
this [c]ourt’s May 4, 2021 order sustaining [FCB’s] preliminary
objections to the Superior Court of Pennsylvania. On May 6, 2021,
this court ordered [Appellants] to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
[Appellants] filed their concise statement of errors complained of
on appeal on May 26, 2021.
***
FACTUAL HISTORY
[Appellants] are natural persons and a married couple….
[Complaint (“Compl.”), 10/13/20,] at 3…. [FCB] is a local banking
association that is licensed to do business in the Commonwealth
of Pennsylvania. Id. at 1. [FCB] is headquartered in
Pennsylvania…. Id.
When considering preliminary objections in the nature of
demurrer, a court must accept as true all well[-]pleaded material
facts in the complaint, as well as inferences reasonabl[y]
deductible therefrom. After reading [Appellants’] complaint, as
well as all relevant subsequent materials, it is clear that no
material facts are disputed. Admittedly, [FCB] provides additional
facts in their preliminary objections that [Appellants] did not recite
in their complaint.1 [N.T., 3/11/21, at 33-35. Appellants] ha[ve]
not given this court any indication that they dispute these
additional facts. The court accepts as true all well[-]pleaded
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material facts in the complaint, as well as the additional facts
[FCB] provided, because [Appellants] do not dispute that these
facts occurred.
1 While [Appellants’] counsel argued the bankruptcy
petition, circumstances regarding surrender of the [at-
issue] vehicle, description of sale and sale process, and
several other facts were outside the record, [Appellants] did
not dispute any of these facts in argument or in any of
[Appellants’] filings. Further, some of these facts the
[c]ourt may take judicial notice of, such as the bankruptcy
filing by [Appellants] to be discussed further in this opinion.
The court can take judicial notice of the bankruptcy petition
because it is a matter of public record.
[FCB’s] preliminary objections provide a concise statement of the
facts that the court wishes to recite below.
On October 15, 2015, [Appellants] financed the purchase of a
2013 Ford Taurus (the “vehicle”) from South Park Mitsubishi in
Bethel Park, Pennsylvania. They financed the purchase of the
vehicle by entering into a Retail Installment Sales Contract
(“RISC”). [FCB’s Brief in Support of] Prelim[inary] Objections[
(hereinafter “FCB’s BSPO”), 12/16/20,] at 3…. Immediately
thereafter, [FCB] purchased the RISC for value and became the
creditor and secured party under the RISC. Id.
[Appellants] purchased the vehicle primarily for consumer use,
and the RISC is a “consumer credit contract.” Compl. … at 3.
The RISC sets forth certain rights and conditions between [FCB]
and [Appellants] relating to the vehicle’s purchase and financing.
[FCB’s BSPO] at 3. For example, [Appellants] agreed to make 72
monthly payments of $370.49, secured by the vehicle as
collateral. Id. The RISC also explained the creditor’s right to
repossess the collateral if [Appellants] failed to make the required
monthly payments: “If you do not meet your contractual
obligations, you may lose the vehicle.” Id.
The RISC specifically describes certain conditions that constitute
a “default,” including in relevant part, if either “[y]ou do not pay
any payment on time” or “[y]ou start a proceeding in bankruptcy.”
Id. at 4.
In Section 3, the RISC detailed additional charges and fees that
may be incurred if the borrowers/buyers defaulted, under the
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heading, “IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES,”
including but not limited to, the following separate sub-headings:
“You may owe late charges”; “You may have to pay collection
costs,” only if [FCB] has to go to court to recover the vehicle, and
that in such circumstances, “You will pay reasonable attorney’s
fees and court costs as the law permits.” Id.
The RISC also described [Appellants’] right to redeem the vehicle
after any repossession, under the heading “How you can get the
vehicle back if we take it.” Id. As to potential redemption, the
RISC provided: “If we repossess the vehicle, you may get it back
by paying the unpaid part of the Amount Financed plus the earned
and unpaid part of the Finance Charge, any late charges, and
other amounts lawfully due under the contract (redeem). Your
right to redeem ends when we sell the vehicle. We will tell you
how much to pay to redeem.” Id.
The RISC also explained [FCB’s] right to sell the vehicle, if
[Appellants] failed to redeem. Id. at 5. Under the heading “We
will sell your vehicle if you do not get it back,” the RISC confirmed
that [FCB] “will send you a written notice of sale before selling the
vehicle.” Id.
The RISC also described the expenses [FCB] was permitted to
recover from the sale price, including expenses incurred “as a
direct result of taking the vehicle, holding it, preparing it for sale,
and selling it, as the law allows.” Id.
On November 13, 2017, [Appellants] filed a petition for Chapter 7
bankruptcy, which included the vehicle and related amounts still
due and owing under the RISC. Id. at 4.[1] The court can take
judicial notice of the bankruptcy petition because it is a matter of
____________________________________________
1 Appellants’ bankruptcy petition stated that Appellants would retain the
vehicle and keep payments current. FCB’s Preliminary Objections, 12/16/20,
at Exhibit A (“Bankruptcy Petition”) at Official Form 108 at 1. In their petition,
Appellants listed the current value of the vehicle as $9,996.00, the amount
they still owed for the vehicle to FCB under the RISC as $16,444.00, and the
total amount they had paid to FCB pursuant to the RISC as $1,113.00. Id. at
Official Form 106D at Schedule D at 1 and Official Form 107 at 3. See also
FCB’s Brief at 18-19 (observing that Appellants “expressly confirmed, under
oath, that the [v]ehicle was worth significantly less than the amount they
owed on the RISC. They relied on this fact in their [b]ankruptcy [p]etition,
which they filed months prior to [FCB’s] sale of the [v]ehicle, to support their
request for discharge of the debt, which was successful”) (citation omitted).
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public record. This was argued by defense counsel and was not
disputed by [Appellants]. [N.T.] at 7….
After the bankruptcy petition, [Appellants] continued to pay the
monthly loan amount for a brief time period before they
surrendered the vehicle to [FCB] when they no longer made the
monthly payments. [FCB’s BSPO] at 5. [Appellants’] complaint
(as well as subsequent documents) do[] not dispute that
[Appellants] failed to make the required monthly payments and
surrendered the vehicle to [FCB]. Id. On March 7, 2018,
[Appellants] obtained a discharge order pursuant to Chapter 7 of
the Bankruptcy Code. Id. After the vehicle was surrendered by
[Appellants] and repossessed by [FCB], [FCB] sold the [v]ehicle.3
Id. [FCB] avers that because of the discharge order, [FCB] did
not send any post-sale deficiency notice because it could not seek
to collect any deficiency based upon the prior discharge order. Id.
3 While [Appellants] surrendered the [v]ehicle, it is clear by
the briefs and argument of counsel, the process is deemed
a repossession of the vehicle.
Upon repossession, the vehicle was transported to an auto auction
in Altoona, [Pennsylvania]. Id. at 6. Logic dictates, as an
appropriate inference by this court, since [Appellants]
surrendered the vehicle, they had the opportunity to remove their
personal items. [Appellants’] complaint does not allege they
needed to travel to Altoona to retrieve any personal possessions
left in the vehicle. Id. This was not disputed by [Appellants’]
counsel in oral argument. [N.T.] at … 8….
On October 15, 2018, [FCB] sent a Notice of Repossession and
Plan to Sell Vehicle (“Notice of Repossession”) to both
[Appellants], as co-borrowers. [FCB’s BSPO] at 5. The Notice of
Repossession stated, in relevant part, that the vehicle was seized
“because you broke promises in our agreement. The vehicle is
being stored at Altoona Auto Auction at the address below. We
will sell this vehicle at public sale.” Id.
The Notice of Repossession also stated the specific “location”
where the sale will be held, including the name and address of the
auto auction. Id. It further specifically stated that the vehicle will
be sold at a “public sale,” which “will be conducted using a sealed
bid auction with bids accepted during the dates specified above.”
Id.
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The “Notice of Repossession and Plan to Sell Vehicle” states that
the date of the sale of the vehicle was: “Monday, NOVEMBER 5TH
2018 until Friday, NOVEMBER 9TH 2018[,”] from “9:00 A.M. to
5:00 P.M. local time.” Compl[.] at Exhibit 2.
The Notice of Repossession provided an itemized statement of the
amounts required to redeem the vehicle. The Notice of
Repossession also informed [Appellants] that “[t]o learn the exact
amount you must pay [to redeem], call us at 800-221-8605. If
you want us to explain to you in writing how we have figured the
amount you owe us, you may call us at 800-221-8605 or write us
at [FCB], Consumer Special Assets Department, 654 Philadelphia
Street, Indiana, Pennsylvania 15701, and request a written
explanation.” [FCB’s BSPO] at 6.
In addition to stating the “Total Amount Due” on the Notice of
Repossession, the bottom of the Notice stated the following: “In
addition to paying us the Total Amount Due, you must also pay
storage fees of $25 per day and other costs charged by Altoona
Auto Auction. These charges must be paid to Altoona Auto Auction
at the time when you redeem your vehicle.” Compl[.] at Exhibit
2. [FCB] also provided the address of Altoona Auto Auction in this
Notice: “Location: Altoona Auto Auction, 1710 Margaret Avenue,
Altoona, Pennsylvania, 16603.” Id.
The Notice of Repossession informed [Appellants] that they “have
the right to reclaim personal property in the vehicle within thirty
(30) days after the date of the letter,” and provided a phone
number for retrieval of personal property. Id. [Appellants] do
not allege that any personal property was left in the vehicle, that
they called to inquire about any personal property, or that they
attempted to arrange retrieval of any personal property. [FCB’s
BSPO] at 7. Reiterating, since [Appellants] surrendered the
vehicle, they had full opportunity to remove any personal items.
The Notice of Repossession did not contain guidance on
[Appellants’] rights of reinstatement. Compl[.] at Exhibit 2.
Section 3(e) of the RISC provides that: “if we repossess the
vehicle, we may, at our option, allow you to get the vehicle back
before we sell it by paying all past due payments, late charges,
and any other amounts due because you defaulted (reinstate).”
… Id. at Exhibit 1 [(emphasis added in trial court opinion)].
[FCB] sold the [v]ehicle, which resulted in a deficiency. [N.T.] at
… 8…. [FCB] did not attempt to collect the deficiency because of
[Appellants’] bankruptcy filing. Id. [FCB] did not provide a post-
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sale disposition notice. Compl[.] at 10. [Appellants] did not pay
any repossession costs, transportation expenses, storage fees, or
any other fees[,] and there is no dispute as to these facts. [N.T.]
at … 9….
Trial Court Opinion (“TCO”), 8/24/21, at 1-9 (unnecessary capitalization,
footnote, some internal citations, and parentheses around citations omitted;
emphasis in original; single quote marks changed to double quotation marks).
On appeal, Appellants raise the following questions for our review:
1. Whether the [t]rial [c]ourt erred by considering [FCB’s]
unverified factual allegations for which there is no support in the
record.
2. Whether the [t]rial [c]ourt erred by ruling that [FCB] used a
form notice that entitled it to a statutory “safe harbor” defense.
3. Whether the [t]rial [c]ourt erred by ruling that [FCB] had not
been required to issue a post-sale, deficiency notice to
[Appellants].
4. Whether the [t]rial [c]ourt erred by ruling that [Appellants]
could have no remedy through the Uniform Commercial Code[
(“UCC”), 13 Pa.C.S. § 1101 et seq.,] for [FCB’s] violations of the
Motor Vehicle Sales Finance Act [(“MVSFA”), 12 Pa.C.S. § 6201 et
seq].
5. Whether the [t]rial [c]ourt erred by ruling that [Appellants] had
failed to state claims for statutory damages under the [UCC]
based upon [FCB’s] breach of contract and its unlawful conversion
of certain of [Appellants’] rights in property.
6. Whether the [t]rial [c]ourt erred by ruling that the gist of the
action doctrine precluded [Appellants’] claim for statutory
damages under the [UCC] based upon [FCB’s] unlawful conversion
of certain of [Appellants’] rights in property.
7. Whether the [t]rial [c]ourt erred by dismissing the [c]omplaint
with prejudice, without first permitting [Appellants] an
opportunity to amend the [c]omplaint.
Appellants’ Brief at 3-4.
At the outset of our review, we acknowledge that:
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We review appeals from orders sustaining preliminary objections
in the nature of a demurrer under the following standard:
A preliminary objection in the nature of a demurrer is
properly granted where the contested pleading is legally
insufficient. Preliminary objections in the nature of a
demurrer require the court to resolve the issues solely on
the basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of
the legal issues presented by the demurrer. All material
facts set forth in the pleading and all inferences reasonably
deducible therefrom must be admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial court’s
decision regarding preliminary objections only where there
has been an error of law or abuse of discretion. When
sustaining the trial court’s ruling will result in the denial of
claim or a dismissal of suit, preliminary objections will be
sustained only where the case is free and clear of doubt.
Thus, the question presented by the demurrer is whether,
on the facts averred, the law says with certainty that no
recovery is possible. Where a doubt exists as to whether a
demurrer should be sustained, this doubt should be resolved
in favor of overruling it.
412 North Front Street Associates, LP v. Spector Gadon & Rosen, P.C.,
151 A.3d 646, 656 (Pa. Super. 2016) (citation omitted).
Issue 1
In Appellants’ first issue, they argue that the trial court erred in
“rel[ying] upon [FCB’s] unverified allegations of facts outside of the record.”
Appellants’ Brief at 12. Appellants claim that, “[i]n so doing, the court below
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ran afoul of the well[-]rooted principle that, for preliminary objections in the
nature of a demurrer, courts must constrain the scope of review to the
pleadings.” Id. at 12-13.
Before delving into the merits of Appellants’ first issue, we must consider
whether Appellants have preserved it for our review. FCB claims that
Appellants have waived this issue by failing to assert below that the trial court
could not take judicial notice of their bankruptcy petition. See FCB’s Brief at
16-17. While our review of the record indicates that Appellants did not
specifically argue that the trial court could not take judicial notice of the
bankruptcy petition, they did advance that it was improper for the trial court
to consider any facts introduced by FCB that were not included in their
complaint, including the bankruptcy petition and the facts contained therein.
See Appellants’ Brief in Opposition to FCB’s Preliminary Objections, 2/5/21,
at 2 (arguing that FCB’s preliminary objections include facts outside of the
record and that preliminary objections in the nature of a demurrer “require
the court to resolve the issues solely on the pleadings; no testimony or other
evidence outside of the complaint may be considered to dispose of the legal
issues presented by the demurrer”) (citation omitted); see also N.T. at 34
(arguing that FCB has “attempted to interject some facts that are outside of
the record; most namely the bankruptcy petition, the filing, any circumstances
regarding the surrender of the vehicle, any description of the sale and the sale
process and several other facts that are not contained in the complaint”).
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Thus, we conclude that Appellants sufficiently raised this issue below and
reject FCB’s waiver argument.2
Having not found waiver, we turn to the merits of Appellants’ first issue.
Here, the trial court justified its consideration of the additional facts provided
by FCB in their preliminary objections, which Appellants had not alleged in
their complaint, on two grounds. First, relying on Schaffer v. Batyko, 323
A.2d 62 (Pa. Super. 1974), the trial court explained that “[n]ormally a
defendant is not permitted in their preliminary objections, briefs, and
argument to raise facts not plead [sic] by the [p]laintiff[’s c]omplaint.
However, if the [d]efendant proffers facts which are undisputed by the
[p]laintiff, the [c]ourt may consider the undisputed facts.” TCO at 9
____________________________________________
2Further, even if Appellants had not raised this claim below, it would still not
be waived. This Court has explained that,
[a]lthough under Pennsylvania Rule of Appellate Procedure 302(a)
issues not raised below are waived, our Supreme Court has held
that there is no requirement in the Rules of Civil Procedure that
the non-moving party respond to a preliminary objection, nor
must that party defend claims asserted in the complaint. Failure
to respond does not sustain the moving party’s objections by
default, nor does it waive or abandon the claim. Instead, as long
as a plaintiff asserts in a complaint a cause of action, the
plaintiff may assert any legal basis on appeal why
sustaining preliminary objections in the nature of a
demurrer was improper.
See Vacula v. Chapman, 230 A.3d 431, 436 n.3 (Pa. Super. 2020) (quoting Dixon v. Northwestern Mutual,146 A.3d 780, 783-84
(Pa. Super. 2016))
(emphasis in original).
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(emphasis in original). We disagree with the trial court’s reading of Schaffer
and deem the trial court’s reliance on it inappropriate.
In Schaffer, the defendant filed preliminary objections challenging the
court’s jurisdiction over him for want of service of either a writ of summons or
complaint in trespass and for the running of the statute of limitations against
the plaintiff’s claim. Schaffer, 323 A.2d at 62-63. The plaintiff filed an answer, explaining that the defendant — who was his brother-in-law — had agreed to waive sheriff’s service of the complaint and agreed to pick up the complaint at the plaintiff’s attorney’s office.Id. at 63
. The plaintiff also filed an affidavit of acceptance of service taken under oath by the defendant, which stated that he had waived formal service.Id.
Notwithstanding these filings, the trial court subsequently sustained the defendant’s preliminary objections and dismissed the case.Id.
In doing so, the trial court ignored the plaintiff’s answer and the defendant’s affidavit.Id.
After the plaintiff appealed, we noted that “[w]here an inquiry into
essential facts appear necessary, a party should not be deprived of the
opportunity of presenting the disputed facts to a fact finder.” Id. at 63-64. We also pointed out that, under Pennsylvania Rule of Civil Procedure 1028(c), “[i]f an issue of fact is raised, the court shall take evidence by deposition or otherwise.”Id.
at 64 (citing Pa.R.Civ.P. 1028(c)). Consequently, we
determined that the trial court erred in sustaining the preliminary objections
without giving any consideration to the plaintiff’s answer and the defendant’s
affidavit, and we remanded for the trial court to conduct a hearing on the
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factual issue of whether an excuse or estoppel principle existed against the
failure of service, or whether effective service had been made. Id. at 64-65.
While the trial court relies on Schaffer to support the proposition that
it may consider additional facts proffered by defendants where such facts are
undisputed by plaintiffs, we disagree with the trial court’s application of
Schaffer to the matter at hand. As Appellants observe, Schaffer did not deal
with preliminary objections in the nature of a demurrer, but instead with
preliminary objections relating to improper service. See Appellants’ Brief at
14. In cases where improper service is raised, that issue cannot be
determined from the facts of record. See Note to Pa.R.Civ.P. 1028(c)(2); see
also Trexler v. McDonald’s Corp., 118 A.3d 408, 411 n.3 (Pa. Super. 2015) (“[A] dispute over proper service cannot be resolved by reference to facts pled in the complaint. Additional evidence is required.”); cf. Mistick, Inc. v. Northwestern Nat. Cas. Co.,806 A.2d 39, 42
(Pa. Super. 2002) (“In some
contexts, when issues of fact are raised by preliminary objections, the trial
court may receive evidence by depositions or otherwise. However,
preliminary objections in the nature of a demurrer require the court to resolve
the issues solely on the basis of the pleadings; no testimony or other evidence
outside of the complaint may be considered to dispose of the legal issues
presented by a demurrer.”) (citations omitted; emphasis in original). Thus,
Schaffer does not support the trial court’s claim that, when ruling on
preliminary objections in the nature of a demurrer, it may consider a
defendant’s proffered facts as long as they are undisputed by the plaintiff.
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Besides Schaffer, the second basis the trial court provided for accepting
some of FCB’s additional facts was judicial notice. In particular, the trial court
stated that it could take judicial notice of Appellants’ bankruptcy filing
“because it is a matter of public record.” TCO at 4 n.1. To support its taking
judicial notice of Appellants’ bankruptcy petition and the bankruptcy court’s
subsequent discharge order, the trial court cited to, inter alia, Bykowski v.
Chesed, Co., 625 A.2d 1256(Pa. Super. 1993). In that case, the plaintiffs sued several defendants after sustaining injuries as a result of a slip-and-fall.Id. at 1257
. The plaintiffs claimed that Valley Park Apartments, one of the defendants in the action, owned the improvements on the property where the slip-and-fall occurred, which Valley Park Apartments denied.Id.
Moreover, another defendant — the Boardwalk Group Limited — admitted in its pleadings that it owned the improvements in question.Id.
On that basis, Valley Park Apartments filed a motion for judgment on the pleadings, which the trial court subsequently granted.Id. at 1257-58
. The plaintiffs then appealed.
On appeal, the plaintiffs argued that the trial court erred “in making a
factual determination that … Valley Park [Apartments] were not the owners of
the improvements since, in considering a motion for judgment on the
pleadings, a trial court must accept the non-moving party’s pleadings as true
and not consider the existence of facts not apparent on the face of the
motion.” Id. at 1258. We rejected this argument, observing that “[i]t is apparent from the record that [the plaintiffs’] assertion that [Valley Park Apartments] were the owners of the property in question is false.”Id.
We
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also disagreed with the plaintiffs’ argument that the trial court was not allowed
to consider information contained in the Lehigh County Recorders of Deeds
Office when deciding a motion for judgment on the pleadings. Id.at 1258 n.1. We explained that, “[s]ince this motion is the equivalent to a demurrer, in considering it, the court should be guided by the same principles applicable to disposing of a preliminary objection in the nature of a demurrer. As such, the court has the right to take judicial notice of public documents.”Id.
(citations omitted). Accordingly, we affirmed the trial court’s order granting
judgment on the pleadings in favor of Valley Park Apartments.
Appellants attempt to distinguish Bykowski, arguing that “it involved
appellate review of a decision awarding judgment on the pleadings — and the
public record at issue directly disproved the [plaintiffs’] would-be allegation….”
Appellants’ Reply Brief at 9.3 Further, Appellants direct our attention to 220
P’ship v. Philadelphia Elec. Co., 650 A.2d 1094(Pa. Super. 1994), where they say this Court determined that it was error for the trial court to dismiss ____________________________________________ 3 We are unpersuaded by Appellants’ attempt to distinguish Bykowski. First, while Bykowski did involve a motion for judgment on the pleadings, this Court specifically stated that it “should be guided by the same principles applicable to disposing of a preliminary objection in the nature of a demurrer[,]” and consequently, that it “has the right to take judicial notice of public documents.” Bykowski,625 A.2d at 1258
n.1 (citation omitted).
Second, we do not agree with Appellants that the judicially-noticed document
must directly disprove an allegation in the complaint. As discussed further
infra, it is proper for courts to take judicial notice of facts where such facts are
not in dispute. See pages 14-19, infra.
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the plaintiff’s complaint on preliminary objections based on facts found in a
separate bankruptcy case. Appellants’ Brief at 17. In 220 P’ship,
[t]he 220 Partnership (the partnership) filed a civil action by
complaint in which it alleged that Philadelphia Electric Company
(PECO) and its agent, Gregory Golazeski, Esquire, had interfered
maliciously with certain rental contracts with tenants of the
partnership. To the plaintiff’s complaint[,] the defendants filed
preliminary objections in the nature of a demurrer. The
defendants alleged therein that in separate proceedings, held in
bankruptcy court, it had been determined factually that the
partnership’s interest in the rental property had been divested by
judicial sale prior to the alleged acts of interference. The trial
court, believing it could take judicial notice of the findings of a
federal bankruptcy court, sustained the preliminary objections and
dismissed the complaint. The partnership appealed.
220 P’ship, 650 A.2d at 1095.
On appeal, we considered whether the trial court erred in taking judicial
notice of the bankruptcy court’s findings. We explained:
Judicial notice is intended to avoid the formal introduction of
evidence in limited circumstances where the fact sought to be
proved is so well known that evidence in support thereof is
unnecessary, but should not be used to deprive an adverse party
of the opportunity to disprove the fact. When considering
preliminary objections in the nature of a demurrer, a court must
severely restrict the principle of judicial notice, as the purpose of
a demurrer is to challenge the legal basis for the complaint, not
its factual truthfulness. In Clouser v. Shamokin Packing Co.,
361 A.2d 836 ([Pa. Super.] 1976), the Superior Court held that
the trial court should not have taken judicial notice of facts not
alleged in the complaint and said:
Although there does not seem to be any reason entirely to
preclude a judge from taking judicial notice at the demurrer
stage, the use of the doctrine should be severely limited: In
ruling on a demurrer, the judge must decide whether the
complaint itself states a cause of action…. It has been
argued, therefore, that judicial notice cannot be applied to
the construction of a pleading and that, in ruling upon a
demurrer, while the court must take as true every fact well
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pleaded, it must assume no others. This broad contention
has been rejected as a basis for completely prohibiting the
use of judicial notice in ruling upon a demurrer…. However,
in light of the judge’s limited function in ruling on a
demurrer, there appears to be cogent reasons for urging
very limited use of judicial notice in this area. A court, in
ruling on a demurrer, should refrain from noticing any fact
which is not literally indisputable and which the parties could
not reasonably raise in further pleadings or on argument at
trial.
Id. … at 840-41. Therefore, review should be restricted to the
facts alleged in the complaint, and a trial court should not take
judicial notice of collateral facts.
[A] court may not ordinarily take judicial notice in one case of the
records of another case, whether in another court or its own, even
though the contents of those records may be known to the court.
It follows that unless the facts relied upon to establish it appear
from the complaint itself, the defense of collateral estoppel may
not be raised by preliminary objections.
The general rule against taking judicial notice when considering
preliminary objections in the nature of a demurrer is subject to
limited exceptions. It is appropriate for a court to take notice
of a fact which the parties have admitted or which is
incorporated into the complaint by reference to a prior
court action.
220 P’ship, 650 A.2d at 1096-97 (most internal citations and quotation
marks omitted; emphasis added).
Based on the foregoing, we ascertained in 220 P’ship that the
partnership “did not admit to any change in its ownership interest in its
downtown office building, and [the partnership’s] complaint does not detail
any facts or issues pleaded before another court or incorporate by reference
a prior action.” Id. at 1097. Accordingly, we determined that it was error for
the “trial court to dismiss [the partnership’s] complaint in response to
preliminary objections reciting facts found in a federal action to which [the
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partnership] had been a party.” Id.We noted that the trial court “should not, at the preliminary objection stage of this action, have accepted as true facts which were in direct conflict with the well pleaded material facts of the complaint. Where material facts are in dispute, judicial notice may not be used to deny a party an opportunity to present contrary evidence.”Id.
(citation omitted). Thus, we reversed the trial court’s order sustaining the
defendants’ preliminary objections.
While Appellants contend that 220 P’ship supports their position that
the trial court should not have taken judicial notice of their bankruptcy petition
and the discharge order, we disagree. As FCB discerns, unlike the partnership
in 220 P’ship that disputed the change of ownership in the office building,
Appellants “voluntarily filed their verified [b]ankruptcy [p]etition and have
admitted each fact contained therein.” FCB’s Brief at 17; see also N.T. at 33
(arguing that the bankruptcy petition is a publicly-filed document containing
admissions by Appellants). Moreover, our review of the record demonstrates
that Appellants have not disputed the accuracy of any of the facts contained
within their bankruptcy petition, or that the bankruptcy court subsequently
entered a discharge order. To be sure, Appellants claimed at oral argument
before the trial court that they failed to mention the bankruptcy proceedings
in their complaint due to relevancy, not because of any factual dispute they
had with that matter:
[Appellants’ counsel]: It’s [Appellants’] position that [FCB] has
both in its pleadings and in its argument today attempted to
interject some facts that are outside of the record[:] most
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namely[,] the bankruptcy petition, the filing, any circumstances
regarding the surrender of the vehicle, any description of the sale
and the sale process and several other facts that are not contained
in the complaint.
[The trial court]: But, [c]ounsel, hold on. This is a little unusual,
I’ve got to say. Okay? Why didn’t you plead that and tell the
[c]ourt what happened? I’m just curious why.
[Appellants’ counsel]: As far as the bankruptcy filing?
[The trial court]: Yes.
[Appellants’ counsel]: I don’t think that it’s necessarily relevant to
any class claim. It doesn’t necessarily make [Appellants’] claim
any different.
[The trial court]: Well, let me ask you this. If I were to … overrule
it and require [FCB] to answer, do you think along the way you
are going to get a motion that this is not a proper class
represent[ative]?
[Appellants’ counsel]: I would anticipate that they make that
argument at that point, but at this stage in the preliminary
objections, it’s included in those facts [sic], which is not
appropriate.
N.T. at 34-35.
Thus, we conclude that the trial court could take judicial notice of
Appellants’ bankruptcy petition and the discharge order, as the facts contained
therein were admitted by Appellants and therefore not in dispute. See 220
P’ship, 650 A.2d at 1097(“It is appropriate for a court to take notice of a fact which the parties have admitted….”) (citation omitted); accord Kelly v. Kelly,887 A.2d 788
(Pa. Super. 2005) (determining that the trial court’s
consideration of the defense of res judicata raised in a preliminary objection
in the nature of a demurrer was not improper where the facts of the case were
not in dispute, and therefore, the appellant was not deprived of an opportunity
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to prove or disprove a fact); see also Bykowski, 625 A.2d at 1258 n.1
(stating that “the court has the right to take judicial notice of public
documents”) (citation omitted). However, to the extent that the trial court
considered other facts — aside from those contained in the bankruptcy petition
and discharge order — that were not alleged in Appellants’ complaint, we
deem the trial court’s reliance on those facts to be improper and will proceed
in our review of Appellants’ remaining issues accordingly.
Issue 2
In Appellants’ second issue, they claim that FCB’s “pre-sale notice did
not meet the requirements of the UCC, and [FCB] is not entitled to a ‘safe
harbor’ defense because it did not use the UCC’s ‘safe harbor’ form.”
Appellants’ Brief at 18 (capitalization and emphasis omitted). No relief is due
on this basis.
UCC
To begin our review, we set forth Section 9614 of the UCC, which
addresses the contents and form of notification that must be provided before
the disposition of collateral in a consumer-goods transaction. Section 9614
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);
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(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 which must
be paid to the secured party to redeem the collateral under
section 9623 (relating to right to redeem collateral) is
available; and
(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.
(3) The following form of notification, when completed, provides
sufficient information:
__________ (Name and address of secured party)
__________ (Date)
NOTICE OF OUR PLAN TO SELL PROPERTY
__________ (Name and address of any obligor who is also a
debtor)
Subject: __________ (Identification of Transaction)
We have your __________ (describe collateral) because you
broke promises in our agreement.
(For a public disposition:)
We will sell __________ (describe collateral) at public sale. A sale
could include a lease or license. The sale will be held as follows:
Date:__________
Time:__________
Place:__________
You may attend the sale and bring bidders if you want.
(For a private disposition:)
We will sell __________ (describe collateral) at private sale
sometime after __________ (date). A sale could include a lease
or license. The money that we get from the sale (after paying our
costs) will reduce the amount you owe. If we get less money than
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you owe, you (will or will not, as applicable) still owe us the
difference. If we get more money than you owe, you will get the
extra money unless we must pay it to someone else. You can get
the property back at any time before we sell it by paying us the
full amount you owe (not just the past due payments), including
our expenses. To learn the exact amount you must pay, call us
at __________ (telephone number). If you want us to explain to
you in writing how we have figured the amount that you owe us,
you may call us at __________ (telephone number) (or write us
at __________ (secured party’s address)) and request a written
explanation. (We will charge you $___ for the explanation if we
sent you another written explanation of the amount you owe us
within the last six months.) If you need more information about
the sale, call us at __________ (telephone number) (or write us
at __________ (secured party’s address)). We are sending this
notice to the following other people who have an interest in
__________ (describe collateral) or who owe money under your
agreement: __________ (Names of all other debtors and obligors,
if any)
(End of Form)
(4) A notification in the form of paragraph (3) is sufficient even if
additional information appears at the end of the form.
(5) A notification in the form of paragraph (3) is sufficient even if
it includes errors in information not required by paragraph (1)
unless the error is misleading with respect to rights arising under
this division.
(6) If a notification under this section is not in the form of
paragraph (3), law other than this division determines the effect
of including information not required by paragraph (1).
13 Pa.C.S. § 9614.
As incorporated by Section 9614(1)(i), Section 9613(1) provides:
(1) The contents of a notification of disposition are sufficient if the
notification:
(i) describes the debtor and the secured party;
(ii) describes the collateral which is the subject of the
intended disposition;
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(iii) states the method of intended disposition;
(iv) states that the debtor is entitled to an accounting of the
unpaid indebtedness and states the charge, if any, for an
accounting; and
(v) states the time and place of a public disposition or the
time after which any other disposition is to be made.
13 Pa.C.S. § 9613(1).
In the case sub judice, FCB sent a pre-sale notice to each Appellant.
See Complaint, 10/13/20, at ¶ 33; see also id. at Exhibit 2 (“Pre-Sale
Notice”). The pre-sale notice stated:
[FCB]
Consumer Special Assets Department
654 Philadelphia St.
INDIANA, PA 15701
PHONE 800-221-8605
FAX 724-463-5665
NOTICE OF REPOSSESSION AND PLAN TO SELL VEHICLE
Date: 10/15/18
Account Number: [Redacted]
Dear [Appellant] CHRISTINA M[.] DHAPPART:
We have your 2013 FORD TAURUS [Vehicle Identification Number
Redacted] because you broke promises in our agreement. The
vehicle is being stored at Altoona Auto Auction at the address
below. We will sell this vehicle at public sale. A sale could include
a lease or license. The sale will be held as follows:
Date: Monday, NOVEMBER 5TH 2018 until Friday,
NOVEMBER 9TH 2018*
Time: 9:00 A.M. to 5:00 P.M. local time*
Location: Altoona Auto Auction, 1710 Margaret Avenue,
Altoona, Pennsylvania 16603
You may attend the sale and bring bidders if you want.
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The money that we get from the sale (after paying our costs) will
reduce the amount you owe. If we receive less money than you
owe, you will still owe us the difference. If we get more money
than you owe, you will get the extra money unless we are required
to pay it to someone else. You can get the vehicle back at any
time before we sell it by paying us the full amount you owe (not
just the past due payments), including our expenses. To learn the
exact amount you must pay, call us at 800-221-8605. If you want
us to explain to you in writing how we have figured the amount
that you owe us, you may call us at 800-221-8605 or write us at
[FCB], Consumer Special Assets Department, 654 Philadelphia
Street, Indiana, Pennsylvania 15701, and request a written
explanation. If you need more information about the sale, call us
at 800-221-8605 or write us at the address above.
We are sending this notice to the following other people who have
an interest in the vehicle or who owe money under your
agreement: [the other Appellant,] SCOTT A[.] DHAPPART.
*The sale will be conducted using a sealed bid auction with bids
accepted during the dates specified above (the “Auction Period”).
You may submit a bid during the Auction Period by using Altoona
Auto Auction. All bids will be opened at the conclusion of the
Auction Period and the highest bid will be submitted to us. We
may accept or reject any bid in our sole discretion. If the vehicle
is not sold in the auction, we may sell the vehicle in a private sale
at any time after the Auction Period.
An itemized statement of the amount that you are required to pay
us to redeem the vehicle as of the date of this notice is below:
Principal Balance $13,314.99
Interest Due $153.89
Late Charges Due $13.75
Repossession Expense $350.00
Expenses of Repairing $0.00
TOTAL AMOUNT DUE** $13,832.63
**In addition to paying us the Total Amount Due, you must also
pay storage fees of $25 per day and other costs charged by
Altoona Auto Auction. These charges must be paid to Altoona
Auto Auction at the time when you redeem your vehicle.
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Certified Mail No. 7015 0640 0007 7274 8011 [FCB]
NOTICE: You have the right to reclaim personal property in the
vehicle within thirty (30) days after the date of this letter. The
personal property may be reclaimed at Our Enterprise. Please call
814-942-4213 to arrange a time to pick up the personal property.
If the personal property is not reclaimed at the expiration of the
thirty (30) days, the property may be disposed of.
Pre-Sale Notice at 1 (single, unnumbered page).4
Here, in determining whether FCB’s pre-sale notice complied with
Section 9614, the trial court explained:
In [FCB’s pre-sale notice], there is no information that appears to
be missing in order to comply with [Section] 9614. In fact, [FCB]
has almost copied the safe harbor language verbatim, just adding
in words or other sentences where needed, which would not make
the [n]otice invalid according to [Section] 9614.
However, one issue that [Appellants] have cited is that the [pre-
sale notice’s] stated [d]ate and [t]ime of public sale are from
November 5th[,] 2018-November 9th[,] 2018 from 9:00 A.M. to
5:00 P.M. local time. [Appellants] argue that the date and time
of the sale were not limited in scope, to one day for example. It
is unclear if the date and time requirement in the statute is
required to be more limited in scope, such as one calendar day.
While [Appellants] argue this time period is invalid and needs to
be more limited, [they] provide no legal basis for this assertion.
A specific date and time could not be given based on how the sale
process occurred as argued by defense counsel.4
4 Defense counsel explains that the bidding process is a
sealed, blind bid auction where bidders submit bids
____________________________________________
4 Appellant Scott d’Happart received a substantially identical pre-sale notice.
See Complaint at ¶ 33 (averring that FCB “issued substantially identical
documents titled ‘Notice of Repossession and Plan to Sell Property’ …
addressed separately to [Appellants] Scott A. d’Happart and Christina M.
d’Happart…”); FCB’s Brief at 8 (“[FCB] sent identical Notices of Repossession
and Plan to Sell Vehicle … to both [Appellants] Scott and Christina [d]’Happart,
as co-borrowers….”). Consequently, we conduct a single examination of the
pre-sale notices sent to each Appellant and refer to the notices in the singular
at times throughout this writing.
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throughout the entire bidding time frame. The creditor may
look at all bids at the end of the time frame and decide
whether to take one of the bids submitted or subject the
collateral to another sale process. Defense counsel also
explains that [Appellants] had every ability to participate in
that auction since it is a public sale. [N.T. at 17-18].
TCO at 11-12.
On appeal, Appellants essentially argue that FCB’s pre-sale notice does
not comply with Section 9614.5 We disagree.
Initially, FCB’s pre-sale notice contains the information required by
Section 9613(1), as mandated by Section 9614(1)(i). It describes the debtor
(Appellants), the secured party (FCB), and the collateral which is the subject
of the intended disposition (the 2013 Ford Taurus). See 13 Pa.C.S. §
9613(1)(i), (ii).6 In addition, the pre-sale notice sets forth the method of
____________________________________________
5 Appellants also argue that FCB is not entitled to Section 9614(3)’s safe
harbor protection because FCB did not exactly follow the form of the
notification set forth in the statute. See Appellants’ Brief at 19-24; but see
13 Pa.C.S. § 9614(2) (“A particular phrasing of the notification is not
required.”). Appellants point out that FCB’s pre-sale notice uses a different
title than Section 9614(3)’s form, omits the name and address of Appellants,
excludes language pertaining to the cost of an accounting, and does not
provide a singular date and time for the sale of the vehicle. Id. at 23-24. We
need not address Appellants’ argument that FCB has to follow the safe harbor
form exactly to enjoy the safe harbor protection, choosing instead to simply
examine whether FCB’s pre-sale notice complies with the requirements of
Section 9614.
6 Appellants claim that FCB failed to identify itself as the secured party and
Appellants as the debtors. Appellants’ Brief at 26. Specifically, they say that
“one of several material items from the statutory ‘safe harbor’ form missing
… was the identification of the name and address of the obligors.” Id. Further,
they complain that, “[w]hile [FCB] claims to have identified the secured party,
its supposed identification lists both [FCB] and Altoona Auto Auction, never
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intended disposition (public sale), and the date (November 5 through
November 8, 2018), time (9 A.M. to 5:00 P.M.), and location of the public sale
(Altoona Auto Auction, 1710 Margaret Avenue, Altoona, Pennsylvania 16603).
See 13 Pa.C.S. § 9613(1)(iii), (v).7
____________________________________________
identifying either as the secured party.” Id. (citation omitted; emphasis in
original). We reject these claims. First, with respect to Appellants’ claim that
the pre-sale notice did not identify the name and address of the debtors, we
note that the pre-sale notices respectively sent to each Appellant identified
them by name and listed their account number and vehicle identification
number. Additionally, the statute does not explicitly require FCB to include
their addresses. See 13 Pa.C.S. § 9613(1)(i) (stating that the contents of a
notification of disposition are sufficient if the notification “describes the
debtor”). Second, regarding Appellants’ claim that FCB failed to identify itself
as the secured party, we observe that the pre-sale notice contains the name
and address of FCB, states that Appellants broke promises in their agreement
with it and that Appellants owe money to FCB, and conveys that the vehicle is
merely being stored at Altoona Auto Auction. See also FCB’s Brief at 33
(additionally noting that Appellants listed FCB as the secured creditor in their
verified bankruptcy petition). Thus, we conclude that FCB sufficiently
identified itself as the secured party and Appellants as the debtors.
7 Appellants complain that FCB gave a range of dates in its pre-sale notice,
purportedly in contravention of Section 9613(1)(v). Appellants’ Brief at 27-
28; see also 13 Pa.C.S. § 9613(1)(v) (requiring that the notification state
“the time and place of a public disposition”). They contend that the phrase
‘the time and place of a public disposition’ is “conjunctive, and the secured
party must supply both ‘the time’ and ‘the date’ to comply with the disclosure
requirement. The phrase is also expressed in the singular, allowing for only
one time on one date.” Appellants’ Brief at 28 (emphasis in original). In
addition, Appellants argue that “providing a span of an entire business week
over which the [v]ehicle could be sold is problematic for practical reasons. If
a … sufficient bid is tendered early in the sale period, a borrower could appear
at the specified ‘date and time’ only to find the property had already been
sold.” Id. However, as FCB persuasively discerns, “nothing in [the statute]
mandates that the public sale be held on a single date or at a single, specific
hour[,]” and Appellants “cite to no authority in support of this proposition….”
FCB’s Brief at 30. FCB also correctly states that, “[w]hile the trial court must
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FCB’s pre-sale notice also complies with Section 9613(1)(iv)’s
requirement to “state[] that the debtor is entitled to an accounting of the
unpaid indebtedness and state[] the charge, if any, for an accounting….” See
13 Pa.C.S. § 9613(1)(iv). The pre-sale notice conveys that “[t]o learn the
exact amount you must pay, call us at 800-221-8605. If you want us to
explain to you in writing how we have figured the amount that you owe us,
you may call us at 800-221-8605 or write us … and request a written
explanation.” See Pre-Sale Notice at 1 (single, unnumbered page). We deem
this sufficient to satisfy Section 9613(1)(iv).8
____________________________________________
accept all well-pleaded facts as true and the material inferences that can be
derived from those facts, it need not accept as true conclusions of law….” Id.
at 36-37 (cleaned up). Furthermore, Appellants’ argument that the property
could be sold early in the sale period before a borrower is able to appear is
likewise meritless, as FCB’s pre-sale notice specifically states that “[a]ll bids
will be opened at the conclusion of the Auction Period and the highest bid will
be submitted to us.” Pre-Sale Notice at 1 (single, unnumbered page). As
such, no relief is due on this basis.
8 Appellants aver that the pre-sale notice “did not include an affirmative
statement that the debtor is entitled to an accounting of unpaid indebtedness
with a statement of the charge for such.” Appellants’ Brief at 28 (emphasis in
original; citation omitted). We disagree. FCB used the language provided in
the safe harbor form to indicate that Appellants were entitled to an accounting.
Cf. Pre-Sale Notice at 1 (“To learn the exact amount you must pay, call us at
800-221-8605. If you want us to explain to you in writing how we have figured
the amount that you owe us, you may call us at 800-221-8605 or write us at
[FCB], Consumer Special Assets Department, 654 Philadelphia Street,
Indiana, Pennsylvania 15701, and request a written explanation.”) (single,
unnumbered page) with 13 Pa.C.S. § 9614(3) (“To learn the exact amount
you must pay, call us at __________ (telephone number). If you want us to
explain to you in writing how we have figured the amount that you owe us,
you may call us at __________ (telephone number) (or write us at
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FCB’s pre-sale notice likewise satisfies the remaining requirements of
Section 9614(1). The pre-sale notice includes “a description of any liability
for a deficiency of the person to which the notification is sent[.]” See 13
Pa.C.S. § 9614(1)(ii). Specifically, it states that “[t]he money that we get
from the sale (after paying our costs) will reduce the amount you owe. If we
receive less money than you owe, you will still owe us the difference.” See
Pre-Sale Notice at 1 (single, unnumbered page).9 In addition, it sets forth a
____________________________________________
__________ (secured party’s address)) and request a written explanation.”).
Moreover, with respect to the accounting charge, FCB observes that
Appellants “did not allege in their [c]omplaint that they were charged any fee
for an accounting or that they paid any such fee.” FCB’s Brief at 27; id. at 34
(claiming that FCB “did not charge a fee for an accounting, and [Appellants]
do not allege otherwise”). Further, FCB notes that:
Section 9613(1)(iv), incorporated by referenced by Section
9614(1)(i)[,] only requires the inclusion of the amount to be
charged for an accounting “if any.” In fact, the entirety of the
sentence indicating the amount to be charged for an accounting
in the safe harbor [form] is in parentheses. As reflected by the
other provisions in the safe harbor [form] that also appear in
parentheses, this means that the sentence is optional and
removable.
Id. at 27 (internal citations omitted); see also 13 Pa.C.S. § 9614(3) (“(We
will charge you $___ for the explanation if we sent you another written
explanation of the amount you owe us within the last six months.)”). As a
final note, we point out that the pre-sale notice itself included an itemized
statement of the amount that Appellants were required to pay to FCB to
redeem the vehicle. See Pre-Sale Notice at 1 (single, unnumbered page).
Thus, we conclude that no relief is due on this basis.
9 Appellants aver that FCB failed to advise them of their potential liability for
a deficiency pursuant to Section 9614(1)(ii) because FCB “did not send any
[p]ost-[s]ale [n]otice to [Appellants], and now contends that the information
in its [p]re-[s]ale [n]otice had been inaccurate since [Appellants] would not
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telephone number where Appellants could inquire about the amount which
must be paid to FCB to redeem the collateral, as well as a telephone number
and mailing address from which they could seek additional information
concerning the disposition and the obligation secured. See 13 Pa.C.S. §
9614(1)(iii), (iv); see Pre-Sale Notice at 1 (single, unnumbered page) (“To
learn the exact amount you must pay, call us at 800-221-8605. … If you need
more information about the sale, call us at 800-221-8605 or write us at the
address above.”).10 Accordingly, we conclude that FCB’s pre-sale notice
complied with Section 9614(1).
____________________________________________
be liable for any deficiency.” Appellants’ Brief at 25 (citation and footnote
omitted; emphasis in original). We reject this claim. FCB explains that,
“[p]ursuant to the terms of the RISC, [Appellants] were liable for any
deficiency if [FCB] received less from the sale than they owed on the [v]ehicle.
[FCB] ultimately did not seek to collect the deficiency because the debt was
discharged in bankruptcy, which is why [FCB] did not send a deficiency
notice.” FCB’s Brief at 38-39 (citation omitted); see also Issue 1, supra
(determining that we can take judicial notice of the bankruptcy petition and
discharge order). Further, FCB says that “the decision not to send a deficiency
notice does not somehow render the [pre-sale n]otice legally insufficient. To
the contrary, by using the [language provided in the] safe harbor [form], the
explanation of the deficiency in the [pre-sale n]otice was sufficient as a matter
of law.” Id. at 39 (citation omitted). Again, we concur with FCB.
10 Appellants assert that the pre-sale notice “failed the requirement of
[S]ection 9614(1)(iii) of providing a telephone number to determine the
amount [Appellants] would need to pay — instead, it provided a telephone
number for only part of those payments, and [Appellants] could only learn
how much more they would be required to pay from ‘Altoona Auto Auction at
the time when you redeem your vehicle.’” Appellants’ Brief at 25 (citation
omitted; emphasis in original). We disagree that FCB’s pre-sale notice does
not satisfy Section 9614(1)(iii). As set forth above, Section 9614(1)(iii)
requires “a telephone number from which the amount which must be paid to
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MVSFA
Appellants next contend that FCB’s pre-sale notice violated the
mandatory provisions of the MVSFA, which they say FCB was obligated to
comply with under the UCC. See Appellants’ Brief at 29.11 They explain that,
“[w]hile all of [their] causes of action arise under the UCC, the MVSFA
addresses the subject of repossessions and disposition sales in the context of
____________________________________________
the secured party to redeem the collateral under section 9623 (relating to
right to redeem collateral)…[.]” 13 Pa.C.S. § 9614(1)(iii) (emphasis added).
Here, Appellants would not be paying the $25/day storage fee to FCB (i.e.,
the secured party), but instead to Altoona Auto Auction. See Pre-Sale Notice
at 1 (“In addition to paying us the Total Amount Due, you must also pay
storage fees of $25 per day and other costs charged by Altoona Auto Auction.
These charges must be paid to Altoona Auto Auction at the time when you
redeem your vehicle.”) (single, unnumbered page; emphasis added).
Moreover, as FCB notes, “Section 9614 does not require that [FCB] provide
the phone number to the [v]ehicle’s storage location, nor is it included in the
safe harbor notice.” FCB’s Brief at 40 (citation omitted). Thus, based on the
plain language of the statute, Appellants do not demonstrate that a violation
of Section 9614(1)(iii) occurred.
11 Both parties agree that there is no private right of action under the MVSFA
and, therefore, we do not delve further into whether a private right of action
exists. See Appellants’ Brief at 10; FCB’s Brief at 23 n.8. Notwithstanding
Appellants’ conceding that no private right of action exists under the MVSFA,
they argue that “[t]he UCC imposes the requirement of commercial
reasonableness upon all aspects of the disposition sale, and [FCB’s] MVSFA
violations meant that the sale had been conducted illegally. An illegal sale
denying [Appellants] of their protections under the law cannot meet the UCC’s
‘commercial reasonableness’ requirement.” Appellants’ Brief at 10-11; see
also 13 Pa.C.S. § 9610(b) (“Every aspect of a disposition of collateral,
including the method, manner, time, place and other terms, must be
commercially reasonable.”). Thus, Appellants assert that they “did not allege
any claim under the MVSFA, rather [they] alleged only a claim under the UCC,
premised upon [FCB’s] failure to ensure that all aspects of its disposition were
‘commercially reasonable.’” Appellants’ Brief at 11 (emphasis in original).
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consumer-goods transactions — imposing further legal obligations upon
[FCB].” Id. Further, they advance that “controlling case law shows that
courts must construe the UCC and the MVSFA in pari materia, as a single
statute….” Id. (emphasis in original); see also 1 Pa.C.S. § 1932 (“(a)
Statutes or parts of statutes are in pari materia when they relate to the same
persons or things or to the same class of persons or things. (b) Statutes in
pari materia shall be construed together, if possible, as one statute.”).12
Assuming arguendo that FCB was obligated to comply with the MVSFA
under the UCC, Appellants would nevertheless fail to demonstrate that FCB
____________________________________________
12 See also Complaint at ¶¶ 25-26 (“Repossessors of vehicles … are required
to comply with both the UCC and the MVSFA…, which must be applied in pari
materia. The MVSFA sets forth the notice requirements for secured parties
who repossess other than by legal process. Likewise, the UCC sets forth the
notice requirements for secured parties who repossess other than by legal
process. Therefore, these statutes clearly relate to the same persons or things
and/or the same classes of persons or things — debtors whose vehicles were
repossessed outside of judicial process.”) (citations omitted).
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violated the MVSFA.13, 14 Appellants claim that FCB failed to comply with
Section 6254 of the MVSFA, which provides:
(a) General rule.--If repossession of a motor vehicle subject to
an installment sale contract is effected other than by legal
process, the holder shall immediately furnish the buyer with a
written notice of repossession.
(b) Delivery.--The notice of repossession shall be delivered in
person or sent by registered or certified mail to the last known
address of the buyer.
(c) Contents.--The notice of repossession shall contain the
following:
(1) The buyer’s right to reinstate the contract, if the holder
extends the privilege of reinstatement and redemption of
the motor vehicle.
____________________________________________
13 In ruling on this issue, the trial court determined that the relevant UCC and
MVSFA provisions need not be construed in pari materia. See TCO at 15. In
reaching this conclusion, it explained that “[t]he statutory language in the
relevant UCC and MVSFA provisions is clear and unambiguous[,]” and that “a
court may not resort to the rules of statutory construction, including in pari
materia, where, as here, the statutory language is clear.” Id. (citing Oliver
v. City of Pittsburgh, 11 A.3d 960, 965(Pa. 2011)); see also DeForte v. Borough of Worthington,212 A.3d 1018, 1022
(Pa. 2019) (“Laws which
apply to the same persons or things or the same class of persons or things
are in pari materia and, as such, should be read together where reasonably
possible. The concept has long been recognized in Pennsylvania decisional
law, and it is codified in the Statutory Construction Act – where it is also
applied to ‘parts of statutes.’ Traditionally, the rule has been used as an aid
to construction when resolving statutory ambiguities.”) (citations omitted)).
Notwithstanding the trial court’s determination that the relevant UCC and
MVSFA provisions need not be construed in pari materia, it opined that FCB’s
pre-sale notice nevertheless complied with the MVSFA’s requirements. See
TCO at 13-15.
14Because we conclude that Appellants fail to show that FCB violated the
MVSFA, we need not decide whether the UCC and the MVSFA must be
construed in pari materia.
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(2) An itemized statement of the total amount required to
redeem the motor vehicle by reinstatement or payment of
the contract in full.
(3) Notice to the buyer of the holder’s intent to resell the
motor vehicle at the expiration of 15 days from the date of
mailing the notice.
(4) The place where the motor vehicle is stored.
(5) The name and address of the person to whom the buyer
shall make payment or on whom the buyer may serve
notice.
(6) A statement that any personal property left in the
repossessed vehicle will be held for 30 days from the date
of the mailing of the notice.
(7) The name and address of the person that the buyer may
contact to receive a full statement of account as provided
by section 6230 (relating to statement of account to buyer).
12 Pa.C.S. § 6254.
Appellants initially contend that FCB failed to comply with Section
6254(c)(1). See 12 Pa.C.S. § 6254(c)(1) (stating that the notice of
repossession shall contain, inter alia, “[t]he buyer’s right to reinstate the
contract, if the holder extends the privilege of reinstatement and
redemption of the motor vehicle”) (emphasis added). Appellants argue:
[FCB] failed to disclose any information concerning [Appellants’]
reinstatement rights. That omission is particularly problematic in
this case since [FCB] had an obligation to supply that information
under the [RISC], which provided:
If we repossess the vehicle, we may, at our option, allow
you to get the vehicle back before we sell it by paying all
past due payments, late charges, and any other amounts
due because you defaulted (reinstate). We will tell you if
you may reinstate and how much to pay if you may.
Once again, the [t]rial [c]ourt improperly accepted [FCB’s]
unverified factual allegations having no support in the record by
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finding that … “[FCB] chose not to allow reinstatement.” In so
doing, the [t]rial [c]ourt deprived [Appellants] of any opportunity
for discovery upon the issue of whether [FCB] made any
determination of [Appellants’] reinstatement rights. The [t]rial
[c]ourt also ignored that, under [the RISC] and Pennsylvania law,
[FCB] had a duty to communicate that information to [Appellants]
— and it failed to do that.
Appellants’ Brief at 32-33 (internal citations omitted; emphasis in original).
This argument warrants no relief. As FCB astutely observes, Appellants
“do not and cannot plead any facts showing that they had any right to
reinstatement[,]” and the MVSFA does not require FCB “to disclose a non-
existent reinstatement right in the repossession notice.” FCB’s Brief at 47
(footnote, emphasis, and unnecessary capitalization omitted). FCB
emphasizes that the RISC does not provide Appellants with an actual right to
reinstatement, as the RISC “expressly states that [FCB] ‘may, at [its]
option,’ allow buyers to reinstate and that [FCB] ‘will tell you if you may
reinstate and how much to pay if you may.’” Id. (emphasis in original;
citation omitted). Thus, because Appellants do not allege or otherwise
establish that FCB extended the privilege of reinstatement to them, FCB had
no notification obligation under Section 6254(c)(1).
We also conclude that FCB’s pre-sale notice meets the remaining
requirements of Section 6254(c). It contains an itemized statement of the
total amount required to redeem the vehicle by payment of the contract in full
($13,832.63), notice to Appellants of FCB’s intent to resell the motor vehicle
at the expiration of 15 days from the date of mailing the notice (stating that
a sale will take place from November 5, 2018 through November 9, 2018,
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which was 21 days from the date of the notice), and the place where the
vehicle is stored (“The vehicle is being stored at Altoona Auction at the address
below.”). See 12 Pa.C.S. § 6254(c)(2)-(c)(4). The pre-sale notice also
includes the name and address of the person to whom Appellants shall make
payment (FCB’s Consumer Special Assets Department at 654 Philadelphia
Street, Indiana, Pennsylvania 15701, and Altoona Auto Auction, 1710
Margaret Avenue, Altoona, Pennsylvania 16603), a statement that any
personal property left in the repossessed vehicle will be held for 30 days from
the date of the mailing of the notice (“You have the right to reclaim personal
property in the vehicle within thirty (30) days after the date of this letter. …
Please call 814-942-4213 to arrange a time to pick up the personal property”),
and the name and address of the person that Appellants may contact to
receive a full statement of account (FCB’s Consumer Special Assets
Department at 654 Philadelphia Street). See 12 Pa.C.S. § 6254(c)(5)-
(c)(7).15 Thus, even if FCB was obligated to comply with Section 6254 of the
MVSFA, we would determine that FCB met its requirements.
____________________________________________
15 Appellants argue that the pre-sale notice improperly required payments to
Altoona Auto Auction, and that FCB could only provide the information for one
payee. See Appellants’ Brief at 33-34 (“By improperly advising [Appellants]
that they would be required to pay an unliquidated amount to Altoona Auto
Auction, [FCB] also failed the requirement of [S]ection 6254(c)(5) of providing
the ‘name and address of the person to whom the buyer shall make payment
or on whom the buyer may serve notice.’ Rather than provide the information
for one payee, as legally required, the [p]re-[s]ale [n]otice improperly
required additional payments to Altoona Auto Auction (i.e., an unsecured
party, with no privity to [Appellants]). Likewise, the same improper
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Issue 3
In Appellants’ third issue, they argue that the trial court “erred by
determining that [FCB] had not been required to issue any [p]ost-[s]ale
[n]otice to [Appellants] since it did not make any attempt to collect a
deficiency.” Appellants’ Brief at 35 (citation omitted). They claim that this
determination was incorrect as “(i) the law plainly and unambiguously
required [FCB] to issue a [p]ost-[s]ale [n]otice to [Appellants]; (ii)
[Appellants] are entitled to the remedies under the UCC for [FCB’s] violations
of the MVSFA; and (iii) [FCB’s] unverified allegation that it did not attempt to
collect a deficiency is unsupported by the record.” Id.
UCC
Notwithstanding Appellants’ arguments, the trial court ascertained that,
under the UCC’s Section 9616(b), FCB did not have to send a deficiency notice
because FCB “did not attempt to collect the deficiency on the [v]ehicle because
____________________________________________
instruction for payments to Altoona Auto Auction also triggered [FCB’s]
violation of [S]ection 6254(c)(7), which mandated the disclosure of the ‘name
and address of the person that the buyer may contact to receive a full
statement of account’ under [S]ection 6254(c)(7)[,] since there would be no
single payee.”) (citations omitted). However, Appellants provide no legal
support or analysis for these contentions regarding a single payee, and we
therefore deem their argument waived. See In re S.T.S., Jr., 76 A.3d 24,
42 (Pa. Super. 2013) (“When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is waived. [M]ere
issue spotting without analysis or legal citation to support an assertion
precludes our appellate review of a matter.”) (citations and quotation marks
omitted).
- 36 -
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of [Appellants’] bankruptcy petition….” TCO at 13. Section 9616(b) provides
the following:
(b) Explanation of calculation.--In a consumer-goods
transaction in which the debtor is entitled to a surplus or a
consumer obligor is liable for a deficiency under section 9615
(relating to application of proceeds of disposition; liability for
deficiency and right to surplus), the secured party shall comply
with one of the following paragraphs:
(1) Send an explanation to the debtor or consumer obligor,
as applicable, after the disposition and:
(i) before or when the secured party accounts to
the debtor and pays any surplus or first makes
written demand on the consumer obligor after
the disposition for payment of the deficiency;
and
(ii) within 14 days after receipt of a request.[16]
(2) In the case of a consumer obligor who is liable for a
deficiency, within 14 days after receipt of a request, send to
the consumer obligor a record waiving the secured party’s
right to a deficiency.
13 Pa.C.S. § 9616(b) (some emphasis added).
The relevant comment to Section 9616(b) states:
2. Duty to Send Information Concerning Surplus or
Deficiency. This section reflects the view that, in every
consumer-goods transaction, the debtor or obligor is entitled to
know the amount of a surplus or deficiency and the basis upon
which the surplus or deficiency was calculated. Under subsection
(b)(1), a secured party is obligated to provide this
information (an “explanation,” defined in subsection (a)(1)) no
later than the time that it accounts for and pays a surplus or the
____________________________________________
16 “Request” is defined as “[a] record: (1) authenticated by a debtor or
consumer obligor; (2) requesting that the recipient provide an explanation;
and (3) sent after disposition of the collateral under [S]ection 9610 (relating
to disposition of collateral after default).” 13 Pa.C.S. § 9616(a). Appellants
do not allege that they made a request to FCB for an explanation.
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time of its first written attempt to collect the deficiency.
The obligor need not make a request for an accounting in order to
receive an explanation. A secured party who does not
attempt to collect a deficiency in writing or account for and
pay a surplus has no obligation to send an explanation
under subsection (b)(1) and, consequently, cannot be
liable for noncompliance.
A debtor or secondary obligor need not wait until the secured party
commences written collection efforts in order to receive an
explanation of how a deficiency or surplus was calculated.
Subsection (b)(2) obliges the secured party to send an
explanation within 14 days after it receives a “request” (defined
in subsection (a)(2)).
Comment to 13 Pa.C.S. § 9616 (some emphasis added).
Based on Section 9616(b)’s plain language, we discern no violation of it
by Appellants. Because FCB could not collect any deficiency due to the
bankruptcy court’s discharge order, it was not obligated to send an
explanation under Section 9616(b)(1).17
____________________________________________
17 We also note that Appellants did not allege in their complaint that they were
entitled to a surplus from the sale of the vehicle and/or that FCB tried to
account for and pay them a surplus. Instead, Appellants averred that they
did not know if their vehicle had been sold, and that they “may have been
entitled to a payment from the surplus of a sale, but [FCB’s] failure to supply
any [d]isposition [n]otice has left them without any method to determine
whether that is the case.” See Complaint at ¶ 53 (emphasis added).
However, Section 9616(b) provides that the secured party only must send an
explanation if the debtor is actually entitled to a surplus and must only do
so after the disposition and before or when it accounts to the debtor and
pays any surplus. See 13 Pa.C.S. § 9616(b)(1)(i) (“In a consumer-goods
transaction in which the debtor is entitled to a surplus…, the secured party
shall comply with one of the following paragraphs… [s]end an explanation to
the debtor or consumer obligor, as applicable, after the disposition and …
before or when the secured party accounts to the debtor and pays any
surplus….”); see also Comment to 13 Pa.C.S. § 9616 (“A secured party who
does not attempt to … account for and pay a surplus has no obligation to send
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MVSFA
Appellants next argue that, “[e]ven if [FCB] was not required to issue a
[p]ost-[s]ale [n]otice under [S]ection 9616 of the UCC[, S]ection 6261(d) of
the MVSFA unmistakably imposed that obligation.” Appellants’ Brief at 36.
Section 6261 of the MVSFA states the following, in pertinent part:
§ 6261. Deficiency judgment
(a) General rule.--If the proceeds of a resale under section 6260
(relating to sale of motor vehicle after repossession) are not
sufficient to defray the expenses regarding the repossessed motor
vehicle, including the costs under section 6256 (relating to buyer’s
liability for costs), the net balance due on the installment sale
contract and the amount of accrued late charges authorized by
this chapter, the installment seller or holder may recover the
deficiency from the buyer or from any person who has succeeded
to the obligations of the buyer.
***
(d) Deficiency notice.--Within 30 days after the sale of a
repossessed motor vehicle, the installment seller or holder shall
deliver in person or send by registered or certified mail to the last
____________________________________________
an explanation under subsection (b)(1) and, consequently, cannot be liable
for noncompliance.”). Thus, unless Appellants were actually entitled to a
surplus and FCB attempted to account for and pay a surplus (neither of which
Appellants have alleged), FCB had no obligation to send an explanation under
Section 9616. Moreover, as an aside, we additionally point out that, in their
bankruptcy petition, Appellants stated that the vehicle was worth significantly
less than the amount they owed to FCB under the RISC, making any
expectation Appellants had of a surplus from the sale dubious. See footnote
1, supra;see Issue1, supra
(stating that we may take judicial notice of the
facts contained within Appellants’ bankruptcy petition). We also note that, if
Appellants were concerned about finding out what happened to their vehicle,
they could have made a request for an explanation pursuant to Section
9616(b)(1)(ii). See 13 Pa.C.S. § 9616(b)(1)(ii) (stating that the secured
party shall send an explanation to the debtor after the disposition and within
14 days after receipt of a request); see also footnote 16, supra (setting forth
the definition of ‘request’).
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known address of the buyer a deficiency notice containing the
following:
(1) The sale price of the repossessed motor vehicle.
(2) The itemized costs associated with the repossession and
sale of the repossessed motor vehicle.
(3) The amount of the deficiency owed by the buyer.
12 Pa.C.S. § 6261(a), (d) (some emphasis added).
Appellants reiterate that the UCC and the MVSFA “must be read in pari
materia[,]” and therefore say they “appropriately sought a remedy under the
UCC for [FCB’s] noncompliance with Section 6261 of the MVSFA.” Appellants’
Brief at 37 (citations omitted). Appellants also emphasize that Section
6261(d) states that the installment seller or holder ‘shall deliver’ a deficiency
notice to the buyer, suggesting that the installment seller or holder had to
send the notice regardless of any attempt to collect a deficiency. See id. at
36; Appellants’ Reply Brief at 5-6.
In addressing this issue, the trial court — despite determining that the
UCC and the MVSFA provisions need not be construed in pari materia —
nevertheless discerned that FCB did not violate Section 6261(d) because FCB
“did not attempt to collect the deficiency on the vehicle.” TCO at 15. In
addition, FCB argues:
[T]he Pennsylvania Statutory Construction Act states that
“statutes in pari materia shall be construed together, if possible,
as one statute.” 1 Pa.C.S. § 1932. Here, the in pari materia
doctrine is simply not applicable and cannot otherwise impose a
conflicting duty to send a deficiency notice because the UCC
unambiguously states that no such notice is required. [FCB]
could not (and did not) attempt to collect any deficiency balance
as a matter of law because the debt was discharged by the
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bankruptcy court. 11 U.S.C. § 524(a)(2).[18] Thus, the in pari
materia doctrine does not apply, and the MVSFA’s requirements
relating to the contents of a deficiency notice when such a notice
is required are irrelevant here.
FCB’s Brief at 58 (emphasis in original).
As FCB alludes, assuming arguendo that the UCC and the MVSFA must
be read in pari materia, we fail to see how trying to construe the UCC’s Section
9616 and the MVSFA’s Section 6261 together as one statute would override
Section 9616’s explicit pronouncement that no deficiency notice is required to
be sent where the secured party does not attempt to collect a deficiency.
Instead, if we were to construe Section 9616 and Section 6261 together as
one statute as Appellants contend we should, we would determine that Section
9616’s clear directive that the secured party does not need to send notice
____________________________________________
18 The discharge order also advises:
Creditors cannot collect discharged debts
This order means that no one may make any attempt to collect a
discharged debt from the debtors personally. For example,
creditors cannot sue, garnish wages, assert a deficiency, or
otherwise try to collect from the debtors personally on discharged
debts. Creditors cannot contact the debtors by mail, phone, or
otherwise in any attempt to collect the debt personally. Creditors
who violate this order can be required to pay debtors damages
and attorney’s fees.
However, a creditor with a lien may enforce a claim against the
debtors’ property subject to that lien unless the lien was avoided
or eliminated. For example, a creditor may have the right to
foreclose a home mortgage or repossess an automobile.
FCB’s Preliminary Objections at Exhibit B (“Discharge Order”) at 1 (emphasis
in original). See also Issue 1, supra (explaining that we may take judicial
notice of discharge order).
- 41 -
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where it does not attempt to collect a deficiency would control, given that
Section 6261 does not address the specific circumstance of a secured party’s
not attempting to collect a deficiency.19 Thus, we disagree with Appellants’
argument that, if the statutes are construed in pari materia, FCB had to send
a deficiency notice under the MVSFA’s Section 6261, where FCB did not try to
collect the deficiency.
FCB’s “Unverified Allegation”
____________________________________________
19 Appellants argue that “the UCC did not prevent [FCB] from sending [a
deficiency] notice…. Thus, the unequivocal requirement to issue a [deficiency
n]otice, irrespective of any attempt to collect a deficiency, imposed under the
MVSFA — which must be read in par[i] materia with the UCC — incorporated
that same requirement into the UCC.” Appellants’ Reply Brief at 5-6
(emphasis in original). We reject this claim. First, in making this assertion,
Appellants urge us to ignore the plain language of the UCC, which states that
the secured party shall send an explanation before or when it “first makes
written demand on the consumer obligor after the disposition for payment of
the deficiency[.]” 13 Pa.C.S. § 9616(b)(1)(i). They also disregard the
comment to Section 9616, which provides that a secured party who does not
attempt to collect a deficiency has no obligation to send an explanation under
Section 9616(b)(1) and, consequently, cannot be liable for noncompliance.
As such, Appellants would not have us construe the UCC and MVSFA together
as one statute, but instead discount the specific, unambiguous language of
the UCC to favor its broad interpretation of the MVSFA. We decline to do so.
Second, we disagree with Appellants’ contention that the MVSFA
unequivocally required FCB to issue a deficiency notice regardless of whether
they were attempting to collect the deficiency. Instead, Section 6261(d) of
the MVSFA seems to contemplate that the installment seller or holder is
seeking to recover the deficiency, given that it instructs that the deficiency
notice contain the amount of the deficiency owed by the buyer and the statute
itself is entitled ‘Deficiency judgment.’ Finally, as a practical matter, it makes
little sense to require the installment seller or holder to send a deficiency
notice where the buyer is not liable for a deficiency.
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Finally, Appellants complain that the trial court “improperly accepted
[FCB’s] unverified allegation that it did not attempt to collect a deficiency,
despite the absence of any support in the record for it.” Appellants’ Brief at
37 (citation omitted). In fact, Appellants claim that the pre-sale notice
suggested that FCB may have attempted to collect a deficiency because it
warned that “[i]f we receive less money than you owe, you will still owe us
the difference.” Id. (citations omitted; emphasis in original).
No relief is due on this basis. As FCB discerns, Appellants “made no
allegation that [FCB] ever attempted to collect the deficiency from them.”
FCB’s Brief at 59. Further, it says that, had it done so, Appellants “would have
alleged this fact and they likewise likely would have sought to hold [FCB] in
contempt for violating the [d]ischarge [o]rder.” Id. (citing In re McNeil, 128
B.R. 603, 607(Bankr. E.D.Pa. 1991) (attempting to collect debts discharged in bankruptcy exposes creditors to contempt and potential monetary sanctions)).20 In addition, we have already concluded that the trial court was permitted to take judicial notice of Appellants’ bankruptcy petition and the bankruptcy court’s subsequent discharge order. See Issue1, supra.
Accordingly, Appellants are not entitled to relief on this claim.
Issue 4
In Appellants’ fourth issue, they advance that “[t]he UCC provides the
remedy for [FCB’s] violations of the MVSFA.” Appellants’ Brief at 38 (emphasis
____________________________________________
20See also footnote 18, supra (setting forth the bankruptcy court’s discharge
order advising that creditors cannot collect discharged debts).
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and unnecessary capitalization omitted). They, again, say that “courts must
read the UCC and MVSFA in pari materia, and the UCC provides the remedy
for [FCB’s] violations of the MVSFA.” Id.
No relief is due on this issue. Even upon our attempt to read the UCC
and the MVSFA in pari materia as Appellants urge us to do, we have uncovered
no violations of the MVSFA that would warrant relief under the UCC. Thus, we
deem this claim meritless.
Issue 5
In Appellants’ fifth issue, they claim that they “have fully pleaded claims
under the UCC for [FCB’s] breach of contract, and its conversion of
[Appellants’] property.” Appellants’ Brief at 39 (emphasis and unnecessary
capitalization omitted). They contend that “those claims are grounded in the
requirement of [S]ection 9610 [of the UCC] that ‘[e]very aspect of a
disposition of collateral, including the method, manner, time, place and other
terms, must be commercially reasonable.’” Id. (quoting 13 Pa.C.S. § 9610).
As such, they argue that, “[a]s with UCC remedies for violations of the MVSFA,
common law claims trigger violations of the commercial reasonableness
requirement under the UCC.” Id. (citation omitted).
Breach of Contract
To begin, with respect to their breach-of-contract claim, Appellants
argue that they fully pleaded their claim relating to FCB’s breach of the RISC.
See id. at 39. In their complaint, they averred, in pertinent part, the
following:
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COUNT IV
Statutory Damages for Breach of Contract
On Behalf of the Pre-Sale Notice Subclass Pursuant to 13 Pa.C.S.[]
§§ 9610 and 9625
108. The preceding paragraphs are incorporated by reference.
109. The claims in this Count are asserted on behalf of the Pre-
Sale Notice Subclass.
110. The Financing Agreements[, i.e., the RISC,] between [FCB]
and the members of the Pre-Sale Notice Subclass constitute
binding agreements between [FCB] and members of the Breach
of Contract Subclass.
111. Under the Financing Agreement, [FCB] had a duty to disclose
the actual amount borrowers would need to pay to redeem their
vehicles.
112. [FCB] breached its duty to disclose the actual amount
borrowers would need to pay to redeem their vehicles, requiring
instead that they make unauthorized payments to third parties,
and that they take additional steps to request that actual amount
from [FCB] and from such third parties.
113. Under the Financing Agreement, [FCB] had a duty to disclose
whether borrowers could reinstate their loans and, for
reinstatement-eligible borrowers, the amount such borrowers
would be required to pay to reinstate their loans.
114. [FCB] breached its duty to disclose whether borrowers could
reinstate their loans and, for reinstatement-eligible borrowers, the
amount such borrowers would be required to pay to reinstate their
loans.
115. Under the Financing Agreement, [FCB] had a duty to impose
only expenses that [it] actually paid as a direct result of taking
the vehicle, holding it, and/or preparing it for sale or selling it.
116. [FCB] breached its duty to impose only expenses that [it]
actually paid as a direct result of taking the vehicle, holding it,
and/or preparing it for sale or selling it.
117. Under the Financing Agreement, [FCB] had a duty to disclose
whether its borrowers could reinstate their loans.
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118. [FCB] breached its duty to disclose whether its borrowers
could reinstate their loans.
119. Under the Financing Agreement, [FCB] had a duty to disclose
the amount its borrowers were required to pay in order to cure
and reinstate their loans.
120. [FCB] breached its duty to disclose the amount its borrowers
were required to pay in order to cure and reinstate their loans.
121. As a direct and proximate result of [FCB’s] foregoing
breaches of its obligations under the Financing Agreement, the
members of the Pre-Sale Notice Subclass did not receive the
disclosures and information to which they were entitled under the
Financing Agreements.
122. Consequently, the members of such Subclass did not receive
information sufficient to enable them to determine whether they
could or should exercise their rights of redemption, reinstatement,
or to participate at any sale.
123. [FCB’s] failure to meet its contractual obligations to
[Appellants] in the context of a disposition sale was commercially
unreasonable, per se, and [FCB] violated the requirement of the
UCC that all aspects of the sale be commercially reasonable
[pursuant to S]ection 9610(b).
124. Accordingly, [FCB] is liable to each member of such Subclass
for statutory damages [in] an amount not less than the credit
service charge plus 10% of the principal amount of the obligation
or the time price differential plus 10% of the cash price pursuant
to UCC [S]ection 9625(c).
Complaint at ¶¶ 108-24.
Here, the trial court determined that Appellants did not plead the
required elements to support a breach-of-contract claim, opining:
For a [p]laintiff to bring a sustainable breach of contract claim,
[the plaintiff] must successfully plead three elements: (1) the
existence of a contract between the parties; (2) the breach of the
contract’s terms; and (3) resultant damages. Meyer, Darragh,
Buckler v. Law Firm of Malone Middleman, [137 A.3d 1247
(Pa. 2016)]. In this present case, there was a contract between
these parties. However, there is no indication that [FCB] breached
the contract’s terms. [Appellants] do not cite a section of the
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RISC that [FCB] did not comply with. [Appellants] have also failed
to plead damages as a result. They ask for statutory damages as
a remedy, which they would not be entitled to.
TCO at 17 (internal citation omitted).
We agree with the trial court that Appellants failed to establish that FCB
breached the RISC. The RISC states, in relevant part:
3. IF YOU PAY LATE OR BREAK YOUR OTHER PROMISES
***
b. You may have to pay all you owe at once. If you
break your promises (default), we may demand that you
pay all you owe on this contract at once. Default means:
You do not pay any payment on time;
You give false or misleading information on a credit
application;
You start a proceeding in bankruptcy or one is started
against you or your property; or
You break any agreements in this contract.
The amount you will owe will be the unpaid part of the
Amount Financed plus the earned and unpaid part of the
Finance Charge, any late charges, and any amounts due
because you defaulted.
***
d. We may take the vehicle from you. If you default, we
may take (repossess) the vehicle from you if we do so
peacefully and the law allows it. If your vehicle has an
electronic tracking device, you agree that we may use the
device to find the vehicle. If we take the vehicle, any
accessories, equipment, and replacement parts will stay
with the vehicle. If any personal items are in the vehicle,
we may store them for you at your expense. If you do not
ask for these items back, we may dispose of them as the
law allows.
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e. How you can get the vehicle back if we take it. If
we repossess the vehicle, you may get it back by paying the
unpaid part of the Amount Financed plus the earned and
unpaid part of the Finance Charge, any late charges, and
any other amounts lawfully due under the contract
(redeem). Your right to redeem ends when we sell the
vehicle. We will tell you how much to pay to redeem.
If we repossess the vehicle, we may, at our option, allow
you to get the vehicle back before we sell it by paying all
past due payments, late charges, and any other amounts
due because you defaulted (reinstate). We will tell you if
you may reinstate and how much to pay if you may.
If you are in default for more than 15 days when we take
the vehicle, the amount you must pay to redeem or
reinstate will also include the expenses of taking the vehicle,
holding it, and preparing it for sale.
f. We will sell the vehicle if you do not get it back. If
you do not redeem or, at our option, reinstate, we will sell
the vehicle. We will send you a written notice of sale before
selling the vehicle.
We will apply the money from the sale, less allowed
expenses, to the amount you owe. Allowed expenses are
expenses we pay as a direct result of taking the vehicle,
holding it, preparing it for sale, and selling it, as the law
allows. Reasonable attorney fees and court costs the law
permits are also allowed expenses. If any money is left
(surplus), we will pay it to you unless the law requires us to
pay it to someone else. If money from the sale is not
enough to pay the amount you owe, you may have to pay
the rest to us. If you do not pay this amount when we ask,
we may charge you interest at a rate not exceeding the
highest lawful rate until you pay.
Complaint at Exhibit 1 (“RISC”) at ¶¶ 3(b), (d), (e), (f) (emphasis in original;
unnumbered pages).
Appellants first allege that, under the RISC, FCB had a duty to disclose
the actual amount borrowers would need to pay to redeem their vehicles, and
breached that duty by requiring that Appellants make unauthorized payments
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to third parties (i.e., Altoona Auto Auction) and take additional steps to
request the actual amount to redeem from FCB and from such third parties.
Id. at ¶¶ 111-12. This allegation is belied by the RISC and the pre-sale notice
Appellants attached to their complaint.
As set forth supra, the RISC states that FCB “will tell you how much to
pay to redeem.” See RISC at ¶ 3(e).21 After repossessing Appellants’ vehicle,
FCB sent its pre-sale notice to Appellants, which included an itemized
statement of the amount Appellants were required to pay to FCB to redeem
the vehicle as of that date, advised that Appellants must also pay a storage
fee of $25/day and other costs charged by Altoona Auto Auction, and provided
a phone number for Appellants to call “[t]o learn the exact amount you must
pay[.]” See Pre-Sale Notice at 1 (single, unnumbered page). Based on the
foregoing, FCB’s duty under the RISC was to tell Appellants how much to pay
to redeem, and it followed through on that duty by giving them the relevant
information, including how to inquire further about the exact amount they
would owe if they sought to redeem the vehicle. We note that Appellants do
not allege that they attempted to call the phone number provided to inquire
about the exact amount due. Thus, the record does not support that FCB
failed to tell Appellants how much to pay to redeem, and we therefore reject
Appellants’ legal conclusion that FCB breached the contract in this way. See
____________________________________________
21 Notably, the RISC does not specifically promise that FCB would send
Appellants a letter with the precise amount that Appellant must pay in order
to redeem. It also does not say that all payments Appellants would have to
make to redeem the vehicle would be to FCB.
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Joyce v. Erie Ins. Exchange, 74 A.3d 157, 168 (Pa. Super. 2013)
(explaining that “[w]hile we accept [the a]ppellant’s averments of fact as true
for purposes of reviewing preliminary objections, [c]onclusions of law … are
not admitted by a demurrer[,]” and “[w]hether [the appellee] breached a duty
imposed by contract is a legal conclusion”) (cleaned up).
Second, Appellants averred that, pursuant to the RISC, FCB had a “duty
to disclose whether borrowers could reinstate their loans and, for
reinstatement-eligible borrowers, the amount such borrowers would be
required to pay to reinstate their loans.” Complaint at ¶ 113; see also id. at
¶¶ 117, 119. Appellants alleged in their complaint that FCB breached this
duty. Id. at ¶¶ 114, 118, 120. Again, we disagree.
The RISC sets forth that “[i]f we repossess the vehicle, we may, at our
option, allow you to get the vehicle back before we sell it by paying all past
due payments, late charges, and any other amounts due because you
defaulted (reinstate). We will tell you if you may reinstate and how
much to pay if you may.” RISC at ¶ 3(e) (emphasis added). Based on the
language of the RISC, we do not agree with Appellants that FCB had to
disclose, either way, whether borrowers could reinstate their loans; instead,
the RISC promised that FCB would tell borrowers if they may reinstate. In
other words, if FCB opted to not allow reinstatement, it had no duty to disclose
that. Appellants do not allege that FCB allowed them to reinstate their loan
but failed to advise them of that option. Further, because Appellants do not
allege that FCB allowed them to reinstate their loan, FCB also had no duty to
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disclose the amount they had to pay to reinstate. Thus, the RISC, the pre-
sale notice, and the facts alleged do not support Appellants’ conclusion of law
that FCB breached the RISC on this basis. See Joyce, supra.
Third, Appellants claim that, under the RISC, FCB had a duty to impose
only expenses that it actually paid as a direct result of taking the vehicle,
holding it, and/or preparing it for sale or selling it. Complaint at ¶ 115. Based
on our review of the complaint, it appears that Appellants aver that FCB
breached this duty by requiring Appellants to pay storage costs and other
charges directly to Altoona Auto Auction in violation of the RISC. Id. at ¶¶ 5-
6, 116. Further, Appellants alleged that FCB “is not required to pay storage
fees to third parties for borrowers’ vehicles, nor is [it] required to pay the
undisclosed ‘other charges,’ which [FCB] improperly requires its borrowers to
pay to third parties, without any basis under the law or the [RISC].” Id. at ¶
7; see also id. at ¶ 116.
Again, we determine that the RISC and the pre-sale notice do not
support this breach-of-contract claim. The RISC generally provides that “[i]f
you are in default for more than 15 days when we take the vehicle, the amount
you must pay to redeem or reinstate will also include the expenses of taking
the vehicle, holding it, and preparing it for sale.” RISC at ¶ 3(e). It also
states that, “[i]f any personal items are in the vehicle, we may store them for
you at your expense.” Id. at ¶ 3(d). The record establishes that Appellants
were in default for more than 15 days when FCB obtained the vehicle. See
id. at ¶ 3(b) (stating that default means, inter alia, starting a proceeding in
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bankruptcy); Bankruptcy Petition (showing that Appellants filed for
bankruptcy on November 13, 2017); Complaint at ¶ 29 (alleging that FCB
repossessed the vehicle in October of 2018). Therefore, pursuant to the RISC,
the amount Appellants must pay to redeem would include the expenses of
taking the vehicle, holding it, and preparing it for sale. Moreover, Appellants
point us to nothing in the RISC that says those expenses must be paid directly
to FCB, and our own review uncovers no such requirement.22 Therefore, FCB
did not breach the RISC by stating in the pre-sale notice that “[i]n addition to
paying us the Total Amount Due, you must also pay storage fees of $25 per
day and other costs charged by Altoona Auto Auction. These charges must be
paid to Altoona Auto Auction at the time when you redeem your vehicle.” Pre-
sale Notice at 1 (single, unnumbered page). As such, we conclude that the
RISC and the pre-sale notice likewise do not support that FCB breached the
RISC in this manner. See Joyce, supra. Thus, all of Appellants’ breach-of-
contract claims fail.
Conversion
____________________________________________
22 We note that the RISC states that “[w]e will apply the money from the sale,
less allowed expenses, to the amount you owe. Allowed expenses are
expenses we pay as a direct result of taking the vehicle, holding it, preparing
it for sale, and selling it, as the law allows. Reasonable attorney fees and
court costs the law permits are also allowed expenses.” RISC at ¶ 3(f). We
read this provision as permitting FCB to deduct certain expenses it paid from
the amount of money received for the vehicle at the sale. We do not read it
as prohibiting FCB from having Appellants pay storage costs and other charges
directly to a third party, instead of to FCB.
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Regarding their conversion claim, Appellants similarly argue that they
“have fully pleaded all of the elements of [FCB’s] unlawful conversion.”
Appellants’ Brief at 40 (citations omitted). In their complaint, they alleged, in
relevant part, the following:
COUNT V
Statutory Damages for Conversion
On Behalf of the Pre-Sale Notice Subclass Pursuant to 13 Pa.C.S.[]
§§ 9610 and 9625
125. The preceding paragraphs are incorporated by reference.
126. The claims in this Count are asserted on behalf of the Pre-
Sale Notice Subclass.
127. [FCB] interfered with the lawful use and possession of the
vehicles of the members of the Pre-Sale Notice Subclass by
unlawfully causing them to be sold without first complying with
their obligations under the law.
128. [FCB] disposed of the vehicles of members of the Pre-Sale
Notice Subclass without their consent.
129. Because the [pre-]sale notices that [FCB] issued to the
members of the Pre-Sale Notice Subclass were defective under
the UCC, the MVSFA and/or the Financing Agreements[, i.e., the
RISC], [FCB] lacked lawful justification to dispose of the vehicles
of members of the Pre-Sale Notice Subclass.
130. [FCB’s] unlawful conversion of [Appellants’] vehicle[] in the
context of a disposition sale was commercially unreasonable, per
se, and [FCB] violated the requirement of the UCC that all aspects
of the sale be commercially reasonable [under S]ection 9610(b).
131. Accordingly, [FCB] is liable to each member of such Subclass
for statutory damages [in] an amount not less than the credit
service charge plus 10% of the principal amount of the obligation
or the time price differential plus 10% of the cash price pursuant
to UCC [S]ection 9625(c).
Complaint at ¶¶ 125-31.
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In considering FCB’s preliminary objections to Appellants’ conversion
claim, the trial court opined:
Conversion is a tort by which the defendant deprives the plaintiff
of his right to personal property or interferes with the plaintiff’s
use or possession of personal property without the plaintiff’s
consent and without lawful justification. Stevenson v. Economy
Bank of Ambridge, 197 A.2d 721, 726 (Pa. 1964). [Appellants]
do not allege that they made the required monthly payments on
their [v]ehicle. As a result of [Appellants’] default, [FCB] had the
right to repossess the [v]ehicle. [Appellants] also willingly
surrendered the [v]ehicle to [FCB].[23] Therefore, [FCB] had the
lawful right to repossess the vehicle and [Appellants’] conversion
claim would not be successful.
TCO at 17 (emphasis in original).
Appellants do not convince us that the trial court erred. They claim that
“[b]ecause the [pre-]sale notices that [FCB] issued to the members of the
Pre-Sale Notice Subclass were defective under the UCC, the MVSFA and/or the
Financing Agreements[, i.e., the RISC], [FCB] lacked lawful justification to
dispose of the vehicles of members of the Pre-Sale Notice Subclass.”
Complaint at ¶ 129; see also Appellants’ Reply Brief at 12 (arguing that FCB’s
“failure to comply with the provisions of the UCC and MVSFA left it without
any lawful justification to sell the [v]ehicle — since disposition sales can only
be conducted in compliance with the law. Plainly, the unlawful sale described
in [Appellants’] UCC claim describing the common law claim of conversion
exposed [FCB] to statutory damages under the UCC”). However, we have
already determined that FCB’s pre-sale notice was sufficient under the UCC,
____________________________________________
23Because Appellants did not plead that they surrendered the vehicle in their
complaint, we disregard this statement by the trial court. See Issue 1, supra.
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the MVSFA, and the RISC. Thus, we reject Appellants’ legal conclusion that
FCB lacked lawful justification to dispose of the vehicle. See Joyce, supra.
No relief is due on this basis.
Issue 6
In Appellants’ sixth issue, they argue that “the gist of action doctrine
does not preclude any of [their] causes of action.” Appellants’ Brief at 41
(emphasis and unnecessary capitalization omitted).24 Below, the trial court
determined that, “[b]ecause [Appellants’] conversion claim is based on
[FCB’s] alleged default of the [RISC], Pennsylvania’s [g]ist of the [a]ction
[d]octrine precludes recovery.” TCO at 19. Appellants claim that the trial
court erred on this basis, as FCB’s “duty to abstain from unlawful interference
____________________________________________
24 This Court has explained:
The question of whether the gist of the action doctrine applies is
an issue of law subject to plenary review.
A claim should be limited to a contract claim when the
parties’ obligations are defined by the terms of the
contracts, and not by the larger social policies embodied by
the law of torts.
… Courts have held that the doctrine bars tort claims: (1)
arising solely from a contract between the parties; (2)
where the duties allegedly breached were created and
grounded in the contract itself; (3) where the liability stems
from a contract; or (4) where the tort claim essentially
duplicates a breach of contract claim or the success of which
is wholly dependent on the terms of a contract.
J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 413 (Pa.
Super. 2012) (cleaned up).
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with [Appellants’] property interests does not stem from any contract[,]” and
they assert that “the gist of the action doctrine can have no application when
all of [Appellants’] claims are for statutory damages under the UCC.”
Appellants’ Brief at 41 (citation omitted); Appellants’ Reply Brief at 11.
Because we have already concluded that Appellants failed to establish
FCB’s conversion of their vehicle, see Issue 5, supra, we need not address
whether that claim is barred by the gist of the action doctrine. Accordingly,
we do not delve into Appellants’ sixth issue further.
Issue 7
In Appellants’ seventh and final issue, they argue that “the trial court
erred by dismissing [their] complaint without permitting them an opportunity
to amend.” Appellants’ Brief at 43 (emphasis and capitalization omitted).
They say that, “[e]ven if dismissal of this case had been justifiable under the
law…[, Appellants] should nevertheless had [sic] been permitted to amend
their pleading to cure any alleged defect.” Id.
Appellants have waived this issue by not seeking leave to amend their
complaint with the trial court. As FCB aptly explains,
[t]he only time a plaintiff has an automatic right to amend a
complaint is within twenty days of the filing of the defendant’s
preliminary objections. Pa.R.C[iv].P. 1028(c)(1). In all instances
not covered by Rule 1028(c)(1), a plaintiff must obtain either the
defendant’s consent or leave of court. Pa.R.C[iv].P. 1033. And
under those circumstances, the decision whether to grant leave to
amend a pleading is within the trial court’s sound discretion.
Schwarzwaelder[ v. Fox,] 895 A.2d [614, 621 (Pa. Super.
2006)]. A court abuses its discretion if it misapplies the law or
exercises its judgment in a way that is “manifestly unreasonable,
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or the result of partiality, prejudice, bias or ill-will.” Pader v.
Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa. 1995).
Our Supreme Court has already specifically held that a plaintiff
waives any request to amend the complaint by failing to raise it
before the trial court. See Werner v. Zazyczny, 681 A.2d 1331,
133[8] (Pa. 1996). In addressing the claim of trial court error for
failing to grant leave to amend after it sustained the defendant’s
preliminary objections, the Pennsylvania Supreme Court in
Werner held:
Here, [the] petitioner’s claim fails because he never
requested that the Commonwealth Court allow him leave to
amend. [The petitioner] fails to cite to any case law, and
we can find none, requiring a court to sua sponte order or
require a party to amend his pleading.
Id.See also Spain v. Vicente,461 A.2d 833, 837
(Pa. Super.
1983) (trial court did not err in refusing to permit [the] plaintiff to
amend [the] complaint, in part, because [the] plaintiff had not
filed [a] formal motion for leave to amend).
As in Werner, [Appellants] did not request leave to amend their
[c]omplaint, nor do they claim (or cite to any authority to support
the proposition) that the trial court had an obligation to sua sponte
allow amendment. Therefore, no relief is due.
FCB’s Brief at 71-73.
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We agree with FCB’s analysis.25 As Appellants did not ask the trial court
to allow them to amend their complaint, they have waived this claim.26
In sum, none of Appellants’ seven issues warrant relief. Accordingly,
we affirm the trial court’s order sustaining FCB’s preliminary objections and
dismissing Appellants’ complaint with prejudice.
Order affirmed.
____________________________________________
25 We also point out that Appellants do not specify in their brief how they wish
to amend their complaint, so as to establish that the amendment would not
be futile. See Stempler v. Frankford Ford Trust Co., 529 A.2d 521, 524-
25 (Pa. Super. 1987) (“Even at this late stage in the proceedings the appellant
has given no indication of facts on which a cause of action could be based.
The grant of a demurrer would obviously be meaningless if the concept of
amendment to a pleading were extended to permit one who has articulated
no basis for a cause of action, to continue searching until one may be located.
The liberality in allowing amendments must not be construed to permit
amendments at any time where ample opportunity is given to amend a
pleading and a party refuses to do so but persists in its claim that a cause of
action has been set forth. In these circumstances once a court has properly
determined that a cause of action does not exist, there is no abuse of
discretion in denying an amendment where the facts already established
indicate that the amendment would be futile.”).
26 In their reply brief, Appellants argue that they preserved this issue for
appeal in their Rule 1925(b) concise statement, and claim that they could not
have sought leave to amend earlier because the trial court did not provide a
legal explanation for sustaining FCB’s preliminary objections until it filed its
Rule 1925(a) opinion. Appellants’ Reply Brief at 13. We are unpersuaded by
this argument. Initially, after FCB filed its preliminary objections, Appellants
could have asked the trial court to grant them leave to amend their complaint
in the event the trial court sustained the preliminary objections. Additionally,
Appellants do not explain why they could not have sought leave to amend
their complaint — and request that the trial court clarify its order — in the
period of time between the trial court’s sustaining FCB’s preliminary objections
and Appellants’ filing their notice of appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2022
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