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[U] Discover Bank v. Jenkins

Superior Court of Pennsylvania

February 6, 2014

DISCOVER BANK, ISSUER OF DISCOVER CARD, BY IT'S AGENT DISCOVER FINANCIAL SERVICES, INC., Appellee
v.
DIANNE M. JENKINS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered January 29, 2013 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 11324 of 2009, CA

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM

BENDER, P.J.E.

Appellant, Dianne M. Jenkins (hereinafter "Jenkins"), appeals from the trial court's order granting a motion for summary judgment filed by Appellees, Discover Bank, et al. (hereinafter "the Bank"), and entering judgment in favor of the Bank in the amount of $16, 548.78. We affirm.

The trial court set forth the procedural history of this case as follows:

[The Bank] commenced this action by Complaint filed [on] August 20, 2009 seeking recovery on an outstanding balance owed on a Discover [Credit] Card. [Jenkins] filed Preliminary Objections to the Complaint, which resulted in an Order of Court dated March 26, 2012 directing the filing of an Amended Complaint on May 29, 2012.
On June 19, 2012, [the Bank] forwarded Requests for Admissions to [Jenkins]. [Jenkins] failed to file a timely response to [the Bank's] request for admissions.
On October 29, 2012, [the Bank] filed a Motion for Summary Judgment. By Order of Court dated October 30, 2012, the Court scheduled oral argument on [the Bank's] Motion for Summary Judgment for January 28, 2013. The order directed the moving party, here the [Bank], to file and serve its brief no later than twenty days prior to the argument and directed [Jenkins] as the non-moving party to file her brief no later than ten days prior to the argument.
[The Bank] timely filed its brief and memorandum of law. [Jenkins] has never filed a brief relative to [the Bank's] Motion for Summary Judgment and no brief on behalf of [Jenkins] nor memorandum was filed as of the date of argument, January 28, 2013.
On November 16, 2012, [Jenkins] filed "Preliminary Objections to Motion for Summary Judgment." On November 29, 2012, [the Bank] filed a Motion to Strike [Jenkins'] Preliminary Objections to [the Bank's] Motion for Summary Judgment.
On the day of the scheduled argument, January 28, 2013, the Court, without any prior notice of any continuance request, received [Jenkins'] written Motion for Continuance and denied the same due to late filing, such motion being objected to by [the Bank]. Counsel for [Jenkins] failed to appear at the oral argument.
By Order of Court dated January [29], 2013, … after hearing the argument of the [Bank], after considering the [Bank's] Memorandum of Law and after a review of the entire record, the Court entered an order which granted the [Bank's] Motion for Summary Judgment and denied [Jenkins'] Preliminary Objections to [the Bank's] Motion for Summary Judgment.

Trial Court Opinion (TCO), 4/5/13, at 1-2.

Jenkins filed a timely notice of appeal, as well as a timely concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).[1] Herein, she raises one issue for our review:

1. The [t]rial [c]ourt abused its discretion in granting [a] motion for summary judgment in favor of the [Bank] in the amount of [$]16, 386.48 including costs and fees without ever taking testimony at any time.

Jenkins' Brief at 5.

Unfortunately for Jenkins, she has waived this issue for our review based on her inadequate appellate brief. Jenkins devotes nearly all of the argument section of her brief to simply reproducing, verbatim, various filings in this case, such as her preliminary objections and answer to the Bank's initial and amended complaints. See Appellant's Brief at 10-15. Even more problematic, however, is Jenkins' failure to cite to any legal authority other than Pa.R.C.P. 1028(c)(2) ("The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise."). These inadequacies preclude us from meaningfully reviewing Jenkins' argument on appeal; therefore, we conclude that her claim is waived. See Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa.Super. 2012) (failure to cite any legal authorities or provide meaningful analysis waives issue for our review) (citing Pa.R.A.P. 2119(a) and Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (finding "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived")).

Nevertheless, even had Jenkins preserved her issue for our review, we would conclude that the court did not err in granting the Bank's motion for summary judgment. Initially, we note:

When presented with a challenge to an order granting summary judgment, we consider the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Our scope of review is plenary.

Henninger v. State Farm Ins. Co., 719 A.2d 1074, 1076 (Pa.Super. 1998) (citations omitted).

Here, the trial court granted the Bank's motion for summary judgment for several reasons. First, the court emphasized that Jenkins failed to respond to the Bank's request for admissions, thereby admitting all matters set forth by the Bank in its request. See 4014(b). Namely, the court considered Jenkins as having admitted the following:

(a) [Jenkins] admits receiving monthly card member statements for the period of November 17, 2004 through May 22, 2009; (b) making or authorizing the purchases and charges reflected on the card member statements; (c) all the payments on the account are reflected on the monthly card member statements; (d) agreement to the terms and conditions of the customer agreement; and (e) that the balance owed [to the Bank] as of May 22, 2009 totaled $16, 386.48.

TCO at 2-3. From these admissions, the court determined that "there existed no genuine issues of material fact and that [the Bank] was therefore entitled to a summary judgment." Id. at 3; see also Pa.R.C.P. 1035.2(1) ("After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law … (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report[.]").

In addition, the trial court granted the Bank's motion for summary judgment because Jenkins' failed to comply with the court's October 31, 2012 order directing her to submit a brief in opposition to summary judgment. See TCO at 4 (stating "counsel for [Jenkins] ignored the requirement of the court Order directing counsel to file a brief at least ten days prior to the argument and therefore under Local Rule L208(b)(4), [Jenkins' counsel] would not have been entitled to argue"). We acknowledge that Jenkins' counsel did file two documents in response to the court's order, i.e., "Preliminary Objections to Motion for Summary Judgment" and "Answer to Summary Judgment." However, even if the court should have considered those filings as satisfying its order for a brief, Jenkins' counsel did not attend the oral argument on the Bank's motion for summary judgment. Instead, on the day of the argument, Jenkins' counsel submitted a motion for a continuance. In its opinion, the trial court explains its decision to deny that motion as follows:

[T]he Court received [Jenkins'] Motion for a Continuance on the very day of the argument. Even though [Jenkins'] counsel was out of the country as of the date of the argument, It was incumbent upon [Jenkins'] counsel to submit the motion to the Court in a timely manner so that it could have been addressed prior to the date of the argument and any objections thereto by [the Bank's] counsel could have been considered. It is not an abuse of discretion to deny a motion for [a] continuance submitted to the Court on the very day of the court proceeding where there is no reason why the motion could not have been submitted in a timely manner. [Jenkins' counsel's] prepaid vacation was planned long before the date of the argument, yet defense counsel waited [until] the day of argument to submit the same, leaving the country without even knowing whether the continuance would be granted …. [Jenkins'] counsel's explanation that he attempted to telephone [the Bank's] counsel prior to the date of argument without response does not excuse [Jenkins'] counsel from timely submitting the continuance motion.

TCO at 3-4.

We ascertain no abuse of discretion in the court's decision to deny Jenkins' last-minute request for a continuance. See Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa.Super. 2001) ("The trial court is vested with broad discretion in the determination of whether a request for a continuance should be granted, and an appellate court should not disturb such a decision unless an abuse of that discretion is apparent."). Thus, Jenkins' counsel's failure to attend that hearing was inexcusable.

In sum, Jenkins failed to respond to the Bank's request for admissions, did not submit a brief prior to the hearing on the Bank's motion for summary judgment, and did not attend that hearing to argue her position against summary judgment in the Bank's favor. For all of these reasons, we would conclude that the trial court did not err in granting the Bank's motion for summary judgment and entering judgment in the Bank's favor.

Judgment affirmed.

Judgment Entered.


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