Opinion
No. 936 C.D. 2013
01-28-2014
Bluestone Investments, Inc. v. John Scott, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
John Scott (Scott) appeals, pro se, the order of the Court of Common Pleas of Berks County (trial court) entering a verdict in favor of Bluestone Investments, Inc. (Bluestone) and against Scott in the amount of $25,000.00 following a non-jury trial. We affirm.
In reviewing the verdict of a judge without a jury, the appellate court must determine whether the findings of the trial court are supported by competent evidence and whether the trial judge committed an error of law. Selfspot, Inc. v. Butler County Family YMCA, 987 A.2d 206, 216 n.5 (Pa. Cmwlth. 2010). The findings of the trial judge must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed absent error of law or abuse of discretion. Id.
In July 2011, Bluestone filed a complaint in the trial court seeking $25,914.98 in damages and interest based on Scott's failure to pay the amount due on a credit card issued by the original creditor, Chase Bank USA, Inc. (Chase). Chase assigned the debt to Turtle Creek Assets, Ltd. (Turtle Creek) who then assigned it to Bluestone. Scott became delinquent on the credit card account in September 2008 and the account was charged off in March 2009. Scott filed an answer to the complaint alleging, inter alia, that Bluestone does not have standing due to the lack of verified evidence of the original debt contract and insufficient proof of assignment of the purported debt.
In August 2011, Bluestone served Scott notice of its intent to serve a subpoena on Chase to produce the credit card application; the account's terms and conditions; all monthly statements; copies of all payments made; all correspondence sent to Scott; and an affidavit of bill of sale showing that the account was sold to Turtle Creek. Scott objected to the notice, again asserting that Bluestone did not have standing to recover the purported debt. The trial court overruled Scott's objections and directed that Bluestone may issue the subpoena upon Chase.
Following discovery, the matter proceeded to court arbitration where Scott appeared and represented himself. The arbitrator issued an award in favor of Bluestone and against Scott in the amount of $22,939.73. Scott appealed the award to the trial court, but did not demand a jury trial.
In February 2013, Bluestone filed a stipulation to $25,000.00 as the maximum amount recoverable and notice of its intent to offer the following documentary evidence pursuant to Pa. R.C.P. No. 1311.1: an affidavit from Chase stating that the documents provided through the subpoena were true and correct copies; Scott's credit card application; the terms and conditions of the cardholder agreement including changes; the monthly credit card statements; check payments made by Scott to Chase; affidavits of sale of the debt from Chase to Turtle Creek and from Turtle Creek to Bluestone; and a bill of sale and redacted spreadsheet of the accounts assigned from Chase to Turtle Creek.
Pa. R.C.P. No. 1311.1(a), (b), and (d) provides, in pertinent part:
(a) The plaintiff may stipulate to $25,000.00 as the maximum amount of damages recoverable upon the trial of an appeal from the award of arbitrators. The stipulation shall be filed and served upon every other part at least thirty days from the date the appeal is first listed for trial.
(b) If the plaintiff has filed and served a stipulation as provided in subdivision (a), any party may offer at trial the documents set forth in Rule 1305(b)(1). The documents offered shall be admitted if the party offering them has provided written notice to every other party of the intention to offer the documents at trial at least twenty days from the date the appeal is first listed for trial....
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(d) Any other party may subpoena the person whose testimony is waived by this rule to appear at or serve upon a party a notice to attend the trial and any adverse party may cross-examine the person as to the document as if the person were a witness for the party offering the document....
Following a number of continuances, Scott did not appear at the May 2, 2013 non-jury trial. The trial court did hear from Scott who indicated that he was not going to be present. (Reproduced Record (R.R.) at 3). At trial, Bluestone presented the testimony of Michelle Bright (Bright), its legal case manager, who testified regarding the records kept in the regular course of its business. Bright identified Exhibit P-1 which includes copies of an affidavit of the assignment of the debt from Chase to Turtle Creek and from Turtle Creek to Bluestone; a bill of sale of the debts sold by Chase to Turtle Creek; and a spreadsheet of all of the accounts sold, (id. at 4, 7-26); Exhibit P-2, a copy of Scott's signed credit card application, (id. at 5, 27); Exhibit P-3, copies of the terms and conditions for Scott's credit card, (id. at 5, 28-60); Exhibit P-4, copies of the monthly statements on the credit card account from October 2004 through March 2009, (id. at 5, 62-167); and Exhibit P-5, copies of checks that Scott sent to Chase as payments from July 2005 through May 2008, (id. at 5, 168-202). Bright testified that based on her review of the documents, Bluestone purchased the credit card debt originally with Chase, and that the amount requested in the complaint is the accurate amount due and owing to Bluestone by Scott, (id. at 5). Exhibits P-1 through P-5 were admitted into evidence without objection, (id. at 6). Following the close of evidence, the trial court entered the verdict in favor of Bluestone and against Scott in the amount of $25,000.00 and Scott did not file exceptions or a post-trial motion. Scott appealed to this Court and filed a Pa. R.A.P. 1925(b) Statement as directed by the trial court.
While this appeal is not within this Court's appellate jurisdiction under Section 762 of the Judicial Code, 42 Pa. C.S. §762, jurisdiction was perfected pursuant to Section 704(a) of the Judicial Code, 42 Pa. C.S. §704(a), and Pa. R.A.P. 741(a) by the absence of objection before the record was filed here.
In this appeal, Scott argues that the trial court's verdict must be reversed because of the following procedural irregularities: he was not notified that Pa. R.C.P. No. 1311.1 would preclude him from requiring witnesses in court to establish material facts such as the alleged debt, the alleged transfer of ownership of the debt, or the veracity of the documents supporting the debt; the trial court did not adequately consider the defenses he raised in his court filings; and the trial court erred in admitting into evidence unverified copies rather than the original documents. Scott also argues that the verdict must be reversed because the trial court's essential findings regarding the existence, ownership and amount of the debt and Bluestone's standing are not supported by substantial, credible, verified evidence.
In support, Scott appends articles to his appellate brief that are not contained in the certified record. It is well settled that we may not consider these materials in disposing of this appeal. See B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) ("An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. For purposes of appellate review, that which is not part of the certified record does not exist. Documents attached to a brief as an appendix or reproduced record may not be considered by an appellate court when they are not part of the certified record.") (citations omitted).
However, with respect to the purported procedural irregularities, Scott waived these claims by failing to raise them in the Pa. R.A.P. 1925(b) Statement that he filed in the trial court. Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005). With respect to admissibility and adequacy of the evidence that Bluestone presented to support the verdict, Scott waived these claims by failing to properly raise or preserve them in the trial court prior to filing the instant appeal. Pa. R.A.P. 302(a); Steiner v. Markel, 600 Pa. 515, 521-22, 523, 968 A.2d 1253, 1256, 1257 (2009).
It is well settled that a pro se litigant is not entitled to any particular advantage because he lacks legal training, and that by choosing to represent himself in a legal proceeding he must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing. Kovalev v. Sowell, 839 A.2d 359, 367 n.7 (Pa. Super. 2003), appeal denied, 580 Pa. 698, 860 A.2d 124 (2004) (citation omitted). --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 28th day of January, 2014, the order of the Court of Common Pleas of Berks County dated May 2, 2013, at No. 11-16863, entering a verdict in favor of Bluestone Investments, Inc. and against John Scott in the amount of $25,000.00, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
In turn, Pa. R.C.P. No. 1305(b)(1)(i) states:
(b)(1) The following documents shall be admitted into evidence if at least twenty days' notice of the intention to offer them was given to every other party accompanied by a copy of each document to be offered:
(i) bills or other documents evidencing charges incurred....
Finally, the Explanatory Comment provides, in pertinent part:
Subdivision (b) relaxes the rules of evidence as to the introduction of certain types of written evidence. It is not necessary to produce a witness to identify or authenticate a bill.... The document will speak for itself as to its authenticity, subject of course to objection to its relevance or any other objection to its admissibility other than authenticity....
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The foregoing provisions of subdivisions (b) and (c) apply, of course, only to documents which are prepared by a person who is within the subpoena power of the court in which the action is pending. The special relaxation of the rules of evidence is conditioned on the power of the opponent to subpoena the person whose testimony is waived; if that is not possible, for territorial or other reasons, the foundation for the special rule disappears, and the proponent must follow the normal rules of evidence....