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- A28019

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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
ABDUS SHAHID

Appellant

v.

T.D. BANK N.A. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1645 EDA 2023 Appeal from the Order Entered June 8, 2023 In the Court of Common Pleas of Delaware County Civil Division at No: CV

- 2021

- 008020 BEFORE: OLSON, J., STABILE, J., and COLINS, J. * MEMORANDUM BY STABILE, J.: FILED APRIL 30, 2024 Appellant, Abdus Shahid, appeals from an order sustaining the preliminary objections of Appellee, T.D. Bank N.A., to Appellant’s complaint and dismissing the complaint with prejudice. Appellant alleged in his complaint that Appellee violated his civil rights by , inter alia , confessing judgment against him in 2021. We conclude that the court properly su stained Appellee’s preliminary objections , and w e affirm. A brief review of Appellee’s underlying action for confession of judgment is necessary to place the present case in appropriate context. 1 Appellant is the owner of a warehouse in Darby, Pennsylvania, and Appellee is the mortgage holder for the warehouse. On March 16, 2021, Appellee filed a

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 This Court may take judicial notice of other proceedings involving the same parties. Hvizdak v. Linn , 190 A.3d 1213, 1218 n.1 (Pa. Super. 2018).J

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complaint at CV

- 2021

- 2739 in the Court of Common Pleas of Delaware County (“trial court”) demanding confession of judgment against Appellant and his wife for failure to make timely mortgage payments. The complaint requested judgment in the amount of $230,094.28 plus interest from January 1, 2021 at the per diem rate of $38.80 plus costs. On March 19, 2 021, the trial court entered judgment in favor of Appellee and against Appellant and his wife for the full amount demanded. Appellant and his wife never fi led a petition to open or strike a confessed judgment. Instead, o n March 31, 2021, Appellant and his wife filed an answer to the complaint averring that they made all payments on their mortgage up to and including their payment for March 2021. Appellant and his wife also asserted a counterclaim against TD Bank for $40, 000,000.00 for allegedly filing a false mortgage case against them. The counterclaim alleged that Appellee should have given Appellant and his wife a forbearance during the pandemic instead of filing a complaint against them. Appellant and his wife filed three motions for summary judgment, all of which the trial court denied. The order denying the third motion for summary judgment , entered on May 26, 2023, stated that the motion was denied because judgment already had been entered in favor of Appellee on March 19, 2021. Appellant appealed to this Court, which dismissed the appeal

on December 12, 2023, on the ground that Appellant could not request summary judgment in an action where judgme nt already had been entered by confession of judgment. See T.D. Bank v. Shahid , 1643 EDA 2023 (Pa.J

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Super., Dec. 12, 2023). Following our dismissal of th at appeal, t here have been no further proceedings in the confession of judgment action. With respect to the instant proceedings, o n September 23, 2021, Appellant commenced th is action 2 by filing a pro se complaint against Appellee
in the trial court

. The complaint is not worded artfully , but it appear s to claim that Appellee violated or conspired to violate Appellant’s civil rights by confessing judgment against Appellant at CV

- 2021

- 2739 , shutting off electricity to the warehouse and removing tenants from the warehouse

. On January 6, 2022, Appellee removed Appellant’s action to the United States District Court for the Eastern District of Pennsylvania. On February 15, 2022, the district court ordered the case remanded back to the tria l court. No further docket activity took place until December 27, 2022, when Appellant filed a pro se motion to set a trial date in 2023. On February 10, 2023, Appellee filed preliminary objections to the complaint asserting (1) the doctrines of res judicata and collateral estoppel barred Appellant’s action due to the judgment entered in Appellee’s favor in the confession of judgment
action , (2) Appellant failed to state a cause of action for violation of his civil rights or conspiracy to violate his civil rights, and (3) to the extent the complaint alleged abuse of process or wrongful use of civil proceedings, the complaint failed to state a cause of action for these claims.

_________________ __________ ______ ____ _______ 2 Appellant’s wife did not join in this action as a party.J

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Appellant filed a timely response in opposition to the preliminary objections. On June 8, 2023, the trial court entered an order sustaining Appellee’s preliminary objection and dismissing the complaint with prejudice. Appellant filed a timely appeal to this Court. Without directing Appellant to file a Pa.R.A.P. 1925 statement of matters complained of on appeal, the trial
court filed an opinion in support of its order of dismissal. Appellant’s pro se brief in this Court includes a series of allegations that Appellee conspired with local governmental officials to shut off the electricity in Appellant’s warehouse and to enter judgment against him, even though he was fully current on his mortgage payments. We have fully reviewed the record, the applicable law, the parties’ briefs and the trial court opinion. We conclude that the trial court properly dismissed the complaint on the basis of res judicata and collateral estoppel

. Opinion, 8/9/23, at 7

- 8 (res judicata and collateral estoppel bar complaint because Appellant failed to file petition to strike or open judgment by confession and instead filed complaint in attempt to mount collateral attack on the judgment). 3 We also conclude the trial court correctly dismissed Appellant’s
action on two other bases as well.

_________________ __________ ______ ____ _______ 3 Because r es judicata and collateral estoppel are affirmative defenses , Appellee erred by raising these defenses in its preliminary objections to the complaint . Pa.R.Civ.P. 1030. Appellant, however, waived Appellant’s error by failing to file preliminary objections to Appellee’s preliminary objections to Appellee’s use of res judicata and collateral estoppel

. Richmond v. McHale , 35 A.3d 779, 782

- 83 (Pa. Super. 2012).J

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T he trial court held that Appellant’s allegations that Appellee improperly entered judgment fails to state a cause of action for any civil rights violation , since the mere entry of judgment by confession does not transform a private actor such as Appellee into a state actor. Opinion at 8

- 9 ; see also Jordan v. Fox, Rothschild, O’Brien & Frankel , 20 F.3d 1250, 1266 (3d Cir. 1994)

. We agree. Nor does the complaint allege any plausible civil rights violation on the basis of race or religion.
T he trial court also correctly held that Appellant’s claims that Appellee conspired to shut off Appellant’s electricity and remove tenants from Appellant’s warehouse failed to state a cause of action, because (1) Appellant previously raise d these claims or similar claims in multiple state and federal actions, (2) both th e trial court and the federal courts rejected these or similar claims and have entered orders limiting Appellant’s right to make such allegations, and (3) in any event, these claims failed f or lack of specificity. Opinion at 9

- 12. Although not addressed by the trial court , Appellee also argues that Appellant fails to state a cause of action for abuse of process or wrongful use of civil proceedings. Our revi ew of the complaint does not indicate any attempt by Appellant to raise these claims. For these reasons, we affirm the order of dismissal and direct that a copy of the trial court’s August 9, 2023 opinion be filed along with this memorandum. Order affirmed.J

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Date: 4/30 /202 4Circulated 03/27/2024 12:58 PM