J-A08020-22

2022 PA Super 196

CATERPILLAR FINANCIAL SERVICES 

CORPORATION

 Appellee

v.

GET ER DONE DRILLING, INC. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 202 WDA 2021

Appeal from the Judgment Dated January 11, 2021

In the Court of Common Pleas of Greene County Civil Division at No(s): 

A.D. No. 206 of 2018

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

OPINION BY LAZARUS, J.: FILED: NOVEMBER 18, 2022

Get ‘Er Done Drilling, Inc. (“Get ‘Er Done”) appeals from the judgment,

entered in the Court of Common Pleas of Greene County, denying its motion 

for summary judgment, granting the motion for summary judgment filed by 

Caterpillar Financial Services Corporation (“Caterpillar”), and entering 

judgment in favor of Caterpillar. Upon careful review, we affirm.

The trial court set forth the relevant background of this matter as 

follows:

[Get ‘Er Done] entered into an installment sale contract on June 

19, 2014 with Cleveland Brothers Equipment Co, Inc., for the 

purchase of [a hydraulic excavator]. Cleveland Brothers then 

assigned its rights under [the] agreement to [Caterpillar]. 

Additionally, on June 28, 2015, [Get ‘Er Done] entered into a 

master loan and security agreement with [Caterpillar] for the 

purchase of [a Ditch Witch directional drill]. . . . [Get ‘Er Done] 

made only a portion of the payments owed and eventually 

surrendered [both pieces of equipment] to [Caterpillar,] which 

exercised its right as a secured creditor to sell the equipment and 
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apply the proceeds from the sale to [Get ‘Er Done’s] debt. 

[Following the sale of the equipment, Caterpillar claimed 

deficiencies on the excavator in the amount of $47,647.44 and on 

the directional drill in the amount of $447,335.35. As a result, 

Caterpillar] filed suit claiming breach of contract for [Get ‘Er 

Done’s] failure to make payments under the first and second 

security agreements (Counts I and II), and [for] unjust 

enrichment, for [Get ‘Er Done] retaining “the financial benefits 

that [it] derived only by virtue of [Caterpillar’s] financial efforts.” 

Trial Court Order, 1/11/21, at 1-2 (unnecessary capitalization and citation to 

record omitted).

Get ‘Er Done filed an answer, new matter, and counterclaims for fraud, 

breach of fiduciary duty, breach of contract and conversion. Caterpillar filed 

preliminary objections, after which the trial court struck Get ‘Er Done’s 

counterclaims for fraud, breach of fiduciary duty, and one count of breach of 

contract. On February 25, 2019, Get ‘Er Done filed an amended counterclaim, 

asserting claims for breach of contract and conversion, in response to which

Caterpillar filed an answer and new matter. Following discovery, which the 

court extended by six months at Get ‘Er Done’s request, both parties filed 

motions for summary judgment with accompanying briefs. 

After oral argument, the trial court denied Get ‘Er Done’s motion for 

summary judgment, dismissed its remaining counterclaims, and granted 

Caterpillar’s motion for summary judgment. The court entered judgment in 

favor of Caterpillar as follows: (1) the amount of $38,337.03, plus interest, 

on the first security agreement; (2) the amount of $491,024.65, plus interest, 

on the second security agreement; and (3) costs of suit. See Trial Court 

Order, 1/11/21, at 8. 
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On January 21, 2021, Get ‘Er Done filed a motion for reconsideration

and, on January 22, 2021, filed a separate motion for reconsideration and 

motion to strike the affidavit of Duane Hronik.1 Caterpillar opposed both 

motions. On February 9, 2021, Get ‘Er Done filed a timely notice of appeal, 

followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The court did not rule on Get ‘Er Done’s motions for 

reconsideration. Get ‘Er Done now raises the following claims for our review:

1. Did the [trial] court err in considering inadmissible and 

unsupported opinion [] and hearsay evidence at summary 

judgment from undisclosed witnesses?

2. Did the [trial] court err in relying on evidence which was clearly 

controverted by evidence of [Get ‘Er Done]?

3. Did the [trial] court err in finding the sale of [Get ‘Er Done’s] 

AT60 drill was public?

4. Did the [trial] court err in [sic] the sale of [Get ‘Er Done’s] 

equipment was done with sufficient [sic] to [Get ‘Er Done]?

Brief of Appellant, at 12 (renumbered for ease of disposition; unnecessary 

capitalization omitted). 

In reviewing an order granting summary judgment, our scope of 

review is plenary, and our standard of review is the same as that 

applied by the trial court. Our Supreme Court has stated the 

applicable standard of review as follows: [A]n appellate court may 

reverse the entry of summary judgment only where it finds that 

the lower court erred in concluding that the matter presented no 

genuine issue as to any material fact and that it is clear that the 

moving party was entitled to a judgment as a matter of law. In 

making this assessment, we review the record in the light most 

favorable to the nonmoving party, and all doubts as to the 

____________________________________________

1 Hronik is a senior paralegal at Iron Planet, Inc., the online marketplace 

through which Caterpillar auctioned the Ditch Witch Directional Drill.
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existence of a genuine issue of material fact must be resolved 

against the moving party. As our inquiry involves solely questions 

of law, our review is de novo.

Therefore, our responsibility as an appellate court is to determine 

whether the record either establishes that the material facts are 

undisputed or contains insufficient evidence of facts to make out 

a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that would allow a 

fact-finder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Patel v. Kandola Real Estate, LP, 271 A.3d 421, 426 (Pa. Super. 2021)

(citation omitted).

To survive a motion for summary judgment, the non-moving party may 

not rely merely upon the controverted allegations of the pleadings, “but must 

set forth specific facts by way of affidavit, or in some other way as provided 

by the rule, demonstrating that a genuine issue exists.” Salerno v. 

Philadelphia Newspapers, Inc., 546 A.2d 1168, 1171 (Pa. Super. 1988) 

Get ‘Er Done first asserts that the trial court erred in considering 

inadmissible and unsupported opinion and hearsay evidence from undisclosed 

witnesses. Specifically, Get ‘Er Done challenges two affidavits submitted by 

Caterpillar in support of its motion for summary judgment. The first affidavit 

was provided by Stephanie Floyd, a Special Accounts Representative II at 

Caterpillar, and set forth information regarding the parties’ security 

agreements, Get ‘Er Done’s default thereon, and the amounts owed as a result 

of the defaults. The second affidavit was executed by Duane Hronik, a senior 

paralegal at Iron Planet, Inc., the online marketplace through which Caterpillar 
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auctioned the Ditch Witch directional drill. Hronik’s affidavit set forth the 

details of the online auction. 

Get ‘Er Done argues that the affidavits are “wrought with evidentiary 

issues and should not have been afforded any weight or consideration.” Brief 

of Appellant, at 21. In particular, Get ‘Er Done claims that the affidavits do 

not comply with the “strict requirements concerning affidavits [that] are used 

in support of a motion for summary judgment.” Id. at 22. Get ‘Er Done 

asserts that “the affiants did not testify as to the preparation or storage or 

accuracy of the records” they relied upon in their affidavits, such as would 

“justify a presumption of trustworthiness.” Id. at 23. Accordingly, Get ‘Er 

Done argues that the trial court erred in relying upon the affidavits in granting 

summary judgment in favor of Caterpillar. Finally, Get ‘Er Done claims that

Caterpillar did not disclose the identity of the affiants during discovery, which 

would “prevent them from testifying under Pa.R.C.P. 4019(i).” Id. at 24. 

We begin by noting that, to the extent Get ‘Er Done challenges the 

contents of the affidavits, this argument has been waived for failure to raise 

it in the trial court. The sole objection Get ‘Er Done raised to the affidavits in 

response to Caterpillar’s motion for summary judgment was that the affiants 

were not disclosed pursuant to Rule 4019(i) and that Floyd’s affidavit 

contained opinions, rendering her an expert witness whose identity was not 

disclosed pursuant to Pa.R.C.P. 4003.5(b).2 See generally, Defendant’s 

____________________________________________

2 Get ‘Er Done has abandoned on appeal any argument that Floyd’s affidavit 

amounted to expert testimony.
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Answer to Plaintiff’s [Amended] Motion For Summary Judgment, 12/7/20; 

Defendant’s Brief in Opposition to Plaintiff’s Motion For Summary Judgment, 

12/7/20. “The Superior Court, as an error-correcting court, may not purport 

to reverse a trial court’s order where the [] basis for a finding of error is a 

claim that the responsible party never gave the trial court an opportunity to 

consider.” Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. Super. 2004), quoting 

Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 

764 A.2d 1100, 1105 (Pa. Super. 2000). As such, arguments not raised 

initially before the trial court in opposition to summary judgment cannot be 

raised for the first time on appeal. Devine, 863 A.2d at 1169. Accordingly, 

the sole argument preserved by Get ‘Er Done relating to the affidavits is that 

the witnesses were not disclosed during discovery and are prevented from 

testifying pursuant to Rule 4019(i). 

Get ‘Er Done’s argument on this claim consists of the following:

Further, the fact that these purported witnesses were never 

disclosed should be considered against [Caterpillar]. These 

individuals would not have been permitted to testify[,] as their 

identities were concealed during discovery. This would prevent 

them from testifying under [Rule] 4019(i). It is implicit in the 

context of a summary judgment ruling that the [c]ourt should not 

consider otherwise inadmissible testimony.

Brief of Appellant, at 24. 

Pennsylvania Rule of Civil Procedure 4019 addresses discovery 

sanctions. Subsection (i) provides as follows:

(i) A witness whose identity has not been revealed as provided in 

this chapter shall not be permitted to testify on behalf of the 
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defaulting party at the trial of the action. However, if the failure 

to disclose the identity of the witness is the result of extenuating 

circumstances beyond the control of the defaulting party, the 

court may grant a continuance or other appropriate relief.

Pa.R.C.P. 4019(i).

As Caterpillar correctly notes, this rule, by its terms, is only applicable 

to preclude the testimony of a witness at trial, not to bar the submission of 

an affidavit at the summary judgment stage, and Get ‘Er Done has cited to no 

case law holding otherwise. Nor did Get ‘Er Done ever file a motion for 

discovery sanctions pursuant to Rule 4019 in the trial court. In any event, 

Get ‘Er Done had actual notice of the involvement of Iron Planet and of the 

Floyd affidavit3 at the time discovery was extended for six months—at Get ‘Er 

Done’s request—on January 29, 2020, yet chose not to depose either Floyd or 

a representative of Iron Planet. Accordingly, Get ‘Er Done is entitled to no 

relief on this claim. 

Next, Get ‘Er Done claims that the trial court erred in disregarding the 

“expert report” of Dan Durkin, “which was the only adequately supported 

valuation of the equipment.” Brief of Appellant, at 24. Durkin valued the 

directional drill at between $440,000 and $550,000, yet the court found the 

actual sale price of the drill, in the amount of $150,500, to be reasonable.4 

____________________________________________

3 Caterpillar provided notice to Get ‘Er Done of Iron Planet’s involvement in 

the sale of the directional drill in 2016, and again in 2017, when it mailed 

notices of sale to Get ‘Er Done. See Plaintiff’s Amended Motion for Summary 

Judgment, 8/17/20, at Exhibit I. In addition, a copy of the Floyd affidavit was 

attached to Caterpillar’s original motion for summary judgment, filed on 

January 15, 2020, after which the court extended the discovery deadline by 

six months. See Trial Court Order, 1/29/20. 

4 Durkin’s report does not discuss the value of the hydraulic excavator.
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Get ‘Er Done asserts that Durkin’s report “raises a significant factual issue 

which the [c]ourt should have preserved for trial.” Id. at 25.

In response, Caterpillar contends that the Durkin report “is not 

competent expert testimony under Pennsylvania law.” Brief of Appellee, at 

20. First, Caterpillar argues that the report is merely “an unsworn, 

unsupported expression of value submitted by . . . a heavy equipment 

salesman who has sold equipment to [Perry Rowan, Get ‘Er Done’s owner] for 

many years.” Id. Caterpillar asserts that the report is “inherently unreliable 

on its face and fails to meet the requirements of the Pennsylvania Rules of 

Civil Procedure and . . . Evidence.” Id. Durkin “failed to submit credentials

to the [c]ourt or the parties that would justify qualification as an expert” and, 

thus, Get ‘Er Done’s characterization of the document as an “expert report” is 

“legally deficient and factually unavailing.” Id. at 21. 

Moreover, Caterpillar argues, Durkin lacked any basis to opine on the 

value of the drill at the time it was repossessed and sold at auction. Durkin 

never personally examined the drill or even reviewed any documentation 

related to the drill. Rather, Durkin’s report indicates that his valuation is based 

on “the condition [of the drill] as it was related to [him].” Report of Dan 

Durkin, (undated), at [2]. Caterpillar further notes that Durkin fails to identify 

the source of his information and that it could not have come from Rowan, 

who testified at his deposition that he never spoke to Durkin about the report. 

See Rowan Deposition, 7/8/20, at 91. Finally, Caterpillar argues that Durkin

is not an impartial witness, as he continues to maintain a longstanding 
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business relationship selling equipment to Rowan and/or Rowan’s employers. 

We agree with Caterpillar that Durkin’s report lacks the proper foundation 

required of expert testimony and, as such, was properly disregarded by the 

trial court. 

Pennsylvania Rule of Evidence 702 governs the admissibility of expert 

testimony and provides as follows:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average 

layperson;

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the 

relevant field.

Pa.R.E. 702. 

At the summary judgment stage, a trial court is required to take 

all facts of record, and all reasonable inferences therefrom, in a 

light most favorable to the non-moving party. This clearly 

includes all expert testimony and reports submitted by the 

nonmoving party or provided during discovery; and, so long as 

the conclusions contained within those reports are 

sufficiently supported, the trial judge cannot sua sponte assail 

them in an order and opinion granting summary judgment. 

Contrarily, the trial judge must defer to those conclusions, and 

should those conclusions be disputed, resolution of that dispute 

must be left to the trier of fact. 

Wright v. Eastman, 63 A.3d 281, 292 (Pa. Super. 2013) (citations omitted; 

emphasis added). 
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Pennsylvania Rule of Evidence 705 requires that “[i]f an expert states

an opinion the expert must state the facts or data on which the opinion is 

based.” Pa.R.E. 705. “[E]xpert testimony must be based on more than mere 

personal belief, and must be supported by reference to facts, testimony or 

empirical data.” Snizavich v. Rohm & Haas Co., 83 A.3d 191, 195 (Pa. 

Super. 2013) (citations omitted). At the summary judgment stage, a trial 

court must evaluate expert reports submitted by the non-moving party in a 

light most favorable to the non-moving party, so long as the conclusions 

contained within those reports are sufficiently supported. Summers 

v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010) (emphasis added).

Here, Durkin stated the basis for his opinion as to the value of the 

directional drill as follows:

I have reviewed the sales documents for the Ditchwitch [] drill[.]

I have further examined the market value, as of 2016[,] for th[is]

item[], including sales receipts and my personal experience in the 

drilling supply industry to formulate the following opinions to a 

reasonable degree of certainty. I have also examined the Iron 

Planet auction website for its practices [and] procedures for sale. 

. . .

After reviewing the equipment and [its] condition with the 

Defendants[’] representative, Mr. Rowan, in the condition as it 

was related to me, should have warranted a price in the range 

of $440,000.00 to $550,000.00.

. . .

I have been working for and selling underground construction 

equipment for Ditch Witch Mid-States for more than 15 years now 

and my research and valuation for FMV (fair market value) for 

above said equipment comes from my experience and researching
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wholesalers and brokers specific to directional drills and support 

equipment such as MTI, HDD Broker, Machinery Trader & Source 

HDD. l believe these valuations are fair asking prices even as of 

today’s market demand. 

Durkin Report, at 2. 

As a preliminary matter, we note that Durkin provided the court with no 

credentials to establish his competency as an expert in the valuation of used 

construction equipment. Durkin’s sole stated qualification is that he has been 

“working for and selling underground construction equipment for Ditch Witch 

Mid-States for more than 15 years.” Durkin Report, (undated), at 2. While it 

is well-established that a witness may be qualified to render an expert opinion 

based on training and experience alone, see Miller v. Brass Rail Tavern, 

Inc., 664 A.2d 525, 528 (Pa. 1995), Durkin provides no additional details 

regarding his training or experience, nor does he indicate that he possesses

any expertise in the appraisal and resale of used equipment.

More important, however, is the fact that Durkin provides no basis for 

his opinion as to the value of the drill “by reference to facts, testimony, or 

empirical data.” Snizavich, supra. In fact, the record demonstrates that 

Durkin opined as to the drill’s value without ever inspecting the equipment. 

While Durkin suggests in his report that Rowan “related” to him the condition 

of the drill, Rowan denied that he ever discussed this matter with Durkin, see

Rowan Deposition, 7/8/20, at 91, and, even if he had, Rowan’s self-interested 

description of the drill’s condition could not form the factual basis of an 

admissible expert opinion. Accordingly, because Durkin’s conclusions were 

not sufficiently supported, Summers, supra, the trial court was within its 
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discretion to disregard the Durkin report in ruling on Caterpillar’s motion for 

summary judgment. 

Finally, Get ‘Er Done raises two interrelated challenges to the validity of 

the sale of the directional drill.

5

 Specifically, Get ‘Er Done claims that the trial 

court erred in finding the sale of the directional drill by auction on the website 

Iron Planet was a public sale because it was only advertised by email to the 

subscriber members of Iron Planet. Brief of Appellant, at 19. As such, Get 

‘Er Done argues the sale was a private one. Get ‘Er Done further argues that 

Caterpillar’s notice of public sale was deficient, as the sale occurred seven 

days prior to the date indicated on the notice. No relief is due. 

Section 9610 of the Commercial Code (“Code”) provides for the 

disposition of collateral following a default, in relevant part, as follows:

(a) Disposition after default.--After default, a secured party may 

sell, lease, license or otherwise dispose of any or all of the 

collateral in its present condition or following any commercially 

reasonable preparation or processing.

(b) Commercially reasonable disposition.--Every aspect of a 

disposition of collateral, including the method, manner, time, 

____________________________________________

5 Get ‘Er Done also purports to challenge the validity of the notice of private 

sale with respect to the excavator, asserting that it was not mailed to the 

correct address and Rowan “testified he does not recall ever receiving the 

notice.” Brief of Appellant, at 21. This claim is patently meritless. Rowan 

acknowledged that the address to which notice was sent—240 Kovalcheck[s]

Road, Carmichaels, PA 15320—was, in fact, the corporate address of Get ‘Er 

Done. The erroneous inclusion by Caterpillar of an “s” at the end of the word 

“Kovalcheck” is insufficient to invalidate the notice. Moreover, Rowan testified 

that “I’m not saying [the notices] didn’t come. I’m saying I didn’t see them . 

. . probably because I didn’t open up the mail and look at them. . . . 

Sometimes I don’t get to my mail for 30, 40 days.” Rowan Deposition, 7/8/20,

at 39. 
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place and other terms, must be commercially reasonable. If 

commercially reasonable, a secured party may dispose of 

collateral by public or private proceedings, by one or more 

contracts, as a unit or in parcels and at any time and place and on 

any terms.

13 Pa.C.S.A. §§ 9610(a) & (b). The terms “public sale” and “private sale” are 

not defined in the Code. 

Section 9611 of the Code requires that a secured party disposing of 

collateral shall provide the debtor a reasonable authenticated notification of 

disposition. Id. at § 9611. In a non-consumer goods transaction, such as 

that at issue here, a notification of disposition sent “after default and ten days 

or more before the earliest time of disposition set forth in the notification is 

sent within a reasonable time before the disposition.” Id. at § 9612(b). 

Section 9613 of the Code governs the form of notice for the disposition of 

collateral and provides, in relevant part, as follows:

Except in a consumer-goods transaction, the following rules apply:

(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;

(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 [i.e., 

private sale] is to be made.
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(2) Whether the contents of a notification which lacks any of the 

information specified in paragraph (1) are nevertheless sufficient 

is a question of fact.

(3) The contents of a notification providing substantially the 

information specified in paragraph (1) are sufficient even if the 

notification includes:

(i) information not specified by that paragraph; or

(ii) minor errors which are not seriously misleading.

Id. at § 9613. The purpose of requiring notification is to give the debtor a 

reasonable period of time in which to exercise his option to participate in the 

sale or otherwise to protect his interest. Reuter v. Citizens & N. Bank, 599 

A.2d 673, 678 (Pa. Super. 1991). 

Here, Caterpillar sent notice of public sale to Get ‘Er Done at its 

corporate address, see Rowan Deposition, 7/8/20, at 39, on October 2, 2017. 

The notice stated, in relevant part, as follows:

[Caterpillar will sell the drill] at public auction by Iron Planet, Inc., 

an online auction company (via Internet public auction). The 

unit(s) can be previewed on the Iron Planet Internet Site 

(www.ironplanet.com) from 10/23/2017 through 11/02/2017. 

The auction will begin 11/02/2017 sometime after 8:00[ a.m.] at 

(www.ironplanet.com). All instructions regarding the auction may 

be found on the Iron Planet web site. The auction will close at 

5:00[ p.m.], 11/02/2017. At that time, all sales will be final.

Notice of Public Sale, 10/2/17.

The online auction house utilized by Caterpillar, Iron Planet, “provides 

an online marketplace connecting motivated sellers and buyers of heavy 

machinery and other industrial assets from around the world.” Duane Hronik 

Affidavit, 9/14/20, at ¶ 11. It regularly auctions drilling equipment and, “in 
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the last several years . . . has sold a total of 31 directional drills generating 

gross transaction value of over $3 million.” Id. The auction at which Get ‘Er 

Done’s drill was offered for sale was marketed from October 5, 2017 through 

October 26, 2017 via email advertisements sent to Iron Planet’s 1.4 million

registered account holders, as well as to the 1.5 million subscribers to Iron 

Planet’s promotional news bulletins. Id. at ¶¶ 5, 6. The auction web pages 

were viewed over 4 million times in the weeks leading up to the auction by 

individuals from around the world, including the United States, Canada, 

Mexico, Colombia, Peru, and the Philippines. Id. at ¶ 7. The webpage for the 

directional drill was viewed approximately 370 times. Id. at ¶ 8. 

Approximately 160,000 individuals attended the auction, at which 

approximately 13,000 bids were placed on items available for sale. Id. at ¶ 

9. The directional drill itself received 100 bids from 19 different bidders 

around the globe. Id. at ¶ 10. The online auction was held between October 

12, 2017 and October 26, 2017. Id. at ¶ 4.

As to the valuation of the equipment, Caterpillar offered the Floyd 

affidavit, in which the affiant stated that the values of the excavator and 

directional drill were determined using an internal Caterpillar Financial system 

called the Valuations Management Tool (VAT). The VAT “contains matrices 

specific to each Caterpillar model . . . [and] provide[s] a value specific to the 

model, model year, estimated hours, configuration or attachments, and 

application.” Floyd Affidavit, 1/13/20, at ¶ 22. The values within the VAT “are 

based on a detailed analysis of the past five years of public auction data, 
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Caterpillar Dealer sales data, and Cat Financial Remarketing sales data, and 

is updated annually.” Id. Floyd averred that the VAT valued the directional 

drill at $145,500 and that it ultimately sold at online auction for $150,500. 

Id. at 27, 28.

We can discern no error in the trial court’s conclusion that the sale of 

the directional drill constituted a public sale and that the notice provided to 

Get ‘Er Done was sufficient. The cases relied upon by Get ‘Er Done are readily

distinguishable from the instant matter. See Fidelity Consumer Discount 

Co. v. Clark, 482 A.2d 580, 583 (Pa. Super. 1984) (holding unpublicized sales

of two repossessed automobiles not public, where sole evidence as to nature 

of sales consisted of testimony that “the sales were ‘for anybody that wanted 

to look at it.’”); Coy v. Ford Motor Credit Co., 618 A.2d 1024 (Pa. Super. 

1993) (holding sale of repossessed automobile at unadvertised auction open 

only to automobile dealers not “public” sale under the Code). 

Conversely, here, Caterpillar utilized the power of the internet to 

advertise the auction to a worldwide audience of at least 1.4 million—and up 

to 2.9 million—people who were registered users of Iron Planet’s website 

and/or subscribers to its newsletters. See Hronik Affidavit, 9/14/20, at ¶¶ 5, 

6. As noted above, approximately 160,000 individuals from around the world 

attended the auction at which the drill was sold. The drill itself received 370 

views and 100 bids. Importantly, Get ‘Er Done presented no evidence that 

would have created a genuine issue of material fact as to the commercial 

reasonableness of the online auction. Although we have found no case law 
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specifically addressing the question of whether an online auction may 

constitute a “public sale” as contemplated by the Code, because the auction 

in this case reached a sufficiently broad worldwide audience and garnered a 

substantial number of views and bids, we conclude that the trial court did not 

err in finding it to be a public sale. 

As to the sufficiency of the notice of public sale, we conclude that the 

discrepancy in dates was immaterial. Pursuant to the Code, a notification of 

disposition sent “ten days or more before the earliest time of disposition set 

forth in the notification is sent within a reasonable time before the disposition.” 

13 Pa.C.S.A. § 9612(b). Here, the notice of public sale was dated October 2, 

2017. The auction began ten days later, on October 12, 2017, and concluded 

on October 26, 2017. See Hronik Affidavit, 9/14/20, at ¶ 4. As such, Get ‘Er 

Done had sufficient opportunity to visit the Iron Planet website and submit a 

bid had it chosen to do so. 

Moreover, as noted above, the primary purpose of the notice provision 

is to give the debtor a reasonable period of time in which to exercise his option 

to participate in the sale or otherwise to protect his interest. Reuter, supra. 

Here, Rowan does not argue that he was prevented from making an offer for 

the drill because he was misinformed regarding the dates of the auction. In 

fact, Rowan testified at his deposition that: (1) he did not even see the notice 

of sale because he often does not look at his mail, see Rowan Deposition, 

7/8/20 at 40; (2) he was unable to make the payments on the equipment 

because his money “ran out,” id. at 33; and (3) he had previously attempted 
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to find a buyer for the equipment, but had been unsuccessful in doing so. See 

id. at 59-63. Accordingly, Rowan was not prejudiced by the erroneous dates 

contained in the notice of public sale. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2022