J-A32008-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT E. GARDNER IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

I.C. SYSTEM, INC.

Appellee No. 2468 EDA 2013

Appeal from the Order Entered August 5, 2013

In the Court of Common Pleas of Montgomery County

Civil Division at No. 11-18837

BEFORE: PANELLA, J., OLSON, J., FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 09, 2015

Appellant, Robert E Gardner, appeals from the order granting 

summary judgment in favor of Appellee, I.C. System, Inc. We affirm.

Appellee is a debt collector that attempted to collect a debt obligation 

from Appellant on behalf of Bank of America by making telephone calls to his 

residence. On July 12, 2011, Appellant filed the following Complaint in the 

Court of Common Pleas. We quote it in its entirety:

1. The plaintiff resides at the above address.

2. The defendant has offices at the above address.

3. In an effort to collected [sic] an alleged debt the 

defendant violated the following laws:

____________________________________________



Former Justice specially assigned to the Superior Court.
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a. Pennsylvania Unfair Trade Practices and Consumer 

Protection Law, 73 Pa.C.S. Section 201-1 et seq. 

[“CPL”].

b. Pennsylvania Fair Credit Extension Uniformity Act, 

73 Pa.C.S. Section 227.01 et seq. [“FCEUA”].

4. As a result of the defendant’s conduct the plaintiff 

suffered damages that may be recovered under the 

above stated laws.

WHEREFORE, the plaintiff requests judgment, attorney’s 

fees and costs in an amount not in excess of twenty 

thousand ($20,000) dollars.

The Complaint contained no supporting facts or allegations, and did 

not specify which provisions of the cited statutes had been allegedly 

violated. Appellee filed an answer and new matter denying that it had 

violated the cited statutes. Appellant responded to the new matter with 

general denials and a repeated summary allegation that Appellee had 

“engaged in a per se violation.” Plaintiff’s Reply to New Matter, dated 

9/12/2011. 

During the discovery period, Appellant objected to Appellee’s 

interrogatories, requests for production of documents, and requests for 

admissions by stating that each discovery request was “irrelevant and 

harassment” because Appellee had “engaged in a per se violation.” 

Plaintiff’s Objection to the Defendant’s Requests for Production of 

Documents, dated 9/26/11; Plaintiff’s Objection to the Defendant’s Request 

for Admissions, dated 9/26/11; and Plaintiff’s Objection to the Defendant’s 

Interrogatories, dated 9/26/11. Appellee filed a motion to compel discovery 

responses, which the trial court granted. Appellant responded to the 
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discovery requests by stating that Appellee had violated the CPL and the 

FCEUA by calling him “thirty five to forty times,” and stated that his 

damages from Appellee’s unanswered phone calls were “stress, anxiety, Not 

pick up phone [sic]” Plaintiff’s Answer to Interrogatories, dated 4/5/12. He 

admitted that he had failed to pay the balance due on his Bank of America 

credit card; that he had not actually spoken to Appellee by telephone; and 

that he had not incurred any ascertainable loss of money as a result of 

Appellee’s conduct. See Plaintiff’s Answers to Request for Admissions, dated 

4/5/12. In response to Appellee’s request for production of documents, 

Appellant submitted copies of notices received from several debt collectors 

other than Appellee, and provided a copy of a monthly statement from Bank 

of America showing his outstanding credit card balance as of June 2009.

Appellee filed a motion for summary judgment. Appellant responded 

with an Answer to the Motion, in which he stated that Appellee had 

contacted him personally despite Appellant’s having sent notice that he was 

represented by counsel. After oral argument, the trial court granted 

summary judgment in favor of Appellee. 

Appellant timely appealed to this Court, raising the following issues:

A. Is a per se violation actionable?

B. Must there be actual damages to proceed with a per se

violation?

C. May a jury determine the damaged [sic] in a per se

violation?
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Appellant’s Brief at 3.

In a one-and-a-half page argument,

1 Appellant avers that because 

Appellee ignored his “warn[ing] to cease all contact with” Appellant, Appellee 

committed a “per se” violation of the FCEUA. Appellant’s Brief at 5, citing 73 

P.S. § 2270. In support, he cites to Exhibits “A” and “B.” However, there 

are no exhibits annexed to his brief and there are no citations to the 

reproduced record indicating where those exhibits might otherwise be found. 

Appellant fails to cite case law or other authority to support his argument, 

and provides no analysis which would enable this Court to provide 

meaningful review of the issues raised.2

Appellant has utterly failed to comply with the Pa.R.A.P. 2119. We thus 

conclude his argument on appeal is waived. See, e.g., Coulter v. 

Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014), appeal denied, 403 

WAL 2014 (Pa. filed Dec. 10, 2014) (observing that Pa.R.A.P. 2119 requires 

that argument be developed for each issue raised with citation to authority 

in support of each contention, and appellate arguments which fail to adhere 

to Rule 2119 may be considered waived). 

____________________________________________

1

John J. O’Brien, III, Esquire, has represented Appellant throughout this 

litigation.

2

In fact, Appellant’s “argument” section of his brief is identical to both his 

Pa.R.A.P. 1925(b) statement and his Memorandum of Law filed in opposition 

to Appellee’s summary judgment motion.
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Even without our waiver determination, we would affirm the trial 

court’s order. Our review of the record reveals that, like his appellate brief, 

Appellant’s pleadings and his responses to pleadings and discovery requests 

were also procedurally and substantively inadequate. Accordingly, we would 

have found that the trial court properly granted summary judgment to 

Appellee.

The standards pertaining to summary judgment are well-settled:

A motion for summary judgment is based on an evidentiary 

record that entitles the moving party to a judgment as a matter 

of law. In considering the merits of a motion for summary 

judgment, a court views the record in the light most favorable to 

the non-moving party, and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the 

moving party. Finally, the court may grant summary judgment 

only when the right to such a judgment is clear and free from 

doubt. An appellate court may reverse the granting of a motion 

for summary judgment if there has been an error of law or an 

abuse of discretion.

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566–67 (Pa. 

2005) (citations omitted). See also Pa.R.C.P. 1035.2. 

Once a summary judgment motion is filed, the non-moving party 

(here, Appellant) bears the burden of proving that there is a genuine issue 

of material fact precluding summary judgment. Where the non-moving 

party bears the burden of proof on an issue, he or she may not merely rely 

on his pleadings or answers but rather must set forth specific facts 

demonstrating a genuine issue of fact. See Bank of America, N.A. v. 

Gibson, 102 A.3d 462, 464 (Pa. Super. 2014); Pa.R.C.P. 1035.3. “Failure of 
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a non-moving party to adduce sufficient evidence on an issue essential to its 

case and on which it bears the burden of proof ... establishes the entitlement 

of the moving party to judgment as a matter of law.” Young v. 

Commonwealth Dep’t of Transportation, 744 A.2d 1276, 1277 (Pa. 

2000). 

The trial court here correctly observed that Appellant’s four-line 

Complaint “was procedurally and substantively flawed,” and that his 

responses to Appellee’s discovery requests “were similarly insufficient under 

the law and the applicable Pennsylvania Rules of Civil Procedure [such that 

Appellant] failed to supply a sufficient factual basis to support his claims.” 

Trial Court Opinion, dated 3/8/14, at 1 - 2. Moreover, our review of the 

record supports the trial court’s conclusion that Appellant had failed to 

provide any evidence in the form of affidavits or exhibits which would 

provide the requisite prima facie evidentiary basis necessary to survive 

summary judgment. Because Appellant failed supply the necessary 

evidentiary support, we conclude that the trial court did not abuse its 

discretion or err as a matter of law in granting Appellee’s motion for 

summary judgment.

Order affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015