in the superior court of pennsylvania
TRANSCRIPT
In the Superior Court of PennsylvaniaNo. 1034 EDA 2015
American Express, F.S.B.
v.
Robert McGinty, aka Robert B. McGintyAppellant.
BRIEF FOR APPELLANT
On Appeal From the Order of Court Dated December 16,2014 and Verdict Order Judgment of the
Court of Common Pleas of Lehigh County, Pennsylvania,March 10, 2015
Lehigh County Civil Division, No. 2013-C-4612
Douglas G. Kunkle1334 Gordon StreetAllentown, PA 18102
(610) 439–3800
Counsel for Appellant
Received 06/23/2015 Superior Court Eastern District
Table of Contents
1. Statement of jurisdiction…………………………………. 1.2. Orders in question…………………………………….. 2.3. Statement scope and standard of review……. 5.4. Statement of the questions involved………. 6.5. Statement of the case…………………………… 7.6. Summary of argument………………………….. 8.7. Argument…………………………………………………. 9.8. Conclusion stating the precise relief sought. 41.9. Opinions and order…………………..…………………... 42.10. Certification of word count……………………………. 52.
Index to Authorities
Case Authority
Baughman v. State Farm Mut. Auto. Ins. Co., 656A.2d 931 (Pa. Super. 1995) p16
Bounds v. Smith, 430 U.S. 817 (1977) p25
Columbus N.A. v. MaZaika, 545 Pa. 115, 680 A.2d845 (1996) p31
Compucredit Corp. v. Greenwood, No. 10–948 (U.S.Jan 10, 2012), 132 S. Ct. 665, (2012) p28
Crews v. Petrosky, 509 F. Supp. 1199 (W.D. Pa.1981) p25
Crist v. Bretz , 43 U.S. 28 (1978) p12
DiGregorio v. Keystone v. Keystone Health Plan East,840 A.2d 361, 365-66 (Pa.Super.2003) p16
Estate of Arthur Denmark v Joseph Williams, et. al,2015 Pa. Super. 101 p10, 13
Felder v Casey, (487 U.S. 131 1988) p25
Johnson v National Bank, 104 U.S. 271 (1881) p32
Lenhart v Travelers Ins. Co., 596 A.2d 162 (Pa. Super1991) p16
Lewis v. United Hospitals, Inc., 547 Pa. 626, 692 A.2d1065 (1997) p13
Marquette Nat. Bank v. First of Omaha Svc. Corp.,439 U.S. 299 (1978) p31
McCormick v. Northeastern Bank, 522 Pa. 251, 561A.2d 328 (1989) p11
Meitner et al v. Scarborough, 321 Pa. 212 (Pa. 1936)p12
Monroe v. Pape, 365 U.S. 167 (1967) p31
National F.B. v D.B. Martin Co., 62 Pa. Super. 474(1916) p.10, 12, 17
Newman Dev. Grp. of Pottstown, LLC v. Genuardi'sFamily Markets, 52 A.3d 1233 (Pa. 2012). p4, 15Philadelphia & Gulf Steamship Co. v. Soeffing, 59 Pa.Super. 429 (1915) p5, 15
Ryland v. Shapiro, 708 F.2d 967 (5th Cir. 1983) p17
Serfass v United States, 420 U.S. 377 (1975) p11Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735(1996) p12
Sudders v. United National Insurance Co., 269 A.2d370 (Pa. Super 1970) p30
Tafflin v Levitt, 493 U.S. 455, (1990) p1, 34U. S. National Bank in Johnstown v. Johnson, 506 Pa.
622, 487 A.2d 809 (1985) p1, 35
Vaden v. Discover Bank, 556 U.S. 49 (2009) p1, 30
Vonada v. Long, 852 A.2d 331 (Pa. Super. 2004) p1,16
Westinghouse Air Brake Company Appeal, 70 A.2d681 (Pa. Super. 1950) p30
Constitutional AuthorityU.S. Const. Amend. I p25U.S. Const. Amend. XIV § 1 p25
Pa. Const. Art. V, § 9 p9, 17, 23Pa. Const. Art. V, § 10(c) p18,Pa. Const. Art. V, § 17(d) p19, 25
Statutory Authority9 U.S.C. § 2 p27, 289 U.S.C. § 4 p279 U.S.C. § 10 p2712 U.S.C. § 85 p25, 31, 32, 33, 3512 U.S.C. § 86 p25, 30, 31, 32, 33, 34, 36, 3712 U.S.C. § 21 p33, 3415 U.S.C. § 1679 p2718 U.S.C. § 1961 p32, 33, 3518 U.S.C. § 1961(6) p34, 3618 U.S.C. § 1962(c) p35, 3618 U.S.C. § 1964(c) p35, 36, 3818 Pa. C.S. § 911(h)1.(iv) p3542 U.S.C. § 1983 p31
1 Pa. C.S. § 1504 p9, 2441 P.S. § 502 p3641 P.S. § 505 p3642 Pa. C.S. § 102 p 19, 20, 2142 Pa. C.S. § 326 p23, 2442 Pa. C.S. § 706 p2442 Pa. C.S. § 741 p142 Pa. C.S. § 4301(b). p1942 Pa. C.S. § 5101 p3742 Pa. C.S. § 5327(a) p32, 35, 3942 Pa. C.S. § 6103 p2242 Pa. C.S. § 7301 p2742 Pa. C.S. § 7303 p2742 Pa. C.S. § 7304 p2742 Pa. C.S. § 7314 p2742 Pa. C.S. § 7361 p27
Utah Code Ann. § 15-1-1 p33Utah Code Ann. § 70C-2-101 p32
Rules
Pa. R.J.A. No. 103 p20Pa. R.J.A. No. 103(c)(7) p22Pa. R.J.A. No. 103(c)(1) p21
Supreme Court Operating Procedure § 63.3C. p21,23, 24
Pa. R.A.P. 102 p21Pa. R.A.P. 104,(a) p20, 21Pa. R.A.P. 123 p22Pa. R.A.P. 702 p1
Pa. R.A.P. 2521 p19Pa. R.A.P. 3103 p23Pa. R.A.P. 3121 p20Pa. R.A.P. 3302 p23
Pa. R.C.P. No. 206.6 p21Pa. R.C.P. No. 227.1 p15, 21Pa. R.C.P. No. 227.4(1) p13, 16Pa. R.C.P. No. 227.4(2) p16Pa. R.C.P. No. 230.1,(a)(1) p14Pa. R.C.P. No. 1038 p13, 14Pa. R.C.P. No. 1311.1 p8, 26, 39Pa. R.C.P. No. 1303,(a)(2) p28Pa. R.Crim.P. 622(A) p13Pa.R.E. 902(2) p21Leh.R.C.P. 1303 p37
Law Review
Tracy A. Western in Usury in the Conflict of Laws:the Doctrine of Lex Debitoris, 55 Cal. L. Rev. 123(1967) p31
1
1. Statement of jurisdiction.
The Superior Court has jurisdiction to here this matter
pursuant to 42 P.S. § 741. This appeal is from the Lehigh County
Court of Common Pleas orders dated December 16, 2015 and
March 10, 2015.
The Superior Court shall have exclusive appellate
jurisdiction of all appeals from final orders of the courts of
common pleas, regardless of the nature of the controversy or
the amount involved, except such classes of appeals as are by
any provision of this chapter within the exclusive jurisdiction of
the Supreme Court or the Commonwealth Court. 42 Pa. C.S.
§ 741
The first order was in regard to a pre-trial matter and the
second a final order a verdict for money reduced to judgment and
entered on the judgment index on March 10, 2015. Pa. R.A.P.
702
The Superior Court has concurrent jurisdiction onthe federal claims for setoff raised below. Vaden v.Discover Bank, 556 U.S. 49, (2009) and Tafflin v Levitt , 493U.S. 455, 1990.
2
2. Orders in question (3). (Copies are attached to this
brief in full)
O R D E R
This appeal has been taken from the decision entered
on the trial court docket on March 10, 2015. Appellant did not
file post-trial motions within ten days fol lowing the entry
of the decision. Therefore, no issues have been preserved
for appellate review.
Pa.R.A.P. 227.1(c)(2) states that “[p]ost-trial motionsshall be filed within ten days after decision in the case of anonjury trial.” Pa.R.A.P. 302(a) states, “Issues not raisedin the lower court are waived and cannot be raised forthe first time on appeal.” See Chalkey v. Roush, 805 A.2d491 (Pa. 2002) (under Rule 227.1, a party must file post-trial motions at the conclusion of a trial in any type of actionin order to preserve claims that the party may wish to raiseon appeal); Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54(Pa. 1998)(Pa.R.A.P. 227.1 requires parties to file post-trialmotions in order to preserve issues for appeal; if an issuehas not been raised in a post-trial motion, it is waived forappeal purposes).
Accordingly, the appeal at No. 1034 EDA 2015 ishereby DISMISSED.
Per Curiam
3
ORDER
AND NOW, this 16th day of December 2014 upon
consideration of the Motion to Quash Appeal filed by the
Defendant for the reasons set forth on the record;
IT IS ORDERED that said motion is DENIED. BY THE
COURT:
BY THE COURT:
S/ J. Brian Johnson, J.
4
ORDER
AND NOW, this 10th day of March 2015 upon
consideration of the Complaint filed in the above case, fter
trial held on January 22, 2015, and for the reasons set
forth on the record, a copy of which is attached;
IT IS ORDERED that a Verdict is entered in favor of
Plainitff, American Express Bank, FSB and agains the
Defendant, Robert McGinty, Also Known AS Robert B.
McGinty, in the amount of Twenty-Five Thousand Eighty
Seven Dollars and Fifty-Five Cents ($25,087.55). By The
Court:
BY THE COURT:
S/ J. Brian Johnson, J.
5
3. Statement of both the scope of review and the standard
of review.
The issues present pure questions of law. Therefore
the Standard of Review is de novo and the scope of
review plenary. Newman Dev. Grp. of Pottstown, LLC v.
Genuardi's Family Markets, 52 A.3d 1233 (Pa. 2012).
6
4. Statement of the questions involved.
a. Whether Appellant hereafter Robert B. McGinty, is excused
from filing post trial motions because either, the order appealed
from constituted a final order, there was no trial or the dismissal
procedure denied Robert B. McGinty, due process of law?
b. Whether the arbitration agreement attached to the complaint
was binding?
c. Whether the Robert B. McGinty, was entitled to a setoff of theamount claimed by the Appellee hereafter American Express Bankfor usurious overcharges and if so what amount?
7
5. Statement of the case.
This is a executory contract action on a loan
accessed by a credit card mechanism.
The arbitrators rule in favor of the defendant.
Judge Johnson reversed the arbitrators decision. The
procedure was irregular.
Robert B. McGinty, the defendant below appeals
the lower court's denial of his motion to quash the
appeal from the arbitrators award in his favor pursuant
to the binding arbitration agreement attached to the
complaint, answer to new matter and 1311.1
submission.
In the alternative he seeks an offset for usurious
overpayments that he made on the account he had with
Appellee hereafter American Express Bank the Plaintiff
below.
First, the Court must determine whether the
appeal was waived for failure to file post trial motions.
8
6. Summary of argument.
Robert B. McGinty, should be allowed to proceed
with his appeal despite the lack of filing post trial
motions because the judgment was entered at the time
of entry of the verdict order and therefore constituted a
final order. (R. p2)
American Express Bank elected binding arbitration
by filing a complaint under $50,000.00 in the Court of
Common Pleas of Lehigh County pursuant to the binding
arbitration agreement attached to its complaint and
offered pursuant to Pa. R.C.P. No. 1311.1.
Robert B. McGinty had no reasons to remove the
matter to another arbitration provider at increased cost
and less convenient location and wasn't required to do
so. "The arbitration provisions shall survive any legal
proceeding by you or us to collect a debt owed. (R. p3
last paragraph)
Federal arbitration and Pennsylvania arbitration
rules are in accord. The written waiver makes the case
stronger than the involuntary waiver of appellate rights
from an arbitration by failing to attend. There is no de
novo right of appeal to a voluntary written binding
arbitration agreement.
Should the Court find to the contrary, the contract
is void because Robert McGinty, Sr. is entitled to usury
overcharge setoffs in excess of American Express
Bank's legal claim.
9
7. Argument for appellant.
a. Whether Robert b. McGinty is excused from filingpost trial motions because either the order appealed from
constituted a final order, there was no trial or thedismissal procedure denied Robert B. McGinty due process
of law?
A rule was issued for Robert B. McGinty to show cause why his
appeal should not be dismissed for failure to file post trial
objections. Chalkey v. Roush, 805 A.2d 491 (Pa. 2002) Lane
Enterprises, Inc. v. L.B. FosterCo., 710 A.2d 54 (Pa. 1998). Based
upon my research these dismissals appear to be arbitrary.
1 Pa. C.S. § 1504 requires deference to statutory
meaning. Here we have constitutional and statutory authority
contrary to the common law waiver notion.
There shall be a right to appeal from a court of record to anappellate court. Pa. Const. Art. V. § 9.
An Appellate court may affirm, modify, vacate or set asideor reverse any order brought before it for review….42 Pa. C.S. § 706.
42 Pa. C.S. § 706 mentions nothing about dismissal because
the right to appeal to the Superior Court is a constitutional one.
10
Therefore, on any appeal there will always be the issue of
whether the judgment is regular and consistent with the
pleadings as a matter of law.
I will now proceed with the waiver analyses.
First, Rober B. McGinty is excused from filing post trial
motions because the appeal was taken from a final order reduced to
judgment.
The circumstances of this case present an "irregular
action". Estate of Arthur Denmark v Joseph Williams, et. al,
2015 Pa Super 101 (criminal law terminology used in civil case),
National F.B. v D.B. Martin Co., 62 Pa. Super Ct. 474 at 476
(1916).
This is in part because the proceedings were not conducted
as a normal bench trial but aslo because of the improper legal
terminology "verdict" instead of "decision" used by Judge Johnson
in the lower court order prompting the clerk to reduce the enter
11
the verdict as judgment1 the same day. (Exhibit C, Response to
Rule to Show Cause)
It is the order of the trial court reduced to judgment which
comprises a final order in the case from which an appeal must be
filed within thirty days. McCormick v. Northeastern Bank, 522 Pa.
251, 561 A.2d 328 (1989).
It is not from the findings of fact and conclusions of law
originally filed by the judge that an appeal must be taken under
the act. The preliminary finding of the judge is neither a verdict
1
12
nor a judgment. Meitner et. al. v. Scarborough, 321 Pa. 212 (Pa.
1936).
Here the verdict order was reduced to judgment by entry of
verdict on the judgment index hence a final appealable order. (R. 2)
Post trial objections are based upon evidentiary exceptions
regarding the conduct of the trial that must be preserved at the
trial. National F.B. v D.B. Martin Co., 62 Pa. Super. 474 at 476
(1916), U. S. National Bank in Johnstown v. Johnson, 506 Pa.
622, 487 A.2d 809 (1985).
Second, Rober McGinty is excused from filing post trial
motions because there was no trial.
The hallmark of any criminal trial is the attachment of double
jeopardy. The civil counterpart to double jeopardy is res judicata.
Jeopardy attaches in a criminal trial upon the empanelling of the
jury and in a bench trial upon the calling of the first witness in a
jury trial. Crist v. Bretz , 43 U.S. 28 (1978), Serfass v United
States, 420 U.S. 377 at 388 (1975).
The word trial is also relative to the seventh amendment to
the U.S. Constitution.
13
…no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, thanaccording to the rules of the common law. U.S. Const.,amend. VII.
In Estate of Arthur Denmark, ante. Hurst the executor of
the estate of Denmark brought a wrongful death action. Similar
to this case criminal rather than civil legal terminology was used
by the lower court.
6. A verdict is to be entered within 7 days of a benchtrial in a criminal matter but a decision is to beentered within 7 days of a civil bench trial.Pa.R.Crim.P. 622(A), Pa. R.C.P. No. 1038, Pa. R.C.P.No. 227.4(1). (Response to Rule to Show Cause)
There the dismissal and final order of the case was
instigated by a motion in limine which took the legs out of what
was left of the plaintiff's case.
For purposes of determining the issue of appeal, the court
in Denmark, ante. took into consideration the Supreme Court’s
decision in a similar case. In Lewis v. United Hospitals, Inc. , 547
Pa. 626, 547 A.2d 626 (Pa. 1997) the trial court granted a
doctor's motion in limine to preclude the plaintiffs’ medical
14
expert from testifying at trial and denied the plaintiffs’ motion
to introduce a revised expert report then granted the doctor's
motion for a compulsory nonsuit. The plaintiffs appealed without
filing post trial motions pursuant to Rule 227.1 to remove the
nonsuit.
The Pennsylvania Supreme Court held that the trial court
erred in granting a compulsory nonsuit, since pursuant to Pa.
R.C.P. No. 230.1, a nonsuit should not be granted prior to the
close of a plaintiff’s presentation of evidence at trial.
In an action involving only one plaintiff and onedefendant, the court, on oral motion of the defendant,may enter a nonsuit on any and all causes of action if,at the close of the plaintiff’s case on liability, theplaintiff has failed to establish a right to relief.Pa. R.C.P. No. 230.1(a)(1).
Likewise Pa. R.C.P. No. 1038 Trial without jury provides
the right to move for nonsuit:
Except as otherwise provided in this rule, the trial of anaction by a judge sitting without a jury shall beconducted as nearly as may be as a trial by jury isconducted and the parties shall have like rights andprivileges, including the right to move for nonsuit.Pa. R.C.P. 1038
15
4. Had the proceeding continued on due course I was goingto non suit the plaintiff as I did in LTD Acquisitions LLC vs Anitaand Nickolas Zaccaro, 2008-C-3862 ($34,890.47). A copy ofthe docket in that case is attached hereto and incorporatedherein as Exhibit B. (Response to Rule to Show Cause)
The Lewis, Court ruled that the trial court should have
treated the defendant doctor's motion for compulsory nonsuit
as a pre-trial motion for either summary judgment or judgment
on the pleadings. The Supreme Court concluded that the
plaintiffs had no obligation to remove the nonsuit pursuant to
Rule 227.1, and the trial court’s order was therefore
immediately appealable.
In addition to the improper terminology "verdict" instead of
"decision" used by Judge Johnson in the final order it is apparent
Judge Johnson never started a trial by prompting American
Express Bank to call its first witness. "I admit this isn't the normal
way I do things." (Transcript pre-trial conference P. 20, L. 4 & 5)
A "trial," as envisioned in Rule 227.1, contemplates a
proceeding where the court hears evidence and resolves the
merits of factual disputes and that Pennsylvania courts have
consistently so held. Newman Development Group of Pottstown,
LLC v. Genuardi's Family Markets, Inc., 52 A.3d 1233, (Pa. 2012).
16
citing Vonada v. Long,2 (post-trial motion prohibited because trial
court decision based on record, briefs and stipulations of fact
without introduction of evidence); DiGregorio v. Keystone Health
Plan East, 3(post-trial motion not permitted where case was
decided on briefs without submission of evidence); Baughman v.
State Farm Mut. Auto. Ins. Co.,4 (post-trial motion prohibited
where trial court's decision based solely on consideration of
record without introduction of evidence); Lenhart v Travelers Ins.
Co. 5
5. Because there was no Pa. R.C.P. No. 227.4(1) judge'sdecision within 7 days of the trial date the clerk of judicialrecords immediately entered the judge's verdict on thejudgment index on March 10, 2015, pursuant to Pa. R.C.P. No.227.4(2). A copy of the judgment docket in that case(sic) isattached hereto and incorporated herein as Exhibit C.Appellant's Response to Rule to Show Cause .
Third, Robert B. McGinty is excused from filing post trial
motions because due process requires lower court deference to
2 Vonada v. Long, 852 A.2d 331, 337 (Pa.Super.2004)3 DiGregorio v. Keystone v. Keystone Health Plan East, 840 A.2d 361, 365-66 (Pa.Super.2003)4 Baughman v. State Farm Mut. Auto. Ins. Co., 656 A.2d 931 (Pa. Super1995)5 Lenhart v Travelers Ins. Co., 596 A.2d 162 (Pa. Super 1991).
17
general rules of the Pennsylvania Supreme Court, the
Constitution of Pennsylvania as well as the U.S. Constitution and
federal law.
The right to court access includes fundamental constitutional
liberty and petition rights. Ryland v. Shapiro, 708 F.2d 967 (5th
Cir. 1983).
There shall be a right to appeal from a court of record to an
appellate court. Pa. Const. Art. V. § 9.
The Constitution provides that a judgment tried in a caseby the court without a jury shall be subject to writ oferror as in any other case. The characteristics of thatmode of review remain the same, notwithstanding theame “appeal” is now attached by the act of May 9,1889… Philadelphia & Gulf Steamship Co. v. Soeffing, 59Pa. Super. 429 (1915).
As the assignments of error are not based on anythingbrought into the record by bill of exceptions, the onlyquestion legitimately raised by them is whether thejudgment was regular and responsive to the issue pre-sented by the pleadings. Philadelphia & Gulf Co., 59 Pa.Super. at 431.
Therefore, strictly speaking, the sufficiency of theevidence to sustain the verdict is not raised. Philadelphia& Gulf Co., 59 Pa. Super. at 431.
As counsel for appellant correctly say in their paper-book, the only question before the court was as to the
18
validity of the contract. Philadelphia & Gulf Co., 59 Pa.Super. at 431.
Similarly in an "irregular case" where a stipulation as to facts
and evidence was erroneously labeled a "case stated" the appeal
was not quashed because of the lack of exceptions:
the so-called case stated sufficiently shows anagreement as to the relevant facts upon which theproper determination of the assignment of errordepends.
It follows that in the absence of allegation and proofthat something was omitted from the contract by fraud,accident or mistake, the writing is presumed to expressthe intention of the parties and it is not competent foreither of them to overthrow it by his bald statementthat the intention was different.National F.B., 62 Pa. Super. at 476 (1916).
The Supreme Court shall have the power to prescribe
general rules governing practice, procedure and the conduct of all
courts not inconsistent with the law. ...and the administration of
all courts and supervision of all officers. Pa. Const. Art. V, §
10(c).
The Pennsylvania constitution specifically prohibits the
Superior Court and its judges from the power of appointment.
19
(d) No duties shall be imposed by law o the SupremeCourt or any of the justices therof or the Superior Courtor any of the judges therof, except such as are judicial,nor shall any of them exercise any power ofappointment except as provided in this constitution. Pa.Const. Art. V, § 17(d).
The prothonotary and court administrator are not
appointed officers of the Superior Court but rather the
prothonotary is a member of the administrative staff of the
system.
"Administrative staff" All individuals employed in thebusiness of a court, including the personnel of the officeof the clerk of the court of common pleas, but the termdoes not include judicial officers or their personal staff.The term includes the clerks or prothonotaries of theSupreme Court, the Superior Court and theCommonwealth Court and their staffs.42 Pa C.S. § 102.
The prothonotary shall, on the date a judgment or other
order is entered, send by first class mail to all parties a copy
of the opinion, if any, or of the judgment or other order if no
opinion was written, and notice of the date of entry of the
judgment or other order. Pa. R.A.P. 2521.
Supervision of the administration of the unified system is
statutory. 42 Pa. C.S. 4301(b).
20
Supervision by Administrative Office.--All system andrelated personnel engaged in clerical functions shall establishand maintain all dockets, indices and other records and makeand file such entries and reports, at such times, in such mannerand pursuant to such procedures and standards as may beprescribed by the Administrative Office of Pennsylvania Courtswith the approval of the governing authority. All suchprocedures and standards shall be uniform to the maximumextent practicable so as to facilitate the temporary assignmentof personnel of the system, other than county staff, within theunified judicial system.
Further contrary to the note to Pa. R.A.P. 3121,
42 Pa C.S. § 102 does not provide for staff attorneys or a chief
staff attorney as personal staff.
In all cases not provided for by general rule of the Supreme
Court, the appellate courts may regulate their practice in any
manner not inconsistent with these rules. Pa. R.A.P. 104(a).
Missing from the Pa. R.A.P. 104 is that any rule must also
be consistent with Pennsylvania's statutes and constitution.
A rule includes every rule, administrative order, regulation,
directive, policy, custom, usage, form, or order of general
application, however labeled or promulgated, which is adopted or
enforced by a court. Pa. R.J.A. No. 103
21
A "general rule is a rule promulgated by or pursuant to the
authority of the Supreme Court." Art. V, § 10(c), Pa. R.J.A. No.
103(c)(1), Pa. R.A.P. 102.
The Supreme Court also known as the governing authority
has promulgated by publication operating procedure § 63.3C for
per curiam dismissal for appeals improvidently granted. No other
court shall promulgate a rule inconsistent with a Supreme Court
Rule unless expressly authorized. Supreme Court Operating
Procedure § 63.3C., Penn. Const., Art. V, § 10(c), Pa. R.A.P.
104(a).
The form for a rule to show cause is also a general rule
promulgated by the Supreme Court that requires a judge's
signature. Pa. R.C.P. No. 206.6.
The brief scheduling order was also issued per curiam on the
prothonotary's letterhead indicating he has been delegated
judicial authority to issue the per curiam orders.
Not only did the orders cite Pa. R.C.P. No. 227.1 as a
Rule of Appellate Procedure the per curiam orders were not
22
evidenced by seal, certified copies or names of the panel
judges and the filing notation was a-typical appearing to be
simply a typed in notation in the header "Filed 5/18/15" as
though the courts filing system was being hacked. 42 Pa. C.S.
§ 6103, Pa.R.E. 902(2).
Consistent with 42 Pa. C.S. § 706, an application for an
order or other relief shall be made by filing a written application
for such order or relief with proof of service on all other parties.
Pa. R.A.P. 123.
A party is a person who commences or against who relief is
sought in a matter (action, proceeding or appeal) 42 Pa. C.S. §
102.
A court may not dismiss a case based upon a rule.
No pleading or other legal paper shall be refused forfiling by the prothonotary or clerk of courts based on arequirement of a rule. No case shall be dismissed norrequest for relief granted or denied because of failureto comply with a rule. In any case of noncompliancewith a rule, the court shall alert the party to thespecific provision at issue and provide a reasonabletime for the party to comply with the rule. Pa. R.J.A.No. 103(c)(7).
23
The Pennsylvania Superior Court does not officially
congregate as a whole per curiam body but as three judge
quorum panels or en banc no more than 9 judges to the panel. A
Commonwealth Court judge sitting in original jurisdiction may
represent the court as a whole but the Superior Court the duty
judge is not so authorized to issue per curiam orders. 42 Pa. C.S.
§ 326, Pa. R.A.P. 3103, 3302. When the Superior Court has
issued a per curiam panel opinion each panel judge has been
listed on it.
The Supreme Court dismisses per curiam cases it
improvidently grants Certiorari to for instance D.N.B. First, N.A. v
William B. Fretz, Jr., 138 and 139 MAP 201. However, appeal to
the Superior Court is a matter of right. Pa. Const. Article V. § 9.
When a Supreme Court judge does not take part in a per
curiam order he is identified in the order. Pa Supreme Ct.
Operating Procedure § 63.3C.
24
As indicated above, per curiam has a specific meaning
regarding Certiorari appeals pursuant to section 63.3C. of the
Supreme Court Operating Procedures.6
An Appellate court may affirm, modify, vacate or set aside
or reverse any order brought before it for review.
42 Pa. C.S. § 706.
Therefore pursuant to the rules of statutory construction the
Superior Court has no authority to issue per curiam show cause
or dismissal orders. 1 Pa. C.S. § 1504, 42 Pa. C.S. § 326, 42 Pa.
C.S. § 706.
The Pennsylvania constitution prohibits the Superior Court
and its judges from the power of appointment or delegation to
administrative or personal staff to issue court orders and the
same is a denial of meaningful access to the court that shocks the
6 Per curiam orders are specifically defined in § 63.3 C. of the PennsylvaniaSupreme Court Operating Procedures as applying to 3. Discretionary appealsimprovidently granted. 5. (the whole court) a per curiam order shall indicateif a justice did not participate and 6. in response to ReconsiderationApplications. § 63.3 amended January 9, 2013 effective in 30 days.
25
conscience. Pa. Const. Art. V § 17(d), U.S. Const. amend. XIV §
1., Crews v. Petrosky, 509 F. Supp. 1199 (W.D. Pa. 1981).7
A mere formal right of access to the courts does not pass
constitutional muster. Courts have required that the access be
"adequate, effective, and meaningful." Bounds v. Smith, 430
U.S. 817 (1977).
The Supremacy Clause imposes on state courts a
constitutional duty to proceed in such manner that all the
substantial rights of the parties under controlling federal law are
protected. Felder v Casey, (487 U.S. 131 1988), Pa. Const. Art. V
§ 17(d), U.S. Const. amend. XIV, § 1, U.S. Const. Amend. I.,
12 U.S.C. § 85 and § 86, (Response to Rule to Show Cause).
Because there is no evidence of a motion by a party, or
appellate review by a Superior Court by quorum or en bank the
dismissal was an unconstitutional denial due process of law.
7An allegation that a clerk of state court has negligently delayed the filing
of a petition for appeal, and that the delay has interfered with anindividual's right of access to the courts, may state a cause of action fordeprivation of substantive due process pursuant to the First and FourteenthAmendment of the U.S. Constitution
26
b. Whether the arbitration agreement attached to thecomplaint and entered on the record pursuant to 1311.1
on September 24, 2014 was binding?
The arbitration agreement attached to the complaint and
filed pursuant to Pa. R.C.P. 1311.1 on September 24, 2014 was
statutory providing:
Significance of Arbitration "…the arbitrator'sdecision will be final and binding. "
Arbitration Procedures This arbitrationprovision is made pursuant to transactions involvinginterstate commerce and shall be governed by the FAA.
Continuation If any portion of this arbitrationprovision is deemed invalid or unenforceable, it shallnot invalidate the remaining portions of this provision.
In addition to the organizations listed aboveclaims may be referred to any other arbitrationorganization that is mutually agreed upon in writing byyou and us.
You will be responsible for paying your share ofthe arbitration fees including filing administrative,hearing and or other fees but only up to the amount ofthe filing fees if you had brought a claim in the state orfederal court closest to your billing address that wouldhave had jurisdiction.
Arbitration hearings you attend shall take place inthe federal judicial district of your residence.
27
Compelled judicial arbitration is for party's that don't have a
written arbitration agreement statutory arbitration is for those
that do. 42 Pa. C.S. §§ 7301, 7361.
Robert McGinty voluntarily submitted to statutory arbitration
in writing by answering the complaint (with arbitration agreement
attached to it) in the affirmative except for the balance due. 9
U.S.C. § 2, 42 Pa. C.S. § 7303 (written validity), 9 U.S.C. § 4, 42
Pa. C.S. § 7 (compulsion), 9 U.S.C. § 10, 42 Pa. C.S. § 7314
(vacatur). (Answer)
There was no reason for Robert McGinty to compel
arbitration by court order because he voluntarily submitted to
arbitration here in Lehigh County elected by American Express
Bank because the arbitration didn't cost him anything and the
location of the arbitration is within the jurisdiction of the county
and more easily accessible as opposed to anywhere else in
district.
The idea that there is an election to arbitrate as opposed to
election to a jury trial is fanciful because in this county and
district mandatory arbitration is required in any court of record
28
state or federal where contractual amounts do not exceed
$50,000.00.
Similar to the waiver of de novo appeal rights where a party
fails to appear for arbitration a written arbitration agreement by
has the authority of a voluntary waiver precluding de novo
appeal. Pa. R.C.P. No. 1303(a)(2), Leh.R.C.P. 1303.
In Compucredit Corp. v. Greenwood, No. 10–948 (U.S. Jan
10, 2012) 132 S. Ct. 665 (2012), a similar clause was at issue
“Any claim, dispute or controversy (whether in contract, tort, or
otherwise) at any time arising from or relating to your Account,
any transferred balances or this Agreement (collectively,
‘Claims’), upon the election of you or us, will be resolved by
binding arbitration . . . .”
In Compucreidt, id., individuals who applied for and received
an Aspire Visa credit card marketed by CompuCredit Corporation
filed a class-action complaint against CompuCredit in the United
States District Court for the Northern District of California,
alleging, violations of the Credit Repair Organizations Act (CROA),
15 U. S. C. § 1679 et seq. The claims largely involved
29
Compucredits allegedly misleading representation that the credit
card could be used to rebuild poor credit and their assessment of
multiple fees upon opening of the accounts, which greatly
reduced the advertised credit limit.
The District Court denied the Compucredits motion to
compel arbitration of the claims, concluding that “Congress
intended claims under the CROA to be non-arbitrable.” A panel of
the United States Court of Appeals for the Ninth Circuit affirmed.
The Supreme Court of the United States reversed and held
the Federal Arbitration Act provides:
“A written provision in any maritime transaction or a
contract evidencing a transaction involving commerce to settle by
arbitration a controversy thereafter arising out of such contract or
transaction . . . shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation
of any contract and that its provision established “a liberal federal
policy favoring arbitration agreements.” 9 U. S. C. § 2.
As noted on numerous occasions, arbitrator's awards can
only be reversed if there is clear, indubitable evidence of fraud,
30
misconduct or corruption or some irregularity. As to questions of
law and fact, however, the arbitrators are the final judge. The
policy was stated in 30ir Brake Company Appeal, 70 A.2d 681
(Pa.Super. 1950) "a contrary holding would mean that arbitration
proceedings, instead of being a quick and easy mode of obtaining
justice, would be merely an unnecessary step in the course of
litigation, causing delay and expense, but settling nothing finally."
Sudders v. United National Insurance Co., 269 A2d 370 (Pa.
Super. 1970).
3. Whether the Appellant was entitled to a setoff of theamount claimed by the Appellee/Plaintiff for usurious
overcharge?
Mr. McGinty is entitled to a setoff off at least twice the
usurious overcharges dating two years back in time from the
filing of his answer pursuant to 12 U.S.C. § 86 whether
Pennsylvania, Utah, or Federal law is applicable.
Marquette Nat. Bank vs First of Omaha Svc. Corp., 439 U.S.
299 (1978) simply reiterated the law that had been in place since
1864 but not applied apparently as a result of court ambivalence
to reconstruction policies.
31
Tracy A. Western in Usury in the Conflict of Laws: the
Doctrine of Lex Debitoris, 55 Cal. L. Rev. 123 (1967), authors an
informative law review article regarding the history and choice of
law in usury actions. Contrary to Section 30 of the National Bank
act of 1864, in general the law of the obligors jurisdiction
prevailed instead of 12 U.S.C. § 85 and §86.
Similar to 42 U.S.C. § 1983 in Monroe vs. Pape , 365 U.S.
167, (1967) cited by Chief Justice, Roberts in Vaden v. Discover
Bank,8 12 U.S.C. §§ 85 and 86 have awakened after hiatus.
However, the substantive analyses has fallen short with the
U. S. Supreme Court's decisions in Marquette,id., Smiley v.
Citibank, 517 U.S. 735 (1996) and Columbus N.A. v. MaZaika,
545 Pa. 115, 680 A.2d 845 (1996). In Marquette because each
state had a rate ceiling9 and in Smiley and Mazaika because the
claims made there as indicated in footnotes 1. were state
consumer protection based claims and not federal usury claims
pursuant to 12 U.S.C. § 85 and § 86.
8 Vaden v. Discover Bank, 556 U.S. ___, 129. S. Ct. 1262, (2009)9 Minnesota 12% ; Nebraska 18% on the first $999.99, 9% thereafter.
32
The current case should follow Johnson v National Bank, 104
U.S. 271 (1881) because Utah's consumer credit usury rate is
unlimited
Keeping in mind that Plaintiff never invoked federal law or
Utah law pursuant to 42 Pa. C.S. § 5327(a) whether one chooses
Pennsylvania, Utah or U.S. statutory usury law the result is a set
off of the sum allegedly claimed in the Plaintiff's Complaint.
Further, Utah laws are pre-empted in large part by Section
12 U.S.C. § 85.
…When no rate is fixed by the laws of the State, orTerritory, or District, the bank may take, receive,reserve, or charge a rate not exceeding 7 percentum, 10 or 1 per centum in excess of the discountrate on ninety day commercial paper in effect at theFederal reserve bank in the Federal reserve districtwhere the bank is located, whichever may be thegreater, and such interest may be taken in advance….12 U.S.C. § 85.
Therefore if the court determines that Utah's usury laws
are applicable they must be black-lined as follows:
Utah Code 70C-2-101 Finance and other charges
10 Penn. rate ceiling is 6% on amounts under $50,000.00 41 P.S. § 201:Utah's rate ceiling 10% Utah Code 15-1-1
33
Except where restricted or otherwise covered by
provisions of this title, the parties to a consumer credit
agreement may contract for payment by the debtor of
any finance charge and other charges and fees.
Utah Code 15-1-1 Interest rates -- Contracted rate --Legal rate. (in part)
The parties to a lawful contract may agree upon anyrate of interest for the loan or forbearance of anymoney, goods, or chose in action that is the subject oftheir contract.
Unless parties to a lawful contract specify a differentrate of interest, the legal rate of interest for the loan orforbearance of any money, goods, or chose in actionshall be 10% per annum.
If the bank's home state has no rate ceiling the lawful rate
ceiling is pre-empted by federal law and the remedy is double
damages. 12 U.S.C. § 85 and § 86. If twice the lawful rate is
charged and paid, quintuple damages. 18 U.S.C. § 1964(c).
18 U.S. § 1961-1964 and 12 U.S.C. §§ 21, 85 and 86 share
common definitions and can be read in pari materia.
Associations for carrying on the business of bankingunder title 62 of the Revised Statutes may be formedby any number of natural persons, not less in any casethan five. They shall enter into articles of association,…. These articles shall be signed by the persons unitingto form the association, and a copy of them shall be
34
forwarded to the Comptroller of the Currency, to befiled and preserved in his office. 12 U.S.C. §21,(formerly Title 62 of the revised Statutes of 1867)
18 U.S.C. 1961(3) (4) provide:
(3) "person" includes any individual or entity capable ofholding a legal or beneficial interest in property;
(4) "enterprise" includes any individual, partnership,corporation, association, …;18 U.S.C. 1961(3)(4).
12 U.S.C. § 86 provides:
The taking, receiving, reserving, or charging a rate ofinterest greater than is allowed by section 85 of thistitle, when knowingly done, shall be deemed aforfeiture of the entire interest and In case the greaterrate of interest has been paid, the person by whom ithas been paid, or his legal representatives, mayrecover back, in an action in the nature of an action ofdebt, twice the amount of the interest thus paid fromthe association taking or receiving the same: Provided,That such action is commenced within two years fromthe time the usurious transaction occurred.12 U.S.C. § 86.
(6) "unlawful debt" means a debt (A) …which isunenforceable under State or Federal law in whole or inpart as to principal or interest because of the lawsrelating to usury, and (B) which was incurred inconnection with ….the business of lending money at arate usurious under State or Federal law, where theusurious rate is at least twice the enforceable rate; 18U.S.C. § 1961(6).
35
(c) It shall be unlawful for any person employed by orassociated with any enterprise engaged in, or theactivities of which affect, interstate or foreigncommerce, to conduct or participate, directly orindirectly, in the conduct of such enterprise's affairsthrough a pattern of racketeering activity or collectionof unlawful debt. 18 U.S.C. § 1962(c).
(c) Any person injured in his business or property byreason of a violation of section 1962 of this chaptermay sue therefor in any appropriate United Statesdistrict court and shall recover threefold the damageshe sustains and the cost of the suit, including areasonable attorney's fee, 18 U.S.C. § 1964(c).
18 U.S.C. § 1961-1964 applied to former bankers and may
be enforced in state court. Tafflin v Levitt , 493 U.S. 455,
(1990).
Keeping in mind American Express Bank never invoked
federal law or Utah law pursuant to 42 Pa. C.S. § 5327(a) then
assuming for argument the highest fixed rate ceiling allowable by
any of the three jurisdictions is Utah's 10% in accordance with 12
U.S.C. § 85 we can conclude as a matter of law that American
Express FSB is in violation of each jurisdictions criminal usury
laws by review of the July, August and September 2013
statements containing interest charges in excess of 25%. (R-
36
p. 25-30), 18 U.S.C. §§ 1961(6), 1962(c), twice the lawful
collectable state or federal rate = 12%, 14% or 20%, 41 P.S. §
505 6%, 18 Pa. C.S. § 911(h)1.(iv) 25%, Utah 10%.
Therefore, I will deduct those interest charges from the
balance claimed due off the top $25,087.55 - $590.91- $540.52-
$528.05 leaving a corrected balance due of $23,428.07. 18
U.S.C. § 1962(c), 18 Pa. C.S. § 911(h)1.(iv), 41 P.S. § 505.
Second, I will total the amount of payments attributable to
interest charges in excess of 10% going back two years from the
filing of the answer in accordance with federal law to calculate the
offset: $392.60 + $520.00 + $6.81+ $339.34+
$311.19+$279.09+$284.66+$264.65+$283.62+$246.93
+$272.86= $3,201.75
Third, I will apply the variety of potential jurisdictional
damage setoffs available:
Pennsylvania treble damage set off $9,605.25 41 P.S. § 502
Federal double damages set off $6,403.50 12 U.S.C. § 86
Federal quintuple damages set off $16,008.75 12 U.S.C. § 86
and 18 U.S.C. § 1964(c)
37
Utah - Criminal Sanctions-inapplicable.
Every person for a legal injury done him in his lands, goods,person, or reputation shall have remedy by due course of law,and right and justice administered without sale, denial or delay.42 Pa. C.S. § 5101
Finally I will subtract the set off amounts from the lawful
balance $23,428.07 two years back in time from the defendant's
answer. 12 U.S.C. § 86.
Pennsylvania treble damage set off (41 P.S. § 502 )$23,428.07- $9,605.25 = 13,822.82
Federal double damages set off (12 U.S.C. § 86)$23,428.07- $6,403.50 = 17,024.57
Federal quintuple damages set off (12 U.S.C. § 86 and 18 U.S.C.§ 1964(c) )$23,428.07 - $16,008.75= 7,419.32
Statementclosingdate
Balance Interestcharge
Payment(towardsprevious monthsinterest charge)
DisclosedAPRpreviousstatement
ExceedRateCeiling
State orFederalset off
6, 7or10%
10/3/13 25,087.55 0 0 0 n9/3/13 25,087.55 590.91 0 27.24% y 590.918/2/13 24,461.64 540.52 0 27.24% y 540.527/3/13 23,886.12 528.05 113.88 27.24% y 528.056/3/13 23401.95 540.52 896.68 0 n5/3/13 24,015.43 0 520.00 0 n4/3/13 24,535.43 0 520.00 0 n
38
3/3/13 25,055.43 0 520.00 0 n2/3/13 25,575.43 0 520.00 0 n1/03/13 26,095.43 0 520.00 (392.60) 0 n12/03/12 26,615.43 0 520.00 (520.00) 0 n11/28/12 27135.43 599.69 6.81(6.81) 27.24% y 2,3 or 5x10/03/12 26507.55 319.72 1577.91(339.34) 14.24% y 2,3 or 5x9/03/12 27,219.13 339.34 1533.30(311.19) 14.24% y 2,3 or 5x8/12 27941.27 311.19 567.16(279.09) 14.24% y 2,3 or 5x7/12 22519.58 279.09 5597.36
(284.66)14.24% y 2,3 or 5x
6/12 24506.93 284.66 4339.64(264.65) 14.24% y 2,3 or 5x5/12 24286.52 264.65 1620.17(283.62) 14.24% y 2,3 or 5x4/12 19918.80 283.62 8903.47(246.93) 14.24% y 2,3 or 5x3/12 22867.40 246.93 5408.13(272.86) 14.24% y 2,3 or 5x2/12 21439.35 272.86 5842.17 14.24% y 2,3 or 5x
(R- p.25-64)
If one applies either the treble damage setoff pursuant to 18
U.S.C. 1964(c) or 41 P.S. 405 and goes back another two years
and to February 2010 and totals the paid interest charges from
the statements January 2012 to February 2010 an additional
amount of $5681.08 in usurious overcharges would be subject to
treble damages equal to $17043.24 in essence voiding the
contract.
261.57 + 249.28 + 267.58 + 257.32 + 268.71 + 271.31 +
253.93 + 275.25 + 260.93 + 271.17 + 245.32 + 271.31 +
39
263.99 + 260.73 + 238.39 + 254.24 + 264.05 + 173.08 +
156.54 + 174.59 + 189.51 + 179.14 + 177.64 + 175.5 (Pa.
R.C.P. No. 1311.1 submission) = $5681.82 x 3 = $17043.24
Taking into consideration the fact that American Express
Bank never notified Robert McGinty pursuant 42 Pa. C.S. §
5327(a) its intent to apply Utah usury law Pennsylvania state
and Federal RICO remedies entitle Robert McGinty to a Six Fold
setoff going back the Pennsylvania statute of limitations for a
contract. 41 P.S. § 502, 18 U.S.C. § 1964(c).
$392.60 + $520.00 + $6.81+ $339.34+
$311.19+$279.09+$284.66+$264.65+$283.62+$246.93
+$272.86 (R- p25-64)= $3,201.75
261.57 + 249.28 + 267.58 + 257.32 + 268.71 + 271.31 +
253.93 + 275.25 + 260.93 + 271.17 + 245.32 + 271.31 +
263.99 + 260.73 + 238.39 + 254.24 + 264.05 + 173.08 +
156.54 + 174.59 + 189.51 + 179.14 + 177.64 + 175.5 (Pa.
R.C.P. No. 1311.1 submission)= $5681.82
40
$3,201.75 + $5681.82 = 8883.75 x 6 = $53,301.42
Subtracting that amount from the lawful balance due
American Express Bank results in a judgment for Robert B.
McGinty in the amount of $23,873.50.
$53,301.42 - $23,428.07 = $ 23,873.35
41
8. A short conclusion stating the precise relief sought.
Wherefore Robert B. McGinty prays this Honorable
Court reinstate the arbitrators' award in his favor or grant
the appropriate setoff either voiding the contract or entering
judgment for Robert McGinty in the amount of $ 23,873.35.
American Express Bank, FSB : IN THE SUPERIOR COURT OF
: PENNSYLVANIA :
: (C.P. Lehigh County V. : No. 2013-C-4612)
: :
: Robert McGinty etc. : No. 1034 EDA 2015
O R D E R
This appeal has been taken from the decision entered on the
trial court docket on March 10, 2015. Appellant did not file post-trial
motions within ten days following the entry of the decision. Therefore, no issues have been preserved for appellate review.
Pa.R.A.P. 227.1(c)(2) states that “[p]ost-trial motions shall be
filed within ten days after decision in the case of a nonjury trial.”
Pa.R.A.P. 302(a) states, “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” See
Chalkey v. Roush, 805 A.2d 491 (Pa. 2002) (under Rule 227.1, a
party must file post-trial motions at the conclusion of a trial in any type of action in order to preserve claims that the party may wish to
raise on appeal); Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998)(Pa.R.A.P. 227.1 requires parties to file post-trial
motions in order to preserve issues for appeal; if an issue has not been raised in a post-trial motion, it is waived for appeal purposes).
Accordingly, the appeal at No. 1034 EDA 2015 is hereby DISMISSED.
Per Curiam
Filed 05/18/2015
42
9. Opinions and orders from below
43
44.
45.
46.
47
48
49
50
51
Certification of word count
I verify under penalty of law that the word count as indicated by
my Microsoft Word word processing application indicates less than
8,0000 words.
S/ Douglas Kunkle
52