Caterpillar Fin. Servs. Corp. v. Get ER Done Drilling, Inc.

• Decision Date: 18 November 2022
• Docket Number: 202 WDA 2021,J-A08020-2
• Citation: 2022 PA Super 196
• Parties: CATERPILLAR FINANCIAL SERVICES CORPORATION Appellee v. GET ER DONE DRILLING, INC. Appellant
• Court: Pennsylvania Superior Court

2022 PA Super 196

CATERPILLAR FINANCIAL SERVICES CORPORATION Appellee v. GET ER DONE DRILLING, INC. Appellant

No. 202 WDA 2021

No. J-A08020-2

Superior Court of Pennsylvania

November 18, 2022

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

LAZARUS, J.

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 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.

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 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 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 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...