National Recovery Systems v. Nemchik
| Decision Date | 02 July 1982 |
| Docket Number | 80-2583 |
| Citation | 24 Pa. D. & C.3d 22 |
| Parties | National Recovery Systems v. Nemchik |
| Court | Pennsylvania Commonwealth Court |
Melvin Rubin, for plaintiff.
Thomas J. Feeney, for defendant.
Exceptions to nonjury verdict.
Plaintiff, National Recovery Systems, a New York corporation located in New York City, N.Y., filed suit in assumpsit on February 25, 1980 against defendant, Paul Nemchik, an adult individual who resides at 53 Briarcliff Road, Glenolden, Delaware County, Pa. The action was brought by plaintiff to collect the proceeds of a $ 5,000 loan which defendant refused to repay.
The evidence presented at the trial consisted of the testimony of Allyn Ehrlich, president of plaintiff corporation and certain documentary evidence which was presented by him. Initially, defendant appeared at the trial. However, during the course of the trial, defendant left the court room and failed to return. He presented no testimony and no evidence during the course of the proceeding.
The uncontradicted testimony of Mr. Ehrlich was that plaintiff is a corporation engaged in the business of rendering advice to hotel-casinos world-wide. Additionally, plaintiff collects debts owed to casinos as an assignee of their claims. He further testified that plaintiff, in the course of its business, through its president, Mr. Ehrlich, set up the casino credit and collection system for the MGM Grand Hotel-Casino of Las Vegas, Nevada (hereinafter Hotel-Casino), which adopted and put its system into use. Pursuant to that system, those who seek to borrow money or establish a line of credit with the Hotel-Casino submit applications in advance for credit or loans, so that it may check their credit before making the loan or granting the line of credit. On the basis of the information provided by potential borrowers and through various modes of credit checks which it performs on its own, the Hotel-Casino either grants or refuses to extend credit.
Defendant submitted an application for credit with the Hotel-Casino before April, 1975. This application for credit was approved. In April, 1975, defendant engaged in a series of transactions through which he borrowed $ 5,000 from the Hotel-Casino. To date, he has failed to repay the debt. The transactions were evidenced by a series of three " counter-checks" or " markers" executed by defendant and totaling $ 5,000. These instruments contained blank spaces for the signatory to fill in the name of his or her bank, the bank's branch or location and the signatory's bank account number. The counter-checks also contained blank spaces which allowed the signatory to insert the date, the amount and his or her signature. They contain the words " Pay to the Order of" followed by a blank space. Just above the space provided for the signature, the counter-checks state:
I represent that I have received cash for the above amount and that said amount is on deposit in said bank or trust company in my name, is free from claims and is subject to this check.
The counter-checks executed by defendant were filled in only as to amount and signature.
At trial, plaintiff's president testified that he helped design the bookkeeping system used by the Hotel-Casino. He testified that the system which he designed was used in the daily operation of the Hotel-Casino and in the specific transaction entered into between defendant and MGM Grand Hotel-Casino in this case. He also indicated that in plaintiff's normal course of business it receives original counterchecks or markers such as those used in the transaction in question from the Hotel-Casino.
With respect to the method of collection, Mr. Ehrlich testified that the Hotel-Casino extends a reasonable time, which is defined as 90 days or more, for borrowers to repay their debts under the system. In addition, he noted that in the normal course of business, plaintiff receives copies of ledger cards from the Hotel-Casino which it uses pursuant to that system. Mr. Ehrlich also indicted that in September of 1977, he had a telephone conversation with defendant to discuss his failure to repay the $ 5,000 which he had borrowed. During the course of their telephone conversation, defendant told Mr. Ehrlich that he had problems paying the debt. Plaintiff's president testified:
He (Defendant) admitted that he had (signed) them, he knew what they (the markers) were, and his only problem was that he did have a personal problem where he was . . . tapped out or in bad financial problems. So, therefore, he asked us to be patient and he did want to pay this, go back out there. He had been there many other times, he really enjoyed it, he had good times out there and he wanted to pay this debt, get it over with so he could go back out there.
Mr. Ehrlich testified that he had agreed to wait for a short period of time for defendant to pay the debt, but that defendant never repayed it.
At trial, plaintiff introduced into evidence a ledger card describing defendant's loan transactions and his failure to repay them. Plaintiff also offered three counter-checks signed by defendant. The only other piece of documentary evidence introduced by plaintiff was the written assignment of the claim from Grand Resorts, Inc. to plaintiff corporation. Mr. Ehrlich testified that this assignment was executed by the Executive Vice-President of MGM Grand Resorts, Inc. All five of plaintiff's exhibits were admitted into evidence by the trial judge.
On April 30, 1982, the court filed its adjudication and entered a verdict in favor of plaintiff, National Recovery Systems and against defendant, Paul Nemchik, in the amount of $ 5,000. The court found that the Hotel-Casino had assigned its claim against defendant to plaintiff, National Recovery Systems, prior to the institution of suit in this matter. The court also found that plaintiff presented evidence of the existence of the debt by producing business records which were admitted into evidence pursuant to the Uniform Business Records as Evidence Act and the Uniform Photographic Copies of Business and Public Records as Evidence Act. Additionally, the court found that plaintiff had produced sufficient evidence of the existence of the debt through the oral testimony of Allyn Ehrlich concerning defendant's admission of the existence of the debt. On May 12, 1982, plaintiff filed exceptions to this adjudication. Plaintiff filed an additional exception on June 2, 1982.
Before reaching the merits of plaintiff's exceptions, we must deal with a procedural irregularity in this case. The Pennsylvania Rules of Civil Procedure provide that the decision of the court in a case heard without a jury shall be filed with the prothonotary, who shall notify all the parties or their attorneys of the date of filing: Pa.R.Civ.P. 1038. See also Pa. R.Civ.P. 236. Rule 1038 provides:
Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial period. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a nonsuit may be filed.
Pa.R.C.P. 1038(d). Thus, failure to file exceptions within ten days following the prothonotary's notice precludes the party from challenging the court's decision: Gibson v. Miller, 265 Pa.Super 597, 402 A.2d 1033 (1979); Blake v. Mayo Nursing and Convalescing Home, Inc., 245 Pa.Super 274, 369 A.2d 400 (1977); Frankel v. Reliance Mutual Life Insurance Co., 199 Pa.Super 295, 184 A.2d 305 (1962).
In the instant case, defendant filed an additional exception over 30 days after the court filed its adjudication and the office of judicial support sent its notice. At oral argument, defendant offered no explanation for its failure to comply with this procedural nicety. Therefore, defendant could be procedurally barred from challenging the court's adjudication with respect to this additional exception. Nevertheless, after having dealt with this technical irregularity, we reach the merits of all the exceptions filed by defendant in this case.
Defendant contends that the court failed to apply the correct legal principles in regard to whether or not the statute of limitations barred this claim. Indeed, Pennsylvania Statutes express a preference for barring foreign claims under the statute of limitations. See 42 Pa.C.S.A. § 5521 (1981) (Borrowing Statute). Pennsylvania's law with respect to foreign claims provides that: " The period of limitation applicable to a claim accruing outside this Commonwealth shall be that provided or prescribed by the law of this Commonwealth, whichever first bars the claim." Id. The application of this statute assumes that defendant has properly met the procedural requirements in his pleadings.
In the present case, defendant failed to plead the Pennsylvania Statute of Limitations as an affirmative defense in the action. This constitutes a waiver of that defense Pa.R.Civ.P. 1032. However, defendant asserted in his new matter that, " Defendant avers that he believes the Laws of the State of Nevada concerning limitation of action also bar Plaintiff's (sic) and MGM Grand Hotel from recovery." This statement is ambiguous at best. Despite the ambiguity, the court gave defendant the benefit of the doubt and treated this element of the new matter as a proper pleading of the Nevada Statute of Limitations. The applicable Statute of Limitations in Nevada bars all...
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