Shahid, A. v. T.D. Bank N.A.

• Court: Superior Court of Pennsylvania
• Decided: April 30, 2024
• Docket: 1645 EDA 2023
• Status: Unpublished

Opinion

J-A28019-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

ABDUS SHAHID : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : T.D. BANK N.A. : No. 1645 EDA 2023

Appeal from the Order Entered June 8, 2023 In the Court of Common Pleas of Delaware County Civil Division at No: CV-2021-008020

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED APRIL 30, 2024

Appellant, Abdus Shahid, appeals from an order sustaining the

preliminary objections of Appellee, T.D. Bank N.A., to Appellant’s complaint

and dismissing the complaint with prejudice. Appellant alleged in his

complaint that Appellee violated his civil rights by, inter alia, confessing

judgment against him in 2021. We conclude that the court properly sustained

Appellee’s preliminary objections, and we affirm.

A brief review of Appellee’s underlying action for confession of judgment

is necessary to place the present case in appropriate context.1 Appellant is

the owner of a warehouse in Darby, Pennsylvania, and Appellee is the

mortgage holder for the warehouse. On March 16, 2021, Appellee filed a

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* Retired Senior Judge assigned to the Superior Court.

1 This Court may take judicial notice of other proceedings involving the same

parties. Hvizdak v. Linn, 190 A.3d 1213, 1218 n.1 (Pa. Super. 2018). J-A28019-23

complaint at CV-2021-2739 in the Court of Common Pleas of Delaware County

(“trial court”) demanding confession of judgment against Appellant and his

wife for failure to make timely mortgage payments. The complaint requested

judgment in the amount of $230,094.28 plus interest from January 1, 2021

at the per diem rate of $38.80 plus costs. On March 19, 2021, the trial court

entered judgment in favor of Appellee and against Appellant and his wife for

the full amount demanded. Appellant and his wife never filed a petition to

open or strike a confessed judgment. Instead, on March 31, 2021, Appellant

and his wife filed an answer to the complaint averring that they made all

payments on their mortgage up to and including their payment for March

2021. Appellant and his wife also asserted a counterclaim against TD Bank

for $40,000,000.00 for allegedly filing a false mortgage case against them.

The counterclaim alleged that Appellee should have given Appellant and his

wife a forbearance during the pandemic instead of filing a complaint against

them. Appellant and his wife filed three motions for summary judgment, all

of which the trial court denied. The order denying the third motion for

summary judgment, entered on May 26, 2023, stated that the motion was

denied because judgment already had been entered in favor of Appellee on

March 19, 2021. Appellant appealed to this Court, which dismissed the appeal

on December 12, 2023, on the ground that Appellant could not request

summary judgment in an action where judgment already had been entered

by confession of judgment. See T.D. Bank v. Shahid, 1643 EDA 2023 (Pa.

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Super., Dec. 12, 2023). Following our dismissal of that appeal, there have

been no further proceedings in the confession of judgment action.

With respect to the instant proceedings, on September 23, 2021,

Appellant commenced this action2 by filing a pro se complaint against Appellee

in the trial court. The complaint is not worded artfully, but it appears to claim

that Appellee violated or conspired to violate Appellant’s civil rights by

confessing judgment against Appellant at CV-2021-2739, shutting off

electricity to the warehouse and removing tenants from the warehouse. On

January 6, 2022, Appellee removed Appellant’s action to the United States

District Court for the Eastern District of Pennsylvania. On February 15, 2022,

the district court ordered the case remanded back to the trial court.

No further docket activity took place until December 27, 2022, when

Appellant filed a pro se motion to set a trial date in 2023. On February 10,

2023, Appellee filed preliminary objections to the complaint asserting (1) the

doctrines of res judicata and collateral estoppel barred Appellant’s action due

to the judgment entered in Appellee’s favor in the confession of judgment

action, (2) Appellant failed to state a cause of action for violation of his civil

rights or conspiracy to violate his civil rights, and (3) to the extent the

complaint alleged abuse of process or wrongful use of civil proceedings, the

complaint failed to state a cause of action for these claims.

2 Appellant’s wife did not join in this action as a party.

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Appellant filed a timely response in opposition to the preliminary

objections. On June 8, 2023, the trial court entered an order sustaining

Appellee’s preliminary objection and dismissing the complaint with prejudice.

Appellant filed a timely appeal to this Court. Without directing Appellant to

file a Pa.R.A.P. 1925 statement of matters complained of on appeal, the trial

court filed an opinion in support of its order of dismissal.

Appellant’s pro se brief in this Court includes a series of allegations that

Appellee conspired with local governmental officials to shut off the electricity

in Appellant’s warehouse and to enter judgment against him, even though he

was fully current on his mortgage payments.

We have fully reviewed the record, the applicable law, the parties’ briefs

and the trial court opinion. We conclude that the trial court properly dismissed

the complaint on the basis of res judicata and collateral estoppel. Opinion,

8/9/23, at 7-8 (res judicata and collateral estoppel bar complaint because

Appellant failed to file petition to strike or open judgment by confession and

instead filed complaint in attempt to mount collateral attack on the

judgment).3 We also conclude the trial court correctly dismissed Appellant’s

action on two other bases as well.

3 Because res judicata and collateral estoppel are affirmative defenses, Appellee erred by raising these defenses in its preliminary objections to the complaint. Pa.R.Civ.P. 1030. Appellant, however, waived Appellant’s error by failing to file preliminary objections to Appellee’s preliminary objections to Appellee’s use of res judicata and collateral estoppel. Richmond v. McHale, 35 A.3d 779, 782-83 (Pa. Super. 2012).

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The trial court held that Appellant’s allegations that Appellee improperly

entered judgment fails to state a cause of action for any civil rights violation,

since the mere entry of judgment by confession does not transform a private

actor such as Appellee into a state actor. Opinion at 8-9; see also Jordan v.

Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1266 (3d Cir. 1994).

We agree. Nor does the complaint allege any plausible civil rights violation on

the basis of race or religion.

The trial court also correctly held that Appellant’s claims that Appellee

conspired to shut off Appellant’s electricity and remove tenants from

Appellant’s warehouse failed to state a cause of action, because (1) Appellant

previously raised these claims or similar claims in multiple state and federal

actions, (2) both the trial court and the federal courts rejected these or similar

claims and have entered orders limiting Appellant’s right to make such

allegations, and (3) in any event, these claims failed for lack of specificity.

Opinion at 9-12.

Although not addressed by the trial court, Appellee also argues that

Appellant fails to state a cause of action for abuse of process or wrongful use

of civil proceedings. Our review of the complaint does not indicate any

attempt by Appellant to raise these claims.

For these reasons, we affirm the order of dismissal and direct that a

copy of the trial court’s August 9, 2023 opinion be filed along with this

memorandum.

Order affirmed.

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Date: 4/30/2024

-6- Circulated 03/27/2024 12:58 PM