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.

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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,

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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.

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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

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9. Opinions and orders from below

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44.

45.

46.

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48

49

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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

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