Chestnut, D. v. Gardner, D. ( 2017 )

J-S41008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENNIS L. CHESTNUT, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DAVID A. GARDNER,
Appellee No. 262 MDA 2017
Appeal from the Order Entered January 26, 2017
in the Court of Common Pleas of Lycoming County
Civil Division at No.: 15-00569
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 31, 2017
Appellant, Dennis L. Chestnut, appeals from the trial court’s order
entering summary judgment in favor of Appellee, David R. Gardner. We
affirm.
We take the following relevant facts and procedural history from the
trial court’s January 26, 2017 opinion and our independent review of the
certified record. Appellant operates C & C Tree Service, a tree removal
business. He commenced this litigation by filing a writ of summons on
February 27, 2015. Appellant filed a complaint for negligence on September
1, 2015, claiming that he obtained liability insurance for his business
through Appellee, his insurance agent. The policy period ran from August
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*
Retired Senior Judge assigned to the Superior Court.
J-S41008-17
12, 2012 through August 12, 2013. Appellant averred that the insurance
was cancelled without notice to him and was no longer in effect as of March
2013, and that Appellee failed to procure substitute insurance. He sought
reimbursement for the amount he paid as a result of a loss that occurred on
August 18, 2013, and for his loss of business while he obtained replacement
insurance.
The parties conducted discovery, and Appellant was deposed on April
27, 2016. Appellee filed an answer to the complaint and new matter on
September 6, 2016. On December 12, 2016, Appellee filed a motion for
summary judgment and supporting brief, and Appellant filed an answer
thereto on January 12, 2017. The trial court held argument on the motion
on January 24, 2017. On January 26, 2017, the trial court entered an
opinion and order granting the motion for summary judgment.1 This timely
appeal followed.2
Appellant raises one issue for our review: “Whether the trial court
committed error by granting summary judgment without considering
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1
In its opinion, the court erroneously stated that Appellant did not file a
response to the motion for summary judgment. (See Trial Court Opinion,
1/26/17, at 2).
2
The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). In its Rule 1925(a)
opinion, filed on February 9, 2017, it referred this Court to its January 26,
2017 opinion for the reasons for its decision. See Pa.R.A.P. 1925(a).
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[Appellant’s] response to the motion and deciding causation as a matter of
law?” (Appellant’s Brief, at 4).
The overarching question of whether summary judgment is
appropriate is a question of law, and thus our standard of review
is de novo and the scope of review is plenary. Furthermore:
[i]n reviewing the grant of summary judgment,
the following principles apply. [S]ummary judgment
is appropriate only in those cases where the record
clearly demonstrates that there is no genuine issue
of material fact and that the moving party is entitled
to judgment as a matter of law. When considering a
motion for summary judgment, the trial court must
take all facts of record and reasonable inferences
therefrom in a light most favorable to the non-
moving party. In so doing, the trial court must
resolve all doubts as to the existence of a genuine
issue of material fact against the moving party, and,
thus, may only grant summary judgment where the
right to such judgment is clear and free from all
doubt. On appellate review, then, an appellate court
may reverse a grant of summary judgment if there
has been an error of law or an abuse of discretion.
But the issue as to whether there are no genuine
issues as to any material fact presents a question of
law, and therefore, on that question our standard of
review is de novo. This means we need not defer to
the determinations made by the lower tribunals. To
the extent that this Court must resolve a question of
law, we shall review the grant of summary judgment
in the context of the entire record.
Feleccia v. Lackawanna Coll., 156 A.3d 1200, 1208–09 (Pa. Super. 2017)
(citations and quotation marks omitted).
Instantly, Appellant argues that reversal of summary judgment is
necessary because the trial court failed to consider his January 12, 2017
response to Appellee’s motion for summary judgment. (See Appellant’s
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Brief, at 7-8, 10; see also Trial Ct. Op., at 2 (stating that Appellant did not
file a response to the summary judgment motion)). Consequently, he
maintains, the court failed to consider the entire record in rendering its
decision, and to recognize that factual issues for a jury to resolve exist.
(See Appellant’s Brief, at 7-8, 10). To support his argument, Appellant
relies on Greely v. W. Penn Power Co., 156 A.3d 276 (Pa. Super. 2017),
which he claims raises “exactly the situation present in the case at bar
[where] the trial court did not consider the entire record and did not view
the evidence in a light most favorable to the non-moving party.” (Id. at 10;
see id. at 9). We disagree.
In Greely, this Court reversed the trial court’s order granting
summary judgment in favor of the defendant utility company in a negligence
action arising from the electrocution death of Greely, a telecommunications
cable installer. See Greely, supra at 277. In that matter, the record
reflected that the trial court did not consider the expert report submitted by
the plaintiff, which opined that the defendant’s negligent actions were the
proximate cause of Greely’s death. See id. at 282-83. This Court explained
that, at the summary judgment stage, the trial court must defer to the
supported conclusions contained in expert reports submitted by the
nonmoving party. See id. at 283.
In contrast, the instant case does not involve the trial court’s alleged
disregard of a substantive expert report. Although the court mistakenly
stated in its opinion that Appellant did not submit a response to the motion
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for summary judgment, a review of that response reveals that it contained
nothing substantive. (See Response to Motion for Summary Judgment,
1/12/17, at unnumbered pages 1-2). Appellant did not raise any evidence
to counter the legal arguments set forth in the motion, and re-raised the
same allegations contained in the complaint regarding the failure to notify
him of the policy cancellation. (See id.). Furthermore, the record reflects
that, after Appellee filed the motion for summary judgment and Appellant
filed his response, the trial court held argument on the matter, giving the
parties the opportunity to develop their claims at that time. (See Trial Ct.
Op., at 1). Therefore, our holding in Greely in inapposite, and does not
mandate reversal in this matter. Upon review, we discern no error of law or
abuse of discretion in the trial court’s grant of summary judgment. See
Feleccia, supra at 1209.3 Accordingly, Appellant’s sole issue on appeal
does not merit relief.
Order affirmed.
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3
As noted above, Appellant seeks to recover for a loss that occurred after
the policy, under its original terms, would have expired. (See supra, at
*2). Hence, we agree with the trial court’s conclusion that Appellant was
responsible for knowing the terms of his policy and is barred from recovery.
(See Trial Ct. Op., at 2).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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