Sephakis, T. v. Sunnybrook Foundation

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS SEPHAKIS, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THE SUNNYBROOK FOUNDATION :
:
Appellant : No. 3704 EDA 2018
Appeal from the Order Entered November 16, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 13-30212
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 10, 2019
Appellant The Sunnybrook Foundation appeals from the order granting
the motion for summary judgment filed by Appellee Thomas Sephakis, Jr.
Appellant contends the trial court erred because (1) Appellee’s motion failed
to meet the standard required for summary judgment, (2) Appellee’s motion
failed to conform to Montgomery County local rules, (3) the trial court granted
summary judgment based on “no response” filed by Appellant, and (4) the
trial court failed to issue a rule to show cause. For the following reasons, we
affirm.
On July 16, 2007, Appellee lent Appellant $50,000 via a promissory
note, which required full repayment within one year. Ex. A to Appellee’s
Compl., 10/4/13. Appellant failed to timely repay, and Appellee filed a
complaint seeking judgment on the note. Appellant filed an answer and new
matter alleging, among other things, that (1) it did not approve the promissory
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note, (2) Appellee did not fulfill his obligations under the note, and (3) a lack
of consideration.
On June 16, 2017, Appellee served requests for admission on Appellant,
which did not respond. As a result, on August 11, 2017, Appellee filed a
motion to deem his requests for admissions as admitted. Appellant again did
not file a response, and on October 18, 2017, the trial court granted Appellee’s
motion.
Subsequently, on September 26, 2018, Appellee electronically filed a
motion for summary judgment. Appellee, however, did not file a certificate of
service.1 Appellee’s motion asserted that based on facts admitted by
Appellant, he was entitled to summary judgment. Appellant did not file a
response. On November 16, 2018, the trial court ordered as follows:
And now this 16th day of November, 2018, upon consideration of
[Appellant’s] motion for summary judgment, supporting brief, and
no response by [Appellant], it is hereby ordered and decreed that
[Appellee’s] motion is granted and the prothonotary is directed to
enter judgment in favor of [Appellee] and against [Appellant] in
the amount of $86,126.70.
Order, 11/16/18.
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1 We note that the trial court’s docket, which was not transmitted to this Court
as part of the certified record but was attached to Appellant’s notice of appeal,
reflects that counsel receives notice when a document is filed. See also
Order, 12/4/18, at 1 n.1 (stating, “the docket indicates that [Appellant’s]
attorney participates in the [trial] [c]ourt’s electronic filing program, so that
electronic service would have been automatically generated upon the filing of
the [motion for summary judgment]”).
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Appellant filed a motion for reconsideration on November 26, 2018,
which the trial court denied on December 4, 2018. Order, 12/4/18. Appellant
timely appealed from the trial court’s November 16, 2018 order and timely
filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises four questions on appeal, which we reordered as
follows:
[1.] Whether the trial court committed an error of law or abused
its discretion in granting Appellee’s Motion for Summary Judgment
since said motion failed to confirm to Pa.Mont.C.P. Local Rule
1035.2(1)(b)(4)?
[2.] Whether the trial court committed an error of law or abused
its discretion in granting Appellee’s Motion for Summary Judgment
since a rule to show cause was never issued by the court
establishing a date by which Appellant had to file a response to
said motion?
[3.] Whether the trial court committed an error of law or abused
its discretion in granting Appellee’s Motion for Summary Judgment
on the basis that there was “no response by [Appellee]” to said
motion?
[4.] Whether the trial court committed an error of law or abused
its discretion in granting Appellee’s Motion for Summary Judgment
since said motion failed to meet the standard required for
summary judgment?
Appellant’s Brief at 4.
We summarize Appellant’s first three arguments together. First,
Appellant argues that Appellee failed to conform to Montgomery County Local
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Rule 1035.2(1)(b)(4).2 Id. at 11. Specifically, Appellant asserts that under
that rule, Appellee was required to file a certificate of service stating that the
motion and associated documents were served on Appellant. Id. at 11-12.
Second, Appellant faults the trial court for not issuing a rule to show cause
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2 Montgomery County Local Rule of Civil Procedure 1035.2 states as follows:
(1) Filing. After the relevant pleadings are closed, and prior to
the filing of a trial Praecipe, but within such time as not to
unreasonably delay trial, any party may file a motion for summary
judgment:
(a) in accordance with Pa.R.C.P. 1035.2,
(b) along with:
* * *
(4) a certificate of service.
(2) Response. An answer to a motion for summary judgment is
required from the adverse parties:
(a) in accordance with Pa.R.C.P. 1035.3,
(b) within thirty (30) days of the service of the motion . . . .
Pa. Mont. Cty. R. Civ. P. 1035.2(a)(1)-(2). “If the brief of either party is not
timely filed, either in accordance with this Rule or by order of the Court,”
Montgomery County Local Rule 1035.2(a)(4) provides that the court may
“[g]rant the requested relief where the respondent has failed to comply . . . .
Nothing precludes the assigned Judge from dismissing the matter on its
merits.” Pa. Mont. Cty. R. Civ. P. 1035.2(a)(4); see also Pa.R.C.P. 1035.3(d)
(“Summary judgment may be entered against a party who does not respond”).
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under Montgomery County Local Rule 208.3(b)(2).3 Id. at 13-14. Appellant
reasons that the “trial court’s failure should not be held against Appellant.”
Id. at 14. By extension, Appellant argues that because it was not properly
served, the trial court should not have granted summary judgment on the
basis that Appellant did not file a response. Id. at 13. Third, Appellant
reasons that because Appellee failed to file a certificate of service, the trial
court should not fault Appellant for not filing a response. Id. at 13-14.
Our standard of review for summary judgment is well-settled:
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 a 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 view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be
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3 This rule states as follows:
(2) Listing. Excepting motions for sanctions or contempt of a
prior court order, the Court Administrator shall fix promptly a
return day which shall not be less than twenty (20) days from the
date of filing of said motion, and the moving party shall forthwith
serve the respondent with a copy of motion and the cover sheet
indicating the return day thereon. The moving party shall
thereafter file a certification that the motion and rule return date
were served upon all parties . . . .
Pa. Mont. Cty. R. Civ. P. 208.3(b)(2).
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resolved against the moving party. As our inquiry involves
solely questions of law, our review is de novo.
Thus, 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.
Jones v. Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007) (citations and
footnote omitted). “[T]o the extent that we are required to interpret a rule of
civil procedure, our standard of review is de novo, and our scope of review is
plenary.” Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity,
32 A.3d 800, 808 (Pa. Super. 2011) (citation and quotation marks omitted).
Initially, Pennsylvania Rule of Civil Procedure 126 states:
The rules shall be liberally construed to secure the just, speedy
and inexpensive determination of every action or proceeding to
which they are applicable. The court at every stage of any such
action or proceeding may disregard any error or defect of
procedure which does not affect the substantial rights of the
parties.
Pa.R.C.P. 126.
Pennsylvania Rule of Civil Procedure 208.1 states that the rules enacted
in Chapter Two do not apply to motions for summary judgment. Pa.R.C.P.
208.1(b)(1)(ii). Pennsylvania Rule 208.3(b) provides as follows, “(b) A court,
by local rule, numbered Local Rule 208.3(b), may impose requirements with
respect to motions listed in the rule for the filing of a response, a brief or
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both.” Pa.R.C.P. 208.3(b) (emphasis added). As quoted above, Montgomery
County enacted Local Rule 208.3(b)(2).
Instantly, there is no dispute that Appellee failed to file a certificate of
service. See Pa. Mont. Cty. R. Civ. P. 1035.2(a)(1)-(2). Appellant, however,
does not argue that it lacked actual notice of the motion for summary
judgment or that its substantial rights were affected by Appellee’s failure. See
Pa.R.C.P. 126. Accordingly, Appellant has not established entitlement to
relief. Cf. McCreesh v. City of Phila., 888 A.2d 664, 674 (Pa. 2005)
(holding, that “[n]either our cases nor our rules contemplate punishing a
plaintiff for technical missteps where he has satisfied the purpose of the
statute of limitations by supplying a defendant with actual notice” of the
lawsuit notwithstanding procedurally defective service). By extension,
Appellant’s derivative argument that the trial court erred by granting summary
judgment because it did not file a response lacks merit.
With respect to Appellant’s argument that the trial court failed to comply
with Local Rule 208.3(b)(2), Appellant is incorrect. As noted above, the rules
set forth in Chapter Two of the Pennsylvania Rules of Civil Procedure do not
apply to motions for summary judgment. See Pa.R.C.P. 208.3(b). Therefore,
the trial court properly held that it was not required to issue a rule returnable
under Local Rule 208.3(b)(2). See id.Appellant’s last argument is that the trial court should have denied
Appellee’s motion for summary judgment because Appellant identified
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material issues of fact in its answer to Appellee’s complaint. Appellant’s Brief
at 10. Appellant claims that Appellee’s requests for admissions did not
address its contentions that Appellant did not approve the promissory note
and Appellee “did not perform as required in order to collect on said note.”
Id.It is well-settled that summary judgment may be granted if a party does
not file a response in opposition. See Pa.R.C.P. 1035.3(d). Moreover, “the
adverse party may not rest upon the mere allegations or denials of the
pleadings but must file a response . . . .” Pa.R.C.P. 1035.3(a). Instantly,
Appellant failed to file a response, and therefore the trial court was entitled to
grant summary judgment. See Pa.R.C.P. 1035.3(d). Moreover, Appellant
failed to oppose Appellee’s motion to deem admitted Appellee’s requests for
admissions. Accordingly, the trial court granted Appellee’s motion because
Appellant admitted facts upon which summary judgment could be granted.
Furthermore, Appellant cannot rely on its denials to Appellee’s complaint in
opposing Appellee’s summary judgment motion. See Pa.R.C.P. 1035.3(a).
For these reasons, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/19
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