Lashinsky, J. v. Colombero, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN F. LASHINSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOAN F. COLOMBERO :
:
:
: No. 1511 MDA 2015
Appeal from the Order Entered July 7, 2015
in the Court of Common Pleas of Centre County Civil Division
at No(s): 2012-4113
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016
Appellant, John F. Lashinsky, appeals from the order entered in the
Centre County Court of Common Pleas granting Appellee’s, Joan F.
Colombero’s, motion for summary judgment. Appellant argues the trial
court erred in granting Appellee’s motion for summary judgment based
solely on his failure to respond to the motion within thirty days. We reverse
and remand for further proceedings.
The trial court summarized the procedural posture of this case as
follows:
On November 5, 2012, Appellant filed a Praecipe for
Writ of Summons. As a Complaint did not follow, the
[c]ourt held a conference in chambers on January 15,
*
Former Justice specially assigned to the Superior Court.
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2014. Based on an ongoing criminal action that involved
the parties, with [Appellant] being the defendant in the
criminal action, this case was continued to the [c]ourt’s
April 2014 Term of Court. On March 19, 2014, the [c]ourt
ordered [Appellant] to file a Complaint within 20 days.
[Appellant] filed a Complaint in Breach of Contract and
Unjust Enrichment on April 8, 2014, however, it was
verified by [Appellant’s] counsel and not [Appellant.]
[Appellee] filed Preliminary Objections on April 17, 2014,
objecting to the form of the verification attached to the
Complaint. On the same day, [Appellant’s] counsel filed a
Praecipe to Substitute Verification, attaching a verification
signed by [Appellant]. In its July 16, 2014 Opinion and
Order, the [c]ourt found the substitution of the proper
verification rendered [Appellee’s] Objections moot.
[Appellee] filed an Answer and New Matter on August 4,
2014. [Appellant] filed Preliminary Objections on August
6, 2014. On August 14, 2014, [Appellee] filed Preliminary
Objections in response to the Preliminary Objections filed
by [Appellant]. In its September 10, 2014, Opinion and
Order, the [c]ourt resolved the Preliminary Objections. On
November 19, 2014, by agreement of the parties, the
[c]ourt sent the case to arbitration. On February 27,
2015, [Appellant] filed a Notice of Appeal from Award of
Arbitrators, demanding a jury trial. [Appellee] filed an
Amended Answer to [Appellant’s] Complaint with New
Matter on March 20, 2015.
On March 27, 2015, [Appellee] filed a Motion for
Summary Judgment. [Appellant’s] counsel filed a Motion
for Leave to Withdraw Appearance on April 15, 2015,
alleging over two years of non-payment from [Appellant].
[Appellant’s] counsel’s motion was scheduled for hearing
on May 12, 2015, but was continued on the representation
of [Appellant’s] counsel that [Appellant] did not receive
notice of the hearing. The [c]ourt set both [Appellee’s1]
Motion for Summary Judgment and the Motion for Leave to
Withdraw Appearance for argument on May 22, 2015. On
May 18, 2014, [Appellant] filed a Motion to Continue
1
We note that the trial court states that it was Appellant’s motion for
summary judgment.
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Hearing for [Appellee’s] Motion for Summary Judgment,
requesting it be heard after a resolution of the Motion for
Leave to Withdraw Appearance. [Appellant’s] counsel did
not withdraw from representation of [Appellant], but
appeared at the June 23, 2015 Summary Judgment
argument to argue against entry of Summary Judgment.
Additionally, [Appellant’s] Opposition to [Appellee’s]
Motion for Summary Judgment and brief in support were
filed on June 24, 2015, a day after argument.
Trial Ct. Op., 7/8/15, at 1-3.
On July 8, 2015, the court granted Appellee’s motion for summary
judgment. On July 15, 2015, Appellant filed a motion for reconsideration
which was expressly granted on July 16, 2015. The motion was denied,
following oral argument, on August 27, 2015. This timely appeal followed on
September 1, 2015.2 Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.3 The trial court filed a
Pa.R.A.P. 1925(a) opinion incorporating its July 8th opinion.
2
The trial court expressly granted Appellant’s motion for reconsideration
within the thirty-day appeal period, thereby tolling the appeal period. See
Pa.R.A.P. 1701(b)(3) (stating: “Where a timely order of reconsideration is
entered under this paragraph, the time for filing a notice of appeal or
petition for review begins to run anew after the entry of the decision on
reconsideration, whether or not that decision amounts to a reaffirmation of
the prior determination of the trial court or other government unit”); Haines
v. Jones, 830 A.2d 579, 583 (Pa. Super. 2003). The trial court granted the
motion for summary judgment on July 8, 2015. The court expressly granted
reconsideration on July 16, 2015. Therefore, the instant appeal was timely.
See Jones, 830 A.2d at 583; Pa.R.A.P. 1701(b)(3).
3
Appellant raised the following issue in his Rule 1925(b) statement:
Under the circumstances of the case, [Appellant]
respectfully maintains that the [c]ourt erred in concluding
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Appellant raises the following issue for our review:
Under the relevant Rules of Civil Procedure and Local
Rules, did the trial court improperly grant summary
judgment for responding more than thirty days after the
non-moving party received service of a motion for
summary judgment, when the trial court failed to enter a
briefing and response scheduling order, thereby waiving
any response deadline under the Local Rules; when the
parties and trial court had authorized [Appellant] to take
additional time in responding to the motion; when the trial
court failed to identify, or attempt to identify, any
prejudice for the allegedly delayed response; and when the
failure to respond within thirty days was [Appellant’s] first,
if any, procedural error in the case?
Appellant’s Brief at 5.
Appellant contends the trial court erred in granting Appellee’s motion
for summary judgment solely based upon his failure to respond to the
motion within thirty days. Id. at 15. We agree.
Our review is governed by the following principles:
[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
that summary judgment in favor of [Appellee] was
appropriate solely because [Appellant] failed to file a
response to [Appellee’s] motion for summary judgment . .
. within thirty days of receipt thereof. . . .
Appellant’s Statement of Errors Complained of on Appeal, R.R. at 516a. For
convenience, we refer to the reproduced record where applicable.
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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.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citations and quotation marks omitted). “It is the nonmoving party’s
responsibility to demonstrate that a genuine issue of material fact exists,
‘[a] witnesses’ [sic] credibility is a determination for the jury and
necessarily creates a genuine issue of material fact.” Gruenwald v.
Advanced Computer Applications, Inc., 730 A.2d 1004, 1009 (Pa. Super.
1999) (citations omitted and emphasis added).
[W]e recognize that “the interpretation and application of a
Pennsylvania Rule of Civil Procedure presents a question of
law.” . . . [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.”
In addition, our interpretation of the Pennsylvania Rules
of Civil Procedure is guided by the principles contained in
Pa.R.C.P. 127, which provides as follows.
Rule 127. Construction of Rules. Intent of Supreme
Court Controls
(a) The object of all interpretation and construction
of rules is to ascertain and effectuate the intention of
the Supreme Court.
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(b) Every rule shall be construed, if possible, to give
effect to all its provisions. When the words of a rule
are clear and free from all ambiguity, the letter of it
is not to be disregarded under the pretext of
pursuing its spirit.
(c) When the words of a rule are not explicit, the
intention of the Supreme Court may be ascertained
by considering, among other matters (1) the
occasion and necessity for the rule; (2) the
circumstances under which it was promulgated; (3)
the mischief to be remedied; (4) the object to be
attained; (5) the prior practice, if any, including
other rules and Acts of Assembly upon the same or
similar subjects; (6) the consequences of a particular
interpretation; (7) the contemporaneous history of
the rule; and (8) the practice followed under the
rule.
Pa.R.C.P. 127[.] Furthermore, “a note to a rule or an
explanatory comment is not a part of the rule, but may be
used in construing the rule.”
Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d
800, 808-09 (Pa. Super. 2011) (some citations omitted).
Pennsylvania Rule of Civil Procedure 1035.3 provides:
(a) Except as provided in subdivision (e), the adverse
party may not rest upon the mere allegations or denials of
the pleadings but must file a response within thirty days
after service of the motion identifying
(1) one or more issues of fact arising from evidence in
the record controverting the evidence cited in support
of the motion or from a challenge to the credibility of
one or more witnesses testifying in support of the
motion, or
(2) evidence in the record establishing the facts
essential to the cause of action or defense which the
motion cites as not having been produced.
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* * *
(d) Summary judgment may be entered against a party
who does not respond.
Note: Procedural requirements with respect to argument
and briefs are governed by local rule.
In certain counties, the failure to respond to a motion may
result in the motion being deemed uncontested and the
entry of the judgment sought.
(e)(1) Nothing in this rule is intended to prohibit a court,
at any time prior to trial, from ruling upon a motion for
summary judgment without written responses or briefs if
no party is prejudiced. A party is prejudiced if he or she is
not given a full and fair opportunity to supplement the
record and to oppose the motion.
(2) A court granting a motion under subdivision (e)(1)
shall state the reasons for its decision in a written
opinion or on the record.
Pa.R.C.P. 1035.3(a)(1)-(2), (d)-(e)(1)-(2) (emphases added).
Pennsylvania Rule of Civil Procedure 126 provides:
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.
The Centre County Local Rules provide as follows.
All Motions for summary Judgment shall be filed in the
Prothonotary’s Office, which will then forward the Motion to
the Court Administrator’s Office. The Court Administrator’s
Office will assign the Motion to a Judge for disposition.
The assigned Judge will issue an Order setting forth a
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briefing schedule and a date for argument, if any. The
Prothonotary’s Office will notify all counsel of record and/or
unrepresented parties of the scheduling. In the event that
either or both parties wish to submit the matter on briefs
without oral argument, they shall communicate that wish
to the Court, in writing, prior to the Argument day.
However, briefs shall still be due on the days previously
indicated by the Court, unless continued in writing. Failure
to file a brief in a timely manner without written leave of
the Court may result in the Court determining the issues
raised in the Motion to be uncontroverted.
Centre County Local Rule of Civil Procedure * 1035.2 (emphasis added).
In Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001), this Court
opined:
Pa.R.C.P. 1035.3(d) permits a trial court to enter
judgment against a party who fails to respond to a
summary judgment motion. However, the rule is by no
means mandatory. Indeed, “[i]t is not meant to
abrogate the general rule that ‘when ruling on a motion, it
is within the discretion of the trial court to decide whether
briefs and/or oral argument are required or whether the
matter can be best disposed of from a review of the record
alone.’” Smitley v. Holiday Rambler Corp., 707 A.2d
520, 526 (Pa. Super. 1998) (citations omitted).
Id. at 177 (some emphasis added).
A hearing on the motion for summary judgment was held on June 23,
2015. At the conclusion of the hearing, the court stated: “Okay. I’ll take a
look at it and makes [sic] a decision. Thanks.” Mot. Summ. J. Hr’g N.T.,
6/23/15, at 19. In its opinion and order granting the motion for summary
judgment, the trial court opined:
Motions for summary judgment are governed by
Pa.R.C.P. 1035.1 et seq. Rule 1053.3 provides the
adverse party must file a response within thirty days after
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service of the summary judgment motion. In the instant
action, [Appellee] filed her motion for summary judgment
on March 27, 2015. [Appellant] filed his response on June
24, 2015, a day after the argument was held on the
motion. [Appellant’s] response was outside the thirty days
as required in Pa.R.C.P. 1035.3. Furthermore, the [c]ourt
finds [Appellant] was solely responsible for causing the
untimely response to the motion for summary judgment.
Accordingly, [Appellee’s] motion for Summary Judgment is
GRANTED.
R.R. at 306a (emphasis added).
In the complaint, Appellant averred that “[a]t Appellee’s request, [he]
began loaning money to [Appellee] in approximately April 2007.” R.R. at
10a. Appellant contended in the complaint that he loaned Appellee money
for her to return to school to obtain a recertification in architecture, hire an
attorney to collect back child support; purchase and maintain Appellee’s
automobile and provide daycare and personal items for Appellee’s minor
child. Id. at 11a. Appellant states that the parties “entered into an oral
agreement under which [Appellee] agreed to receive and repay a series of
loans from” Appellant. Id. at 12a. Appellant claims Appellee owes him
$28,000. Id. In her answer to the complaint, Appellee denied receiving any
loans from Appellant. Id. at 207a-08a.
Instantly, the trial court granted summary judgment based upon
Appellant’s late response to the motion for summary judgment. R.R. at
306a. The trial court held that Pa.R.C.P. 1035.3 “provides the adverse party
must file a response within thirty days after service of the summary
judgment motion.” Id. The trial court’s interpretation of Rule 1035.3 does
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not give effect to all of its provisions. See Barrick, 32 A.3d at 808 (citing
Pa.R.C.P. 127 (“Every rule shall be construed, if possible, to give effect to all
its provisions.”)). In the case sub judice, the trial court did not issue a
briefing schedule. See Centre County Local Rule of civil Procedure * 1035.2.
Even assuming the court had issued a briefing schedule, failure to timely file
a brief would not require that the motion be deemed uncontested. See id.
Although the trial court may grant a motion for summary judgment
without a written response if no one is prejudiced under Rule 1035.3(e)(1),
the court “shall state the reasons for its decision in a written opinion or on
the record.” Pa.R.C.P. 1035.3(e)(2) (emphasis added). In the instant case,
the trial court failed to state its reasons either on the record or in its opinion.
See R.R. at 303a; N.T. at 19. We find that the court erred as a matter of
law in its interpretation of Rule 1035.3. See Barrick, 32 A.3d at 808-09;
Elash, 781 A.2d at 177.
Furthermore, in the complaint, Appellant contended, inter alia, there
was an oral contract for the return of the money he loaned Appellee. R.R. at
12a. Appellee denied receiving any loans from Appellant. R.R. at 91a.
Instantly, there is an issue of credibility, which is for the jury to determine.
Thus, there is a genuine issue of material fact. See Gruenwald, 730 A.2d
at 1009. We find the trial court erred as a matter of law in granting the
motion for summary judgment. See id.; Summers, 997 A.2d at 1159.
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For all of the foregoing reasons, we reverse the order of the trial court
and remand for further proceedings consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2016
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