J-S05004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM F. BROBST, SR.,                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM F. BROBST, JR. AND ROXANNE
BROBST,

                            Appellants               No. 1212 MDA 2016


                  Appeal from the Order Entered June 23, 2016
                 In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 15-13571


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 21, 2017

        William F. Brobst, Jr. (“Brobst Jr.”) and his wife, Roxanne Brobst

(collectively “Defendants”) appeal from the June 22, 2016 order1 that

granted the motion for summary judgment filed by William F. Brobst, Sr.

(“Brobst Sr.” or “Plaintiff”) in his suit seeking ejectment of Defendants from

the entireties property Brobst Sr. solely owned after the death of his wife.

The order also denied Defendants’ counterclaims and in essence denied their

motion for partial summary judgment. We affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The order from which this appeal was taken is dated June 22, 2016, but
was entered on the docket on June 23, 2016.
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      Defendants filed this appeal raising the following three issues for our

review:

      A. Did the lower court err in finding the [e]ntireties [e]state was
      not extinguished?

      B. Did the lower court err and/or abuse its discretion by failing
      to   recognize    the   Defendants      were   seized    with    an
      [e]state/interest of some sort in the subject parcel regardless?

      C. Did the lower court err as a matter of law and/or abuse its
      discretion by failing to consider Defendants’ [a]ffirmative
      [d]efenses?

Defendants’ brief at 3.

      In reviewing an appeal from the grant of a motion for summary

judgment, we are guided by the following:

            “Our scope of review of a trial court's order granting or
      denying summary judgment is plenary, and our standard of
      review is clear: the trial court's order will be reversed only where
      it is established that the court committed an error of law or
      abused its discretion.” Universal Health Services, Inc. v.
      Pennsylvania Property and Casualty Insurance Guaranty
      Assoc., 884 A.2d 889, 892 (Pa. Super. 2005) (citation omitted).

            The entry of summary judgment is proper whenever
            no genuine issue of any material fact exists as to a
            necessary element of the cause of action.        The
            moving party's right to summary judgment must be
            clear and free from doubt. We examine the record,
            which consists of all pleadings, as well as any
            depositions, answers to interrogatories, admissions,
            affidavits, and expert reports, in a light most
            favorable to the non-moving party, and we resolve
            all doubts as to the existence of a genuine issue of
            material fact against the moving party.

      LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962
      A.2d 639, 647 (Pa. 2009) (citations omitted).

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J-S05004-17



Krapf v. St. Luke’s Hospital, 4 A.3d 642, 649 (Pa. Super. 2010), appeal

denied, 34 A.3d 831 (Pa. 2011).

        Moreover, our Supreme Court has stated:

               Rule 1035 also provides that “[w]hen a motion for
        summary judgment is made and supported as provided in this
        rule, an adverse party may not rest upon the mere allegations or
        denials of his pleading, but his response, by affidavits or as
        otherwise provided in this rule, must set forth specific facts
        showing that there is a genuine issue for trial. If he does not
        respond, summary judgment, if appropriate, shall be entered
        against him.” Pa.R.C.P. 1035(d) ([e]mphasis added). Therefore,
        where a motion for summary judgment has been made and
        properly supported, parties seeking to avoid the imposition of
        summary judgment must show by specific facts in their
        depositions, answers to interrogatories, admissions or affidavits
        that there is a genuine issue for trial. See Overly v. Kass, 382
        Pa. Super. 108, 554 A.2d 970 (1989), and Tom Morello
        Construction Co., Inc. v. Bridgeport Federal Savings and
        Loan Assn., 280 Pa. Super. 329, 421 A.2d 747 (1980).
Marks v. Tasman, 589 A.2d 205, 206 (Pa. 1991) (emphasis in original).2

        We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough 12-page opinion of the Honorable James M.

Lillis of the Court of Common Pleas of Berks County, dated September 19,

2016.      We conclude that Judge Lillis’s well-reasoned opinion properly

disposes of the issues presented by Defendants on appeal and we discern no

abuse of discretion or error of law.           Accordingly, we adopt Judge Lillis’s

opinion as our own and affirm the June 23, 2016 order on that basis.

        Order affirmed.
____________________________________________


2
 Rule 1035 was rescinded February 14, 1996, and replaced by Pa.R.C.P.
Nos. 1035.1—1035.5, which became effective July 1, 1996.



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J-S05004-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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