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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


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




____________________________________________


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

____________________________________________


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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