J. A12042/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

E.B. SUSAN BARTON, BRENT L.               :     IN THE SUPERIOR COURT OF
BARTON, AND TRACEE R. BARTON              :           PENNSYLVANIA
                                          :
                   v.                     :
                                          :
RONALD L. GRAHAM AND                      :
MICHAEL D. GRAHAM,                        :         No. 1704 WDA 2018
                                          :
                        Appellants        :


              Appeal from the Order Entered November 2, 2018,
             in the Court of Common Pleas of Armstrong County
                       Civil Division at No. 2017-00796


BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 26, 2020

      Ronald L. Graham and Michael D. Graham (collectively, “the Grahams”)

appeal from the November 2, 2018 order entered by the Court of Common

Pleas of Armstrong County granting the motion for summary judgment filed

by E.B. Susan Barton, Brent L. Barton, and Tracee R. Barton (collectively,

“the Bartons”).1 After careful review, we affirm.

      The trial court set forth the following factual history:

            The Bartons are the successor lessors to an
            “Oil Lease” executed between their predecessors,

1 The trial court notes that E.B. Susan Barton “was the sole owner of the
Property at the time the complaint was filed. Since that filing, she has
conveyed the Property to [] Brent L. and Tracee R. Barton.” (Trial court
memorandum, 11/2/18 at 1 n.1.) The trial court defines “the Property” as
“approximately 100 acres situate[d] in Sugarcreek Township, Armstrong
County, Pennsylvania.” (Id. at 1.)
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          Robert F. Mellish and Grace A. Mellish, and Edward B.
          Boyle and Company on September 30, 1964 (the
          “Lease”). Despite being executed in 1964, the Lease
          was not recorded with the Armstrong County Recorder
          of Deeds until February 7, 2011. By virtue of certain
          assignments, the Grahams are the current successor
          lessees of seven-eighths (7/8) interest in the
          Lease.[Footnote 2] The Lease provides for a primary
          term of fifteen (15) years, “and so long thereafter as
          oil or gas can be produced in paying quantities.” The
          Lease goes on to provide that “[i]t is agreed, [t]hat if
          gas is found in paying quantities, the consideration in
          full to the party of the first part for each gas well shall
          be one-eighth (1/8th) royalty per annum for the gas
          from each gas well when utilized off the aforesaid
          premises.”      After the typewritten insertion of a
          “one-eighth (1/8th[])” royalty, the fixed amount
          payment designation of “DOLLARS” is crossed out.
          Typewritten at the end of the first page of the Lease
          is a rental provision providing that “[t]he party of the
          second party [sic] agrees to pay a rental of [f]ifty four
          ($54.00) dollars yearly until drilling operations are
          begun” (the “Delay Rental”).

                [Footnote 2] A third owner of the working
                oil and gas interests underlying the
                Property, Anna Marie Knoll, executed a
                release    of   lease    in   May    2017,
                relinquishing    her    one-eighth   (1/8)
                interest. Although the Grahams appear to
                contest the Bartons’ determination of the
                ownership of the working interests in the
                oil and gas underlying the Property, those
                determinations [were] not material to the
                [trial court’s] disposition of the instant
                motion for summary judgment; nor have
                the Grahams[] presented to the [trial
                court] any suggested additional or
                alternative owners of these interests.

          A single gas well has been drilled pursuant to the
          Lease, presumably during the time when the Mellishes
          owned the Property (the “Mellish Well”).         The
          Mellish Well at one time produced gas, but has not


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            produced any gas since June 1993. It currently is
            disconnected from any tanks or commercial
            distribution systems for the sale of gas, and is
            overgrown and surrounded by trees, brush, and
            saplings. The Grahams have not paid to the Bartons
            any royalty payments, but instead have tendered
            rental payments of $54.00 per year for the past
            several years.    The Bartons have rejected these
            payments and have not cashed any of the checks.

            In February 2017, counsel for the Bartons sent letters
            by certified mail to both Grahams advising them that
            the Lease had expired 1) because of the lack of
            production, and 2) because the Bartons, specifically
            their predecessor the Barton Equity Partnership, had
            purchased the Property in good faith and for value in
            1999. Because the Lease was not recorded until
            2011, the Bartons advised that the Partnership was a
            bona fide purchaser for value without record notice of
            the Lease which, therefore, cannot encumber the
            Property. The Bartons requested that the Grahams
            execute releases of their interest in the Lease, but
            [the Grahams] have refused to do so.

            The Bartons filed a complaint in ejectment on May 31,
            2017, in which they include counts for ejectment and
            “good faith purchaser for value.” They [sought]
            declarations by [the trial court] that the Lease has
            expired and that the Grahams have no remaining
            interest in the oil and gas underlying the Property.

Trial court memorandum, 11/2/18 at 2-4.

      The Bartons filed a motion for summary judgment on June 15, 2018.

After hearing argument, the trial court entered an order granting the Bartons’

motion for summary judgment on November 2, 2018.           On November 13,

2018, the Grahams filed a motion for reconsideration. The trial court denied

the Grahams’ motion on November 27, 2018.




                                    -3-
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      The Grahams filed a timely notice of appeal to this court on

November 30, 2018. The trial court ordered the Grahams to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and the Grahams timely complied. The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on January 4, 2019.

      Preliminarily, we note that the Pennsylvania Rules of Appellate

Procedure include requirements for the content of briefs filed with this court.

See generally Pa.R.A.P. 2111(a). Here, the Grahams’ brief fails to include a

statement of jurisdiction, a summary of the argument, a copy of the trial

court’s Rule 1925(a) opinion, and a copy of the Grahams’ Rule 1925(b)

statement of errors complained of on appeal. See Pa.R.A.P. 2111(a)(1), (6),

(b), and (d).   Additionally, the structure of the Grahams’ brief is not in

compliance with Rule 2111(a).     Further, the Grahams failed to divide the

argument section of their brief into as many parts as there are questions to

be answered, pursuant to Pa.R.A.P. 2119(a).

      We have the authority to dismiss appeals for failing to comply with the

Rules of Appellate Procedure and will do so in cases where such a failure

hinders our ability to conduct meaningful appellate review. Kern v. Kern,

892 A.2d 1, 5-6 (Pa.Super. 2005) (citation omitted), appeal denied, 903

A.2d 1234 (Pa. 2006); see also PHH Mortg. Corp. v. Powell, 100 A.3d 611,

615 (Pa.Super. 2014), citing Pa.R.A.P. 2101 (requiring that briefs conform

with all material aspects of the relevant Rules of Appellate Procedure and



                                     -4-
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granting appellate courts the power to quash or dismiss appeals in cases

where defects in the brief are substantial).    Here, because our ability to

conduct meaningful appellate review has not been hindered despite the

Grahams’ multiple violations of the Rules of Appellate Procedure, we shall

reach a decision on the merits.

     The Grahams allege the following trial court errors:

           The trial court has erred in granting summary
           judgment to [the Bartons]. In doing so, the trial court
           has erred in both fact-finding and application of the
           laws of the Commonwealth of Pennsylvania. First, the
           trial court erred in granting summary judgment while
           material and relevant discovery was still pending.
           Second, the trial court erred in finding that no genuine
           issue of material fact existed in this matter.

           The trial court further erred in finding that the lease
           at issue was a royalty-based lease, and not a
           rental-based lease or hybrid lease. In doing so, the
           trial court erred in finding that the lease was
           terminated    or    was    subject    to   termination.
           Additionally, the [trial] court abused its discretion
           and/or misapplied the law in applying its standard of
           review and in its review of the facts in determining
           summary judgment.

Grahams’ brief at 6-7.

     Based on our review of the Grahams’ brief, we summarize the Grahams’

complaints as follows:

     I.    Whether the trial court improperly assigned the burden of

           proof to the Grahams?




                                    -5-
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      II.     Whether the trial court erred in granting summary judgment

              while discovery was still ongoing and when a genuine issue

              of material fact existed?

      III.    Whether the trial court committed an error of law because

              an oil and gas lease term can be extended when the lessee

              exercised good faith in attempting to extract and produce

              natural gas from a well?2


      When reviewing an order granting or denying a motion for summary

judgment, we are governed by the following standard of review:

              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 resolved
              against the moving party. Only where is no genuine
              issue of material fact and it is clear that the moving
              party is entitled to a judgment as a matter of law will
              summary judgment be entered. 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

2 The table of contents in the Grahams’ brief contains the following point
headings:

             [▪] The [trial] court erred in granting summary
                 judgment during ongoing discovery.
             [▪] A genuine issue of material fact exists.
             [▪] The lease has not terminated by operation of law.
             [▪] An oil and natural gas lease does not expire and is
                 not forfeited.
             [▪] The trial court improperly relied upon the Hite
                 case.
             [▪] The trial court misapplied the standard of review.

Grahams’ brief at ii (full capitalization omitted).


                                          -6-
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           where it is established that the court committed an
           error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012), quoting

Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001) (citations omitted).

                                     I.

     First, the Grahams aver that the trial court, in granting the Bartons’

motion for summary judgment, improperly placed the burden of proof on the

Grahams. (Grahams’ brief at 26-28.) Specifically, the Grahams argue that

the trial court misapplied our supreme court’s holding in            Ertel v.

Patriot-News Co., 674 A.2d 1038 (Pa. 1996), cert. denied, 519 U.S. 1008

(1996). (Grahams’ brief at 27.) The Grahams further argue that because

they had no burden to meet in this case, they were “prejudiced by a

requirement to produce evidence to disprove elements of the case in summary

judgment.” (Id.)

     The Ertel court held that,

           a non-moving party must adduce sufficient evidence
           on an issue essential to his case and on which he bears
           the burden of proof such that a jury could return a
           verdict in his favor. Failure to adduce this evidence
           establishes that there is no genuine issue of material
           fact and the moving party is entitled to judgment as a
           matter of law.

Ertel, 674 A.2d at 1042, quoted by trial court memorandum, 11/2/18 at 4-5.

     The plain language of our Rules of Civil Procedure, however, belies the

Grahams’ argument.     Indeed, Rule of Civil Procedure 1035.3 explicitly

prohibits a non-moving party from resting upon the mere denials of the


                                    -7-
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pleadings; further, Rule 1035.3 requires a non-moving party to file a response

to a motion for summary judgment in which the non-moving party identifies

“evidence in the record establishing the facts essential to the [] defense

which      the    motion     cites    as         not   having   been      produced.”

Pa.R.Civ.P. 1035.3(a)(2) (emphasis added). See also Am. S. Ins. Co. v.

Halbert, 203 A.3d 223, 227 (Pa.Super. 2019) (reiterating that a non-moving

party may not rely upon mere denials of the pleadings).

        Accordingly, the trial court did not improperly assign the burden of proof

to the Bartons.

                                           II.

        Next, the Grahams argue that the trial court erred in granting summary

judgment in favor of the Bartons after concluding, as a matter of law, that the

Lease terminated by operation of law. (Grahams’ brief at 12.) The Grahams

further argue that an oil and gas lease does not expire and is not forfeited

when the lessee acts in good faith to extract and produce the oil and gas, and

that the trial court improperly relied upon our decision in Hite v. Falcon

Partners, 13 A.3d 942 (Pa.Super. 2011). (Grahams’ brief at 22-25.)

        As explained by this court:

              “A lease is in the nature of a contract and is controlled
              by principles of contract law.” T.W. Phillips Gas &
              Oil Co. v. Jedlicka, [] 42 A.3d 261, 267 ([Pa.] 2012)
              (“Jedlicka”). As such, a lease must be construed in
              accordance with the terms of the lease agreement as
              manifestly expressed, and “[t]he accepted and plain
              meaning of the language used, rather than the silent
              intentions of the contracting parties, determines the


                                        -8-
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            construction to be given the agreement.” Id. (quoting
            J.K. Willison v. Consol. Coal Co., [] 637 A.2d 979,
            982 ([Pa.] 1994)). The party seeking to terminate the
            lease bears the burden of proof. Jedlicka, 42 A.3d at
            267.

Heasley v. KSM Energy, Inc., 52 A.3d 341, 344 (Pa.Super. 2012).

      At this juncture, we shall set forth the relevant language contained in

the Lease at issue. The record reflects that the Lease provides a primary term

of 15 years “and so long thereafter as oil or gas can be produced in paying

quantities.” (Trial court memorandum, 11/2/18 at 2; Complaint, Exhibit 5;

R.R. at 34a.) The Lease further provides for royalty payments when gas is

found in paying quantities. (Id.) The Lease also requires the lessee to pay a

rental of $54 per year “until drilling operations are begun.” (Id. at 2-3.)

      As this court further explained:

                  Within the oil and gas industry, oil and gas
                  leases generally contain several key
                  provisions, including the granting clause,
                  which initially conveys to the lessee the
                  right to drill for and produce oil or gas
                  from the property; the habendum clause,
                  which is used to fix the ultimate duration
                  of the lease; the royalty clause; and the
                  terms of surrender. . . .

                  ***

                  Typically, . . . the habendum clause in an
                  oil and gas lease provides that a lease will
                  remain in effect for as long as oil or gas is
                  produced       “in    paying    quantities.”
                  Traditionally, use of the term “in paying
                  quantities” in a habendum clause of an oil
                  or gas lease was regarded as for the
                  benefit of the lessee, as a lessee would


                                      -9-
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                not want to be obligated to pay rent for
                premises which have ceased to be
                productive, or for which the operating
                expenses exceed the income.        More
                recently, however, and as demonstrated
                by the instant case, these clauses are
                relied on by landowners to terminate a
                lease.

          [Jedlicka, 42 A.3d] at 267-268.

          Our Supreme Court has long held that “[w]here a
          lessor’s compensation is subject to the volume of
          production, the period of active production of oil or
          gas is the measure of the duration of the lease.”
          Clark v. Wright, [] 166 A. 775, 776 ([Pa.] 1933). By
          contrast,

                [w]here [a] lessor’s compensation is a
                definite and fixed amount unrelated to the
                volume of production, the duration of the
                lease is not measured by the length of
                time the mineral is actually extracted and
                marketed; but by the time during which
                the lease provides that the lessor shall
                receive the fixed rental. Under these
                latter circumstances, it can make no
                difference to lessor whether 100 or
                1,000,000 cubic feet of gas is produced.

          Id.

                Two       leading      cases      in     this
                [Commonwealth] illustrate these rules.
                [1] In Cassell v. Crothers, [44 A. 446
                ([Pa.]     1899)],    the    clause   under
                consideration reads: “as long thereafter
                as oil or gas is found in the land described
                in paying quantities.” The remuneration
                which the lessor was to obtain for the use
                of his land was on a royalty basis and not
                on a flat rental basis. . . . [The Supreme
                Court held] that in an oil lease for a fixed
                period and “as long thereafter as oil is


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               found in paying quantities,” where the
               lessor’s compensation is one-eighth of the
               oil produced, the tenancy as to the
               surface of the land, after the expiration of
               the fixed period, and after the fact that oil
               is not being found and produced in paying
               quantities becomes susceptible of proof,
               is a tenancy in the nature of a tenancy at
               will, and if not actually terminated by
               mutual consent, or continued by mutual
               consent in order that further exploration
               be made, may be terminated by either
               party.” . . .

               [2] The other case . . ., and typical of the
               second rule as to compensation, is that of
               Summerville v. Apollo Gas Co., [56 A.
               867 ([Pa.] 1904)], wherein, under the
               terms of the lease, the lessee had the
               right to hold the premises “for and during
               the term of two years . . . and as much
               longer as oil and gas are found in paying
               quantities, or the hereinafter described
               rental is paid.”      The lessee failed to
               market any gas during the extended
               period, but retained it in the well,
               although the evidence indicated the well
               would produce one million feet per day.
               The lower court instructed the jury to
               bring in a verdict for the defendant on the
               ground that gas was found in paying
               quantities. [The Pennsylvania Supreme]
               court affirmed the judgment below, and in
               its opinion stated that it may be that for
               sometime the lessee was not able to find
               a purchaser for the gas, “but that was not
               the affair of the lessors; that they are not
               interested in the proceeds of the sale of
               the gas. Their rights under the agreement
               extended only to the receipt of a
               stipulated annual rental for each well.”
               (Numerals in brackets supplied).




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            [T.W. Phillips Gas and Oil Co. v. Komar, 227 A.2d
            163, 165 (Pa. 1967)] (emphasis and some internal
            quotation marks omitted) (quoting Clark v. Wright,
            [] 166 A. 775, 776 ([Pa.] 1933).

Heasley, 52 A.3d at 344-345.

      The Grahams argue that the Lease at issue is a Summerville lease,

meaning that the

            production of natural gas pursuant to this [L]ease is
            not tied to the royalty received by [the Bartons], and
            as a result, the objective production of the
            [Mellish W]ell is irrelevant to the determination of the
            validity of the [L]ease. The [L]ease at issue in this
            case does not and cannot be terminated and
            transformed into a tenancy at will by a lack of, or lapse
            in, production of oil and gas.

Grahams’ brief at 17, citing McCausland v. Wagner, 78 A.3d 1093, 1101

(Pa.Super. 2013).     The Bartons, however, contend that the Lease is a

royalty-based lease, and that the continued “payment of delay rentals alone,

after the expiration of the primary term, and after a once-productive well has

been drilled, is inapplicable to continuation of the leasehold.” (Bartons’ brief

at 19.)

      Here, the Grahams admit that the Mellish Well3 is currently disconnected

from any tanks and commercial distribution systems for the sale of oil and/or

gas and that the well last produced gas on June 26, 1993. (Grahams’ response

to Bartons’ request for admissions at ¶ 6, Grahams’ responses to Bartons’


3The Mellish Well is the only well that exists on the Property; and no oil and/or
gas has been sold from the Mellish Well in excess of six years. (Grahams’
response to Bartons’ request for admissions at ¶¶ 1, 3, 5; R.R. at 92a-93a.)


                                     - 12 -
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interrogatories at ¶ 4; R.R. at 93a, 95a.) The record further reflects that the

Grahams admit to paying only delay rental payments for the Mellish Well over

the past six years. (Grahams’ response to Bartons’ request for admissions at

¶ 9; R.R. at 94a.)   The Bartons aver that they have not accepted and/or

cashed any checks for delay rental payments; and the Grahams admit that

the Bartons have not cashed any checks tendered by the Grahams.

(Complaint at ¶ 44, R.R. at 9a; answer and new matter at ¶ 44, R.R. at 71a.)

      The trial court, relying in part on our decision in Hite, concluded that

the Lease expired “by its own terms” and that the Bartons were entitled to

summary judgment. (Trial court memorandum, 11/2/18 at 13-14.) We find

that Hite controls here. In Hite, the parties executed oil and gas leases in

2002 and 2003 that granted the lessee the right to enter the property for the

purposes of oil and gas production for the term of one year and,

            as long thereafter as oil or gas or either of them is
            produced from the property, or as operations continue
            for the production of oil or gas, or as lessee shall
            continue to pay lessors two ($2.00) dollars per acre
            as delayed rentals, or until all oil and gas has been
            removed from the property, which ever shall last
            occur.

Hite, 13 A.3d at 944 (citation and extraneous capitalization omitted). As of

2008, the lessee failed to commence any drilling operations on the property

and the lessors sent notice declaring termination of the leases as the result of

lessee’s inaction. Id. The trial court granted the lessors’ motion for summary

judgment.   This court affirmed the trial court’s order, holding that once a



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primary lease term expires, the “mere payment of delay rentals alone” does

not preserve a lessee’s drilling rights. Id. at 948. This court further stated

that even if a party were to accept delay rental payments after the expiration

of the primary term as implied extensions of the lease, such extensions cease

when a party refuses to accept further delay rental payments. Id. at 949 n.8.

      Nevertheless, the Grahams contend that the trial court improperly relied

upon the holding in Hite, relying on an unpublished decision from the

United States Court of Appeals for the Third Circuit, Smith v. Steckman

Ridge, LP, 590 Fed. Appx. 189 (3d Cir. 2014), in which the Third Circuit

applied Pennsylvania law.4   In Smith, the Third Circuit found Hite to “not

apply to leases where the [lessee] acts in good faith, extracts reserves during

the primary term of the lease, and does not attempt to indefinitely preserve

extraction rights without compensating the lessor for the dormant reserves in

accord with habendum and shut-in clauses.” Id. at 199, citing Hite, 13 A.3d

at 948-950.

      The Grahams’ reliance on Smith is misplaced. In Smith, the parties

executed a dual-purpose lease for the extraction and storage of gas for a

primary term of five years. Id. at 191. Unlike the Lease in the instant case,

the lease in Smith contained provisions pertaining to the conversion of the


4The Grahams acknowledge, and we note, that Smith is not binding authority
on this court, although it may be used for persuasive value. (See Grahams’
brief at 25 n.3; Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d
947, 952 (Pa.Super. 2000), appeal denied, 795 A.2d 970 (Pa. 2000), citing
Martin v. Hale Products, Inc., 699 A.2d 1283, 1287 (Pa.Super. 1997).)


                                    - 14 -
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lease from gas production to gas storage. Id. The Third Circuit specifically

noted that Hite “did not address what effect a dual purpose lease or a shut-in

clause would have upon a delay rental payments clause.” Id. at 199.

      Based on our review of the record, we find that the trial court neither

abused its discretion nor erred as a matter of law when it granted the Bartons’

motion for summary judgment. Indeed, pursuant to the Lease terms and this

court’s holding in Hite, the primary term in the Lease ended when production

ceased and the Bartons refused the Grahams’ delay rental payments. Hite,

13 A.3d at 949 n.8.

                                     III.

      Finally, the Grahams contend that the trial court erred by granting

summary judgment while discovery was still ongoing. (Grahams’ brief at 7.)

Specifically, the Grahams argue that discovery responses from the Bartons—

in the form of two sets of requests for production of documents—were still

outstanding at the time the Bartons presented their motion for summary

judgment. (Id.) The Grahams further aver that the trial court overlooked a

genuine issue of material fact. (Id. at 10.)

            In Pennsylvania, “parties must be given
            reasonable time to complete discovery before a
            trial court entertains any motion for summary
            judgment[.]”   Reeves v. Middletown Athletic
            Ass’n, 866 A.2d 1115, 1124 (Pa.Super. 2004)
            (emphasis added).

            ....




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           We, nevertheless, recognized that “the party seeking
           discovery is under an obligation to seek discovery in a
           timely fashion.” [Id.]; see Fort Cherry School Dist.
           v. Gedman, 894 A.2d 135, 140 (Pa.Super. 2006)
           (reasoning “[t]he Pennsylvania Rules of Civil
           Procedure do not give [parties] an unlimited amount
           of time to conduct discovery”). However, this Court
           has unequivocally stated that the purpose of Rule
           1035.2 “is to eliminate cases prior to trial where a
           party cannot make out a claim or defense after
           relevant discovery has been completed; the intent is
           not to eliminate meritorious claims prematurely
           before relevant discovery has been completed.”
           Burger v. Owens Illinois, Inc., 966 A.2d 611, 618
           (Pa.Super. 2009), quoting Gerrow [v. John Royle &
           Sons, 813 A.2d 778,] 781-782 [(Pa. 2002)].
           Moreover, “[t]he adverse party must be given
           adequate time to develop the case and the motion [for
           summary judgment] will be premature if filed before
           the adverse party has completed discovery relevant
           to the motion.” Id.

Anthony Biddle Contractors, Inc. v. Preet Allied Am. Street, LP, 28 A.3d

916, 928-929 (Pa.Super. 2011) (footnote omitted).

     Here, the Grahams aver that they sought to acquire tax records from

the Bartons for the Barton Equity Partnership that would “reveal that [the

Bartons] and their predecessors in interest have been receiving and accepting

regular payment under the lease.” (Grahams’ brief at 8.) As discussed in

detail supra, this claim is belied by the record. The Grahams further argue

that they made delay rental payments to the Bartons’ predecessors in interest

and in so doing, the Grahams satisfied their duties under the lease. (Id. at

10-11.)




                                   - 16 -
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      As noted in Hite, this is of no import to the case at bar. Indeed, the

primary term in the lease at issue ended when production ceased and the

Bartons refused the Grahams’ delay rental payments.       Hite, 13 A.3d at

949 n.8. Put another way, the Bartons’ refusal to cash the Grahams’ delay

rental payments—that the Grahams admit—is not a genuine issue of material

fact. (See answer and new matter at ¶ 44, R.R. at 71a.) Accordingly, we find

that the trial court did not err when it granted the Bartons’ motion for

summary judgment because relevant discovery had been completed and no

genuine issue of material fact existed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2020




                                    - 17 -
