J-S49044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PECO ENERGY COMPANY,                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANN R. WASHINGTON,

                        Appellant                    No. 66 EDA 2016


                Appeal from the Order November 30, 2015
           In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): No 04046 03 Term, 2014

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED JUNE 27, 2016

      Appellant Ann R. Washington appeals from the order of the Court of

Common Pleas of Philadelphia County granting Appellee PECO Energy

Company’s motion for summary judgment.        For the foregoing reasons, we

affirm.

      In March 2014, PECO Energy filed a complaint in replevin and for

breach of contract as well as a motion for writ of seizure against

Washington, seeking judgment for possession of its utility meter numbered

014851400 as well as damages in the amount of $9,633.38 for unpaid utility

service to Appellant’s property at 3762 North 18th Street in Philadelphia.

After the trial court granted PECO Energy’s Motion for Writ of Seizure on May

7, 2014, PECO Energy took possession of the meter.

      On October 2, 2014, Washington filed an answer to the complaint.

After an arbitration hearing at which Washington was represented by

*Former Justice specially assigned to the Superior Court.
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counsel, the arbitration panel awarded PECO Energy its requested damages

and possession of the meter.     Washington appealed from the arbitration

award.

      On May 19, 2015, PECO filed a bond as well as a Praecipe for Issuance

of a Writ of Seizure for the meter. On June 8, 2015, Washington responded

with an Emergency Petition to Stay Execution, which the trial court

subsequently dismissed. Washington sought reconsideration of this decision,

which was also denied.

      In discovery, PECO Energy sent Washington a Request for Admissions

and Corresponding Interrogatories.    Washington never responded to this

request even after PECO Energy informed her that her response was past

due and that a failure to respond would deem its Request for Admissions

admitted pursuant to Pa.R.C.P. 4014. On October 26, 2015, PECO Energy

filed a motion for summary judgment.       Washington did not contest or

respond to the motion.      On December 2, 2015, the trial court granted

summary judgment in favor of PECO Energy. This timely appeal followed.

      Washington raises one issue for our review on appeal:

      Did the Court below clearly abuse its discretion an [sic] commit
      an error of law in granting PECO’s Motion for Summary
      Judgment and ruling there were no genuine issues of material
      fact?

Washington’s Brief, at 4.

      When reviewing the trial court’s decision to grant summary judgment,

we employ the following standard:


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     A reviewing court may disturb the order of the trial court only
     where it is established that the court committed an error of law
     or abused its discretion. As with all questions of law, our review
     is plenary.

     In evaluating the trial court's decision to enter summary
     judgment, we focus on the legal standard articulated in the
     summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
     where there is no genuine issue of material fact and the moving
     party is entitled to relief as a matter of law, summary judgment
     may be entered. Where the non-moving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a
     non[-]moving party to adduce sufficient evidence on an issue
     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will 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.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa.Super. 2014), reargument

denied (Aug. 18, 2014), appeal denied, 108 A.3d 36 (Pa. 2015).

     Before we reach the merits of Washington’s appeal, we must

determine whether she has properly preserved her claim for our review. As

noted above, Washington asserts the trial court erred in granting summary

judgment as she alleges there was a genuine issue of material fact as to the

amount of unpaid utilities she owed PECO.

     However, Washington admits she failed to respond to PECO’s Request

for Admissions and PECO’s Motion for Summary Judgment. The trial court

was justified in entering summary judgment against Washington based on

her inaction in both instances.   With respect to a Request for Admissions,

Rule 4014(b) provides that “[t]he matter is admitted unless, within thirty

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days after service of the request, or within such shorter or longer time as

the court may allow, the party to whom the request is directed serves upon

the party requesting the admission an answer verified by the party or an

objection, signed by the party or by the party's attorney.”         Pa.R.C.P.

4014(b). See also Richard T. Byrnes Co. v. Buss Automation, Inc., 609

A.2d 1360, 1367 (Pa.Super. 1992) (“the failure to respond to a request for

admissions deems the facts contained within the request admitted by the

party from whom the admission was sought”). While Washington claims the

amount of unpaid utilities was an issue of material fact, her failure to

respond to PECO Energy’s request for admission that she owed PECO Energy

the sum of $12,108.95 as of March 24, 2015 was deemed an admission of

that fact.1

       In addition, the trial court was also justified in entering summary

judgment against Washington by her failure to respond to PECO Energy’s

motion for summary judgment. Our rules of civil procedure provide that 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.”      Pa.R.C.P. 1035.3(a).      Moreover, “[s]ummary judgment may be

entered against a party who does not respond.” Pa.R.C.P. 1035.3(d).
____________________________________________


1
  Washington did not seek to have this admission withdrawn or amended.
See Pa.R.C.P. 4014(d) (“Any matter admitted under this rule is conclusively
established unless the court on motion permits withdrawal or amendment of
the admission”).



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     As a litigant who chooses to proceed pro se is not absolved from

complying with procedural rules, we conclude that the trial court did not err

in granting PECO Energy’s uncontested motion for summary judgment.

Hoover v. Davila, 862 A.2d 591, 595 (Pa.Super. 2004).

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2016




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