           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerald Fox,                              :
                          Appellant      :
                                         :
              v.                         :   No. 561 C.D. 2016
                                         :   Submitted: October 21, 2016
State Correctional Institution (SCI)     :
Greene and Warden of State               :
Correctional Institution (SCI) Greene,   :
Lewis Folino                             :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: February 3, 2017

              In this negligence action, Appellant Gerald Fox (Fox) appeals from an
order of the Court of Common Pleas of Greene County (trial court), which granted
the State Correctional Institution Greene (SCI Greene) and its warden Lewis
Folino’s (Folino) (collectively, Defendants) motion for summary judgment and
dismissed Fox’s personal injury complaint with prejudice. In so doing, the trial
court concluded that the Defendants were immune from liability for the injuries
Fox sustained after a physical altercation with his cellmate. For the reasons set
forth below, we vacate the decision and remand the matter to the trial court.
               On June 20, 2013, Fox filed with the trial court a complaint sounding
in negligence against Defendants.1 (Reproduced Record (R.R.) at 10a-17a.) Fox
alleged that on March 1, 2010, Fox had a physical altercation with his cellmate at
SCI Greene. (Id. at 11a, Compl. ¶ 9.) According to the complaint, Fox sustained
multiple injuries during the altercation, namely that Fox’s cellmate bit off a portion
of his right ear. (Id. at 11a-13a.) Fox alleged that he had requested a change in
cell or cellmate prior to the March 1, 2010 incident, but Defendants rejected his
request.    (Id. at 11a, Compl. ¶¶ 11-12.)           Fox further alleged that his injuries
resulted from the negligence of SCI Greene and Folino. (Id. at 12a-17a.)
               Defendants filed preliminary objections in the nature of a demurrer,
arguing that they were immune from liability based on sovereign immunity.
(Id. at 29a-34a.) Following an order by the trial court to brief the matter, both Fox
and the Defendants submitted briefing on the topic of sovereign immunity.
(Id. at 36a-47a.)     In addition to arguing sovereign immunity in their brief,
Defendants also argued that Folino was immune from liability under the doctrine
of official immunity. (Id. at 38a-40a.) On May 12, 2014, the trial court denied
Defendants’ preliminary objections. (Id. at 48a.) Defendants then filed an answer
and new matter, denying the material allegations of Fox’s complaint and asserting
that Defendants were immune under the Sovereign Immunity Act, 42 Pa. C.S.
§ 8521-8528.      (Id. at 49a-54a.)       In addition to asserting sovereign immunity,
Defendants’ new matter included eight additional affirmative defenses.


       1
          Fox, by counsel, initially filed a writ of summons on February 9, 2012, which tolled the
statute of limitations. Pa. R.C.P. No. 1007; Young v. Pa. Dep’t of Transp., 690 A.2d 1300, 1302
(Pa. Cmwlth. 1997) (“Under Pa. R.C.P. No. 1007, an action may be commenced by the filing of
a praecipe for a writ of summons, and such filing may operate to toll the statute of limitations”).



                                                2
(Id. at 53-54, ¶¶ 3-10.)       Fox answered Defendants’ new matter, denying the
allegations and arguing that a response was not required because Defendants’
sovereign immunity argument was a legal conclusion. (Id. at 57a-58a.)
               By order, dated May 19, 2015, the trial court instructed Fox to
conclude his discovery by August 30, 2015.                    (Id. at 61a.)       In that same
May 19, 2015 order, the trial court also instructed Defendants to file any
dispositive motions by September 30, 2015 and Fox to respond by
October 30, 2015. (Id.) The May 19, 2015 order also scheduled argument for this
case for November 2, 2015. (Id.) On September 30, 2015, Defendants filed a
motion for summary judgment and a brief in support of that motion.
(Id. at 67a-94a.) Defendants again argued that, in addition to their immunity under
sovereign immunity, Folino was immune under common law official immunity.
(Id. at 92a-93a.) On October 9, 2015, prior to the due date for Fox’s response and
prior to the scheduled oral argument, the trial court granted Defendants’ motion for
summary judgment and dismissed the case with prejudice. (Id. at 95a.) This
appeal followed.
               On appeal,2 Fox argues that the trial court erred by failing to afford
Fox the opportunity to respond to Defendants’ motion for summary judgment. Fox
contends that Pennsylvania Rule of Civil Procedure No. 1035.3 requires courts to
allow a party adverse to a motion for summary judgment to file a written response.
Fox argues that being denied the opportunity to respond to Defendants’ motion is
particularly unjust in this case, because the trial court had essentially already ruled

       2
         This Court’s standard of review of a trial court’s order granting summary judgment is
de novo, and our scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692
(Pa. 2011). Under this standard, we may reverse a trial court’s order only for an error of law. Id.



                                                3
in Fox’s favor, by denying Defendants’ preliminary objections. Fox also argues
that the Local Rules for the Court of Common Pleas of Greene County require that
a party adverse to a motion for summary judgment be permitted to oppose the
motion through both a written response and an oral argument. Finally, as to the
merits, Fox argues that his claims fell within two exceptions to sovereign immunity
and that the trial court erred in granting summary judgment when genuine issues of
material fact exist.
             In response, Defendants argue that the trial court properly determined
that Fox’s claims were precluded by sovereign immunity. Defendants argue that
Fox’s alleged injuries do not fall within any of the nine exceptions to sovereign
immunity, and Fox, therefore, cannot maintain a cause of action. Defendants also
argue that the trial court was not required to afford Fox the opportunity to respond
to their motion for summary judgment.           Specifically, Defendants cite to
Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622 (Pa. Super. 1993), where the
Superior Court held that “it is within the discretion of the trial court to decide
whether briefs and/or oral argument are required or whether the matter can best be
disposed of from a review of the record alone.”          (SCI Greene and Folino
Br. at 11-12, quoting Myszkowski, 634 A.2d at 624.) Defendants also cite two
cases, Wright v. Misty Mountain Farm, LLC, 125 A.3d 814 (Pa. Super. 2015),
appeal denied, 140 A.3d 14 (Pa. 2016), and Majorsky v. Douglas, 58 A.3d 1250
(Pa. Super. 2012), appeal denied, 70 A.3d 811 (Pa. 2013), where the Superior
Court upheld a trial court order that denied a defendant’s preliminary objections,




                                         4
then granted the defendant’s motion for summary judgment.3 Finally, Defendants
argue that while the trial court failed to issue an opinion, the most judicially
economical course of action for this Court would be to hold that an opinion was
not necessary, and thus, neither is a remand.
              As an initial matter, we address the trial court’s failure to draft an
opinion to explain the reasoning of its May 19, 2015 order. Pennsylvania Rule of
Appellate Procedure 1925(a)(1)provides:
              Except as otherwise prescribed by this rule, upon receipt
              of the notice of appeal, the judge who entered the order
              giving rise to the notice of appeal, if the reasons for the
              order do not already appear of record, shall forthwith
              file of record at least a brief opinion of the reasons for the
              order, or for the rulings or other errors complained of, or
              shall specify in writing the place in the record where such
              reasons may be found.
(Emphasis added.)        The remedy for non-compliance with Rule 1925(a)(1) is
typically a remand to the trial court.             Cmwlth. v. Pate, 617 A.2d 754, 759
(Pa. Super. 1992), appeal denied, 634 A.2d 219 (Pa. 1993). The exception to that
general rule is a situation where, as highlighted above, the reasons are clear from
the record.     For example, in Pate, the Superior Court held that remand was
unnecessary where the trial judge “consider[ed] all of the issues raised by [the]
post-trial motions and pointed [the Court] to the places in the record where [the
Court] can find his reasoning.” Id.



       3
         While we may look to Superior Court decisions for guidance, those decisions are not
binding on this Court, and vice versa. Fisler v. State Sys. of Higher Educ., California Univ. of
Pa., 78 A.3d 30, 41 n.12 (Pa. Cmwlth. 2013); Beaston v. Ebersole, 986 A.2d 876, 881
(Pa. Super. 2009).



                                               5
             Here, no such exceptional circumstances are present. While the trial
court’s grant of summary judgment appears to be based on the Defendants’
sovereign immunity argument, we cannot be sure, and thus our review is thwarted,
absent an opinion. A review of the record reflects that Defendants raise different
defenses for SCI Greene and Folino together and Folino individually. Defendants
argued before the trial court that Fox’s claims failed as to both Defendants under
sovereign immunity and failed as to Folino under official immunity. We are
precluded from review where, as here, we cannot be sure of the ground(s) on
which the trial court granted summary judgment for each defendant. Part of the
reason for instituting Rule 1925 is to give the appellate courts “a reasoned basis for
the trial court’s disposition of the challenged orders.” Pate, 617 A.2d 754 at 758.
The trial court failed to provide a reasoned basis for its disposition, and, therefore,
remand is required.
             Pennsylvania Rule of Civil Procedure No. 1035.3, pertaining to
responses to motions for summary judgment, provides, in pertinent part:
             (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.
                    ...
             (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
                                          6
                   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.
(Emphasis added.)     Accompanying this rule is an explanatory comment that
emphasizes the requirements in subdivision (e):
             The rule places two conditions upon the exercise of this
             discretion. First, each party must be given a full and fair
             opportunity to supplement the record and to oppose the
             motion so that “no party is prejudiced.” Second, if the
             motion is granted, the court must state the reasons for its
             decision in a written opinion or on the record.
Note to Pa. R.C.P. No. 1035.3. Rule 1035.3 provides further support for our
determination above that remand is required so that the trial court may provide its
reasons for granting Defendants’ motion for summary judgment. Like the remedy
for failure to comply with Rule 1925(a)(1), the remedy for failure to comply with
Rule 1035.3(e)(2) is remand to the trial court.
             Next, we address the trial court’s failure to allow Fox to respond to
Defendants’ motion for summary judgment with a written response or oral
argument.    Similarly, a remand is necessary so that Fox may respond to
Defendants’ motion for summary judgment. Rule 1035.3(e)(1) provides that a trial
court may grant a motion for summary judgment without allowing an opposing
party to respond. A trial court may also deny a defendant’s preliminary objections,
and then later grant a motion for summary judgment to that same defendant based
on the same arguments offered in the preliminary objections. Wright, 125 A.3d
at 818. A trial court may not, however, grant a motion for summary judgment
without permitting a response where the court has only heard arguments by the

                                          7
party adverse to the motion in a brief in opposition to preliminary objections.
Courts exercise different types of review for preliminary objections and motions
for summary judgment—when reviewing preliminary objections the trial court
looks to the pleadings, but, in considering a motion for summary judgment the trial
court weighs the pleadings, depositions, answers to interrogatories, admissions,
affidavits, and other facts developed during discovery. Herczeg v. Hampton Twp.
Mun. Auth., 766 A.2d 866, 870 (Pa. Super.), appeal denied, 766 A.2d 866
(Pa. 2001).
               In this case, Fox was prejudiced because he was not given an
opportunity to present argument in opposition to Defendants’ motion for summary
judgment, which included new and more developed factual allegations and
exhibits. Despite the preliminary objections and motion for summary judgment
both being based on immunity arguments, the different considerations weighed by
the trial court in each circumstance warranted different opportunities for opposition
by Fox. A brief in opposition to preliminary objections does not constitute full and
fair opportunity to oppose a motion for summary judgment, as required by
Rule 1035.3(e)(1).        Remand, therefore, is required to afford Fox such an
opportunity.4
               Because we conclude that the Pennsylvania Rules of Civil Procedure
require the trial court to allow Fox to respond to Defendants’ motion for summary
judgment, we need not address Fox’s argument for a written response under the


       4
         We are also troubled by the seeming about-face by the trial court—scheduling the date
for Fox to submit a response brief and the date for oral argument, and then, without warning,
ruling on the motion before the dates that it scheduled for either. This contradiction in the trial
court’s actions is without explanation in the record.



                                                8
trial court’s local rules. We are persuaded, however, that the local rules require the
trial court to hear oral argument on the matter. Greene County local rule G211(a)
provides:
              The Prothonotary, Clerk of Court, and Clerk of Orphans’
              Court shall immediately place on the next available
              argument list any case where preliminary objections,
              exceptions, motions for summary judgment, or any other
              request for determination of law has been filed.
(Emphasis added.) This Court has previously explained the lack of discretion
when a statute or rule utilizes the word “shall.” Jennison Family Ltd. P’ship v.
Montour Sch. Dist., 802 A.2d 1257, 1262 (Pa. Cmwlth. 2002), appeal denied,
815 A.2d 635 (Pa. 2003). We interpret this rule to require the Greene County
courts to hear oral argument for any motion for summary judgment.
              Accordingly, we vacate the order of the trial court and remand with
instructions for the court below to afford Fox a full and fair opportunity to respond
to Defendants’ motion for summary judgment and to write an opinion explaining
its disposition.




                                P. KEVIN BROBSON, Judge




                                          9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerald Fox,                                :
                           Appellant       :
                                           :
              v.                           :    No. 561 C.D. 2016
                                           :
State Correctional Institution (SCI)       :
Greene and Warden of State                 :
Correctional Institution (SCI) Greene,     :
Lewis Folino                               :



                                       ORDER


              AND NOW, this 3rd day of February, 2017, the order of the Court of
Common Pleas of Greene County is VACATED, and the matter is REMANDED
for proceedings consistent with this opinion.
              Jurisdiction relinquished.




                                 P. KEVIN BROBSON, Judge
