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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IDELISA REYES                                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

PAMELA HAWK

                            Appellee                     No. 3711 EDA 2015


               Appeal from the Order Entered November 2, 2015
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2015-C-1342


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED JUNE 23, 2016

        Idelisa Reyes appeals from the trial court’s order dismissing her

complaint in the underlying personal injury action. After review, we affirm.

        On September 9, 2014, Reyes commenced the underlying action

(sounding in negligence) against Appellee, Pamela Hawk, by filing a writ of

summons in Philadelphia County.            Reyes sought damages for injuries she

sustained after Hawk’s vehicle allegedly hit her while she was standing at an

intersection in Allentown on September 8, 2012.          On December 19, 2014,

Reyes filed her complaint. On December 29, 2014, Hawk filed preliminary

objections raising improper venue1 and a claim that Reyes’ action was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Pa.R.C.P. 1006 (change of venue rule).
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barred by the statute of limitations.          On February 2, 2015, the trial court

sustained the objections, in part, and transferred the case to Lehigh County.

On April 27, 2015, Reyes filed a complaint in Lehigh County.

       On October 2, 2015, Hawk filed a motion to dismiss alleging that

Reyes’ claims were barred by Pennsylvania’s two-year statute of limitations

for negligence actions.2       On November 2, 2015, the court granted Hawk’s

motion and dismissed Reyes’ complaint, noting that Reyes had filed no

response to Hawk’s motion. This timely appeal follows.

       On appeal, Reyes presents the following issues for our consideration:

       (1)    Is Appellant entitled to a reversal of the trial court’s order
              granting Appellee’s motion to dismiss, when the trial court
              failed to follow legal procedure, misapplied the law and
              abused its discretion by granting Defendant’s motion to
              dismiss prematurely before Plaintiff was afforded the
              requisite thirty (30) days as prescribed by Pa.R.C.P.
              1035.3(a) to file an answer after service of the motion?

       (2)    Is Appellant entitled to a reversal of the trial court’s order
              granting Appellee’s motion to dismiss, when the trial court
              failed to follow legal procedure, misapplied the law and
              abused its discretion by failing to schedule the Defendant’s
              motion to dismiss for oral argument on the issue raised
              (Pa.R.C.P. 211)?



____________________________________________


2
  See 42 Pa.C.S. § 5524(7) (two-year statute of limitations to recover
damages for injuries caused by negligence). In her motion, Hawk contended
that Reyes suffered her injuries on September 8, 2012, but did not file her
writ of summons until September 9, 2014.




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      Reyes contends that the trial court decided the instant motion

prematurely      and,   as   a   result,   improperly   dismissed   her   complaint.

Specifically, she contends that because Rule 1035.3 requires an adverse

party to file a response to a summary judgment motion within 30 days after

service of the motion, the court improperly granted the motion on the

thirtieth day.

      Pursuant to Pa.R.C.P. 1035.3:

      (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.

                                      *     *    *

      (d) Summary judgment may be entered against a party who
      does not respond.

      (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 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.




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          (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.3

Pa.R.C.P. 1035.3 (emphasis added).

       Instantly, Hawk served her motion on Friday, October 2, 2015. Under

our rules of civil procedure, the thirty-day period under Rule 1035.3 begins

to run on Saturday, October 3, 2015.             See Pa.R.C.P. 106(a) (“When any

period of time is referred to in any rule, such period in all cases, except as

otherwise provided in Rules 107 and 108, shall be so computed as to

exclude the first and include the last day of such period.”). Therefore, the

thirtieth day for purposes of Rule 1035.3(a) fell on Sunday, November 1,

2015. Because the thirtieth day fell on a weekend, it is not counted in the

time period under the rule. See Pa.R.C.P. 106(b) (“Whenever the last day

of any such period shall fall on Saturday or Sunday, such day shall be

omitted from the computation.” Pa.R.C.P. 106(b). Therefore, the thirtieth

day fell on Monday, November 2, 2015, and Reyes had until that date to file
____________________________________________


3
  Our standard of review in cases of summary judgment is well settled. This
court will only reverse the trial court’s entry of summary judgment where
there was an abuse of discretion or an error of law. Merriweather v.
Philadelphia Newspapers, Inc., 684 A.2d 137, 140 (Pa. Super. 1996).
Summary judgment is proper when the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits demonstrate that there
exists no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Pa.R.C.P. 1035.2. In determining whether to
grant summary judgment a trial court must resolve all doubts against the
moving party and examine the record in a light most favorable to the non-
moving party. Id. Summary judgment may only be granted in cases where
it is clear and free from doubt that the moving party is entitled to judgment
as a matter of law. Id.



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her response. Because the trial court ruled on the motion on the thirtieth

day, it did not give Reyes the full thirty days to respond to Hawk’s motion.

Therefore, the court’s ruling technically was premature. However, because

Reyes did not file an answer to the motion to dismiss until Wednesday,

November 4, 2015 – the thirty-second day after service – it was untimely

filed under Rule 1035.3. Moreover, Reyes fails to allege any prejudice from

the court’s premature dismissal of her complaint.       Pa.R.C.P. 1035.3(e).4

Therefore, we do not find that the court’s action was an abuse of discretion.

       Finally, Reyes claims that the trial court erred in not scheduling oral

argument on the motion. Pursuant to Pa.R.C.P. 211:

       Any interested party may request oral argument on a motion.
       The court may require oral argument, whether or not requested
       by a party. The court may dispose of any motion without oral
       argument.
____________________________________________


4
  In Reyes’ response to Hawk’s motion, she argues that there is a factual
issue regarding when she knew or reasonably should have known that she
sustained a serious injury in the underlying accident so as to trigger the two-
year statute of limitations. However, the general rule in Pennsylvania
regarding car accident cases is that the statute of limitations begins to run
for an injured plaintiff on the day of the accident. Bradley v. Ragheb, 633
A.2d 192, 194 (Pa. Super. 1993). Moreover, the case cited by Reyes to
support her argument, Walls v. Scheckler, 700 A.2d 532 (Pa. Super.
1997), involved a limited-tort plaintiff who was attempting to prove that she
sustained serious injuries in order to recover non-economic damages under
the Motor Vehicle Financial Responsibility Law (MVFRL). Here, Reyes does
not contend that her symptoms or diagnosis worsened during the two-year
period during which she could have brought suit. See Haines v. Jones,
830 A.2d 579 (Pa. Super. 2003). Therefore, even if we were to consider the
merits of her response, we would agree with the trial court that dismissal of
the complaint was proper.



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Pa.R.C.P. 211. The trial court was within its discretion not to hold argument

on Hawk’s motion where oral argument would have served no purpose based

upon the statute of limitations barring plaintiff from recovering in her

lawsuit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2016




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