J-A02006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. LASHINSKY                           :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
JOAN F. COLOMBERO                           :
                                            :
                                            :
                                            :     No. 1511 MDA 2015

                    Appeal from the Order Entered July 7, 2015
           in the Court of Common Pleas of Centre County Civil Division
                               at No(s): 2012-4113

BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 27, 2016

        Appellant, John F. Lashinsky, appeals from the order entered in the

Centre County Court of Common Pleas granting Appellee’s, Joan F.

Colombero’s, motion for summary judgment.           Appellant argues the trial

court erred in granting Appellee’s motion for summary judgment based

solely on his failure to respond to the motion within thirty days. We reverse

and remand for further proceedings.

        The trial court summarized the procedural posture of this case as

follows:

              On November 5, 2012, Appellant filed a Praecipe for
           Writ of Summons. As a Complaint did not follow, the
           [c]ourt held a conference in chambers on January 15,


*
    Former Justice specially assigned to the Superior Court.
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        2014. Based on an ongoing criminal action that involved
        the parties, with [Appellant] being the defendant in the
        criminal action, this case was continued to the [c]ourt’s
        April 2014 Term of Court. On March 19, 2014, the [c]ourt
        ordered [Appellant] to file a Complaint within 20 days.
        [Appellant] filed a Complaint in Breach of Contract and
        Unjust Enrichment on April 8, 2014, however, it was
        verified by [Appellant’s] counsel and not [Appellant.]
        [Appellee] filed Preliminary Objections on April 17, 2014,
        objecting to the form of the verification attached to the
        Complaint. On the same day, [Appellant’s] counsel filed a
        Praecipe to Substitute Verification, attaching a verification
        signed by [Appellant]. In its July 16, 2014 Opinion and
        Order, the [c]ourt found the substitution of the proper
        verification rendered [Appellee’s] Objections moot.

           [Appellee] filed an Answer and New Matter on August 4,
        2014. [Appellant] filed Preliminary Objections on August
        6, 2014. On August 14, 2014, [Appellee] filed Preliminary
        Objections in response to the Preliminary Objections filed
        by [Appellant]. In its September 10, 2014, Opinion and
        Order, the [c]ourt resolved the Preliminary Objections. On
        November 19, 2014, by agreement of the parties, the
        [c]ourt sent the case to arbitration. On February 27,
        2015, [Appellant] filed a Notice of Appeal from Award of
        Arbitrators, demanding a jury trial. [Appellee] filed an
        Amended Answer to [Appellant’s] Complaint with New
        Matter on March 20, 2015.

            On March 27, 2015, [Appellee] filed a Motion for
        Summary Judgment. [Appellant’s] counsel filed a Motion
        for Leave to Withdraw Appearance on April 15, 2015,
        alleging over two years of non-payment from [Appellant].
        [Appellant’s] counsel’s motion was scheduled for hearing
        on May 12, 2015, but was continued on the representation
        of [Appellant’s] counsel that [Appellant] did not receive
        notice of the hearing. The [c]ourt set both [Appellee’s1]
        Motion for Summary Judgment and the Motion for Leave to
        Withdraw Appearance for argument on May 22, 2015. On
        May 18, 2014, [Appellant] filed a Motion to Continue

1
  We note that the trial court states that it was Appellant’s motion for
summary judgment.



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           Hearing for [Appellee’s] Motion for Summary Judgment,
           requesting it be heard after a resolution of the Motion for
           Leave to Withdraw Appearance. [Appellant’s] counsel did
           not withdraw from representation of [Appellant], but
           appeared at the June 23, 2015 Summary Judgment
           argument to argue against entry of Summary Judgment.
           Additionally, [Appellant’s] Opposition to [Appellee’s]
           Motion for Summary Judgment and brief in support were
           filed on June 24, 2015, a day after argument.

Trial Ct. Op., 7/8/15, at 1-3.

        On July 8, 2015, the court granted Appellee’s motion for summary

judgment.     On July 15, 2015, Appellant filed a motion for reconsideration

which was expressly granted on July 16, 2015.         The motion was denied,

following oral argument, on August 27, 2015. This timely appeal followed on

September 1, 2015.2         Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.3           The trial court filed a

Pa.R.A.P. 1925(a) opinion incorporating its July 8th opinion.


2
  The trial court expressly granted Appellant’s motion for reconsideration
within the thirty-day appeal period, thereby tolling the appeal period. See
Pa.R.A.P. 1701(b)(3) (stating: “Where a timely order of reconsideration is
entered under this paragraph, the time for filing a notice of appeal or
petition for review begins to run anew after the entry of the decision on
reconsideration, whether or not that decision amounts to a reaffirmation of
the prior determination of the trial court or other government unit”); Haines
v. Jones, 830 A.2d 579, 583 (Pa. Super. 2003). The trial court granted the
motion for summary judgment on July 8, 2015. The court expressly granted
reconsideration on July 16, 2015. Therefore, the instant appeal was timely.
See Jones, 830 A.2d at 583; Pa.R.A.P. 1701(b)(3).
3
    Appellant raised the following issue in his Rule 1925(b) statement:

              Under the circumstances of the case, [Appellant]
           respectfully maintains that the [c]ourt erred in concluding



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      Appellant raises the following issue for our review:

             Under the relevant Rules of Civil Procedure and Local
         Rules, did the trial court improperly grant summary
         judgment for responding more than thirty days after the
         non-moving party received service of a motion for
         summary judgment, when the trial court failed to enter a
         briefing and response scheduling order, thereby waiving
         any response deadline under the Local Rules; when the
         parties and trial court had authorized [Appellant] to take
         additional time in responding to the motion; when the trial
         court failed to identify, or attempt to identify, any
         prejudice for the allegedly delayed response; and when the
         failure to respond within thirty days was [Appellant’s] first,
         if any, procedural error in the case?

Appellant’s Brief at 5.

      Appellant contends the trial court erred in granting Appellee’s motion

for summary judgment solely based upon his failure to respond to the

motion within thirty days. Id. at 15. We agree.

      Our review is governed by the following principles:

         [S]ummary judgment is appropriate only in those cases
         where the record clearly demonstrates that there is no
         genuine issue of material fact and that the moving party is
         entitled to judgment as a matter of law. When considering
         a motion for summary judgment, the trial court must take
         all facts of record and reasonable inferences therefrom in a
         light most favorable to the non-moving party. In so doing,
         the trial court must resolve all doubts as to the existence

         that summary judgment in favor of [Appellee] was
         appropriate solely because [Appellant] failed to file a
         response to [Appellee’s] motion for summary judgment . .
         . within thirty days of receipt thereof. . . .

Appellant’s Statement of Errors Complained of on Appeal, R.R. at 516a. For
convenience, we refer to the reproduced record where applicable.




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        of a genuine issue of material fact against the moving
        party, and, thus, may only grant summary judgment
        where the right to such judgment is clear and free from all
        doubt. On appellate review, then,

           an appellate court may reverse a grant of summary
           judgment if there has been an error of law or an
           abuse of discretion. But the issue as to whether
           there are no genuine issues as to any material fact
           presents a question of law, and therefore, on that
           question our standard of review is de novo. This
           means we need not defer to the determinations
           made by the lower tribunals.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations and quotation marks omitted).       “It is the nonmoving party’s

responsibility to demonstrate that a genuine issue of material fact exists,

‘[a] witnesses’ [sic] credibility is a determination for the jury and

necessarily creates a genuine issue of material fact.” Gruenwald v.

Advanced Computer Applications, Inc., 730 A.2d 1004, 1009 (Pa. Super.

1999) (citations omitted and emphasis added).

        [W]e recognize that “the interpretation and application of a
        Pennsylvania Rule of Civil Procedure presents a question of
        law.” . . . [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.”

           In addition, our interpretation of the Pennsylvania Rules
        of Civil Procedure is guided by the principles contained in
        Pa.R.C.P. 127, which provides as follows.

        Rule 127. Construction of Rules. Intent of Supreme
        Court Controls

           (a) The object of all interpretation and construction
           of rules is to ascertain and effectuate the intention of
           the Supreme Court.


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           (b) Every rule shall be construed, if possible, to give
           effect to all its provisions. When the words of a rule
           are clear and free from all ambiguity, the letter of it
           is not to be disregarded under the pretext of
           pursuing its spirit.

           (c) When the words of a rule are not explicit, the
           intention of the Supreme Court may be ascertained
           by considering, among other matters (1) the
           occasion and necessity for the rule; (2) the
           circumstances under which it was promulgated; (3)
           the mischief to be remedied; (4) the object to be
           attained; (5) the prior practice, if any, including
           other rules and Acts of Assembly upon the same or
           similar subjects; (6) the consequences of a particular
           interpretation; (7) the contemporaneous history of
           the rule; and (8) the practice followed under the
           rule.

        Pa.R.C.P. 127[.] Furthermore, “a note to a rule or an
        explanatory comment is not a part of the rule, but may be
        used in construing the rule.”

Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d

800, 808-09 (Pa. Super. 2011) (some citations omitted).

     Pennsylvania Rule of Civil Procedure 1035.3 provides:

        (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.


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                                *    *    *

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

        Note: Procedural requirements with respect to argument
        and briefs are governed by local rule.

        In certain counties, the failure to respond to a motion may
        result in the motion being deemed uncontested and the
        entry of the judgment sought.

        (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.

        (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.

Pa.R.C.P. 1035.3(a)(1)-(2), (d)-(e)(1)-(2) (emphases added).

     Pennsylvania Rule of Civil Procedure 126 provides:

        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.

     The Centre County Local Rules provide as follows.

        All Motions for summary Judgment shall be filed in the
        Prothonotary’s Office, which will then forward the Motion to
        the Court Administrator’s Office. The Court Administrator’s
        Office will assign the Motion to a Judge for disposition.
        The assigned Judge will issue an Order setting forth a


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          briefing schedule and a date for argument, if any. The
          Prothonotary’s Office will notify all counsel of record and/or
          unrepresented parties of the scheduling. In the event that
          either or both parties wish to submit the matter on briefs
          without oral argument, they shall communicate that wish
          to the Court, in writing, prior to the Argument day.
          However, briefs shall still be due on the days previously
          indicated by the Court, unless continued in writing. Failure
          to file a brief in a timely manner without written leave of
          the Court may result in the Court determining the issues
          raised in the Motion to be uncontroverted.

Centre County Local Rule of Civil Procedure * 1035.2 (emphasis added).

     In Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001), this Court

opined:

          Pa.R.C.P. 1035.3(d) permits a trial court to enter
          judgment against a party who fails to respond to a
          summary judgment motion. However, the rule is by no
          means mandatory.           Indeed, “[i]t is not meant to
          abrogate the general rule that ‘when ruling on a motion, it
          is within the discretion of the trial court to decide whether
          briefs and/or oral argument are required or whether the
          matter can be best disposed of from a review of the record
          alone.’” Smitley v. Holiday Rambler Corp., 707 A.2d
          520, 526 (Pa. Super. 1998) (citations omitted).

Id. at 177 (some emphasis added).

     A hearing on the motion for summary judgment was held on June 23,

2015. At the conclusion of the hearing, the court stated: “Okay. I’ll take a

look at it and makes [sic] a decision. Thanks.” Mot. Summ. J. Hr’g N.T.,

6/23/15, at 19. In its opinion and order granting the motion for summary

judgment, the trial court opined:

             Motions for summary judgment are governed by
          Pa.R.C.P. 1035.1 et seq.      Rule 1053.3 provides the
          adverse party must file a response within thirty days after


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           service of the summary judgment motion. In the instant
           action, [Appellee] filed her motion for summary judgment
           on March 27, 2015. [Appellant] filed his response on June
           24, 2015, a day after the argument was held on the
           motion. [Appellant’s] response was outside the thirty days
           as required in Pa.R.C.P. 1035.3. Furthermore, the [c]ourt
           finds [Appellant] was solely responsible for causing the
           untimely response to the motion for summary judgment.
           Accordingly, [Appellee’s] motion for Summary Judgment is
           GRANTED.

R.R. at 306a (emphasis added).

         In the complaint, Appellant averred that “[a]t Appellee’s request, [he]

began loaning money to [Appellee] in approximately April 2007.”         R.R. at

10a. Appellant contended in the complaint that he loaned Appellee money

for her to return to school to obtain a recertification in architecture, hire an

attorney to collect back child support; purchase and maintain Appellee’s

automobile and provide daycare and personal items for Appellee’s minor

child.    Id. at 11a.   Appellant states that the parties “entered into an oral

agreement under which [Appellee] agreed to receive and repay a series of

loans from” Appellant.      Id. at 12a.   Appellant claims Appellee owes him

$28,000. Id. In her answer to the complaint, Appellee denied receiving any

loans from Appellant. Id. at 207a-08a.

         Instantly, the trial court granted summary judgment based upon

Appellant’s late response to the motion for summary judgment.           R.R. at

306a. The trial court held that Pa.R.C.P. 1035.3 “provides the adverse party

must file a response within thirty days after service of the summary

judgment motion.” Id. The trial court’s interpretation of Rule 1035.3 does


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not give effect to all of its provisions. See Barrick, 32 A.3d at 808 (citing

Pa.R.C.P. 127 (“Every rule shall be construed, if possible, to give effect to all

its provisions.”)).   In the case sub judice, the trial court did not issue a

briefing schedule. See Centre County Local Rule of civil Procedure * 1035.2.

Even assuming the court had issued a briefing schedule, failure to timely file

a brief would not require that the motion be deemed uncontested. See id.

       Although the trial court may grant a motion for summary judgment

without a written response if no one is prejudiced under Rule 1035.3(e)(1),

the court “shall state the reasons for its decision in a written opinion or on

the record.” Pa.R.C.P. 1035.3(e)(2) (emphasis added). In the instant case,

the trial court failed to state its reasons either on the record or in its opinion.

See R.R. at 303a; N.T. at 19. We find that the court erred as a matter of

law in its interpretation of Rule 1035.3. See Barrick, 32 A.3d at 808-09;

Elash, 781 A.2d at 177.

       Furthermore, in the complaint, Appellant contended, inter alia, there

was an oral contract for the return of the money he loaned Appellee. R.R. at

12a.   Appellee denied receiving any loans from Appellant.           R.R. at 91a.

Instantly, there is an issue of credibility, which is for the jury to determine.

Thus, there is a genuine issue of material fact. See Gruenwald, 730 A.2d

at 1009.   We find the trial court erred as a matter of law in granting the

motion for summary judgment. See id.; Summers, 997 A.2d at 1159.




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     For all of the foregoing reasons, we reverse the order of the trial court

and remand for further proceedings consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/27/2016




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