J-A06030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SUBURBAN MANAGEMENT CO. INC.               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    BURKITT GROUP, INC., PAUL J.               :
    BURKITT, AND DIANNE C.                     :
    BROHOSKI F/K/A DIANE C. BURKITT            :
                                               :
                       Appellee                :      No. 2476 EDA 2019

                  Appeal from the Order Entered April 18, 2017
              In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): No. 2015-30106


    SUBURBAN MANAGEMENT CO. INC.               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    BURKITT GROUP, INC., PAUL J.               :
    BURKITT, AND DIANNE C.                     :
    BROHOSKI F/K/A DIANE C. BURKITT            :
                                               :
                       Appellees               :      No. 2477 EDA 2019

                Appeal from the Order Entered February 19, 2019
              In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): No. 2015-30106


BEFORE:      STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                   FILED MAY 22, 2020

        Appellant, Suburban Management Co. Inc., appeals from the orders


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06030-20


entered in the Montgomery County Court of Common Pleas, which granted

summary judgment in favor of Appellees, Paul J. Burkitt and Dianne C.

Brohoski f/k/a Diane C. Burkitt. We affirm.

       The relevant facts of this case are as follows. Appellees married in 1991

and divorced in 2007. During the marriage, Appellees were the principals of

Burkitt Group, which operated a “Bounce U” franchise providing play and party

settings for children. In May 2005, Appellant and Burkitt Group executed a

commercial     lease    agreement      (“the   lease”)   for   a   property   in   Oaks,

Pennsylvania. Burkitt Group agreed to lease the property from Appellant for

a five-year term, from July 1, 2005 to June 30, 2010. The lease provided for

monthly rent in the amount of $7,890.00, which would increase by two

percent each year. In an addendum to the lease, Appellant granted Burkitt

Group a renewal option for an additional five-year term at fair market rent.

       Concurrent with the execution of the lease, Appellees entered into the

following guaranty of lease (“the guaranty”):

          TO INDUCE SUBURBAN MANAGEMENT CO. INC. (“Lessor”)
          to enter into a lease with PAUL J. BURKITT and DIANNE C.
          BROHOSKI (“Lessee”)[1] for all that certain premises in the
          Suite 2420 at 99 Brower Ave. Oaks PA (“Leased Space”) as
____________________________________________


1 The trial court noted that the introductory clause of the guaranty “defines
the ‘Lease’ as a lease between [Appellant] and [Appellees], rather than
between [Appellant] and Burkitt Group.” (Trial Court Opinion, filed October
4, 2019, at 5 n. 2). The trial court concluded “the language in question was
an obvious drafting error, and that the parties intended that the Lease under
the Guaranty Agreement was the one between [Appellant] and Burkitt Group.”
(Id.)



                                           -2-
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          more fully described in the Lease Agreement (“Lease”), and
          for good and valuable consideration, the undersigned,
          intending to be legally bound, guarantees to Lessor and
          becomes surety for the prompt performance,[2] as and when
          due, of all Lessee’s obligations under the Lease. The
          undersigned hereby waives notice of the acceptance of this
          Guaranty and any notice of default by the Lessee, and
          consents and agrees that Lessor may at any time and from
          time to time in [its] discretion; (1) extend or change the
          time for performance of any of Lessee’s obligations; (2)
          exchange, release or surrender any security held by it for
          the performance of Lessee’s obligations; (3) settle or
          compromise with the Lessee; and (4) take or refrain from
          taking such other actions as Lessor may in its sole discretion
          deem to be in its best interest with respect to the lease, the
          Lessee and the Leased Space; all in such manner and upon
          such terms as Lessor may deem fit and without notice to or
          further assent from the undersigned, who agrees to be and
          remain bound by this Guaranty of the term of the … Lease
          and any extensions or renewals thereof.

          The undersigned agrees that no promises, representations,
          agreements, conditions or covenants have been made
          relating to this Guaranty other than those contained herein
          and that no modifications of the terms hereof shall be
          binding on Lessor unless in writing signed by Lessor.

          This Guaranty shall bind the undersigned and its successors
          and assigns, and the benefits hereof shall inure to Lessor,
          its successors and assigns.
____________________________________________


2 “While both guaranty and surety agreements are agreements to be liable for
the debt of another, the principal difference is that the creditor may look to
the surety for immediate payment upon the debtor’s default, without first
attempting to collect the debt from the debtor, whereas the creditor must first
seek payment from the debtor before going after a guarantor.” McIntyre
Square Associates v. Evans, 827 A.2d 446, 451 n. 7 (Pa.Super. 2003).
Here, under the terms of the guaranty, Appellees became sureties. See id.
See also 8 P.S. § 1 (stating every written agreement made by one person to
answer for default of another shall subject such person to liabilities of
suretyship, unless such agreement states in substance: “This is not intended
to be a contract of suretyship”).



                                           -3-
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(Lease, dated 5/4/05, at Exhibit D).

        On November 16, 2010, Appellant and Burkitt Group executed an

amendment to the lease (“the amendment”).3 In the amendment, the parties

acknowledged Burkitt Group was delinquent under the lease, and it owed over

$35,000.00 to Appellant. Consequently, the parties extended the lease term

to October 31, 2011 and voided the five-year renewal option. The parties also

modified Burkitt Group’s rent obligation “to include both a base amount,

payable weekly, and a percentage rent under a formula based on Burkitt

Group’s gross sales at the premises, also payable weekly.”          (Trial Court

Opinion at 6). “Upon an uncured default in the payment of any amount due,

[Appellant’s] remedies would include interest on the unpaid balance at the

annual rate of 15% or 5% above the prime rate as listed in the Wall Street

Journal, whichever is greater, together with attorney’s fees.”4 (Id.)

____________________________________________


3   Mr. Burkitt signed the amendment on behalf of Burkitt Group.

4   The original lease contained the following remedies clause:

           The rent for the entire unexpired balance of the term of this
           lease, as well as all other charges, payments, costs, and
           expenses herein agreed to be paid by the Lessee, or at the
           option of Lessor, any part thereof, and also all cost and
           officer’s commissions including watchmen’s wages and
           further including five percent chargeable by Act of Assembly
           to the Lessor, shall, in addition to any and all installments
           of rent already due and payable and in arrears and/or any
           other charge or payment herein reserved, included or
           agreed to be paid by the Lessee which may be due and



                                           -4-
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       On November 16, 2015, Appellant filed a complaint against Burkitt

Group and Appellees. The complaint alleged Burkitt Group had breached the

lease by failing to pay rent and other charges.          Appellant also claimed

Appellees were personally liable pursuant to the guaranty. After the close of

pleadings, the court entered a discovery management conference order on

August 3, 2016. The order included handwritten notations with the following

deadlines: 1) discovery to be completed by November 30, 2016; 2) all

dispositive motions to be filed by December 15, 2017; and 3) all responses to

dispositive motions to be filed by January 15, 2017.5 On December 22, 2016,

Ms. Brohoski filed a summary judgment motion. Following oral argument, the

court granted Ms. Brohoski’s motion on April 18, 2017. Specifically, the court

did “not find a clear and unambiguous agreement demonstrating [Ms.

Brohoski’s] ‘unbridled commitment to guarantee [her] obligation under the

lease.’” (Order, filed 4/18/17, at 2 n. 1) (internal citation omitted).

       On November 2, 2017, Mr. Burkitt filed a motion for leave to file a



____________________________________________


          payable and in arrears, be taken to be due and payable and
          in arrears as if by the terms and provisions of this lease, the
          whole balance of unpaid rent and other charges, payments,
          taxes, costs and expenses were on that date payable in
          advance ….

(Lease at ¶ 14(d)(1)).

5 The court later acknowledged “[t]he obvious intention of the Order was to
require dispositive motions to be filed by December 15, 2016, not 2017.”
(Order, filed 10/24/18, at 1 n. 1).

                                           -5-
J-A06030-20


summary judgment motion. Mr. Burkitt argued the court had yet to schedule

trial, and granting him leave to file a summary judgment motion would not

create an unreasonable delay:

           Thus, inasmuch as the factual and legal predicate for the
           [c]ourt’s granting of summary judgment in favor of [Ms.
           Brohoski] is directly applicable, if not identical, to the factual
           and legal issues extant with [Mr. Burkitt], it would be a
           waste of judicial resources to impose a trial on factual and
           legal issues that should otherwise be disposed of on a
           summary basis.

(Motion, filed 11/2/17, at ¶ 21). On October 24, 2018, the court granted Mr.

Burkitt’s motion and ordered him to file a summary judgment motion within

seven days.

      On October 26, 2018, Mr. Burkitt filed his summary judgment motion.

Appellant filed a response and cross-motion for summary judgment on

November 26, 2018. By order dated February 15, 2019 and entered February

19, 2019, the court granted Mr. Burkitt’s summary judgment motion and

denied Appellant’s cross-motion.

      The trial court summarized the subsequent procedural history as

follows:

           On March 14, 2019, [Appellant] filed separate Notices of
           Appeal to the Superior Court from the orders of April 18,
           2017, and February 15, 2019, granting summary judgment
           in favor of [Appellees]. The appeals were docketed in the
           Superior Court at Nos. 809 and 819 EDA 2019. In each
           appeal, on April 17 and 30, 2019, the Superior Court
           entered an Order and Rule to Show Cause why the appeal
           should not be dismissed for lack of a final order, in view of
           the fact that [Appellant’s] claim against Burkitt Group
           remained pending in [the trial c]ourt. The Superior Court

                                         -6-
J-A06030-20


         quashed both appeals by Orders dated June 19, 2019.

         In the meantime, in late July 2019, counsel for [Appellant]
         and Burkitt Group submitted to [the trial c]ourt a Stipulation
         for the entry of judgment against Burkitt Group in the
         amount of $269,328.65. The Stipulation was approved as
         an Order … dated August 5, 2019 (and docketed August 6,
         2019). On August 7, 2019, with all claims now determined,
         [Appellant] again filed two Notices of Appeal to the Superior
         Court from the two Orders granting summary judgment in
         favor of [Appellees].

(Trial Court Opinion at 4).

      On August 13, 2019, the court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          Appellant

timely filed its Rule 1925(b) statement on August 29, 2019. On September

30, 2019, this Court consolidated Appellant’s appeals sua sponte.

      Appellant now raises two issues for our review:

         WHETHER THE TRIAL COURT ERRED IN FAILING TO
         ENFORCE THE PERSONAL GUARANTY OF LEASE AGAINST
         APPELLEES … WHO CONSENTED AND AGREED TO BE
         PERSONALLY RESPONSIBLE FOR THE EXTENSION OF THE
         LEASE IN THE AMENDMENT TO THE LEASE, SINCE,
         PURSUANT TO THE EXPLICIT TERMS OF THE GUARANTY,
         APPELLEES, WHO HAD WAIVED ACCEPTANCE OF THE
         GUARANTY AND WAIVED ANY NOTICE OF DEFAULT,
         CONSENTED AND AGREED, WITHOUT FURTHER NOTICE OR
         ASSENT, TO ANY EXTENSION OF THE LEASE, OR ANY
         RENEWAL OF THE LEASE?

         WHETHER THE TRIAL COURT ERRED IN ALLOWING … PAUL
         J. BURKITT TO FILE A MOTION FOR SUMMARY JUDGMENT
         ALMOST A YEAR AFTER THE EXPIRATION OF THE COURT
         ORDERED DATE TO DO SO?

(Appellant’s Brief at 5).

      Our standard of review of an order granting summary judgment requires

                                     -7-
J-A06030-20


us to determine whether the trial court abused its discretion or committed an

error of law.   Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347

(Pa.Super. 2006).

        Judicial discretion requires action in conformity with law on
        facts and circumstances before the trial court after hearing
        and consideration. Consequently, the court abuses its
        discretion if, in resolving the issue for decision, it misapplies
        the law or exercises its discretion in a manner lacking
        reason. Similarly, the trial court abuses its discretion if it
        does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.

407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.

2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of summary

judgment:

        [W]e apply the same standard as the trial court, reviewing
        all the evidence of record to determine whether there exists
        a genuine issue of material fact. 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 there is
        no genuine issue as to any 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. All doubts as to the
        existence of a genuine issue of a material fact must be
        resolved against the moving party.

        Motions for summary judgment necessarily and directly
        implicate the plaintiff’s proof of the elements of [a] cause of
        action.    Summary judgment is proper if, after the
        completion of discovery relevant to the motion, including
        the production of expert reports, an adverse party who will
        bear the burden of proof at trial has failed to produce
        evidence of facts essential to the cause of action or defense
        which in a jury trial would require the issues to be submitted

                                      -8-
J-A06030-20


         to a jury. In other words, whenever there is no genuine
         issue of any material fact as to a necessary element of the
         cause of action or defense, which could be established by
         additional discovery or expert report and the moving party
         is entitled to judgment as a matter of law, summary
         judgment is appropriate. Thus, a record that supports
         summary judgment either (1) shows the material facts are
         undisputed or (2) contains insufficient evidence of facts to
         make out a prima facie cause of action or defense.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      In its first issue, Appellant contends Appellees signed the guaranty,

which was “broad, continuing and unrestricted.”      (Appellant’s Brief at 26).

Pursuant to the express terms of the guaranty, Appellant maintains Appellees

assumed the risk of an extension or renewal of the lease, and Appellees

“consented explicitly to material modifications of the relationship between

[Appellant] and the Burkitt Group.”         (Id. at 31).      Appellant insists

Pennsylvania courts have enforced personal guaranties under similar

circumstances. Appellant concludes the trial court should have enforced the

guaranty against Appellees, and it erred in granting the summary judgment

motions. We disagree.

      “Customarily, a suretyship arrangement arises when a creditor refuses

to extend credit to a debtor unless a third party (the surety) agrees to provide

additional security for repayment of the debt by undertaking the debtor’s

obligation to the creditor if the debtor fails to perform.” J.F. Walker Co.,

                                     -9-
J-A06030-20


Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1273 (Pa.Super. 2002)

(quoting Continental Bank v. Axler, 510 A.2d 726, 729 (Pa.Super. 1986)).

          Cognizant of the problems posed by the three-party
          composition of suretyships, Pennsylvania courts have
          uniformly recognized that where the creditor and the debtor
          materially modify the terms of their relationship without
          obtaining the surety’s assent thereto, the surety’s liability
          may be affected. A material modification in the creditor-
          debtor relationship consists of a significant change in the
          principal debtor’s obligation to the creditor that in essence
          substitutes an agreement substantially different from the
          original agreement on which the surety accepted liability.
          Where, without the surety’s consent, there has been a
          material modification in the creditor-debtor relationship, a
          gratuitous    (uncompensated)       surety    is   completely
          discharged. A compensated surety is discharged only if,
          without the surety’s consent, there has been a material
          modification in the creditor-debtor relationship and said
          modification has substantially increased the surety’s risk.[6]

                                       *       *    *

          Nevertheless, material modifications in the creditor-debtor
          relationship will not serve to discharge the surety where the
          surety has given prior consent to such material
          modifications as part of the suretyship contract.          To
          determine whether a surety has consented to a material
          modification, the suretyship contract must be given effect
          according to its own expressed intention as gathered from
          all the words and clauses used, taken as a whole, due regard
          being had also to the surrounding circumstances.

Evans, supra at 452 (internal citations and quotation marks omitted). See

also Citicorp North America, Inc. v. Thornton, 707 A.2d 536, 539


____________________________________________


6 The trial court classified Appellees as compensated sureties, “[b]ecause
there is evidence that [Appellees], who were married at the time of the Lease
and Guaranty of Lease, were owners of Burkitt Group[.]” (Trial Court Opinion
at 7).

                                           - 10 -
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(Pa.Super. 1998) (holding surety agreement clearly and unambiguously

demonstrated appellant’s unbridled commitment to guarantee lessee’s

obligation; agreement characterized appellant’s liabilities as unconditional,

continuing, and unimpaired by amendments, extensions, renewals, regardless

of notice or consent).

      Instantly, the trial court determined the amendment to the lease

constituted a material modification:

         [T]here is no doubt that the Amendment materially
         increased the risk assumed by [Appellees] under their
         Guaranty of Lease. As modified by the Amendment, the
         rent included not just base rent but also a percentage rent
         calculated on the basis of the sales realized at the leased
         premises. In addition, upon default, the lessee was liable
         for interest at 15% per annum and attorney’s fees. The
         Amendment thus substantially increased the surety’s risk.

(Trial Court Opinion at 8-9) (internal citation and quotation marks omitted).

      Further, the court found Appellees did not provide prior consent to

material modifications. Specifically, the court compared the instant guaranty

to the one executed in Thornton, supra:

         The guaranty language in Thornton stands in stark contrast
         to the language of the Guaranty of Lease in the present
         case.    The Guaranty of Lease does not guaranty all
         obligations which Obligor presently or hereafter may have,
         nor does it provide for the continuing enforceability of the
         guaranty notwithstanding any … new agreements or
         obligations of [Burkitt Group] with or to [Appellant]. To the
         contrary, the guaranty is limited to [Burkitt Group’s]
         obligations under the Lease. And instead of the sweeping
         consent language in the guaranty in Thornton, the
         Guaranty of Lease in the present case limits the guarantors’
         consent to four specific actions that [Appellant] might take:


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            (1) extend or change the time for performance of any
            of Lessee’s obligations; (2) exchange, release or
            surrender any security held by it for the performance
            of Lessee’s obligations; (3) settle or compromise with
            the Lessee; and (4) take or refrain from taking such
            other actions as Lessor may in its sole discretion deem
            to be in its best interest with respect to the lease, the
            Lessee and the Leased Space.

        Clearly, the first three items do not cover the addition of
        percentage rent or the provision for recovery of interest and
        attorney’s fees. The meaning of the fourth item, consenting
        to actions that [Appellant] may take in its best interest, is
        unclear, but it surely is not so definitive as to clearly and
        unambiguously demonstrate [an] unbridled commitment to
        cover the increased monetary obligations of Burkitt Group
        under the Amendment.

                                  *     *      *

        Notably, [Appellant] could have avoided this result by
        requiring [Appellees] to expressly consent to the
        Amendment when it was agreed to by Burkitt Group or to
        enter into a new guaranty agreement. If it failed to make
        such a demand, it cannot now complain of the resulting
        discharge of the guarantors by operation of law.
        Alternatively, if it did make such a demand and then decided
        to proceed with the Amendment in the face of the
        guarantors’ refusal to consent, then it must accept the
        consequences of its decision.4

            4 [Mr. Burkitt’s] signature [on] the Amendment in his
            capacity as a corporate owner or officer of Burkitt
            Group does not constitute consent in his individual
            capacity as guarantor.        In Evans, the Lease
            Amendment and Extension Agreement was signed by
            the president of the corporate lessee, … but that
            signature was not held to be a consent for purposes
            of his personal guaranty.

(Trial Court Opinion at 10-11) (internal citations and quotation marks

omitted).


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      Here, the amendment modified the amount of rent to include a minimum

monthly payment and a “percentage rent” to be calculated based on Burkitt

Group’s gross sales. The amendment also contained new terms regarding

default, including additional requirements for Burkitt Group to pay interest

and counsel fees. Taken together, the new terms in the amendment increased

Appellees’ risk and constituted a material modification in the creditor-debtor

relationship. See Evans, supra. See also Magazine Digest Pub. Co. v.

Shade, 330 Pa. 487, 199 A. 190 (1938) (explaining original contract required

magazine distributor to pay fourteen and one-half cents per copy to publisher;

change requiring distributor to pay fifteen cents per copy was “material

alteration,” which discharged guarantors of obligations to distributor).

      Additionally, the guaranty did not include broad language demonstrating

Appellees’ consent to the material modifications contained in the amendment.

As the trial court correctly noted, the guaranty expressly set forth four

circumstances under which Appellees provided consent for Appellant to act.

The four enumerated circumstances did not include Appellees’ consent to all

forms of material modification, including future changes to the lease’s financial

terms. See Reliance Ins. Co. v. Penn Paving, Inc., 557 Pa. 439, 734 A.2d

833 (1999) (holding parties’ continuing indemnification agreement did not

contain any language constituting consent to material increase in risk of

liability to appellants or language expressly waiving notice of material

modification in risk of liability; waiver provisions also failed to expressly refer


                                      - 13 -
J-A06030-20


to material modification). Compare Axler, supra (concluding sureties signed

contract that allowed creditor to make material modification without notice to

surety, and sureties would be obligated for liabilities of any successor

business). Based upon the foregoing, the court properly entered summary

judgment in favor of Appellees. See Chenot, supra.

      In its second issue, Appellant asserts Mr. Burkitt’s untimely filing of a

summary judgment motion violated Pa.R.C.P. 1035.2.          Further, Appellant

contends Mr. Burkitt untimely filed his summary judgment motion after the

deadline set forth in the court’s August 2016 discovery management

conference order. Appellant acknowledges the August 2016 order contained

an erroneous deadline date, but “the court’s intention [was] to have all

dispositive motions filed on or before December 15, 2016.” (Appellant’s Brief

at 32). Appellant concludes the trial court erred as a matter of law in granting

Mr. Burkitt’s motion for leave to file a summary judgment motion.           We

disagree.

      Rule 1035.2 provides, in pertinent part:

         Rule 1035.2. Motion

            After the relevant pleadings are closed, but within such
         time as not to unreasonably delay trial, any party may move
         for summary judgment in whole or in part as a matter of law

                  (1) whenever there is no genuine issue of any
            material fact as to a necessary element of the cause of
            action or defense which could be established by
            additional discovery or expert report, or

                  (2)   if, after the completion of discovery relevant

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           to the motion, including the production of expert reports,
           an adverse party who will bear the burden of proof at
           trial has failed to produce evidence of facts essential to
           the cause of action or defense which in a jury trial would
           require the issues to be submitted to a jury.

                                 *     *      *

                       Explanatory Comment—1996

                                 *     *      *

           New Rule 1035.2 provides that a party may move for
        summary judgment after the “relevant” pleadings are closed
        and, in order to provide discretion in the lower court,
        within such time so as not to “unreasonably” delay the trial.

Pa.R.C.P. 1035.2 (emphasis added).

     Instantly, the trial court acknowledged the fact that the discovery

management conference order provided an incorrect deadline for the filing of

dispositive motions:

        It is the usual practice of this [c]ourt to dismiss motions for
        summary judgment that are untimely under a case
        management order. The instant case, however, presented
        the highly unusual situation where a motion was filed
        within the deadline as literally construed, although not as
        construed in accordance with its apparent intention.
        Combined with this circumstance was the fact that [Mr.
        Burkitt’s] Motion for Summary Judgment was made on the
        identical grounds on which [Ms. Brohoski] had already
        been granted summary judgment.

(Trial Court Opinion at 11-12) (emphasis in original).       Given the court’s

discretionary authority to manage its trial schedule, it opted to allow Mr.

Burkitt to file a summary judgment motion.

     Here, the court’s decision to allow Mr. Burkitt to file a summary


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judgment motion that did not comply with the “apparent intention” of the

discovery management conference order did not, by itself, constitute a

violation of Pa.R.C.P. 1035.2 or an abuse of discretion. See Robertson v.

Port Authority of Allegheny County, 144 A.3d 980 (Pa.Cmwlth. 2016)

(explaining mere fact that summary judgment is sought on day of trial does

not require that trial court deny motion; rather, issue is whether plaintiff has

received full and fair opportunity to respond to motion); Schreck v. North

Codorus Tp., 559 A.2d 1018 (Pa.Cmwlth. 1989) (concluding summary

judgment motion was not untimely, even though it was not filed until almost

three years after completion of discovery; case had not yet been listed for

trial, and there was no evidence that motion was filed to delay trial).7 Because

Mr. Burkitt raised the same issues as Ms. Brohoski, and Appellant received a

full opportunity to respond, Appellant is not entitled to relief on its second

issue. See id. Accordingly, we affirm.

       Orders affirmed.




____________________________________________


7See also Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010),
appeal denied, 608 Pa. 648, 12 A.3d 371 (2010) (stating: “This Court is not
bound by decisions of the Commonwealth Court. However, such decisions
provide persuasive authority, and we may turn to our colleagues on the
Commonwealth Court for guidance when appropriate”).

                                          - 16 -
J-A06030-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/20




                          - 17 -
