J-A06012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NATURES WAY SPRINGS L.P., IND, AND             IN THE SUPERIOR COURT OF
AS A MEMBER OF LEHIGH POINTE                         PENNSYLVANIA
PROPERTY OWNERS ASSOC. AN UNINC.
ASSN.

                         Appellant

                    v.

C. PANEL HOLDING LLC ET AL

                         Appellee                   No. 1222 MDA 2015


               Appeal from the Judgment Entered July 6, 2015
              In the Court of Common Pleas of Luzerne County
                      Civil Division at No: 2011-09037


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

CONCURRING MEMORANDUM BY STABILE, J.:                  FILED MAY 25, 2016

      I join in the Majority’s disposition of Appellant’s first two issues and

write only to concur in the denial of Appellant’s third, as I do not believe

Appellant may appeal the denial of a summary judgment motion after a case

has been tried to verdict.

      The purpose of a pre-trial summary judgment motion is to weed out

meritless cases and avoid a useless trial. DeArmitt v. New York Life Ins.

Co., 73 A.3d 578, 595 (Pa. Super. 2013) (citation omitted). Summary

judgment is granted properly when there are no material facts in dispute as

to any cause of action and judgment may be entered before trial as a matter

of law. Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566 (Pa.

2005). The record for purposes of ruling on a motion for summary judgment
J-A06012-16



consists    of     the   pleadings,   depositions,   answers   to   interrogatories,

admissions, affidavits, and reports signed by expert witnesses, that would, if

filed, comply with Pa.R.C.P. No. 4003.5(a)(1).         See Pa.R.C.P. No. 1035.1.

Once a matter proceeds to trial, however, the record for purposes of appeal

is different from that when passing upon a pre-trial motion for summary

judgment.        The record for appeal after trial consists of the original papers

and exhibits filed in the trial court, paper copies of legal documents filed

electronically with the prothonotary, the transcript of proceedings, if any,

and certified copies of the docket entries. See Pa.R.A.P. 1921. The pre-trial

record and appeal record are not the same. Once a trial is completed the

purpose of a summary judgment motion and its record no longer are

relevant for purposes of seeking post-trial relief. If post-trial relief is sought,

nonetheless granted, it must be based upon the record established for trial.

During trial and post-trial, the mechanisms to test the sufficiency of a

plaintiff’s evidence are a motion for nonsuit, directed verdict, and motions

for post-trial relief. See Pa.R.C.P. Nos. 230.1, 226, and 227.1. Motions for

summary judgment are no longer available and may not be filed once trial

commences. See Pa.R.C.P. No. 1035.2 (motion for summary judgment to be

filed so as not to delay trial). If the record upon which a summary judgment

is filed loses its relevancy once a case is tried to verdict, it follows that a

denial of a summary judgment motion cannot be appealed, since the record

upon which it was denied is not the same record upon which the verdict and

final order are entered.

                                         -2-
J-A06012-16



       Here, Appellant contends it was error to deny its motion for summary

judgment because the language of the easements and covenants in question

was clear and unambiguous.             In response, as the Majority points out,

Appellee notes there were many disputed facts concerning the enforceability

of Covenant 6 that made denial of the motion proper. The Majority, after

record review, agreed that myriad issues of fact existed.              Majority

Memorandum, at 10. Appellant’s attempt to gain review of the denial of his

pre-trial summary judgment motion post-trial, is incongruent with the record

for review on appeal and applicable rules governing pre-trial, trial, and post-

trial practice. Accordingly, I would deny Appellant’s last issue that the trial

court erred by denying its pre-trial motion for summary judgment on the

basis that the denial is not an appealable order.1 Since the Majority likewise

denies relief on this last issue, albeit for a different reason, I respectfully

offer only my concurrence on this final issue.




____________________________________________


1
  Unlike the denial of a motion for summary judgment, a motion granting
summary judgment as to less than all parties may be appealed, but only
after a final order is entered in a matter. K.H. v. J.R., 826 A.2d 863, 869
(Pa. 2003).



                                           -3-
