J-A10045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DAVID ROBINSON                            :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                      Appellant            :
                                           :
                v.                         :
                                           :
 AM RESORTS, L.P., AND AM                  :
 RESORTS, L.L.C., AND AMR GP               :
 HOLDINGS, L.L.C., AND AMSTAR              :
 DMC, AND APPLE LEISURE GROUP,             :
 AND APPLE VACATION RESORTS,               :
 AND ATKINS & MULLEN TRAVEL,               :
 INC. T/A AND/OR D/B/A APPLE               :
 VACATIONS, AND APPLE                      :
 VACATIONS, L.L.C. AND SECRETS             :
 SILVERSANDS RIVIERA CANCUN                :
                                           :
                      Appellees            :       No. 2715 EDA 2018

                  Appeal from the Order Entered August 31, 2018
               In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): April Term, 2018, No. 1953

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.E.:                            FILED MAY 14, 2019

     Appellant, David Robinson, appeals from the order entered in the

Philadelphia     County   Court   of   Common    Pleas,   which   granted   the

reconsideration motion filed on behalf of Appellees, AM Resorts, L.P., and AM

Resorts, L.L.C., and AMR GP Holdings, L.L.C., and Amstar DMC, and Apple

Leisure Group, and Apple Vacation Resorts, and Atkins & Mullen Travel, Inc.,

t/a and/or d/b/a Apple Vacations, and Apple Vacations, L.L.C. and Secrets

Silversands Riviera Cancun, vacated the court’s prior order overruling their

preliminary objections, sustained their preliminary objections for improper
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venue, and transferred the matter to the Delaware County Court of Common

Pleas. We vacate and remand for further proceedings.

      The relevant facts and procedural history of this case are as follows. On

April 13, 2018, Appellant filed a negligence complaint against Appellees in the

Philadelphia County Court of Common Pleas, for injuries Appellant allegedly

sustained on April 15, 2016, when he slipped and fell at the Secrets

Silversands Resort in Cancun, Mexico. Appellant filed an amended complaint

on June 12, 2018. On July 2, 2018, Appellees filed preliminary objections

based on, inter alia, improper venue. Appellant filed an answer on July 23,

2018. The court overruled the preliminary objections by order dated July 31,

2018, entered on the docket on August 1, 2018, with notice sent to the parties

on August 3, 2018. Appellees filed a motion for reconsideration on August 17,

2018. On August 31, 2018, before Appellant had an opportunity to respond,

the court granted Appellees’ motion for reconsideration, vacated the prior

order overruling their preliminary objections, sustained their preliminary

objections for improper venue, and transferred the matter to the Delaware

County Court of Common Pleas. Appellant timely filed a notice of appeal on

September 6, 2018. On October 2, 2018, the court ordered Appellant to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), which Appellant timely filed on October 19, 2018.

      Appellant raises one issue for our review:

         DID THE [TRIAL] COURT ERR AND/OR ABUSE ITS
         DISCRETION WHEN IT GRANTED [APPELLEES’] MOTION
         FOR RECONSIDERATION OF PRELIMINARY OBJECTIONS

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          AND TRANSFERRED VENUE TO DELAWARE COUNTY?

(Appellant’s Brief at 4).

       Appellant argues the court deprived him of an opportunity to respond to

Appellees’ motion for reconsideration.           Appellant asserts the Pennsylvania

Rules of Civil Procedure and Philadelphia Local Rules of Civil Procedure allowed

him twenty (20) days to respond to Appellees’ motion. Appellant claims the

court acknowledged in its Rule 1925(a) opinion that it had granted Appellees’

requested relief prematurely and asks this Court to remand the matter to the

trial court for further proceedings. Appellant concludes the trial court failed

to comply with the relevant rules of civil procedure, and this Court must vacate

and remand for further proceedings.1 We agree.

       Pennsylvania Rule of Civil Procedure 208.3 provides:

          Rule 208.3        Alternative Procedures

             (a) Except as otherwise provided by subdivision (b),
          the court shall initially consider a motion without written
          responses or briefs. For a motion governed by this
          subdivision, the court may not enter an order that
          grants relief to the moving party unless the motion is
          presented as uncontested or the other parties to the
          proceeding are given an opportunity for an argument.

             Note: Rule 208.3(a) does not prevent a court from
          denying the moving party’s request for relief without the
          opportunity for an argument where the motion is
          procedurally defective, is untimely filed or fails to set forth
          adequate grounds for relief.
____________________________________________


1 Appellant also argues the court erred by transferring the case to Delaware
County without permitting Appellant a chance to conduct further discovery on
the issue of venue. Based on our disposition, we decline to address this claim.

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          Parties may choose to submit responses and briefs at the
       time of the presentation, provided that copies have been
       served on every other party. However, parties are not
       required to do so.

          Rule 239.3(d) requires every court to promulgate Local
       Rule 208.3(a) describing the local court procedure
       governing motions under this rule.

           (b) A court, by local rule, numbered Local Rule
       208.3(b), may impose requirements with respect to motions
       listed in the rule for the filing of a response, a brief or both.
       Where a response is required, any party opposing a
       motion governed by Local Rule 208.3(b) shall file the
       response within twenty days after service of the
       motion, unless the time for filing the response is
       modified by court order or enlarged by local rule.

          Note: Motions are governed by the procedure in
       subdivision (a) unless the court by local rule designates
       particular types of motions to be governed by the procedure
       in subdivision (b).

          The twenty-day response period may be extended or
       reduced by special order of court. A local rule may only
       extend the time period.

          A response shall be filed by any party opposing a motion
       governed by subdivision (b) even if there are no contested
       issues of fact because the response is the opposing party’s
       method of indicating its opposition.

          Rule 208.3(b) authorizes each court of common pleas to
       impose requirements of responses and briefs with respect
       to designated motions. Rule 239.3(e) requires each court
       which has imposed such requirements to promulgate a local
       rule, numbered Local Rule 208.3(b), listing the motions and
       the requirements.

         Rule 239.3(e) also provides that Local Rule 208.3(b)
       must describe the local court procedure governing motions
       under subdivision (b) and may allow the court to treat the
       motion as uncontested if a response is not filed.

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Pa.R.C.P. 208.3 (emphasis added). Philadelphia Local Rule 208.3 provides, in

pertinent part:

         Rule *208.3(a). Motions Initially Considered Without
         Written Response or Briefs

                                 *    *    *

            (3) Motions for Reconsideration.            Motions for
         Reconsideration shall be forwarded to the appropriate judge
         immediately upon filing, and the filing party must serve a
         copy of the motion as provided in subsection (b)(3)(C). In
         appropriate cases, the assigned judge may enter a
         preliminary order vacating the order in question pending
         receipt of the response to the motion.

Phila.L.R.C.P. 208.3(a)(3).

         Rule *208.3(b). Motions Considered After Response
         Period. Briefs.

                                 *    *    *

            (2)   Non-Discovery Motions.

                                 *    *    *

            (B) Control Number. Response Date. Other than as
         provided in Phila.Civ.R. *208.3(a) and except for Summary
         Judgment Motions (which have a thirty (30) day response
         period), all Motions have a twenty (20) day response period.
         Upon filing, the Motion Clerk shall enter on the Cover Sheet
         a unique Control Number which must be used on all
         Responses, and shall enter the ‘Response Date’ on or before
         which all Responses must be filed by any party.

Phila.L.R.C.P. 208.3(b)(2)(B).




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      This Court has previously vacated and remanded for further proceedings

where a trial court failed to comply with the requirements of Rule 208.3,

stating:

           In accordance with that Rule [208.3], as well as the local
           rule, the trial court could not grant Cove Centre’s Motion for
           Sanctions without first convening oral argument or an
           evidentiary hearing unless the motion was uncontested.
           Based on the record before us, we do not find that
           precondition satisfied. The trial court granted the Motion
           without recourse to an order compelling discovery and did
           so only three days after the Motion for Sanctions was filed.
           Moreover, the docket offers no indication of when or if the
           Motion was served upon Westhafer. Because we find no
           basis upon which to conclude that Westhafer was aware of
           the Motion or had ample opportunity to respond, we
           cannot deem the Motion uncontested. Accordingly, Rule
           208.3 and its local analog would appear to mandate that
           oral argument or an evidentiary hearing be convened prior
           to entry of the trial court’s order. The court’s failure to
           convene such a proceeding constitutes error.

Cove Centre, Inc. v. Westhafer Const., Inc., 965 A.2d 259, 264 (Pa.Super.

2009) (emphasis added). See also In re Bridgeport Fire Litigation, 5 A.3d

1250 (Pa.Super. 2010) (holding trial court’s order granting motion for

compensation of claims administrator denied respondents opportunity to

respond and object, where court granted motion prior to expiration of 30-day

response deadline set forth in Montgomery County Local Rule 208.3(b)(2);

remanding with instructions that court require notice and opportunity to object

as provided in relevant rules of court prior to issuing order).

      Instantly, Appellees filed preliminary objections based on improper

venue on July 2, 2018, which the court overruled by order dated July 31,


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2018, entered on the docket on August 1, 2018, with notice sent to the parties

on August 3, 2018.        On August 17, 2018, Appellees filed a motion for

reconsideration. Under state and local Rule 208.3(b), Appellant had twenty

(20) days to respond to Appellees’ motion.         See Pa.R.C.P. 208.3(b);

Phila.L.R.C.P. 208.3(b)(2)(B).    Thus, Appellant’s response was due on or

before September 6, 2018. Prior to expiration of the 20-day response period,

however, the court granted Appellees’ motion for reconsideration on August

31, 2018, vacated the order overruling their preliminary objections, sustained

the preliminary objections based on improper venue, and transferred the

matter to the Delaware County Court of Common Pleas. In its opinion, the

trial court acknowledges its error and asks us to remand the case for further

consideration. We agree with the trial court that remand is required, where

Appellant was deprived of the opportunity to respond to Appellees’ motion for

reconsideration. See id.; In re Bridgeport Fire Litigation, supra; Cove

Centre, supra. Accordingly, we vacate and remand for further proceedings.

      Order vacated; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19

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