J-A02029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LUCAS KERCHOFF AND VALORIE               :   IN THE SUPERIOR COURT OF
 KERCHOFF, INDIVIDUALLY AND AS            :        PENNSYLVANIA
 PARENTS AND NATURAL GUARDIANS            :
 OF J.K.                                  :
                                          :
                                          :
              v.                          :
                                          :
                                          :   No. 1094 MDA 2018
 ATLANTIC STATES INSURANCE                :
 COMPANY                                  :
                                          :
                                          :
 APPEAL OF: LUCAS KERCHOFF                :

             Appeal from the Judgment Entered May 31, 2018
 In the Court of Common Pleas of Northumberland County Civil Division at
                           No(s): CV-16-1266


BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                            FILED APRIL 09, 2019

      Appellants Lucas and Valorie Kerchoff, individually and as parents and

natural guardians of minor J.K., appeal from the judgment entered after the

trial court granted summary judgment in favor of Appellee Atlantic States

Insurance Company. Appellants assert that the trial court erred in deeming

Appellee’s motion for summary judgment uncontested.            We vacate and

remand for further proceedings consistent with this memorandum.

      The relevant factual background to this matter includes the following.

Appellants’ son, J.K., was injured when a vehicle driven by Terri Pastore struck

him while he was crossing Market Street in Sunbury, Pennsylvania.           Ms.

Pastore was insured by Erie Insurance Company at the time of the collision,
J-A02029-19



and Appellants claimed that her policy limit of $100,000.00 was not adequate

to compensate for J.K.’s injuries sustained as a result of the accident. J.K.’s

grandparents were insured at the time of the accident by a policy with

Appellee, which provided underinsured motorist (UIM) coverage. Appellants

contend that they are entitled to damages under the UIM endorsement in the

policy issued to J.K.’s grandparents.

      Appellants initially filed a complaint on July 21, 2016, asserting breach

of contract and bad faith claims against Appellee. Thereafter, on October 12,

2016, Appellants filed an amended complaint to attach a copy of the relevant

insurance policy and to correct the caption. Appellee filed a motion seeking

to sever the bad faith claim from the breach of contract claim. The trial court

denied the motion on January 4, 2017.

      A period of discovery ensued, after which Appellee filed a motion seeking

summary judgment on April 6, 2018.            On April 11, 2018, the trial court

docketed an order dated April 9, 2018, providing that argument on the motion

for summary judgment would be held on July 18, 2018, with Appellee’s brief

due twenty days before the argument and Appellants’ brief due ten days

before the argument.

      On May 25, 2018, Appellee filed a motion to deem its motion for

summary judgment uncontested based upon Appellants’ failure to respond

within thirty days of the filing of the motion for summary judgment. The trial

court granted Appellee’s motion and granted summary judgment in favor of

Appellee on May 31, 2018. Appellants filed a motion for reconsideration of

                                        -2-
J-A02029-19



the grant of summary judgment, asserting that they understood the order

docketed April 11, 2018, to modify the requirement to respond within thirty

days.    The trial court denied the motion for reconsideration in an order

docketed June 12, 2018.

        Appellants filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) statement. The trial court complied with Pa.R.A.P. 1925(a).

        Appellants raise the following issues for our review:

        1. Whether the trial court committed an error of law or abuse of
           discretion in granting [Appellee’s] Motion for Summary
           Judgment[.]

        2. Whether the trial court committed an error of law or abuse of
           discretion in deeming [Appellee’s] Motion for Summary
           Judgment uncontested[.]

        3. Whether the trial court committed an error of law or abuse of
           discretion in not granting [Appellants] leave to file a Response
           to [Appellee’s] Motion for Summary Judgment where no
           prejudice occurred[.]

        4. Whether the trial court committed an error of law or abuse of
           discretion in not permitting [Appellants] to supplement the
           record with the deposition transcript of the underinsured
           motorist[.]

        5. Whether the trial court committed an error of law or abuse of
           discretion in granting [Appellee’s] Motion for Summary
           Judgment following the filing of [Appellee’s] Motion to Deem its
           Motion for Summary Judgment Uncontested instead of allowing
           the parties the opportunity to supplement the record, file briefs
           and conduct oral argument pursuant to the [trial c]ourt’s
           Scheduling Order[.]

Appellants’ Brief at 4-5.

        Appellants’ first and second issues are closely related, and we address

them together. Appellants assert that


                                       -3-
J-A02029-19


      [w]hen viewed in the light most favorable to Appellant[s],
      Appellee’s evidence does not clearly dispel the existence of any
      genuine factual issue for the jury . . . . Also, the record contains
      evidence of facts essential to the cause of action which in a jury
      trial requires the issues to be submitted to a jury.

Appellants’ Brief at 11.

      Appellants assert that they interpreted the April 11, 2018 order setting

forth the briefing schedule “as a modification of both local rules and

Pennsylvania Rules of Civil Procedure. Appellants fully intended to supplement

the record with the deposition transcript of the underinsured driver and

contest the Motion for Summary Judgment in their brief, that was not yet due,

and during argument.” Id. at 12-13. Further, Appellants assert that

      the scheduling Order issued April 9, 2018 and docketed April 11,
      2018, outside the normal course pursuant to local rules, is the
      only reason that a response to the Motion for Summary Judgment
      was not filed within thirty days. Under these circumstances, the
      Honorable Hugh A. Jones’ granting of Appellee’s Motion for
      Summary Judgment, after deeming it uncontested, was an error
      of law or abuse of discretion and should be reversed.

Id. at 13.

      Appellee counters that “[s]ummary judgment was proper because

[Appellants] failed to respond to the Motion for Summary Judgment within

thirty days as required by the Rules of Civil Procedure.” Appellee’s Brief at 4.

According to Appellee, “Pa.R.C.P. 1035.2 provides, in part, that a party may

move for summary judgment where ‘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. . . .’”    Id. at 5 (citing Pa.R.C.P. 1035.2(2)).      Further,

“Pa.R.C.P. 1035.3 states plainly that if adverse parties wish to oppose a


                                      -4-
J-A02029-19



motion for summary judgment they ‘must file a response within thirty days

after service of the motion.’” Id. (citing Pa.R.C.P. 1035.3(a)). Additionally,

Appellee asserts that “there was absolutely no evidence of negligence

whatsoever of record at the time summary judgment was entered.” Id. at 7.

     Our scope and standard of review of the grant of a motion for summary

judgment is well settled. We

     may disturb the order of the trial court only where it is established
     that the court committed an error of law or abused its discretion.
     As with all questions of law, our review is plenary.

     In evaluating the trial court’s decision to enter summary
     judgment, we focus on the legal standard articulated in the
     summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
     where there is no genuine issue of material fact and the moving
     party is entitled to relief as a matter of law, summary judgment
     may be entered. Where the non-moving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a non-
     moving party to adduce sufficient evidence on an issue essential
     to his case and on which it bears the burden of proof . . .
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will 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.

Cigna Corp. v. Exec. Risk Indem., Inc., 111 A.3d 204, 210-11 (Pa. Super.

2015) (citation omitted).

     Pennsylvania Rule of Civil Procedure 1035.2 provides:

     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


                                     -5-
J-A02029-19


        could be established by additional discovery or expert report,
        or

        (2) 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
        to a jury.

Pa.R.C.P. 1035.2.

     Pennsylvania Rule of Civil Procedure 1035.3 provides that

     (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.

     (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), (d)-(e).



                                     -6-
J-A02029-19



      Northumberland County Local Rule of Civil Procedure 1035.2(a)

provides:

        (1) After thirty (30) days from service of the motion for
      summary judgment, any party may file a praecipe with the
      Prothonotary to place the matter on the argument list.

        (2) If a response is filed where any party demands discovery,
      the parties shall complete such discovery within sixty (60) days,
      unless otherwise directed by the Court, and thereafter a praecipe
      may be filed for placement on the argument list.

        (3) Subsequently, a briefing schedule and assignment to a
      judge will be issued by the Court Administrator.

Northumberland Cty. R.C.P. 1035.2(a).

      Here, while Appellants did not file a response to the motion for summary

judgment within thirty days as required by Rule 1035.3(a), the trial court

issued an order within the thirty-day time-period in contravention of the

procedure established by local rule in Northumberland Local Rule of Civil

Procedure 1035.2(a)(3).     Because the order docketed April 11, 2018 was

issued before the thirty-day period had elapsed, it was reasonable for

Appellants to believe that the order overrode the requirement of filing a

response to the motion as normally required. Accordingly, we hold that the

trial court erred in deeming Appellee’s motion for summary judgment

uncontested. Furthermore, as the basis for the grant of summary judgment

was the failure to file a response within thirty days rather than a ruling on the

merits, we remand this matter and order the court to provide Appellants the

opportunity to file, within thirty days of remand, their opposition to the

motion.


                                      -7-
J-A02029-19



     Because of our disposition of the first two issues, we need not reach the

remaining issues raised on appeal.

     Order vacated. Remanded with instructions. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/09/2019




                                     -8-
