J-S41008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENNIS L. CHESTNUT,                                 IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                       v.

DAVID A. GARDNER,

                            Appellee                     No. 262 MDA 2017


                Appeal from the Order Entered January 26, 2017
               in the Court of Common Pleas of Lycoming County
                         Civil Division at No.: 15-00569


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                  FILED JULY 31, 2017

        Appellant, Dennis L. Chestnut, appeals from the trial court’s order

entering summary judgment in favor of Appellee, David R. Gardner.            We

affirm.

        We take the following relevant facts and procedural history from the

trial court’s January 26, 2017 opinion and our independent review of the

certified record.     Appellant operates C & C Tree Service, a tree removal

business.     He commenced this litigation by filing a writ of summons on

February 27, 2015. Appellant filed a complaint for negligence on September

1, 2015, claiming that he obtained liability insurance for his business

through Appellee, his insurance agent.         The policy period ran from August

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*
    Retired Senior Judge assigned to the Superior Court.
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12, 2012 through August 12, 2013.              Appellant averred that the insurance

was cancelled without notice to him and was no longer in effect as of March

2013, and that Appellee failed to procure substitute insurance. He sought

reimbursement for the amount he paid as a result of a loss that occurred on

August 18, 2013, and for his loss of business while he obtained replacement

insurance.

       The parties conducted discovery, and Appellant was deposed on April

27, 2016.     Appellee filed an answer to the complaint and new matter on

September 6, 2016.         On December 12, 2016, Appellee filed a motion for

summary judgment and supporting brief, and Appellant filed an answer

thereto on January 12, 2017. The trial court held argument on the motion

on January 24, 2017.          On January 26, 2017, the trial court entered an

opinion and order granting the motion for summary judgment.1 This timely

appeal followed.2

       Appellant raises one issue for our review: “Whether the trial court

committed error by granting summary judgment without considering


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1
  In its opinion, the court erroneously stated that Appellant did not file a
response to the motion for summary judgment. (See Trial Court Opinion,
1/26/17, at 2).
2
  The trial court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). In its Rule 1925(a)
opinion, filed on February 9, 2017, it referred this Court to its January 26,
2017 opinion for the reasons for its decision. See Pa.R.A.P. 1925(a).




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[Appellant’s] response to the motion and deciding causation as a matter of

law?” (Appellant’s Brief, at 4).

            The overarching question of whether summary judgment is
      appropriate is a question of law, and thus our standard of review
      is de novo and the scope of review is plenary. Furthermore:

                   [i]n reviewing the grant of summary judgment,
            the following principles apply. [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 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. To
            the extent that this Court must resolve a question of
            law, we shall review the grant of summary judgment
            in the context of the entire record.

Feleccia v. Lackawanna Coll., 156 A.3d 1200, 1208–09 (Pa. Super. 2017)

(citations and quotation marks omitted).

      Instantly, Appellant argues that reversal of summary judgment is

necessary because the trial court failed to consider his January 12, 2017

response to Appellee’s motion for summary judgment.         (See Appellant’s


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J-S41008-17



Brief, at 7-8, 10; see also Trial Ct. Op., at 2 (stating that Appellant did not

file a response to the summary judgment motion)).           Consequently, he

maintains, the court failed to consider the entire record in rendering its

decision, and to recognize that factual issues for a jury to resolve exist.

(See Appellant’s Brief, at 7-8, 10).    To support his argument, Appellant

relies on Greely v. W. Penn Power Co., 156 A.3d 276 (Pa. Super. 2017),

which he claims raises “exactly the situation present in the case at bar

[where] the trial court did not consider the entire record and did not view

the evidence in a light most favorable to the non-moving party.” (Id. at 10;

see id. at 9). We disagree.

      In Greely, this Court reversed the trial court’s order granting

summary judgment in favor of the defendant utility company in a negligence

action arising from the electrocution death of Greely, a telecommunications

cable installer.   See Greely, supra at 277.      In that matter, the record

reflected that the trial court did not consider the expert report submitted by

the plaintiff, which opined that the defendant’s negligent actions were the

proximate cause of Greely’s death. See id. at 282-83. This Court explained

that, at the summary judgment stage, the trial court must defer to the

supported conclusions contained in expert reports submitted by the

nonmoving party. See id. at 283.

      In contrast, the instant case does not involve the trial court’s alleged

disregard of a substantive expert report.     Although the court mistakenly

stated in its opinion that Appellant did not submit a response to the motion

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J-S41008-17



for summary judgment, a review of that response reveals that it contained

nothing substantive.        (See Response to Motion for Summary Judgment,

1/12/17, at unnumbered pages 1-2). Appellant did not raise any evidence

to counter the legal arguments set forth in the motion, and re-raised the

same allegations contained in the complaint regarding the failure to notify

him of the policy cancellation. (See id.). Furthermore, the record reflects

that, after Appellee filed the motion for summary judgment and Appellant

filed his response, the trial court held argument on the matter, giving the

parties the opportunity to develop their claims at that time. (See Trial Ct.

Op., at 1).    Therefore, our holding in Greely in inapposite, and does not

mandate reversal in this matter. Upon review, we discern no error of law or

abuse of discretion in the trial court’s grant of summary judgment.          See

Feleccia, supra at 1209.3           Accordingly, Appellant’s sole issue on appeal

does not merit relief.

       Order affirmed.




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3
  As noted above, Appellant seeks to recover for a loss that occurred after
the policy, under its original terms, would have expired. (See supra, at
*2). Hence, we agree with the trial court’s conclusion that Appellant was
responsible for knowing the terms of his policy and is barred from recovery.
(See Trial Ct. Op., at 2).



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J-S41008-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




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