Libby, K. v. Wetzel, P., Jr.

J-A22008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN C. LIBBY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

PALMER WETZEL, JR., D/B/A WETZEL
LUMBER CO.,

Appellee No. 337 MDA 2015

Appeal from the Order Dated January 21, 2015
In the Court of Common Pleas of Lycoming County
Civil Division at No(s): 13-02,638

BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 26, 2016

Kevin C. Libby appeals the order entered on January 21, 2015,

wherein the trial court granted summary judgment in favor of the defendant,

Palmer Wetzel, Jr., d/b/a Wetzel Lumber Company (collectively “Wetzel”).

We affirm.

Around 12:00 p.m., on March 29, 2013, Appellant was logging for

Wetzel on the lumber company’s property. Appellant was not a salaried

employee. His pay was based upon the type and number of trees that he

felled using Wetzel’s equipment. The property, approximately twenty-five

acres in Lycoming County, Pennsylvania, was sloped and the leaf-covered

ground was rocky and muddy. Appellant had been working on the property

*
Retired Senior Judge assigned to the Superior Court.
J-A22008-15

for approximately two weeks when he attempted to use a piece of heavy

machinery known as a log skidder to topple a tree that was difficult to

access and cut conventionally.1 The log skidder allegedly malfunctioned

during the maneuver, lost power, and rolled backward down the grade.

Appellant attempted to stop the descent by activating the foot brake and

emergency hand brake. However, without power to the hydraulic system,

the brakes were inoperable. Appellant slid down the hill backwards at about

four to five miles per hour for approximately twenty feet and crashed into a

tree. He asserts that he sustained physical injury to his lower back, but the

extent of his injuries were not immediately apparent.

On October 18, 2013, Plaintiff filed a civil complaint against Wetzel

alleging negligence in the maintenance of the log skidder. After some

procedural wrangling, Wetzel filed an answer and new matter, and Appellant

filed a reply to new matter. Thereafter, Wetzel filed a motion for judgment

on the pleadings, which the trial court denied. On October 20, 2014,

Appellant and Steven Wetzel, who helped run his father’s logging operation,

were deposed at the law office of Wetzel’s counsel. Thereafter, on

December 1, 2014, Wetzel filed a motion for summary judgment asserting
____________________________________________

1
The certified record reveals that the logging equipment was a John Deere
540B skidder that was manufactured between 1968 and 1980. Skidders are
versatile logging machines that are designed primarily for removing cut trees
from a forest to a landing for transportation. See
http://www.forestsandrangelands.gov/catalog/equipment/skidders.shtml.

-2-
J-A22008-15

that (1) since Appellant was responsible for maintaining the log skidder, the

complaint did not allege a cause of action for negligence; and (2) Appellant

failed to provide a medical opinion that connected his lower spine injury to

the March 29, 2013 incident.2 Appellant failed to file a response to Wetzel’s

motion for summary judgment within thirty days pursuant to Pa.R.C.P.

1035.3(a).

Immediately prior to the non-record argument on Wetzel’s motion, on

January 20, 2015, Appellant filed a brief in opposition to summary

judgment.3 During the hearing, the trial court noted that Appellant’s

response was filed beyond the thirty-day limit. The following day, the trial

court entered the above-referenced order granting summary judgment in

favor of Wetzel. The trial court invoked Rule 1035.3(a) as one of four

separate bases to enter summary judgment. It also cited Appellant’s failure

to produce prima facie evidence of causation, a duty owed by Wetzel, or a

breach of that duty. This timely appeal followed.

Appellant presents two questions for our review:

____________________________________________

2
Appellant neglected to proffer any expert medical opinion during discovery,
and the only medical expert who was scheduled for deposition, Nathan
Carpenter, DC, cancelled.
3
While the brief is listed on the trial court’s docket entries, it is not
identified in the list of documents transmitted to this Court, nor included in
the certified record on appeal.

-3-
J-A22008-15

1. Whether the lower court committed an abuse of
discretion/error of law in entering summary judgment against
the Appellant for failure to file a response to Appellee’s Motion
for Summary Judgment?

2. Whether the lower court committed an abuse of
discretion/error of law in otherwise granting Appellee’s Motion
for Summary Judgment, despite issues of fact still existing?

Appellant’s brief at 6.

Our standard of review is as follows:

An appellate court may reverse the entry of a summary
judgment only where it finds that the lower court erred in
concluding that the matter presented no genuine issue as to any
material fact and that it is clear that the moving party was
entitled to a judgment as a matter of law. In making this
assessment, 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. As our inquiry involves solely questions of law, our
review is de novo.

Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow a
fact-finder to render a verdict in favor of the non-moving party,
then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.

2015) (en banc) (citation omitted).

In disposing of Appellee’s motion for summary judgment, the trial

court entered the following order,

AND NOW, the 20th day of January 2015, after argument
on Defendant’s motion for summary judgment, filed December
1, 2014, the motion is granted. Plaintiff has failed to file a

-4-
J-A22008-15

timely response to the motion1 and, in any event, has provided
no expert testimony establishing a causal connection between
the incident and his injuries. Plaintiff has also failed to offer
evidence of a duty owed to him and breach of the duty[.] [I]n
response to the evidence offered by Defendant, that it was
Plaintiff’s responsibility to check the fluid levels of the skidder
during his use of the machine, Plaintiff refers to Restatement of
Torts (Second) Section 404,2 which the court finds inapplicable
here, and, as far as breach, states merely that “the failure of the
machinery itself is clear indication that the repairs/maintenance
on the machinery were not done satisfactorily.”3 This bald
assertion is no evidence at all.
_____________________________________________________
1
Plaintiff filed a brief in opposition to summary judgment on
January 20, 2015. A response was due, however, within thirty days
of service of the motion. Pa.R.C.P. 1035.3(a).
2
That section provides: “An independent contractor [who]
negligently makes, rebuilds, or repairs a chattel for another is
subject to same liability as that imposed upon negligent
manufacturers of chattels.”
3
Plaintiff’s Brief in Opposition to Summary Judgment at p.2.

Trial Court Order, 1/21/15, at 1.

Pursuant to Pa.R.C.P. 1035.3(a), a respondent to a motion for

summary judgment is required to file a response within thirty days after

service. The response must identify in the record either an issue of material

fact that challenges the factual assertions in the motion for summary

judgment or evidence that supports the facts essential to the respondent’s

position. Failure to comply may result in judgment being entered against

the nonresponsive party. Specifically, Rule 1035.3(a) and (d) provide,

(a) Except as provided in subdivision (e), the adverse party may
not rest upon the mere allegations or denials of the pleadings

-5-
J-A22008-15

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.

Pa.R.C.P. 1035.3(a) and (d).

The crux of Appellant’s first argument is that Pa.R.C.P. 1035 is

inapplicable herein. He contends that the Rule 1035.3(d) sanctions apply

only to parties who fail to proffer any response to a motion for summary

judgment. Appellant reasons that, since he filed the brief in opposition to

the motion for summary judgment on the day scheduled for argument, he

satisfied the rule’s responsive requirements. As to the tardiness of his

response, Appellant asserts that “Rule 1035.3(d) does not include the word

‘timely.’” Appellant’s brief at 11. He contends that the court’s decision to

enter summary judgment against him due to the untimeliness of his

submission was draconian and that “such untimely filing does not invoke the

remedy set forth in Rule 1035.3(d).” Id.

-6-
J-A22008-15

Next, relying upon his interpretation of Lycoming County Local Rules of

Procedure L208.3(a)B, L208.3(b), and L1035.2(a), which we set forth infra,

Appellant contends that no response was required under the procedural

posture of this case. Appellant frames this argument as follows. Pursuant

to Lycoming County Local Rule 1035.2(a), “A motion for summary judgment

shall be . . . processed in accordance with local rule L208.3(a).” While Local

Rule L208.3(a) does not provide any information that is pertinent to this

case, Appellant references the portion of the rule that outlines the procedure

litigants must follow when a trial court orders the parties to submit briefs,

which did not occur in the present case. In addition, Appellant seizes upon a

successive subparagraph of L208 that was not expressly identified by Rule

L1035.2(a) as governing the court’s review of motions for summary

judgment. That provision states,

(b). Motion response. If the court deems a response is
necessary, the response shall be filed within twenty (20) days
unless the court orders a shorter or longer time. If a response is
not timely filed, or if a response is filed raising no contested
issue of fact, the court may deem the matter as being
uncontested and may accept all factual averments as true and
issue a dispositive order accordingly without further argument,
upon motion of the moving party or in its own discretion.

Lyc.Co.R.C.P. L208.3(b).

Reading L208.3(a)B and L208.3(b) in pari materia, Appellant reasons

that, since the trial court neither ordered the parties to file briefs in support

of their respective positions in accordance with L208.3(a)B nor directed

-7-
J-A22008-15

either party to file a response pursuant to L208.3(b), the trial court did not

deem a response to be necessary. Appellant’s brief at 13. He continued

that, in light of the trial court’s implicit holding that no response was

required in this case, his unsolicited brief in opposition to the motion was not

required to comply with any time requirements.

Wetzel counters that Rule 1035.3 is applicable as a matter of law and

that Appellant’s failure to file a response within thirty days was grounds

alone to enter summary judgment against him. He argues that Appellant

muddles the relevant local rules. In response to Appellant’s obfuscation,

Wetzel highlights that, even to the extent that Appellant’s interpretation of

the local rules is accurate, Rule 1035.3(d) would supersede the blend of local

rules that Appellant relies upon.

Upon thorough review of the parties’ arguments and the relevant legal

authority, we affirm the trial court’s grant of summary judgment. Rule 1035

states unequivocally that a timely response is required. In pertinent part,

Rule 1035.3 stresses that “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.” Pa.R.C.P. 1035.3(a). Instantly, Wetzel

filed the motion for summary judgment on December 1, 2014. Thus,

Appellant’s response was due on or before December 31, 2014. Since

-8-
J-A22008-15

Appellant did not submit his brief in opposition to the motion until the outset

of the January 20, 2015 hearing, his response was filed twenty days late.4

The trial court’s decision to enter summary judgment for Appellant’s

noncompliance with Rule 1035.3(a) is plainly within its discretion. Rule

1035.3(d) authorizes a trial court to enter summary judgment against a

party who does not comply with the Rule 1035(a). While subsection (d)

does not reference the thirty-day time requirement specifically, the trial

court was doubtlessly empowered to act in this case due to Appellant’s

noncompliance. Furthermore, although this Court has indicated that it is

within the trial court’s discretion to forego entering summary judgment

against a noncompliant party, that did not occur herein. Cf. Thomas v.

Elash, 781 A.2d 170, 177 (Pa.Super. 2001) (trial court has discretion to

forego Rule 1035.3(d) sanctions and dispose of motion on record alone).

Accordingly, for all of the foregoing reasons we reject Appellant’s contention

that Rule 1035.3(a) and (d) were inapplicable, and we find that the trial

court’s reliance on those provisions was a reasonable exercise of its

discretion.

____________________________________________

4
To the extent that the trial court reasoned that Appellant’s brief in
opposition to the motion for summary judgment was not a “response” under
Rule 1035.3, we disagree. Stated plainly, Rule 1035.3 does not prescribe a
particular format for responding to a motion for summary judgment so long
as the response is timely and satisfies the substantive components outlined
in subsection (a)(1) or (a)(2).

-9-
J-A22008-15

Appellant’s reliance on the Lycoming County Local Rules L208.3(a)B

and L208.3(b) fares no better. Recall that Appellant invoked the respective

local rules to contend that, since the trial court did not order him to file a

response to Wetzel’s motion or brief in opposition to the motion, the trial

court did not deem a response to be necessary. Thus, he concludes that the

untimeliness of his response is excused.

Assuming for the sake of argument that the trial court’s election to

forego the submission of briefs or the lack of an order specifically directing

Appellant to respond to the motion for summary judgment within twenty

days discharged Appellant’s noncompliance with the time requirements

established in the local rules, that action would not negate Appellant’s patent

violation of the express terms of Rule 1035.3(a). As Wetzel accurately

observed, the purpose of a local rule is to supplement the Pennsylvania

Rules of Civil Procedure rather than supplant them. To the degree that

application of a local rule contradicts the explicit function of a statewide rule,

the local rule must be subservient. See Pa.R.C.P. 239 (“Local rules shall not

be inconsistent with any general rule of the Supreme Court or any Act of

Assembly”); Sanders v. Allegheny Hospital-Parkview Div., 833 A.2d

179, 183 (Pa.Super. 2003) (“The proper inquiry in deciding the validity of a

local rule is whether it is inconsistent with any rule promulgated by the

Pennsylvania Supreme Court or any statute.”). Thus, to the extent that

Appellant interpreted Lycoming County Local Rule L1035.2, L208.3(a)B, and

- 10 -
J-A22008-15

L208.3(b) as excusing his inaction and relied upon that interpretation in

derogation of the explicit time requirements of Rule 1035.3(a), he did so at

his own peril. No relief is due.

Having found that the trial court did not err or abuse its discretion in

entering summary judgment against Appellant based on his failure to file a

timely response in accordance with Rule 1035.3(a), we need not address

Appellant’s second issue concerning the merits of the trial court’s finding

that Appellant failed to present sufficient facts of a duty, breach, or

causation to make out a prima facie case of negligence. Even so, in

abundance of caution, we review Appellant’s claim and reject it.

First, we observe that Appellant’s failure to ensure that the certified

record included all of the necessary documents impedes our review of the

claim. In Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa.Super. 2006)

(en banc) this Court discussed the significance of the certified record when

addressing the merits of an appellate argument. We explained,

This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete certified
record. This requirement is not a mere “technicality” nor is this a
question of whether we are empowered to complain sua sponte
of lacunae in the record. In the absence of an adequate certified
record, there is no support for an appellant's arguments and,
thus, there is no basis on which relief could be granted.

Id. at 6–7 (internal citations omitted).

As it relates to an appellant’s fundamental responsibility to ensure that

the certified record contains all of the materials necessary for appellate

- 11 -
J-A22008-15

review, we concluded, “an appellate court may direct that an omission or

misstatement shall be corrected through the filing of a supplemental certified

record[;] [h]owever, the fact that the ultimate responsibility of ensuring that

the transmitted record is complete rests squarely upon the appellant and not

upon the appellate courts.” Id. at 7.

Instantly, Appellant failed to ensure that his brief in opposition to the

motion for summary judgment was included in the certified record on

appeal. As noted, supra, the brief’s filing is logged on the trial court’s

docket; however, it is not identified on the Lycoming County Prothonotary’s

list of documents transmitted to this Court or included in the certified record

on appeal. Appellant’s misstep is particularly detrimental in this appeal in

light of Wetzel’s allegations that the brief was inadequate insofar as it failed

to identify material issues of fact or the facts essential to his cause of action

as required by Rule 1035.3(a)(1) and (a)(2), respectively. Since the brief in

opposition is not included in the certified record, it does not exist for the

purposes of our review and we are unable to confirm its contents. See

Preston, supra; Floyd v. Philadelphia Elec. Co., 632 A.2d 1314, 1315

(Pa.Super. 1993) (internal citations omitted) (“It is the obligation of the

appellant to make sure that the record forwarded to an appellate court

contains those documents necessary to allow a complete and judicious

assessment of the issues raised on appeal. For purposes of appellate review,

what is not of record does not exist.”).

- 12 -
J-A22008-15

Nevertheless, having found sufficient basis to affirm the trial court’s

entry of summary judgment due to Appellant’s untimely response, for our

purposes herein, the photocopy of the brief that Appellant submitted with

the reproduced record will suffice. Upon review of that document, it is clear

that Appellant’s response to the motion for summary judgment failed to

satisfy the substantive aspects of Rule 1035.3(a)(1) or (a)(2). Stated

plainly, Appellant neglected to assert in the brief any issues of material fact

regarding (1) the evidence Wetzel cited in support of his motion for

summary judgment; or (2) the portion of Appellant’s cause of action that the

motion challenged as deficient; i.e., the lack of expert opinion evidence

linking Appellant’s injury to the March 29, 2013 incident and the failure to

present facts to demonstrate that Wetzel had a legal obligation to perform

daily maintenance on the equipment.

Appellant’s response failed to refute Wetzel’s assertion that he has not

presented prima facie evidence linking his lower back injury with the March

29, 2013 log skidder incident. Wetzel’s motion for summary judgment

emphasized that Appellant did not seek medical treatment until

approximately five weeks after the alleged incident and when he finally

sought treatment he presented dates, facts, and injuries that were

inconsistent with the skidder episode. The motion highlighted that between

May 10, and June 19, 2013, Appellant participated in three separate medical

examinations where he complained respectfully of (1) a hip injury associated

- 13 -
J-A22008-15

with operating his tractor during mid-April; (2) a hip injury he suffered after

he was struck by an object about the same time; and (3) an ankle injury

that he suffered on May 1, 2013. As none of the these reports was evidence

of the lower back injury that Appellant alleged in his complaint, Wetzel

asserted that Appellant’s claim was speculative and that a medical opinion

was required to support his allegation that the injury was, in fact, the result

of the log skidder incident.

Appellant’s brief in opposition to the motion for summary judgment

was marginally responsive to Wetzel’s challenges. Rather than present an

expert medical opinion that would raise a genuine issue of material fact

regarding causation, Appellant’s response referenced two subsequent

examinations that he attended on July 11, 2013 and May 20, 2014. He

attached the respective examination reports to his brief in opposition and

highlighted that those reports indicated that he described to the

physicians a mechanism for the injury that was consistent with his

complaint. On appeal, Appellant invokes what he designates as “the relaxed

rules of evidence relative to [compulsory] arbitration” pursuant to Pa.R.C.P.

1305(b)(1). Specifically, he asserts that Rule 1305(b)(1) does not require

the in-person testimony of expert witnesses. Thus, he opines that the

statements that he made during the latter examinations are prima facie

evidence of causation. We disagree.

- 14 -
J-A22008-15

First, while Rule 1305(b)(i) permits the admission of hospital records

and reports into evidence under subsection (iii), the rule also permits the

admission of “expert reports and descriptions of expert qualifications[.]”

Thus, both types of evidence are admissible. More importantly, however,

though admissible, Appellant’s examination reports are insufficient to

establish prima facie evidence of causation because both reports merely

reiterate what Appellant told the physicians about the injury. Neither report

provides the equivalent of an expert medical connection between the

mechanics of the lower-back injury and the alleged incident. Appellant’s

personal account of the incident, which he provided during two of five

medical examinations, is not prima facie evidence of the required element of

causation in a personal injury case when the issue is one requiring expert

testimony. See Smith v. German, 253 A.2d 107, 1008-109 (1969) (absent

obvious causal relationship, expert medical testimony is required to prove

element of causation in personal injury claims). Hence, while the referenced

reports are admissible, they are manifestly inadequate to establish

causation. In contrast, if prima facie evidence of causation could be

established herein, an expert medical report discussing the link between the

injury and the March 29, 2013 incident would establish it within a reasonable

degree of medical certainty.

Likewise, Appellant failed to demonstrate that Wetzel had a duty to

check and maintain the level of hydraulic fluid once Appellant took

- 15 -
J-A22008-15

possession of the machine and used it daily over a two week period.5 In

order to circumvent this deficiency, Appellant invokes the Restatement of

Torts (Second) § 404, regarding the liability of an independent contractor

who repairs the chattels of another.6 That precept fails, however, because

Steven Wetzel, the individual who performed maintenance on the skidder

before Appellant took possession of it, is not an independent contractor and

the record establishes that Appellant used the machine daily for two weeks

without incident.

Appellant implicitly references the coordinate jurisdiction rule by

arguing that the trial court erred in granting summary judgment based upon

his failure to present evidence of the duty or Wetzel’s breach. He contends

that since a prior trial court rejected the claim in denying Wetzel’s

preliminary objections to the complaint and the current court denied
____________________________________________

5
Appellant was cognizant that someone would have to perform daily
maintenance on the skidder. Deposition of Kevin Libby, 10/20/14, at 34.
Every morning, Appellant checked the machine’s engine oil and inspected
the equipment for vandalism and leaks. Id. at 47. However, Appellant
never checked the skidder’s hydraulic fluid or talked to Wetzel or his son
about who was responsible for maintaining it. Id. at 25, 27-28.
6
The Restatement of Torts (Second) § 404 provides as follows,

§ 404 Negligence in Making, Rebuilding, or Repairing Chattel

One who as an independent contractor negligently makes,
rebuilds, or repairs a chattel for another is subject to the same
liability as that imposed upon negligent manufacturers of
chattels.

- 16 -
J-A22008-15

Wetzel’s previous motion for judgment on the pleadings, the trial court was

bound by those determinations in reviewing this aspect of Wetzel’s motion

for summary judgment. See Appellant’s brief at 14. We disagree.

In Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (footnote and

citations omitted) our Supreme Court explained, “Generally, the coordinate

jurisdiction rule commands that upon transfer of a matter between trial

judges of coordinate jurisdiction, a transferee trial judge may not alter

resolution of a legal question previously decided by a transferor trial judge.”

Stated plainly,” judges of coordinate jurisdiction should not overrule each

other's decisions.” Id. However, it is beyond peradventure that the

coordinate jurisdiction rule does not apply to bar rulings on summary

judgment that diverge from earlier rulings on preliminary objections. See

Herczeg v. Hampton Twp. Mun. Auth., 766 A.2d 866, 870 (Pa.Super.

2001) (quoting Rosenfield v. Pennsylvania Automobile Ins. Plan, 636

A.2d 1138, 1142 (Pa.Super. 1994)) (“This rule is not intended to preclude

granting summary judgment following the denial of preliminary

objections.”).

Instantly, Appellant’s coordinate jurisdiction argument overlooks the

differences in the procedural postures of a trial court’s rulings on preliminary

objections, a motion for judgment on the pleadings, and a motion for

summary judgment. When the prior trial court addressed Wetzel’s

preliminary objections, it reviewed only Appellant’s civil complaint and the

- 17 -
J-A22008-15

attached exhibits. Similarly, when the trial court reviewed Wetzel’s motion

for the judgment on the pleadings, it tested the sufficiency of the pleadings

generally. However, in granting the instant motion for summary judgment,

the trial court had the added benefit of Appellant’s and Stephen Wetzel’s

depositions in testing the sufficiency of the Appellant’s negligence case.

Thus, in light of Herczeg, supra and Rosenfield, supra, we reject

Appellant’s contention that the trial court violated the coordinate jurisdiction

rule in granting Wetzel’s motion for summary judgment.

Accordingly, we do not disturb the trial court’s decision to enter

summary judgment on the basis of Appellant’s failure to present facts that

establish a causal connection between the incident and his injuries or facts

that demonstrate the existence of a duty owed to him or Wetzel’s breach of

that duty.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2016

- 18 -