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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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