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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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