IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerald Fox, :

Appellant :

:

v. : No. 561 C.D. 2016

: Submitted: October 21, 2016

State Correctional Institution (SCI) :

Greene and Warden of State :

Correctional Institution (SCI) Greene, :

Lewis Folino :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: February 3, 2017 

In this negligence action, Appellant Gerald Fox (Fox) appeals from an 

order of the Court of Common Pleas of Greene County (trial court), which granted 

the State Correctional Institution Greene (SCI Greene) and its warden Lewis 

Folino’s (Folino) (collectively, Defendants) motion for summary judgment and 

dismissed Fox’s personal injury complaint with prejudice. In so doing, the trial 

court concluded that the Defendants were immune from liability for the injuries 

Fox sustained after a physical altercation with his cellmate. For the reasons set 

forth below, we vacate the decision and remand the matter to the trial court.
2

On June 20, 2013, Fox filed with the trial court a complaint sounding 

in negligence against Defendants.

1

 (Reproduced Record (R.R.) at 10a-17a.) Fox 

alleged that on March 1, 2010, Fox had a physical altercation with his cellmate at 

SCI Greene. (Id. at 11a, Compl. ¶ 9.) According to the complaint, Fox sustained 

multiple injuries during the altercation, namely that Fox’s cellmate bit off a portion 

of his right ear. (Id. at 11a-13a.) Fox alleged that he had requested a change in 

cell or cellmate prior to the March 1, 2010 incident, but Defendants rejected his 

request. (Id. at 11a, Compl. ¶¶ 11-12.) Fox further alleged that his injuries 

resulted from the negligence of SCI Greene and Folino. (Id. at 12a-17a.)

Defendants filed preliminary objections in the nature of a demurrer, 

arguing that they were immune from liability based on sovereign immunity. 

(Id. at 29a-34a.) Following an order by the trial court to brief the matter, both Fox 

and the Defendants submitted briefing on the topic of sovereign immunity. 

(Id. at 36a-47a.) In addition to arguing sovereign immunity in their brief, 

Defendants also argued that Folino was immune from liability under the doctrine 

of official immunity. (Id. at 38a-40a.) On May 12, 2014, the trial court denied 

Defendants’ preliminary objections. (Id. at 48a.) Defendants then filed an answer 

and new matter, denying the material allegations of Fox’s complaint and asserting

that Defendants were immune under the Sovereign Immunity Act, 42 Pa. C.S. 

§ 8521-8528. (Id. at 49a-54a.) In addition to asserting sovereign immunity, 

Defendants’ new matter included eight additional affirmative defenses. 

 

1

Fox, by counsel, initially filed a writ of summons on February 9, 2012, which tolled the 

statute of limitations. Pa. R.C.P. No. 1007; Young v. Pa. Dep’t of Transp., 690 A.2d 1300, 1302 

(Pa. Cmwlth. 1997) (“Under Pa. R.C.P. No. 1007, an action may be commenced by the filing of 

a praecipe for a writ of summons, and such filing may operate to toll the statute of limitations”). 
3

(Id. at 53-54, ¶¶ 3-10.) Fox answered Defendants’ new matter, denying the 

allegations and arguing that a response was not required because Defendants’ 

sovereign immunity argument was a legal conclusion. (Id. at 57a-58a.)

By order, dated May 19, 2015, the trial court instructed Fox to

conclude his discovery by August 30, 2015. (Id. at 61a.) In that same 

May 19, 2015 order, the trial court also instructed Defendants to file any 

dispositive motions by September 30, 2015 and Fox to respond by 

October 30, 2015. (Id.) The May 19, 2015 order also scheduled argument for this 

case for November 2, 2015. (Id.) On September 30, 2015, Defendants filed a 

motion for summary judgment and a brief in support of that motion. 

(Id. at 67a-94a.) Defendants again argued that, in addition to their immunity under 

sovereign immunity, Folino was immune under common law official immunity. 

(Id. at 92a-93a.) On October 9, 2015, prior to the due date for Fox’s response and 

prior to the scheduled oral argument, the trial court granted Defendants’ motion for 

summary judgment and dismissed the case with prejudice. (Id. at 95a.) This 

appeal followed.

On appeal,2Fox argues that the trial court erred by failing to afford 

Fox the opportunity to respond to Defendants’ motion for summary judgment. Fox 

contends that Pennsylvania Rule of Civil Procedure No. 1035.3 requires courts to 

allow a party adverse to a motion for summary judgment to file a written response. 

Fox argues that being denied the opportunity to respond to Defendants’ motion is 

particularly unjust in this case, because the trial court had essentially already ruled 

 

2

This Court’s standard of review of a trial court’s order granting summary judgment is 

de novo, and our scope of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 

(Pa. 2011). Under this standard, we may reverse a trial court’s order only for an error of law. Id.
4

in Fox’s favor, by denying Defendants’ preliminary objections. Fox also argues 

that the Local Rules for the Court of Common Pleas of Greene County require that 

a party adverse to a motion for summary judgment be permitted to oppose the 

motion through both a written response and an oral argument. Finally, as to the 

merits, Fox argues that his claims fell within two exceptions to sovereign immunity

and that the trial court erred in granting summary judgment when genuine issues of 

material fact exist. 

In response, Defendants argue that the trial court properly determined 

that Fox’s claims were precluded by sovereign immunity. Defendants argue that 

Fox’s alleged injuries do not fall within any of the nine exceptions to sovereign 

immunity, and Fox, therefore, cannot maintain a cause of action. Defendants also 

argue that the trial court was not required to afford Fox the opportunity to respond 

to their motion for summary judgment. Specifically, Defendants cite to 

Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622 (Pa. Super. 1993), where the 

Superior Court held that “it is within the discretion of the trial court to decide 

whether briefs and/or oral argument are required or whether the matter can best be 

disposed of from a review of the record alone.” (SCI Greene and Folino 

Br. at 11-12, quoting Myszkowski, 634 A.2d at 624.) Defendants also cite two 

cases, Wright v. Misty Mountain Farm, LLC, 125 A.3d 814 (Pa. Super. 2015), 

appeal denied, 140 A.3d 14 (Pa. 2016), and Majorsky v. Douglas, 58 A.3d 1250 

(Pa. Super. 2012), appeal denied, 70 A.3d 811 (Pa. 2013), where the Superior 

Court upheld a trial court order that denied a defendant’s preliminary objections, 
5

then granted the defendant’s motion for summary judgment.3 Finally, Defendants 

argue that while the trial court failed to issue an opinion, the most judicially 

economical course of action for this Court would be to hold that an opinion was 

not necessary, and thus, neither is a remand.

As an initial matter, we address the trial court’s failure to draft an 

opinion to explain the reasoning of its May 19, 2015 order. Pennsylvania Rule of 

Appellate Procedure 1925(a)(1)provides:

Except as otherwise prescribed by this rule, upon receipt 

of the notice of appeal, the judge who entered the order 

giving rise to the notice of appeal, if the reasons for the 

order do not already appear of record, shall forthwith 

file of record at least a brief opinion of the reasons for the 

order, or for the rulings or other errors complained of, or 

shall specify in writing the place in the record where such 

reasons may be found.

(Emphasis added.) The remedy for non-compliance with Rule 1925(a)(1) is 

typically a remand to the trial court. Cmwlth. v. Pate, 617 A.2d 754, 759 

(Pa. Super. 1992), appeal denied, 634 A.2d 219 (Pa. 1993). The exception to that 

general rule is a situation where, as highlighted above, the reasons are clear from 

the record. For example, in Pate, the Superior Court held that remand was 

unnecessary where the trial judge “consider[ed] all of the issues raised by [the]

post-trial motions and pointed [the Court] to the places in the record where [the 

Court] can find his reasoning.” Id.

 

3 While we may look to Superior Court decisions for guidance, those decisions are not 

binding on this Court, and vice versa. Fisler v. State Sys. of Higher Educ., California Univ. of

Pa., 78 A.3d 30, 41 n.12 (Pa. Cmwlth. 2013); Beaston v. Ebersole, 986 A.2d 876, 881 

(Pa. Super. 2009). 
6

Here, no such exceptional circumstances are present. While the trial 

court’s grant of summary judgment appears to be based on the Defendants’ 

sovereign immunity argument, we cannot be sure, and thus our review is thwarted, 

absent an opinion. A review of the record reflects that Defendants raise different 

defenses for SCI Greene and Folino together and Folino individually. Defendants 

argued before the trial court that Fox’s claims failed as to both Defendants under 

sovereign immunity and failed as to Folino under official immunity. We are 

precluded from review where, as here, we cannot be sure of the ground(s) on 

which the trial court granted summary judgment for each defendant. Part of the 

reason for instituting Rule 1925 is to give the appellate courts “a reasoned basis for 

the trial court’s disposition of the challenged orders.” Pate, 617 A.2d 754 at 758.

The trial court failed to provide a reasoned basis for its disposition, and, therefore, 

remand is required.

Pennsylvania Rule of Civil Procedure No. 1035.3, pertaining to 

responses to motions for summary judgment, provides, in pertinent part:

(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.

. . . 

(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 
7

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.

(Emphasis added.) Accompanying this rule is an explanatory comment that 

emphasizes the requirements in subdivision (e):

The rule places two conditions upon the exercise of this 

discretion. First, each party must be given a full and fair 

opportunity to supplement the record and to oppose the 

motion so that “no party is prejudiced.” Second, if the 

motion is granted, the court must state the reasons for its 

decision in a written opinion or on the record.

Note to Pa. R.C.P. No. 1035.3. Rule 1035.3 provides further support for our 

determination above that remand is required so that the trial court may provide its 

reasons for granting Defendants’ motion for summary judgment. Like the remedy 

for failure to comply with Rule 1925(a)(1), the remedy for failure to comply with 

Rule 1035.3(e)(2) is remand to the trial court. 

Next, we address the trial court’s failure to allow Fox to respond to 

Defendants’ motion for summary judgment with a written response or oral 

argument. Similarly, a remand is necessary so that Fox may respond to 

Defendants’ motion for summary judgment. Rule 1035.3(e)(1) provides that a trial 

court may grant a motion for summary judgment without allowing an opposing 

party to respond. A trial court may also deny a defendant’s preliminary objections, 

and then later grant a motion for summary judgment to that same defendant based 

on the same arguments offered in the preliminary objections. Wright, 125 A.3d 

at 818. A trial court may not, however, grant a motion for summary judgment 

without permitting a response where the court has only heard arguments by the 
8

party adverse to the motion in a brief in opposition to preliminary objections. 

Courts exercise different types of review for preliminary objections and motions 

for summary judgment—when reviewing preliminary objections the trial court 

looks to the pleadings, but, in considering a motion for summary judgment the trial 

court weighs the pleadings, depositions, answers to interrogatories, admissions,

affidavits, and other facts developed during discovery. Herczeg v. Hampton Twp. 

Mun. Auth., 766 A.2d 866, 870 (Pa. Super.), appeal denied, 766 A.2d 866

(Pa. 2001). 

In this case, Fox was prejudiced because he was not given an

opportunity to present argument in opposition to Defendants’ motion for summary 

judgment, which included new and more developed factual allegations and 

exhibits. Despite the preliminary objections and motion for summary judgment 

both being based on immunity arguments, the different considerations weighed by 

the trial court in each circumstance warranted different opportunities for opposition

by Fox. A brief in opposition to preliminary objections does not constitute full and 

fair opportunity to oppose a motion for summary judgment, as required by 

Rule 1035.3(e)(1). Remand, therefore, is required to afford Fox such an 

opportunity.4

Because we conclude that the Pennsylvania Rules of Civil Procedure 

require the trial court to allow Fox to respond to Defendants’ motion for summary 

judgment, we need not address Fox’s argument for a written response under the

 

4 We are also troubled by the seeming about-face by the trial court—scheduling the date 

for Fox to submit a response brief and the date for oral argument, and then, without warning,

ruling on the motion before the dates that it scheduled for either. This contradiction in the trial 

court’s actions is without explanation in the record. 
9

trial court’s local rules. We are persuaded, however, that the local rules require the 

trial court to hear oral argument on the matter. Greene County local rule G211(a) 

provides: 

The Prothonotary, Clerk of Court, and Clerk of Orphans’ 

Court shall immediately place on the next available 

argument list any case where preliminary objections, 

exceptions, motions for summary judgment, or any other 

request for determination of law has been filed.

(Emphasis added.) This Court has previously explained the lack of discretion 

when a statute or rule utilizes the word “shall.” Jennison Family Ltd. P’ship v. 

Montour Sch. Dist., 802 A.2d 1257, 1262 (Pa. Cmwlth. 2002), appeal denied, 

815 A.2d 635 (Pa. 2003). We interpret this rule to require the Greene County 

courts to hear oral argument for any motion for summary judgment. 

Accordingly, we vacate the order of the trial court and remand with 

instructions for the court below to afford Fox a full and fair opportunity to respond 

to Defendants’ motion for summary judgment and to write an opinion explaining 

its disposition. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerald Fox, :

Appellant :

:

v. : No. 561 C.D. 2016

:

State Correctional Institution (SCI) :

Greene and Warden of State :

Correctional Institution (SCI) Greene, :

Lewis Folino :

O R D E R

AND NOW, this 3rd day of February, 2017, the order of the Court of 

Common Pleas of Greene County is VACATED, and the matter is REMANDED 

for proceedings consistent with this opinion. 

Jurisdiction relinquished.

 

 P. KEVIN BROBSON, Judge