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, A ppellant 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 s ummary judgment and
dismissed Fox’ s personal i njury 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 rea sons 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 Ma rch 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 o f 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 i mmu nity. ( Id. at 29a

- 34a.) Following an order by the trial court to brief t he matter, both Fox
and the D efendants submitted briefing on the t opic 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 o fficial 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 comm enced 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 a nswered 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 61 a.) 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 add ition 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 Defen dants’ motion for summary judgment and dismissed the case with prejudice. ( Id. at 95a.) This appeal followed.

On appeal, 2 Fox argues that the trial court erred by failing to afford Fox the opportunity to respond to Defendants ’ motion for summary judgme nt. Fox
contends that Pennsylvania Ru le of Civil Procedure No. 1035.3 requires courts to allow a part y adver se to a motion for summary judg ment 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 stan dard 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 standar d, 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 cou rt erred in granting summary judg ment 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 injurie s 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. 201 5 ) , 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 g ranted 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, nei ther 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, a nd 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 a re 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 precl uded 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 b asis 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 Ru le of Civil Procedure No. 1035.3, pertaining to
responses to mot ions 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 motio n 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 written7 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 explanato ry comment that emphasizes the requirements in subdivision (e) :

T he 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.
No te 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 co urt.

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 judgm ent. 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 the8

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

. C ourt s exercise different types of review for preliminary objections and mot ions for summary judgment

— when reviewing preliminary objections the trial court
looks to th e 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 a n opportunity to present argument in opposition to Defendants’ motion for summary judgment, which included new and more developed f actual 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 warrant ed 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 a bout

- 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 ava ilable 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 an y 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 e xplaining its disposition.

P. KEVIN BROBSON, JudgeIN 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 , 201 7 , 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