J-A02006-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN F. LASHINSKY : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

JOAN F. COLOMBERO :

:

:

: No. 1511 MDA 2015

Appeal from the Order Entered July 7, 2015

in the Court of Common Pleas of Centre County Civil Division

at No(s): 2012-4113

BEFORE: PANELLA, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 27, 2016

Appellant, John F. Lashinsky, appeals from the order entered in the 

Centre County Court of Common Pleas granting Appellee’s, Joan F. 

Colombero’s, motion for summary judgment. Appellant argues the trial 

court erred in granting Appellee’s motion for summary judgment based 

solely on his failure to respond to the motion within thirty days. We reverse 

and remand for further proceedings.

The trial court summarized the procedural posture of this case as 

follows:

On November 5, 2012, Appellant filed a Praecipe for 

Writ of Summons. As a Complaint did not follow, the 

[c]ourt held a conference in chambers on January 15, 

 

*

Former Justice specially assigned to the Superior Court.
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2014. Based on an ongoing criminal action that involved 

the parties, with [Appellant] being the defendant in the 

criminal action, this case was continued to the [c]ourt’s 

April 2014 Term of Court. On March 19, 2014, the [c]ourt 

ordered [Appellant] to file a Complaint within 20 days. 

[Appellant] filed a Complaint in Breach of Contract and 

Unjust Enrichment on April 8, 2014, however, it was 

verified by [Appellant’s] counsel and not [Appellant.] 

[Appellee] filed Preliminary Objections on April 17, 2014, 

objecting to the form of the verification attached to the 

Complaint. On the same day, [Appellant’s] counsel filed a 

Praecipe to Substitute Verification, attaching a verification 

signed by [Appellant]. In its July 16, 2014 Opinion and 

Order, the [c]ourt found the substitution of the proper 

verification rendered [Appellee’s] Objections moot.

[Appellee] filed an Answer and New Matter on August 4, 

2014. [Appellant] filed Preliminary Objections on August 

6, 2014. On August 14, 2014, [Appellee] filed Preliminary 

Objections in response to the Preliminary Objections filed 

by [Appellant]. In its September 10, 2014, Opinion and 

Order, the [c]ourt resolved the Preliminary Objections. On 

November 19, 2014, by agreement of the parties, the 

[c]ourt sent the case to arbitration. On February 27, 

2015, [Appellant] filed a Notice of Appeal from Award of 

Arbitrators, demanding a jury trial. [Appellee] filed an 

Amended Answer to [Appellant’s] Complaint with New 

Matter on March 20, 2015.

On March 27, 2015, [Appellee] filed a Motion for 

Summary Judgment. [Appellant’s] counsel filed a Motion 

for Leave to Withdraw Appearance on April 15, 2015, 

alleging over two years of non-payment from [Appellant]. 

[Appellant’s] counsel’s motion was scheduled for hearing 

on May 12, 2015, but was continued on the representation 

of [Appellant’s] counsel that [Appellant] did not receive 

notice of the hearing. The [c]ourt set both [Appellee’s1] 

Motion for Summary Judgment and the Motion for Leave to 

Withdraw Appearance for argument on May 22, 2015. On 

May 18, 2014, [Appellant] filed a Motion to Continue 

 

1 We note that the trial court states that it was Appellant’s motion for 

summary judgment.
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Hearing for [Appellee’s] Motion for Summary Judgment, 

requesting it be heard after a resolution of the Motion for 

Leave to Withdraw Appearance. [Appellant’s] counsel did 

not withdraw from representation of [Appellant], but 

appeared at the June 23, 2015 Summary Judgment 

argument to argue against entry of Summary Judgment. 

Additionally, [Appellant’s] Opposition to [Appellee’s] 

Motion for Summary Judgment and brief in support were 

filed on June 24, 2015, a day after argument.

Trial Ct. Op., 7/8/15, at 1-3. 

On July 8, 2015, the court granted Appellee’s motion for summary 

judgment. On July 15, 2015, Appellant filed a motion for reconsideration 

which was expressly granted on July 16, 2015. The motion was denied, 

following oral argument, on August 27, 2015. This timely appeal followed on 

September 1, 2015.2 Appellant filed a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal.3 The trial court filed a 

Pa.R.A.P. 1925(a) opinion incorporating its July 8th opinion.

 

2 The trial court expressly granted Appellant’s motion for reconsideration 

within the thirty-day appeal period, thereby tolling the appeal period. See

Pa.R.A.P. 1701(b)(3) (stating: “Where a timely order of reconsideration is 

entered under this paragraph, the time for filing a notice of appeal or 

petition for review begins to run anew after the entry of the decision on 

reconsideration, whether or not that decision amounts to a reaffirmation of 

the prior determination of the trial court or other government unit”); Haines

v. Jones, 830 A.2d 579, 583 (Pa. Super. 2003). The trial court granted the 

motion for summary judgment on July 8, 2015. The court expressly granted 

reconsideration on July 16, 2015. Therefore, the instant appeal was timely. 

See Jones, 830 A.2d at 583; Pa.R.A.P. 1701(b)(3).

 

3 Appellant raised the following issue in his Rule 1925(b) statement:

Under the circumstances of the case, [Appellant] 

respectfully maintains that the [c]ourt erred in concluding 
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Appellant raises the following issue for our review:

Under the relevant Rules of Civil Procedure and Local 

Rules, did the trial court improperly grant summary 

judgment for responding more than thirty days after the 

non-moving party received service of a motion for 

summary judgment, when the trial court failed to enter a 

briefing and response scheduling order, thereby waiving 

any response deadline under the Local Rules; when the 

parties and trial court had authorized [Appellant] to take 

additional time in responding to the motion; when the trial 

court failed to identify, or attempt to identify, any 

prejudice for the allegedly delayed response; and when the 

failure to respond within thirty days was [Appellant’s] first, 

if any, procedural error in the case?

Appellant’s Brief at 5.

Appellant contends the trial court erred in granting Appellee’s motion 

for summary judgment solely based upon his failure to respond to the 

motion within thirty days. Id. at 15. We agree.

Our review is governed by the following principles: 

[S]ummary judgment is appropriate only in those cases 

where the record clearly demonstrates that there is no 

genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law. When considering 

a motion for summary judgment, the trial court must take 

all facts of record and reasonable inferences therefrom in a 

light most favorable to the non-moving party. In so doing, 

the trial court must resolve all doubts as to the existence 

 

that summary judgment in favor of [Appellee] was 

appropriate solely because [Appellant] failed to file a 

response to [Appellee’s] motion for summary judgment . . 

. within thirty days of receipt thereof. . . .

Appellant’s Statement of Errors Complained of on Appeal, R.R. at 516a. For 

convenience, we refer to the reproduced record where applicable.
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of a genuine issue of material fact against the moving 

party, and, thus, may only grant summary judgment 

where the right to such judgment is clear and free from all 

doubt. On appellate review, then,

an appellate court may reverse a grant of summary 

judgment if there has been an error of law or an 

abuse of discretion. But the issue as to whether 

there are no genuine issues as to any material fact 

presents a question of law, and therefore, on that 

question our standard of review is de novo. This 

means we need not defer to the determinations 

made by the lower tribunals.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) 

(citations and quotation marks omitted). “It is the nonmoving party’s 

responsibility to demonstrate that a genuine issue of material fact exists, 

‘[a] witnesses’ [sic] credibility is a determination for the jury and 

necessarily creates a genuine issue of material fact.” Gruenwald v. 

Advanced Computer Applications, Inc., 730 A.2d 1004, 1009 (Pa. Super. 

1999) (citations omitted and emphasis added).

[W]e recognize that “the interpretation and application of a 

Pennsylvania Rule of Civil Procedure presents a question of 

law.” . . . [T]o the extent that we are required to interpret 

a rule of civil procedure, “our standard of review is de 

novo, and our scope of review is plenary.” 

In addition, our interpretation of the Pennsylvania Rules 

of Civil Procedure is guided by the principles contained in 

Pa.R.C.P. 127, which provides as follows.

Rule 127. Construction of Rules. Intent of Supreme 

Court Controls

(a) The object of all interpretation and construction 

of rules is to ascertain and effectuate the intention of 

the Supreme Court.
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(b) Every rule shall be construed, if possible, to give 

effect to all its provisions. When the words of a rule 

are clear and free from all ambiguity, the letter of it 

is not to be disregarded under the pretext of 

pursuing its spirit.

(c) When the words of a rule are not explicit, the 

intention of the Supreme Court may be ascertained 

by considering, among other matters (1) the 

occasion and necessity for the rule; (2) the 

circumstances under which it was promulgated; (3) 

the mischief to be remedied; (4) the object to be 

attained; (5) the prior practice, if any, including 

other rules and Acts of Assembly upon the same or 

similar subjects; (6) the consequences of a particular 

interpretation; (7) the contemporaneous history of 

the rule; and (8) the practice followed under the 

rule.

Pa.R.C.P. 127[.] Furthermore, “a note to a rule or an 

explanatory comment is not a part of the rule, but may be 

used in construing the rule.” 

Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 32 A.3d 

800, 808-09 (Pa. Super. 2011) (some citations omitted). 

Pennsylvania Rule of Civil Procedure 1035.3 provides:

(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.
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 * * *

(d) Summary judgment may be entered against a party 

who does not respond.

Note: Procedural requirements with respect to argument 

and briefs are governed by local rule.

In certain counties, the failure to respond to a motion may 

result in the motion being deemed uncontested and the 

entry of the judgment sought.

(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)(1)-(2), (d)-(e)(1)-(2) (emphases added). 

Pennsylvania Rule of Civil Procedure 126 provides:

The rules shall be liberally construed to secure the just, 

speedy and inexpensive determination of every action or 

proceeding to which they are applicable. The court at 

every stage of any such action or proceeding may 

disregard any error or defect of procedure which does not 

affect the substantial rights of the parties.

Pa.R.C.P. 126.

The Centre County Local Rules provide as follows.

All Motions for summary Judgment shall be filed in the 

Prothonotary’s Office, which will then forward the Motion to 

the Court Administrator’s Office. The Court Administrator’s 

Office will assign the Motion to a Judge for disposition. 

The assigned Judge will issue an Order setting forth a 
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briefing schedule and a date for argument, if any. The 

Prothonotary’s Office will notify all counsel of record and/or 

unrepresented parties of the scheduling. In the event that 

either or both parties wish to submit the matter on briefs 

without oral argument, they shall communicate that wish 

to the Court, in writing, prior to the Argument day. 

However, briefs shall still be due on the days previously 

indicated by the Court, unless continued in writing. Failure 

to file a brief in a timely manner without written leave of 

the Court may result in the Court determining the issues 

raised in the Motion to be uncontroverted.

Centre County Local Rule of Civil Procedure * 1035.2 (emphasis added).

In Thomas v. Elash, 781 A.2d 170 (Pa. Super. 2001), this Court 

opined:

Pa.R.C.P. 1035.3(d) permits a trial court to enter 

judgment against a party who fails to respond to a 

summary judgment motion. However, the rule is by no 

means mandatory. Indeed, “[i]t is not meant to 

abrogate the general rule that ‘when ruling on a motion, it 

is within the discretion of the trial court to decide whether 

briefs and/or oral argument are required or whether the 

matter can be best disposed of from a review of the record 

alone.’” Smitley v. Holiday Rambler Corp., 707 A.2d 

520, 526 (Pa. Super. 1998) (citations omitted).

Id. at 177 (some emphasis added).

A hearing on the motion for summary judgment was held on June 23, 

2015. At the conclusion of the hearing, the court stated: “Okay. I’ll take a 

look at it and makes [sic] a decision. Thanks.” Mot. Summ. J. Hr’g N.T., 

6/23/15, at 19. In its opinion and order granting the motion for summary 

judgment, the trial court opined:

Motions for summary judgment are governed by 

Pa.R.C.P. 1035.1 et seq. Rule 1053.3 provides the 

adverse party must file a response within thirty days after 
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service of the summary judgment motion. In the instant 

action, [Appellee] filed her motion for summary judgment 

on March 27, 2015. [Appellant] filed his response on June 

24, 2015, a day after the argument was held on the 

motion. [Appellant’s] response was outside the thirty days 

as required in Pa.R.C.P. 1035.3. Furthermore, the [c]ourt 

finds [Appellant] was solely responsible for causing the 

untimely response to the motion for summary judgment. 

Accordingly, [Appellee’s] motion for Summary Judgment is 

GRANTED.

R.R. at 306a (emphasis added).

In the complaint, Appellant averred that “[a]t Appellee’s request, [he] 

began loaning money to [Appellee] in approximately April 2007.” R.R. at 

10a. Appellant contended in the complaint that he loaned Appellee money 

for her to return to school to obtain a recertification in architecture, hire an 

attorney to collect back child support; purchase and maintain Appellee’s 

automobile and provide daycare and personal items for Appellee’s minor 

child. Id. at 11a. Appellant states that the parties “entered into an oral 

agreement under which [Appellee] agreed to receive and repay a series of 

loans from” Appellant. Id. at 12a. Appellant claims Appellee owes him 

$28,000. Id. In her answer to the complaint, Appellee denied receiving any 

loans from Appellant. Id. at 207a-08a.

Instantly, the trial court granted summary judgment based upon 

Appellant’s late response to the motion for summary judgment. R.R. at 

306a. The trial court held that Pa.R.C.P. 1035.3 “provides the adverse party 

must file a response within thirty days after service of the summary 

judgment motion.” Id. The trial court’s interpretation of Rule 1035.3 does 
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not give effect to all of its provisions. See Barrick, 32 A.3d at 808 (citing 

Pa.R.C.P. 127 (“Every rule shall be construed, if possible, to give effect to all 

its provisions.”)). In the case sub judice, the trial court did not issue a 

briefing schedule. See Centre County Local Rule of civil Procedure * 1035.2. 

Even assuming the court had issued a briefing schedule, failure to timely file 

a brief would not require that the motion be deemed uncontested. See id. 

Although the trial court may grant a motion for summary judgment 

without a written response if no one is prejudiced under Rule 1035.3(e)(1), 

the court “shall state the reasons for its decision in a written opinion or on 

the record.” Pa.R.C.P. 1035.3(e)(2) (emphasis added). In the instant case, 

the trial court failed to state its reasons either on the record or in its opinion. 

See R.R. at 303a; N.T. at 19. We find that the court erred as a matter of 

law in its interpretation of Rule 1035.3. See Barrick, 32 A.3d at 808-09; 

Elash, 781 A.2d at 177.

Furthermore, in the complaint, Appellant contended, inter alia, there 

was an oral contract for the return of the money he loaned Appellee. R.R. at 

12a. Appellee denied receiving any loans from Appellant. R.R. at 91a. 

Instantly, there is an issue of credibility, which is for the jury to determine. 

Thus, there is a genuine issue of material fact. See Gruenwald, 730 A.2d 

at 1009. We find the trial court erred as a matter of law in granting the 

motion for summary judgment. See id.; Summers, 997 A.2d at 1159. 
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For all of the foregoing reasons, we reverse the order of the trial court 

and remand for further proceedings consistent with this memorandum. 

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2016