J-A27037-20

2021 PA Super 29

XTREME CAGED COMBAT & RYAN 

KERWIN

v.

MICHELLE ZARRO & ALLAN 

ROSENBLUM

APPEAL OF: RYAN KERWIN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 654 EDA 2020

Appeal from the Judgment Entered February 13, 2020

In the Court of Common Pleas of Bucks County Civil Division at No(s): 

No. 2015-03980

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

OPINION BY COLINS, J.: Filed: February 25, 2021

Appellant Ryan Kerwin (Plaintiff) appeals pro se from a judgment 

entered in favor of Michelle Zarro and Allan Rosenblum (collectively 

Defendants) in a fraudulent transfer action following the trial court’s grant of 

a nonsuit against him and the denial of his post-trial motions. For the reasons 

set forth below, we affirm the trial court’s judgment in favor of defendant Allan 

Rosenblum, but vacate its judgment in favor of defendant Zarro and remand 

this case for a new trial of Plaintiff’s claim against defendant Zarro.

Plaintiff filed a trademark infringement action against Steven Rosenblum 

(Debtor) and others in in the United States District Court for the Eastern 

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* Retired Senior Judge assigned to the Superior Court.
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District of Pennsylvania in July 2012 and in August 2014, a judgment was 

entered in his favor against Debtor and the other defendants in that action in 

the amount of $76,800. On December 11, 2014, Debtor filed a voluntary 

bankruptcy petition under Chapter 13 of the Bankruptcy Code. 

On May 29, 2015, while Debtor’s bankruptcy was pending, Plaintiff1filed 

the instant action against Defendants seeking relief against them under the 

Pennsylvania Uniform Fraudulent Transfer Act (PUFTA), 12 Pa.C.S. §§ 5101–

5110 (in effect February 1, 1994 to February 19, 2018).

2

 In his Complaint, 

Plaintiff averred that in August 2012, after he filed the trademark infringement 

action, Debtor used $50,000 of his own money to purchase a Levittown, 

Pennsylvania gym (the Levittown gym) and made defendant Allan Rosenblum, 

his father, a 50% owner of the Levittown gym. Complaint ¶¶7-9, 29-44. 

Plaintiff also averred that Debtor transferred his ownership of a gym at 8801 

Torresdale Avenue, Philadelphia (the Torresdale gym) and its equipment to 

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1 The complaint in this action also listed as a plaintiff Xtreme Caged Combat, 

which Plaintiff characterized is a “mixed martial arts promotion registered in 

the Commonwealth of Pennsylvania” of which he is the sole owner, and 

averred that Xtreme Caged Combat was also a plaintiff in the trademark 

action. Complaint ¶¶3-4, 7. Defendants in their answer asserted that Xtreme 

Caged Combat is a fictitious name owned by Plaintiff and another person and 

that it is not an entity at all. Answer and New Matter, Answer ¶¶3-4. Xtreme 

Caged Combat is not an appellant or participant in this appeal. 

2 After the transactions at issue here, PUFTA was amended effective February 

20, 2018 and the name of the act was changed to the Pennsylvania Uniform 

Voidable Transactions Act. Act of December 22, 2017, P.L. 1249 §§ 1-5. 

These amendments, however, apply only to transfers on or after February 20, 

2018. Id. §§ 7-8. 
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defendant Zarro, a friend. Id. ¶¶19-28, 38-44. Plaintiff averred that Debtor 

received no consideration for these transfers, asserted that the transactions 

constituted fraudulent transfers under Sections 5104 and 5105 of PUFTA, and 

sought to both recover damages from Defendants and set aside Defendants’ 

ownership of the transferred property. Id. ¶¶38-44, 52-53, 57-58. On 

February 29, 2016, the bankruptcy court granted Plaintiff derivative standing 

to proceed with this action on behalf of Debtor’s estate. In re Rosenblum, 

545 B.R. 846, 863-73, 875 (E.D. Pa. 2016).

Defendants filed preliminary objections to Plaintiff’s complaint and the 

court overruled those preliminary objections without opinion in February 2016. 

Trial Court Order, 2/10/16. Plaintiff filed a motion for summary judgment 

against defendant Zarro in January 2016, while Defendants’ preliminary 

objections were pending, and that motion was denied by the same judge who 

had overruled the preliminary objections. Trial Court Order, 3/15/16. Plaintiff 

filed a second motion for summary judgment in 2018, seeking judgment

against both defendants. In 2019, a different judge, from the Court of 

Common Pleas of Chester County, was assigned to this action and that judge 

denied Plaintiff’s second summary judgment motion. Trial Court Order, 

9/26/19.

This action proceeded to a jury trial on October 7, 2019, before the latter 

judge, at which Plaintiff represented himself pro se. At trial, Plaintiff 

abandoned his requests to set aside the transfers and sought only money 
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judgments from Defendants. N.T. Trial, 10/8/19, at 249-50. Plaintiff called 

three witnesses, Debtor, defendant Allan Rosenblum, and himself. Plaintiff 

also read into evidence defendant Zarro’s interrogatory answers and 

introduced various documents into evidence, including a 2014 property claim 

made by defendant Zarro concerning the Torresdale gym and a lease between 

her and the Torresdale gym’s landlord. On October 8, 2019, after Plaintiff 

rested his case, Defendants moved for a compulsory nonsuit and the trial court 

granted Defendants’ motion. Id. at 244-70. Plaintiff timely filed post-trial 

motions seeking removal of the nonsuit and, alternatively, a directed verdict 

in his favor or a new trial. On February 12, 2020, the trial court entered an 

order denying Plaintiff’s post-trial motions. Judgment against Plaintiff and in 

favor of Defendants was entered on Plaintiff’s praecipe on February 13, 2020. 

This timely appeal followed. 

Plaintiff argues the following issues as grounds for reversal of the trial 

court’s judgment:

A. Whether Appellant presented evidence at trial that if believed 

by the jury would have entitled him to judgment and whether the 

trial court erred in entering a non-suit against Appellant.

B. Whether the trial court improperly supported its decision to 

enter the non-suit against Appellant by resolving issues of fact 

against Appellant instead of allowing those issues to be decided 

by the jury.

C. Whether the trial court committed an error of law when it 

denied Appellant’s motion for summary judgment and his 

subsequent request for judgment notwithstanding the verdict/non 

suit.
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D. Whether the trial court violated the law of the case doctrine 

when it made legal findings that directly overruled and conflicted 

with the legal findings made by a [sic] another judge who had 

previously ruled in the same case.

E. Whether the trial court violated the doctrine of collateral 

estoppel when it made legal and factual findings that directly 

overruled and conflicted with the legal and factual findings made 

by the United States Bankruptcy Court who had previous ruled in 

the bankruptcy case that gave rise to the fraudulent transfer suit 

against the defendants in this case.

Appellant’s Brief at 5-6 (unnecessary capitalization and suggested answers 

omitted).

3

 We first address Plaintiff’s fourth and fifth issues, in which he 

claims that the trial court was barred by prior decisions from granting a 

nonsuit, followed by his first and second issues concerning the merits of the 

nonsuit, which we address together, and then his third issue.

In his fourth issue, Plaintiff argues that the trial court was barred from 

granting a nonsuit in favor of Defendants under the law of the case doctrine

because a different judge had overruled Defendants’ preliminary objection in 

the nature of a demurrer. This claim is without merit. 

Contrary to Plaintiff’s assertions, the law of the case doctrine does not

bar a trial judge from ruling in defendants’ favor at trial on an issue as to 

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3 Plaintiff also lists as an issue whether the trial court erred in holding that his 

Pa.R.C.P. 1925(b) statement was insufficient to preserve any issues for 

appeal. We agree with Plaintiff that his Rule 1925(b) statement was sufficient 

to preserve the above issues and that those issues are not waived. 

Defendants in their brief request that this Court order Plaintiff to pay their 

attorney fees and costs in defending this appeal on the grounds that the 

appeal is frivolous. Appellees’ Br. at 67. Because we conclude that Plaintiff’s 

appeal from the nonsuit in favor of Zarro is meritorious, this request is denied.
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which a different judge overruled preliminary objections. Under the 

coordinate jurisdiction rule, an aspect of the law of the case doctrine, a judge 

may generally not alter the resolution of a legal question previously decided 

by another judge of that court. Riccio v. American Republic Insurance 

Co., 705 A.2d 422, 425 (Pa. 1997); Parker v. Freilich, 803 A.2d 738, 745 

(Pa. Super. 2002). This rule, however, applies only where the second judge 

rules on the same type of motion as the first judge; the coordinate jurisdiction 

rule does not bar a judge at a later and different procedural stage of the case

from overruling another judge’s decision on preliminary objections, even on 

an identical legal issue and even where the record is unchanged. Riccio, 705 

A.2d at 425-26; K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080, 1091-92 (Pa.

Super. 2015); Parker, 803 A.2d at 745-46; Mellon Bank, N.A. v. National 

Union Insurance Co. of Pittsburgh, 768 A.2d 865, 870-71 (Pa. Super. 

2001). Because the ruling here was at trial, a different procedural posture 

from the preliminary objections, the coordinate jurisdiction rule could not limit 

the trial court’s authority to grant a nonsuit.

4

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4

Indeed, there is not even any overruling of an earlier decision here. There is

no inconsistency between overruling a demurrer and the granting of this 

nonsuit. A demurrer assumes the truth of the complaint’s averments and 

challenges the legal sufficiency of those averments, even if they are proven. 

Keller v. Bank of New York Mellon, 212 A.3d 52, 56 (Pa. Super. 2019). As 

is discussed below, the nonsuit here was not based on the insufficiency of 

Plaintiff’s averments to state a cause of action, but on the trial court’s 

conclusion that Plaintiff failed to prove facts essential to his cause of action at 

trial. 
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In his fifth issue, Plaintiff argues that even if he did not prove his causes 

of action, the trial court erred in granting a nonsuit because the bankruptcy 

court’s decision in In re Rosenblum, supra, collaterally estopped Defendants 

from disputing the elements of those claims. This argument likewise fails. 

The doctrine of collateral estoppel precludes a party from disputing an 

issue only where all of the following five elements are satisfied: (1) the issue 

is identical to an issue decided in a prior case, (2) the prior case resulted in a 

final judgment on the merits, (3) the party against whom collateral estoppel 

is asserted was a party to the prior case, or is in privity with a party to that

case, (4) there was a full and fair opportunity to litigate the issue in the prior 

case, and (5) the determination in the prior case was essential to the 

judgment. E.K. v. J.R.A., 237 A.3d 509, 521 (Pa. Super. 2020); Wilmington 

Trust, N. A. v. Unknown Heirs, 219 A.3d 1173, 1179 (Pa. Super. 2019). 

Whether collateral estoppel bars re-litigation of an issue is a question of law 

subject to this Court’s plenary, de novo review. Wilmington Trust, N. A., 

219 A.3d at 1179.

The requirements for collateral estoppel are absent here. Neither Allan 

Rosenblum nor Zarro was a party to the proceedings out of which the 

bankruptcy court decision arose. Rather, the parties to those proceedings 

were Plaintiff and Debtor. 545 B.R. at 852-53. Most importantly, there was 

no judgment in the bankruptcy court decision on the issues here, whether

Plaintiff’s evidence against Defendants was sufficient to prove a fraudulent 
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transfer cause of action and whether Debtor made any fraudulent transfer. 

The issue before the bankruptcy court was whether Plaintiff could bring a

fraudulent transfer action against Defendants on behalf of Debtor’s estate. 

Id. at 852-53, 873, 875. The bankruptcy court’s only ruling concerning the 

merits of Plaintiff’s action was a determination that Plaintiff’s averments in his 

complaint that Debtor transferred ownership interests in the Levittown gym 

and the Torresdale gym and the contents of those gyms, if proven, would 

support fraudulent transfer claims, not that there was evidence to support 

those averments or that any fraudulent transfer to Defendants occurred. Id.

at 863-70. Collateral estoppel therefore did not bar Defendants from disputing 

Plaintiff’s fraudulent transfer claims against them and cannot constitute a 

ground for reversal of the nonsuit in their favor.

Moving to the merits of the trial court’s grant of the nonsuit, Plaintiff 

argues in his first and second issues that he presented sufficient evidence for 

the jury to find all of the elements of his fraudulent transfer claims against 

Defendants and the nonsuit was therefore improper. A nonsuit is proper if, 

viewing the evidence and all reasonable inferences arising from it in the light 

most favorable to the plaintiff, a jury could not reasonably conclude that all of 

the elements of the plaintiff’s cause of action have been established. T.M. v. 

Janssen Pharmaceuticals Inc., 214 A.3d 709, 720 (Pa. Super. 2019); 

Kovacevich v. Regional Produce Cooperative Corp., 172 A.3d 80, 85 (Pa. 

Super. 2017). We will reverse the grant of a nonsuit only if the trial court 
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abused its discretion or made an error of law. T.M., 214 A.3d at 720; 

Kovacevich, 172 A.3d at 85.

Under Section 5104 of PUFTA, a transfer is fraudulent as to both present

and future creditors 1) if it was made with intent to hinder or defraud a creditor 

or 2) if the debtor did not receive reasonably equivalent value and either the 

debtor’s remaining assets were insufficient for a business that he was 

undertaking or the debtor was incurring debts beyond his ability to pay as 

they came due. 12 Pa.C.S. § 5104 (in effect February 1, 1994 to February 

19, 2018);5 Fell v. 340 Associates, LLC, 125 A.3d 75, 81-84 (Pa. Super. 

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5 Section 5104(a) provided that:

A transfer made or obligation incurred by a debtor is fraudulent 

as to a creditor, whether the creditor’s claim arose before or after 

the transfer was made or the obligation was incurred, if the debtor 

made the transfer or incurred the obligation:

(1) with actual intent to hinder, delay or defraud any creditor of 

the debtor; or

(2) without receiving a reasonably equivalent value in exchange 

for the transfer or obligation, and the debtor:

(i) was engaged or was about to engage in a business or a 

transaction for which the remaining assets of the debtor were 

unreasonably small in relation to the business or transaction; or

(ii) intended to incur, or believed or reasonably should have 

believed that the debtor would incur, debts beyond the debtor’s 

ability to pay as they became due.

12 Pa.C.S. § 5104(a) (in effect February 1, 1994 to February 19, 2018).
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2015); Mid Penn Bank v. Farhat, 74 A.3d 149, 153-56 (Pa. Super. 2013). 

Under Section 5105 of PUFTA, a transfer is fraudulent as to present creditors

if the debtor did not receive reasonably equivalent value and the debtor was 

insolvent or was made insolvent by the transfer. 12 Pa.C.S. § 5105 (in effect

February 1, 1994 to February 19, 2018);6 Knoll v. Uku, 154 A.3d 329, 333-

36 (Pa. Super. 2017). If a creditor proves that a transfer was fraudulent under 

Section 5104 or Section 5105, he may have the transfer set aside to the extent 

necessary to satisfy his claim. 12 Pa.C.S. § 5107 (in effect February 1, 1994

to February 19, 2018); see also Knoll, 154 A.3d at 336. The creditor may 

also recover the value of fraudulently transferred property from a transferee 

who received the property that the debtor fraudulently transferred or from a 

person for whose benefit the transfer was made. 12 Pa.C.S. § 5108(b) (in 

effect July 1, 2001 to February 19, 2018); see also Farhat, 74 A.3d at 152, 

156. 

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6 Section 5105 provided that:

A transfer made or obligation incurred by a debtor is fraudulent 

as to a creditor whose claim arose before the transfer was made 

or the obligation was incurred if the debtor made the transfer or 

incurred the obligation without receiving a reasonably equivalent 

value in exchange for the transfer or obligation and the debtor 

was insolvent at that time or the debtor became insolvent as a 

result of the transfer or obligation.

12 Pa.C.S. § 5105 (in effect February 1, 1994 to February 19, 2018).
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The only relief that Plaintiff sought at trial was recovery of the value of 

the transferred property from Defendants. N.T. Trial, 10/8/19, at 249-50. 

Plaintiff was therefore required to introduce evidence sufficient to prove not 

only that the transfers at issue were fraudulent under Section 5104 or 5105, 

but that Defendants were transferees or persons for whose benefit the 

transfers were made. 12 Pa.C.S. § 5108(b) (in effect July 1, 2001 to February 

19, 2018). The trial court granted the nonsuit because it concluded that 

Plaintiff introduced no evidence at trial sufficient to show that Debtor 

transferred any property to either defendant Allan Rosenblum or defendant

Zarro. Trial Court Order, 2/12/20, at 1-3 n.1; Trial Court Opinion at 3-5. 

We agree that Plaintiff failed to introduce evidence sufficient for a jury 

to find that Debtor made a fraudulent transfer to defendant Allan Rosenblum 

or for his benefit and that the trial court properly granted a nonsuit in favor of

defendant Allan Rosenblum. The evidence at trial concerning Plaintiff’s claim 

against Allan Rosenblum showed that Debtor transferred $50,000 in August 

2012 from his personal home equity line of credit to Charter Fitness, the owner 

of the Levittown gym, as consideration for the purchase of that gym business 

by Quick-Fit USA, LLC (Quick-Fit). N.T. Trial, 10/7/19, at 48, 123-35, 138; 

N.T. Trial, 10/8/19, at 45, 96-97, 131-32, 134. While this might show a 

fraudulent transfer by Debtor for the benefit of Quick-Fit, Plaintiff did not sue 

Quick-Fit or seek any relief against Quick-Fit. Allan Rosenblum did not receive 
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any funds or other property in the August 2012 transaction. N.T. Trial, 

10/8/19, at 130, 167. 

The only connection to this 2012 transfer that Plaintiff proved with 

respect to Allan Rosenblum was that Allan Rosenblum and Debtor were each

50% owners of Quick-Fit. N.T. Trial, 10/7/19, at 125-26; N.T. Trial, 10/8/19, 

133-34, 160, 162. That ownership of Quick-Fit, however, was created when 

Quick-Fit was incorporated in 2009, long before Plaintiff’s claim against Debtor 

arose. N.T. Trial, 10/7/19, at 20-21; N.T. Trial, 10/8/19, at 100-01, 113-14, 

132-34, 138-39, 159-62. There was no evidence that Plaintiff was insolvent 

or unable to pay future obligations in 2009 or that Quick-Fit was formed to 

defraud any creditor. N.T. Trial, 10/8/19, at 135, 227-28. Nor was there any 

evidence that Allan Rosenblum ever received any money or other property 

from Quick-Fit in connection with or following the 2012 transaction or that he 

ever received any money or property from the operation of the Levittown gym. 

Id. at 49, 114-16, 141-42. There was also no evidence that Allan Rosenblum 

could receive any future benefit from the 2012 transfer. The evidence at trial 

showed that in 2017, Quick-Fit defaulted on its lease for the Levittown gym 

premises and its landlord took possession of all of the Levittown gym 

equipment. Id. at 128-29, 132.

Because there was no evidence introduced at trial that defendant Allan 

Rosenblum received any property transferred by Debtor or that there was any 

fraudulent transfer by Debtor for his benefit, the trial court properly concluded 
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that Plaintiff failed to prove a cause of action under PUFTA for a money 

judgment against this defendant. 12 Pa.C.S. § 5108(b) (in effect July 1, 2001 

to February 19, 2018). 

The trial court, however, erred in granting a nonsuit with respect to 

defendant Zarro. The sole ground on which defendant Zarro sought a nonsuit 

was that that Plaintiff had failed to show that Debtor transferred property to 

her. N.T. Trial, 10/8/19, at 256-57. The evidence admitted at trial, taking all 

reasonable inferences in Plaintiff’s favor, was sufficient for a jury to find that 

Debtor gave equipment in the Torresdale gym with a value of at least $4,200 

to Zarro for no consideration after Plaintiff filed his 2012 trademark action

when Debtor was no longer paying his debts as they came due. 

Debtor testified that he and a partner, who was a defendant in Plaintiff’s 

trademark action but not in this action, began operating the Torresdale gym 

in 2011 in leased space in a building owned by a third-party. N.T. Trial, 

10/7/19, at 4, 79, 93, 118-20, 185-86. Debtor testified that he abandoned 

his ownership of the Torresdale gym business and the equipment in the 

Torresdale gym to Zarro, the sister of his paramour, in 2013 or 2014 and did 

not receive anything in exchange for abandoning that property. Id. at 11-13, 

43-44, 47, 88, 93-94, 181-82; N.T. Trial, 10/8/19, at 27-28, 80-81, 98. Zarro 

admitted in interrogatory answers that Plaintiff read into evidence that she 

owned boxing equipment at the Torresdale gym address and that she did not 

pay anything for the equipment. N.T. Trial, 10/8/19, at 174-78, 180-82. The 
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evidence at trial also showed that Zarro in 2014 filed a claim of ownership of 

the equipment the Torresdale gym address and asserted that its value was 

$4,200 and that Zarro entered into a lease for the Torresdale gym premises 

in December 2013. Plaintiff’s Exs. 11, 37. At the time that Debtor abandoned 

the Torresdale gym business and equipment, Debtor was not meeting his 

obligations to pay rent under the Torresdale gym lease. N.T. Trial, 10/7/19, 

at 186-87, 195-96, 198. 

 The trial court concluded that there was no evidence of a fraudulent 

transfer to Zarro because Debtor abandoned the business and equipment to 

the Torresdale gym’s landlord and Zarro obtained the property from the 

landlord. Trial Court Order, 2/12/20, at 2-3 n.1; Trial Court Opinion at 5. The 

record, however, does not support a conclusion that the landlord owned the 

equipment or that Zarro obtained the equipment from the landlord, let alone 

require those conclusions. Debtor testified that he abandoned his ownership 

interest in the Torresdale gym and equipment to Zarro, not that the landlord

took possession. N.T. Trial, 10/7/19, at 47, 94; N.T. Trial, 10/8/19, at 98. 

Moreover, Zarro’s lease referenced only rental of space in a building, not

acquisition or rental of any equipment. Plaintiff’s Ex. 37 at 1. 

Because there was sufficient evidence for a jury to find that Debtor 

transferred his ownership of the Torresdale gym and its equipment to 

defendant Zarro for no consideration, the trial court erred in granting her 
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motion for a compulsory nonsuit and Plaintiff’s claim against defendant Zarro 

must be remanded for a new trial on his claim against her.

In his remaining issue, Plaintiff argues that the trial court erred in 

denying his second motion for summary judgment and that he is entitled 

under that summary judgment motion to judgment in his favor against both 

defendants on liability. This argument fails for two reasons. 

First, as the trial court correctly held, Trial Court Opinion at 5, the denial 

of this summary judgment motion is not appealable as an issue separate from 

the grant of the nonsuit at trial. This Court has held that where, as here, a 

summary judgment motion is based on the sufficiency of the evidence to prove 

the plaintiff’s claims, once a case goes to trial and evidence is presented at 

trial, the denial of summary judgment is moot and the sufficiency of the 

evidence must be analyzed based on the trial record. Whitaker v. Frankford 

Hospital of City of Philadelphia, 984 A.2d 512, 517 (Pa. Super. 2009).

7

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7 We note that our Supreme Court and this Court in reported decisions 

subsequent to Whitaker have in fact ruled on the merits of denials of 

summary judgment in appeals following a hearing or trial. See Woodford v. 

Insurance Department, 243 A.3d 60, 68-71 (Pa. 2020) (affirming denial of 

summary judgment on the merits in appeal from judgment following 

evidentiary hearing); Krepps v. Snyder, 112 A.3d 1246, 1257-60 (Pa. Super. 

2015) (affirming denial of plaintiff’s motion for summary judgment on the 

merits in appeal from judgment following trial). These decisions, however, 

have not addressed the issue of whether the factual record at trial supersedes 

the denial of summary judgment and whether the denial of summary 

judgment is appealable as a separate issue following trial. No decision has 

overruled Whitaker, and it therefore remains binding precedent. 
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Secondly, even if we could consider this issue, it would fail. Plaintiff 

contends that he was entitled to summary judgment in his favor on two 

grounds: 1) because Defendants failed to respond to the motion and its 

statement of undisputed facts and 2) because he allegedly showed that the 

elements of his fraudulent conveyance were undisputed. Neither of these 

arguments has merit. 

Contrary to Plaintiff’s contentions, failure to respond to a summary 

judgment motion does not require a trial court to grant summary judgment in 

favor of the movant. Woodford v. Insurance Department, 243 A.3d 60, 

71 n.9 (Pa. 2020); Thomas v. Elash, 781 A.2d 170, 177 (Pa. Super. 2001). 

Moreover, Plaintiff did not endorse the statement of undisputed facts with a 

notice to plead. Defendants’ failure to respond to the allegations in that 

statement therefore does not constitute an admission of those allegations. 

Cooper v. Church of St. Benedict, 954 A.2d 1216, 1221 (Pa. Super. 2008); 

McCormick v. Allegheny General Hospital, 527 A.2d 1028, 1032 (Pa.

Super. 1987).

8

Plaintiff also failed to demonstrate in his second summary judgment 

motion that all of the elements of his claims against Defendants were 

undisputed. Plaintiff’s motion was based in large part on his own affidavit and 

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8

Indeed, the only authority that Plaintiff cites for his contention that 

Defendants were required to respond to the statement of undisputed facts, 25 

Pa. Code 1021.94a(g)(2), is a rule governing Environmental Hearing Board 

proceedings and has no applicability to this case.
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statement, oral testimony of Debtor, and a written statement filed by Debtor. 

Summary judgment cannot be granted in favor of a party who bears the 

burden of proof based the movant’s own affidavit and statements and oral 

testimony and statements of witnesses other than the opposing parties. 

Woodford, 243 A.3d at 69-71; Penn Center House, Inc. v. Hoffman, 553 

A.2d 900, 903-04 (Pa. 1989). The admissions of defendant Allan Rosenblum 

that Plaintiff submitted in support of his summary judgment motion 

established only that Allan Rosenblum was a 50% owner of the corporation 

that owns the Levittown gym and that the corporation was formed in 2009. 

Allan Rosenblum Answers to Plaintiff’s Interrogatories. The admissions of 

defendant Zarro that Plaintiff submitted in support of his summary judgment 

motion established that Zarro owned a boxing studio and boxing equipment 

at the Torresdale gym address and that she paid nothing for the equipment, 

but did not include any admission that Debtor transferred the business or 

equipment to her. Zarro Answers to Plaintiff’s Interrogatories. The trial court 

therefore properly denied Plaintiff’s second motion for summary judgment.

For the foregoing reasons, we conclude that the trial court properly 

granted defendant Allan Rosenblum’s motion for compulsory nonsuit, but that 

it erred in granting a compulsory nonsuit in favor of defendant Zarro. 

Accordingly, we affirm the judgment in favor of defendant Allan Rosenblum, 

vacate the judgment in favor of defendant Zarro, and remand this case for a 

new trial of Plaintiff’s claim against defendant Zarro.
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Judgment affirmed in part and vacated in part. Case remanded for a 

new trial limited to Plaintiff’s claim against defendant Zarro. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/21