J. A12042/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

E.B. SUSAN BARTON, BRENT L. 

BARTON, AND TRACEE R. BARTON

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

RONALD L. GRAHAM AND 

MICHAEL D. GRAHAM,

:

: No. 1704 WDA 2018

:

 Appellants :

Appeal from the Order Entered November 2, 2018,

in the Court of Common Pleas of Armstrong County

Civil Division at No. 2017-00796

BEFORE: BENDER, P.J.E., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 26, 2020

Ronald L. Graham and Michael D. Graham (collectively, “the Grahams”) 

appeal from the November 2, 2018 order entered by the Court of Common 

Pleas of Armstrong County granting the motion for summary judgment filed 

by E.B. Susan Barton, Brent L. Barton, and Tracee R. Barton (collectively, 

“the Bartons”).1 After careful review, we affirm.

The trial court set forth the following factual history:

The Bartons are the successor lessors to an 

“Oil Lease” executed between their predecessors, 

 

1 The trial court notes that E.B. Susan Barton “was the sole owner of the 

Property at the time the complaint was filed. Since that filing, she has 

conveyed the Property to [] Brent L. and Tracee R. Barton.” (Trial court 

memorandum, 11/2/18 at 1 n.1.) The trial court defines “the Property” as 

“approximately 100 acres situate[d] in Sugarcreek Township, Armstrong 

County, Pennsylvania.” (Id. at 1.)
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Robert F. Mellish and Grace A. Mellish, and Edward B. 

Boyle and Company on September 30, 1964 (the 

“Lease”). Despite being executed in 1964, the Lease 

was not recorded with the Armstrong County Recorder 

of Deeds until February 7, 2011. By virtue of certain 

assignments, the Grahams are the current successor 

lessees of seven-eighths (7/8) interest in the 

Lease.[Footnote 2] The Lease provides for a primary 

term of fifteen (15) years, “and so long thereafter as 

oil or gas can be produced in paying quantities.” The 

Lease goes on to provide that “[i]t is agreed, [t]hat if 

gas is found in paying quantities, the consideration in 

full to the party of the first part for each gas well shall 

be one-eighth (1/8th) royalty per annum for the gas 

from each gas well when utilized off the aforesaid 

premises.” After the typewritten insertion of a 

“one-eighth (1/8th[])” royalty, the fixed amount 

payment designation of “DOLLARS” is crossed out. 

Typewritten at the end of the first page of the Lease 

is a rental provision providing that “[t]he party of the 

second party [sic] agrees to pay a rental of [f]ifty four 

($54.00) dollars yearly until drilling operations are 

begun” (the “Delay Rental”).

[Footnote 2] A third owner of the working 

oil and gas interests underlying the 

Property, Anna Marie Knoll, executed a 

release of lease in May 2017, 

relinquishing her one-eighth (1/8) 

interest. Although the Grahams appear to 

contest the Bartons’ determination of the 

ownership of the working interests in the 

oil and gas underlying the Property, those 

determinations [were] not material to the 

[trial court’s] disposition of the instant 

motion for summary judgment; nor have 

the Grahams[] presented to the [trial 

court] any suggested additional or 

alternative owners of these interests.

A single gas well has been drilled pursuant to the 

Lease, presumably during the time when the Mellishes 

owned the Property (the “Mellish Well”). The 

Mellish Well at one time produced gas, but has not 
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produced any gas since June 1993. It currently is 

disconnected from any tanks or commercial 

distribution systems for the sale of gas, and is 

overgrown and surrounded by trees, brush, and 

saplings. The Grahams have not paid to the Bartons 

any royalty payments, but instead have tendered 

rental payments of $54.00 per year for the past 

several years. The Bartons have rejected these 

payments and have not cashed any of the checks.

In February 2017, counsel for the Bartons sent letters 

by certified mail to both Grahams advising them that 

the Lease had expired 1) because of the lack of 

production, and 2) because the Bartons, specifically 

their predecessor the Barton Equity Partnership, had 

purchased the Property in good faith and for value in 

1999. Because the Lease was not recorded until 

2011, the Bartons advised that the Partnership was a 

bona fide purchaser for value without record notice of 

the Lease which, therefore, cannot encumber the 

Property. The Bartons requested that the Grahams 

execute releases of their interest in the Lease, but 

[the Grahams] have refused to do so.

The Bartons filed a complaint in ejectment on May 31, 

2017, in which they include counts for ejectment and 

“good faith purchaser for value.” They [sought] 

declarations by [the trial court] that the Lease has 

expired and that the Grahams have no remaining 

interest in the oil and gas underlying the Property.

Trial court memorandum, 11/2/18 at 2-4.

The Bartons filed a motion for summary judgment on June 15, 2018. 

After hearing argument, the trial court entered an order granting the Bartons’ 

motion for summary judgment on November 2, 2018. On November 13, 

2018, the Grahams filed a motion for reconsideration. The trial court denied 

the Grahams’ motion on November 27, 2018. 
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The Grahams filed a timely notice of appeal to this court on 

November 30, 2018. The trial court ordered the Grahams to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and the Grahams timely complied. The trial court filed an opinion pursuant to 

Pa.R.A.P. 1925(a) on January 4, 2019.

Preliminarily, we note that the Pennsylvania Rules of Appellate 

Procedure include requirements for the content of briefs filed with this court. 

See generally Pa.R.A.P. 2111(a). Here, the Grahams’ brief fails to include a 

statement of jurisdiction, a summary of the argument, a copy of the trial 

court’s Rule 1925(a) opinion, and a copy of the Grahams’ Rule 1925(b) 

statement of errors complained of on appeal. See Pa.R.A.P. 2111(a)(1), (6), 

(b), and (d). Additionally, the structure of the Grahams’ brief is not in

compliance with Rule 2111(a). Further, the Grahams failed to divide the 

argument section of their brief into as many parts as there are questions to

be answered, pursuant to Pa.R.A.P. 2119(a). 

We have the authority to dismiss appeals for failing to comply with the 

Rules of Appellate Procedure and will do so in cases where such a failure 

hinders our ability to conduct meaningful appellate review. Kern v. Kern, 

892 A.2d 1, 5-6 (Pa.Super. 2005) (citation omitted), appeal denied, 903 

A.2d 1234 (Pa. 2006); see also PHH Mortg. Corp. v. Powell, 100 A.3d 611, 

615 (Pa.Super. 2014), citing Pa.R.A.P. 2101 (requiring that briefs conform 

with all material aspects of the relevant Rules of Appellate Procedure and 
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granting appellate courts the power to quash or dismiss appeals in cases 

where defects in the brief are substantial). Here, because our ability to 

conduct meaningful appellate review has not been hindered despite the 

Grahams’ multiple violations of the Rules of Appellate Procedure, we shall 

reach a decision on the merits.

The Grahams allege the following trial court errors:

The trial court has erred in granting summary 

judgment to [the Bartons]. In doing so, the trial court 

has erred in both fact-finding and application of the 

laws of the Commonwealth of Pennsylvania. First, the 

trial court erred in granting summary judgment while 

material and relevant discovery was still pending. 

Second, the trial court erred in finding that no genuine 

issue of material fact existed in this matter.

The trial court further erred in finding that the lease 

at issue was a royalty-based lease, and not a 

rental-based lease or hybrid lease. In doing so, the 

trial court erred in finding that the lease was 

terminated or was subject to termination. 

Additionally, the [trial] court abused its discretion 

and/or misapplied the law in applying its standard of 

review and in its review of the facts in determining 

summary judgment.

Grahams’ brief at 6-7.

Based on our review of the Grahams’ brief, we summarize the Grahams’ 

complaints as follows:

I. Whether the trial court improperly assigned the burden of 

proof to the Grahams?
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II. Whether the trial court erred in granting summary judgment 

while discovery was still ongoing and when a genuine issue 

of material fact existed?

III. Whether the trial court committed an error of law because 

an oil and gas lease term can be extended when the lessee 

exercised good faith in attempting to extract and produce 

natural gas from a well?2

When reviewing an order granting or denying a motion for summary 

judgment, we are governed by the following standard of review:

We 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. Only where is no genuine 

issue of material fact and it is clear that the moving 

party is entitled to a judgment as a matter of law will 

summary judgment be entered. Our scope of review 

of a trial court’s order granting or denying summary 

judgment is plenary, and our standard of review is 

clear: the trial court’s order will be reversed only 

 

2 The table of contents in the Grahams’ brief contains the following point 

headings:

[▪] The [trial] court erred in granting summary 

judgment during ongoing discovery.

[▪] A genuine issue of material fact exists.

[▪] The lease has not terminated by operation of law.

[▪] An oil and natural gas lease does not expire and is 

not forfeited.

[▪] The trial court improperly relied upon the Hite

case.

[▪] The trial court misapplied the standard of review.

Grahams’ brief at ii (full capitalization omitted).
J. A12042/19

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where it is established that the court committed an 

error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012), quoting 

Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001) (citations omitted).

I.

First, the Grahams aver that the trial court, in granting the Bartons’ 

motion for summary judgment, improperly placed the burden of proof on the 

Grahams. (Grahams’ brief at 26-28.) Specifically, the Grahams argue that 

the trial court misapplied our supreme court’s holding in Ertel v. 

Patriot-News Co., 674 A.2d 1038 (Pa. 1996), cert. denied, 519 U.S. 1008 

(1996). (Grahams’ brief at 27.) The Grahams further argue that because 

they had no burden to meet in this case, they were “prejudiced by a 

requirement to produce evidence to disprove elements of the case in summary 

judgment.” (Id.)

The Ertel court held that,

a non-moving party must adduce sufficient evidence 

on an issue essential to his case and on which he bears 

the burden of proof such that a jury could return a 

verdict in his favor. Failure to adduce this evidence 

establishes that there is no genuine issue of material 

fact and the moving party is entitled to judgment as a 

matter of law.

Ertel, 674 A.2d at 1042, quoted by trial court memorandum, 11/2/18 at 4-5.

The plain language of our Rules of Civil Procedure, however, belies the 

Grahams’ argument. Indeed, Rule of Civil Procedure 1035.3 explicitly 

prohibits a non-moving party from resting upon the mere denials of the 
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pleadings; further, Rule 1035.3 requires a non-moving party to file a response 

to a motion for summary judgment in which the non-moving party identifies 

“evidence in the record establishing the facts essential to the [] defense

which the motion cites as not having been produced.” 

Pa.R.Civ.P. 1035.3(a)(2) (emphasis added). See also Am. S. Ins. Co. v. 

Halbert, 203 A.3d 223, 227 (Pa.Super. 2019) (reiterating that a non-moving 

party may not rely upon mere denials of the pleadings).

Accordingly, the trial court did not improperly assign the burden of proof 

to the Bartons.

II.

Next, the Grahams argue that the trial court erred in granting summary 

judgment in favor of the Bartons after concluding, as a matter of law, that the 

Lease terminated by operation of law. (Grahams’ brief at 12.) The Grahams 

further argue that an oil and gas lease does not expire and is not forfeited 

when the lessee acts in good faith to extract and produce the oil and gas, and 

that the trial court improperly relied upon our decision in Hite v. Falcon 

Partners, 13 A.3d 942 (Pa.Super. 2011). (Grahams’ brief at 22-25.) 

As explained by this court:

“A lease is in the nature of a contract and is controlled 

by principles of contract law.” T.W. Phillips Gas & 

Oil Co. v. Jedlicka, [] 42 A.3d 261, 267 ([Pa.] 2012) 

(“Jedlicka”). As such, a lease must be construed in 

accordance with the terms of the lease agreement as 

manifestly expressed, and “[t]he accepted and plain 

meaning of the language used, rather than the silent 

intentions of the contracting parties, determines the 
J. A12042/19

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construction to be given the agreement.” Id. (quoting 

J.K. Willison v. Consol. Coal Co., [] 637 A.2d 979, 

982 ([Pa.] 1994)). The party seeking to terminate the 

lease bears the burden of proof. Jedlicka, 42 A.3d at 

267.

Heasley v. KSM Energy, Inc., 52 A.3d 341, 344 (Pa.Super. 2012).

At this juncture, we shall set forth the relevant language contained in 

the Lease at issue. The record reflects that the Lease provides a primary term 

of 15 years “and so long thereafter as oil or gas can be produced in paying 

quantities.” (Trial court memorandum, 11/2/18 at 2; Complaint, Exhibit 5; 

R.R. at 34a.) The Lease further provides for royalty payments when gas is 

found in paying quantities. (Id.) The Lease also requires the lessee to pay a 

rental of $54 per year “until drilling operations are begun.” (Id. at 2-3.)

As this court further explained: 

Within the oil and gas industry, oil and gas 

leases generally contain several key 

provisions, including the granting clause, 

which initially conveys to the lessee the 

right to drill for and produce oil or gas 

from the property; the habendum clause, 

which is used to fix the ultimate duration 

of the lease; the royalty clause; and the 

terms of surrender. . . .

* * *

Typically, . . . the habendum clause in an 

oil and gas lease provides that a lease will 

remain in effect for as long as oil or gas is 

produced “in paying quantities.” 

Traditionally, use of the term “in paying 

quantities” in a habendum clause of an oil 

or gas lease was regarded as for the 

benefit of the lessee, as a lessee would 
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not want to be obligated to pay rent for 

premises which have ceased to be 

productive, or for which the operating 

expenses exceed the income. More 

recently, however, and as demonstrated 

by the instant case, these clauses are 

relied on by landowners to terminate a 

lease.

[Jedlicka, 42 A.3d] at 267-268.

Our Supreme Court has long held that “[w]here a 

lessor’s compensation is subject to the volume of 

production, the period of active production of oil or 

gas is the measure of the duration of the lease.” 

Clark v. Wright, [] 166 A. 775, 776 ([Pa.] 1933). By 

contrast,

[w]here [a] lessor’s compensation is a 

definite and fixed amount unrelated to the 

volume of production, the duration of the 

lease is not measured by the length of 

time the mineral is actually extracted and 

marketed; but by the time during which 

the lease provides that the lessor shall 

receive the fixed rental. Under these 

latter circumstances, it can make no 

difference to lessor whether 100 or 

1,000,000 cubic feet of gas is produced.

Id.

Two leading cases in this 

[Commonwealth] illustrate these rules. 

[1] In Cassell v. Crothers, [44 A. 446

([Pa.] 1899)], the clause under 

consideration reads: “as long thereafter 

as oil or gas is found in the land described 

in paying quantities.” The remuneration 

which the lessor was to obtain for the use 

of his land was on a royalty basis and not 

on a flat rental basis. . . . [The Supreme 

Court held] that in an oil lease for a fixed 

period and “as long thereafter as oil is 
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found in paying quantities,” where the 

lessor’s compensation is one-eighth of the 

oil produced, the tenancy as to the 

surface of the land, after the expiration of 

the fixed period, and after the fact that oil 

is not being found and produced in paying 

quantities becomes susceptible of proof, 

is a tenancy in the nature of a tenancy at 

will, and if not actually terminated by 

mutual consent, or continued by mutual 

consent in order that further exploration 

be made, may be terminated by either 

party.” . . .

[2] The other case . . ., and typical of the

second rule as to compensation, is that of 

Summerville v. Apollo Gas Co., [56 A. 

867 ([Pa.] 1904)], wherein, under the 

terms of the lease, the lessee had the 

right to hold the premises “for and during 

the term of two years . . . and as much 

longer as oil and gas are found in paying 

quantities, or the hereinafter described 

rental is paid.” The lessee failed to 

market any gas during the extended 

period, but retained it in the well, 

although the evidence indicated the well 

would produce one million feet per day. 

The lower court instructed the jury to 

bring in a verdict for the defendant on the 

ground that gas was found in paying 

quantities. [The Pennsylvania Supreme] 

court affirmed the judgment below, and in 

its opinion stated that it may be that for 

sometime the lessee was not able to find 

a purchaser for the gas, “but that was not 

the affair of the lessors; that they are not 

interested in the proceeds of the sale of 

the gas. Their rights under the agreement 

extended only to the receipt of a 

stipulated annual rental for each well.” 

(Numerals in brackets supplied).
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[T.W. Phillips Gas and Oil Co. v. Komar, 227 A.2d 

163, 165 (Pa. 1967)] (emphasis and some internal 

quotation marks omitted) (quoting Clark v. Wright, 

[] 166 A. 775, 776 ([Pa.] 1933).

Heasley, 52 A.3d at 344-345.

The Grahams argue that the Lease at issue is a Summerville lease, 

meaning that the

production of natural gas pursuant to this [L]ease is 

not tied to the royalty received by [the Bartons], and 

as a result, the objective production of the 

[Mellish W]ell is irrelevant to the determination of the 

validity of the [L]ease. The [L]ease at issue in this 

case does not and cannot be terminated and 

transformed into a tenancy at will by a lack of, or lapse 

in, production of oil and gas.

Grahams’ brief at 17, citing McCausland v. Wagner, 78 A.3d 1093, 1101

(Pa.Super. 2013). The Bartons, however, contend that the Lease is a 

royalty-based lease, and that the continued “payment of delay rentals alone, 

after the expiration of the primary term, and after a once-productive well has 

been drilled, is inapplicable to continuation of the leasehold.” (Bartons’ brief 

at 19.)

Here, the Grahams admit that the Mellish Well3is currently disconnected 

from any tanks and commercial distribution systems for the sale of oil and/or 

gas and that the well last produced gas on June 26, 1993. (Grahams’ response 

to Bartons’ request for admissions at ¶ 6, Grahams’ responses to Bartons’ 

 

3 The Mellish Well is the only well that exists on the Property; and no oil and/or 

gas has been sold from the Mellish Well in excess of six years. (Grahams’ 

response to Bartons’ request for admissions at ¶¶ 1, 3, 5; R.R. at 92a-93a.)
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interrogatories at ¶ 4; R.R. at 93a, 95a.) The record further reflects that the 

Grahams admit to paying only delay rental payments for the Mellish Well over 

the past six years. (Grahams’ response to Bartons’ request for admissions at 

¶ 9; R.R. at 94a.) The Bartons aver that they have not accepted and/or 

cashed any checks for delay rental payments; and the Grahams admit that 

the Bartons have not cashed any checks tendered by the Grahams. 

(Complaint at ¶ 44, R.R. at 9a; answer and new matter at ¶ 44, R.R. at 71a.)

The trial court, relying in part on our decision in Hite, concluded that 

the Lease expired “by its own terms” and that the Bartons were entitled to 

summary judgment. (Trial court memorandum, 11/2/18 at 13-14.) We find 

that Hite controls here. In Hite, the parties executed oil and gas leases in 

2002 and 2003 that granted the lessee the right to enter the property for the 

purposes of oil and gas production for the term of one year and, 

as long thereafter as oil or gas or either of them is 

produced from the property, or as operations continue 

for the production of oil or gas, or as lessee shall 

continue to pay lessors two ($2.00) dollars per acre 

as delayed rentals, or until all oil and gas has been 

removed from the property, which ever shall last 

occur.

Hite, 13 A.3d at 944 (citation and extraneous capitalization omitted). As of

2008, the lessee failed to commence any drilling operations on the property 

and the lessors sent notice declaring termination of the leases as the result of 

lessee’s inaction. Id. The trial court granted the lessors’ motion for summary 

judgment. This court affirmed the trial court’s order, holding that once a 
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primary lease term expires, the “mere payment of delay rentals alone” does 

not preserve a lessee’s drilling rights. Id. at 948. This court further stated 

that even if a party were to accept delay rental payments after the expiration 

of the primary term as implied extensions of the lease, such extensions cease 

when a party refuses to accept further delay rental payments. Id. at 949 n.8.

Nevertheless, the Grahams contend that the trial court improperly relied 

upon the holding in Hite, relying on an unpublished decision from the 

United States Court of Appeals for the Third Circuit, Smith v. Steckman 

Ridge, LP, 590 Fed. Appx. 189 (3d Cir. 2014), in which the Third Circuit 

applied Pennsylvania law.4 In Smith, the Third Circuit found Hite to “not 

apply to leases where the [lessee] acts in good faith, extracts reserves during 

the primary term of the lease, and does not attempt to indefinitely preserve 

extraction rights without compensating the lessor for the dormant reserves in 

accord with habendum and shut-in clauses.” Id. at 199, citing Hite, 13 A.3d 

at 948-950.

The Grahams’ reliance on Smith is misplaced. In Smith, the parties 

executed a dual-purpose lease for the extraction and storage of gas for a 

primary term of five years. Id. at 191. Unlike the Lease in the instant case, 

the lease in Smith contained provisions pertaining to the conversion of the 

 

4 The Grahams acknowledge, and we note, that Smith is not binding authority 

on this court, although it may be used for persuasive value. (See Grahams’ 

brief at 25 n.3; Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 

947, 952 (Pa.Super. 2000), appeal denied, 795 A.2d 970 (Pa. 2000), citing 

Martin v. Hale Products, Inc., 699 A.2d 1283, 1287 (Pa.Super. 1997).)
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lease from gas production to gas storage. Id. The Third Circuit specifically 

noted that Hite “did not address what effect a dual purpose lease or a shut-in 

clause would have upon a delay rental payments clause.” Id. at 199.

Based on our review of the record, we find that the trial court neither 

abused its discretion nor erred as a matter of law when it granted the Bartons’ 

motion for summary judgment. Indeed, pursuant to the Lease terms and this 

court’s holding in Hite, the primary term in the Lease ended when production 

ceased and the Bartons refused the Grahams’ delay rental payments. Hite, 

13 A.3d at 949 n.8.

III.

Finally, the Grahams contend that the trial court erred by granting 

summary judgment while discovery was still ongoing. (Grahams’ brief at 7.) 

Specifically, the Grahams argue that discovery responses from the Bartons—

in the form of two sets of requests for production of documents—were still 

outstanding at the time the Bartons presented their motion for summary

judgment. (Id.) The Grahams further aver that the trial court overlooked a 

genuine issue of material fact. (Id. at 10.) 

In Pennsylvania, “parties must be given 

reasonable time to complete discovery before a 

trial court entertains any motion for summary 

judgment[.]” Reeves v. Middletown Athletic 

Ass’n, 866 A.2d 1115, 1124 (Pa.Super. 2004) 

(emphasis added). 

. . . . 
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We, nevertheless, recognized that “the party seeking 

discovery is under an obligation to seek discovery in a 

timely fashion.” [Id.]; see Fort Cherry School Dist. 

v. Gedman, 894 A.2d 135, 140 (Pa.Super. 2006) 

(reasoning “[t]he Pennsylvania Rules of Civil 

Procedure do not give [parties] an unlimited amount 

of time to conduct discovery”). However, this Court 

has unequivocally stated that the purpose of Rule 

1035.2 “is to eliminate cases prior to trial where a 

party cannot make out a claim or defense after 

relevant discovery has been completed; the intent is 

not to eliminate meritorious claims prematurely 

before relevant discovery has been completed.” 

Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 

(Pa.Super. 2009), quoting Gerrow [v. John Royle & 

Sons, 813 A.2d 778,] 781-782 [(Pa. 2002)]. 

Moreover, “[t]he adverse party must be given 

adequate time to develop the case and the motion [for 

summary judgment] will be premature if filed before 

the adverse party has completed discovery relevant 

to the motion.” Id.

Anthony Biddle Contractors, Inc. v. Preet Allied Am. Street, LP, 28 A.3d 

916, 928-929 (Pa.Super. 2011) (footnote omitted).

Here, the Grahams aver that they sought to acquire tax records from 

the Bartons for the Barton Equity Partnership that would “reveal that [the 

Bartons] and their predecessors in interest have been receiving and accepting 

regular payment under the lease.” (Grahams’ brief at 8.) As discussed in 

detail supra, this claim is belied by the record. The Grahams further argue 

that they made delay rental payments to the Bartons’ predecessors in interest 

and in so doing, the Grahams satisfied their duties under the lease. (Id. at 

10-11.)
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As noted in Hite, this is of no import to the case at bar. Indeed, the 

primary term in the lease at issue ended when production ceased and the 

Bartons refused the Grahams’ delay rental payments. Hite, 13 A.3d at 

949 n.8. Put another way, the Bartons’ refusal to cash the Grahams’ delay 

rental payments—that the Grahams admit—is not a genuine issue of material 

fact. (See answer and new matter at ¶ 44, R.R. at 71a.) Accordingly, we find 

that the trial court did not err when it granted the Bartons’ motion for 

summary judgment because relevant discovery had been completed and no 

genuine issue of material fact existed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/2020