A motion for summary judgment is a valuable tool for any litigator. Such a motion can be filed in most types of cases including those for breach of contract, mortgage foreclosure or declaratory judgment. While many types of cases can be resolved by a motion for summary judgment, a party is often less likely to prevail if the case has a complex factual background. A practitioner must carefully consider whether a motion for summary judgment is a cost-effective option for his client. One must keep in mind that the opposition need only evidence one issue of material fact in dispute to overcome a motion for summary judgment.
Whether a party succeeds on a motion for summary judgment also requires careful planning in the discovery phase of a given case. A party must be aware of all elements that it needs to prove and build a record establishing each element. Once all of the required elements are of record, a party can file a motion for summary judgment.
When filing a motion for summary judgment, one must be mindful of the procedural requirements and substantive standards governing such a motion. The Pennsylvania Rules of Procedure lays out the basic framework for asserting and responding to a motion for summary judgment. However, there is voluminous case law that interprets the Rules related to such a motion.
In Pennsylvania, a motion for summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2. That Rule sets forth:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:
- whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
- if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
42 Pa. C.S.A. 1035.2.
In some counties, Pennsylvania state courts will issue a scheduling order to set the deadline for a motion for summary judgment while courts in other counties do not. Most or all counties in Pennsylvania have Local Rules related to motions for summary judgments and those Rules sometimes set deadlines regarding the same. A party must be mindful of these deadlines so as not to forgo its ability to file a motion.
A motions for summary Judgment must be based on evidence, or lack thereof, on the record. The “record” for the purposes of a motion for summary judgment in Pennsylvania courts includes: pleadings, discovery materials, i.e., depositions, answers to interrogatories, admissions and affidavits, and reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories. 42 Pa.C.S.A. 1035.1. It is important for a party to file any documents that they rely upon with the Court. This allows the Court to review them as part of the record and is critical if an appeal is taken in the case. Documents not filed on record are typically not considered by a trial court and cannot be considered on appeal.
In Pennsylvania, it is important to consider what has become known as the “Nanty Glo Rule.” In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).
“‘However clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence’” Reel v. Elder, 62 Pa. 308.” Id. at 238, 163 A. at 524. The Nanty-Glo rule means that: “Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.” Goodrich-Amram, 2d, § 1035(b): 4 at pp. 434-35.
A party responding to a motion for summary judgment must not simply rely on the pleadings but must respond identifying 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 evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. 42 Pa.C.S.A. 1035.3. Failure of a party to respond to a motion for summary judgment could lead to the entry of judgment against them. Id. Courts typically hold argument on motions for summary judgment. Argument may be scheduled by Court order or local rule.
Motions for summary judgment can be a cost-effective way to terminate a case in favor of a party if done properly. That requires a clear plan to obtain the necessary documents and testimony to prevail and a solid understanding of the law that is applicable to the claim.
This article is to provide general information regarding motions for summary judgment and is not intended to provide legal advice. To the extent that anyone requires legal advice as it relates to motions for summary judgment, we recommend contacting an attorney. We here at Bernstein-Burkley, P.C. have experience and knowledge related to motions for summary judgment and would be happy to assist if you have any questions related thereto.
We can be reached at (412)456-8100 should you like to discuss the possibility of our firm representing you.