IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Phila Water Department v. No. 320 C.D. 2014 Submitted October 31, 2014 Picard Losier, Appellant BEFORE HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED December 16, 2014 Picard Losier (Losier), pro se, appeals an order of the Court of Common Pleas of Philadelphia County (trial court) granting summary judgment to the Water Revenue Bureau of the City of Philadelphia (Water Bureau). Losier argues that the trial court erred in granting summary judgment because the Water Bureau s complaint was untimely and because there are outstanding unresolved issues of material fact. Discerning no error in the trial court s decision, we affirm. On March 27, 2012, the Water Bureau filed a complaint against Losier for unpaid water and sewer charges in the amount of $18,776.16. The matter went before a Compulsory Common Pleas Arbitration Panel, which awarded the Water Bureau $17,276.17. The arbitration panel directed Losier to pay the Water Bureau $2,000 at once and to pay the remainder in monthly installments of $500. On April 26, 2013, Losier appealed the arbitration panel s decision to the trial court. On August 7, 2013, the Water Bureau filed a motion for
summary judgment. 1 Losier did not respond. Because the Water Bureau s motion was uncontested, the trial court entered summary judgment in favor of the Water Bureau on September 11, 2013. Losier appealed the trial court s grant of summary judgment to the Superior Court on October 15, 2013. The matter was transferred to this Court shortly thereafter. In accordance with Pennsylvania Rule of Appellate Procedure 1925(b), the trial court ordered Losier to file a statement of matters complained of on appeal. 2 Once the trial court received Losier s 1925(b) statement, the trial court filed an opinion explaining that it granted the Water Bureau s motion for summary judgment because it was uncontested. On appeal, 3 Losier argues that the trial court erred in granting summary judgment for two reasons. First, Losier contends that the statute of 1 Prior to filing its motion for summary judgment, the Water Bureau filed a motion to enforce the arbitration award. The trial court granted the motion to enforce on August 29, 2013. On September 30, 2013, Losier filed a motion for reconsideration of the trial court s August 29 order, arguing that (1) he never agreed to the arbitration settlement, (2) the Water Bureau did not properly serve Losier with its motion to enforce the arbitration award, and (3) he disagreed with the amount awarded by the arbitration panel. The trial court granted reconsideration on October 1, 2013. No further action has been taken regarding the Water Bureau s motion to enforce the arbitration award since the trial court granted reconsideration. Presumably, the Water Bureau is awaiting final disposition of Losier s appeal of the arbitration award before moving forward with its motion to enforce. 2 Rule 1925(b) states (b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court. If the judge entering the order giving rise to the notice of appeal ( judge ) desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ( Statement ). PA. R.A.P. 1925(b). 3 Our scope of review of an order granting summary judgment is limited to considering whether the trial court abused its discretion or committed an error of law. Kochems v. Department of (Footnote continued on the next page...) 2
limitations for collecting water payments had expired before the Water Bureau filed its complaint on March 27, 2012. 4 Second, Losier asserts that because genuine issues of material fact exist, summary judgment was inappropriate. Notably, Losier does not address his failure to contest the Water Bureau s motion for summary judgment. 5 Rule 1035.3 of the Pennsylvania Rules of Civil Procedure governs responses to motions for summary judgment. Rule 1035.3 states, in relevant part, that when a motion for summary judgment is filed, (a) 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. (continued...) Environmental Protection, 701 A.2d 281, 282 n. 3 (Pa. Cmwlth. 1997). [J]udgment may be entered only when, after examining the record in the light most favorable to the non-moving party and resolving all doubts as to the existence of a genuine issue of material fact against the moving party, the moving party is clearly entitled to judgment as a matter of law. In re Tax Parcel 27-309-216, 98 A.3d 750, 752 n.4 (Pa. Cmwlth. 2014). 4 In his brief to this Court, Losier argues that the Water Bureau filed its complaint after the statute of limitations had expired. Losier did not raise this argument in his 1925(b) statement. If an appellant fails to include an issue in his 1925(b) statement, the issue is waived. Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998). Because Losier did not argue that the Water Bureau s complaint was untimely in his 1925(b) statement, the issue has been waived. 5 The Water Bureau has been precluded from filing a brief on appeal, having failed to comply with this Court s order of September 22, 2014, directing it to do so. 3
* * * (d) Summary judgment may be entered against a party who does not respond. PA. R.C.P. NO. 1035.3 (emphasis added). Rule 1035.3 neither requires nor prohibits entry of summary judgment against a non-responsive party. Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Cmwlth. 1997). The rule merely grants the trial court discretion to respond appropriately to a party s failure to respond to a summary judgment motion. Id. In the matter sub judice, the trial court granted the Water Bureau summary judgment because Losier did not contest the Water Bureau s motion. The trial court was authorized to do this, and Losier does not argue that the trial court abused its discretion in awarding summary judgment. The arguments set forth in Losier s brief relate to the merits but were not raised in response to the Water Bureau s motion for summary judgment. 6 For these reasons, we affirm the trial court s order granting summary judgment to the Water Bureau. MARY HANNAH LEAVITT, Judge 6 Specifically, Losier argues that there are unresolved issues of material fact regarding the validity of the arbitration and whether the Water Bureau erroneously billed him after his service had been terminated. 4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA City of Phila Water Department v. No. 320 C.D. 2014 Picard Losier, Appellant O R D E R AND NOW on this 16 th day of December, 2014, the order of the Court of Common Pleas of Philadelphia County dated September 11, 2013, in the above-captioned matter is hereby AFFIRMED. MARY HANNAH LEAVITT, Judge