68 Proposed amendments to Rule 1035.3 governing motions for summary judgments; proposed recommendation no. 167

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Amendment to Rule 1035.3 Governing Motions for Summary Judgment; Proposed Recommendation No. 167

[31 Pa.B. 415]

   The Civil Procedural Rules Committee proposes that Rule of Civil Procedure 1035.3 governing the response to a motion for summary judgment be amended as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than March 2, 2001 to:

Harold K. Don, Jr., Esquire
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055

or E-Mail to
[e-mail]

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS AT LAW

Rule 1035.3.  Response. Judgment For Failure to Respond.

*      *      *      *      *

   (e)  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 not given a full and fair opportunity to argue the motion.

   Official Note: The decision to entertain a motion for summary judgment on the eve of trial is entirely within the discretion of the court.

Explanatory Comment

   The proposed amendment to Rule 1035.3 addresses the confusion regarding whether a motion for summary judgment may be granted immediately prior to trial and, if so, whether a formal written response to the motion is required.

   The addition of new subdivision (e) to Rule 1035.3 makes clear that a court may decide a motion for summary judgment at any time prior to the start of trial and need not require written responses or briefs so long as the parties suffer no prejudice thereby. This amendment reflects the current practice in many courts where motions for summary judgment are often heard and decided by the court immediately prior to start of trial. Frequently in these cases, discovery is closed and the issues raised by the motion have become clear. The court may even have previously ruled upon one or more issues raised by the motion after having had the benefit of a response and briefs. In such circumstances, as long as the opposing party is given ''full and fair opportunity to argue the motion,'' there is no need to require either an extensive time period for response or the filing of written responses or briefs.

   However, as the note makes clear, the decision to entertain a motion for summary judgment which is raised on the eve of trial remains entirely within the discretion of the court.

By the Civil Procedural Rules Committee

REA BOYLAN THOMAS,   
Chair

[Pa.B. Doc. No. 01-68. Filed for public inspection January 19, 2001, 9:00 a.m.]