Loading...
HomeMy WebLinkAbout96-4087 civilPAUL A. GINTER and : IN THE COURT OF COMMON PLEAS OF JOAN S. GINTER, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : V. : NO. 96-4087 CIVIL BLAIN A. HARDY, Jr., : Defendant IN RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J., OLER, J. and GUIDO, J. /~ ~OFCOURTORD R OF COURT AND NOW, ~,~~~~,q~~, 1998, pursuant to the opinion filed on this date, Plaintiff's Motion for Summary Judgment is hereby granted. By the Court, ~ p.j. Jeffrey D. Bukowski, Esquire Stevens & Lee 111 North Sixth Street P.O. Box 679 Reading, PA 19603-0679 For the Plaintiffs Blain A. Hardy, Jr. c/o Blain and Sara Hardy 10702 Roxbury Road Roxbury, PA 17251 Defendant - Pm se PAUL A. GINTER and : IN THE COURT OF COMMON PLEAS OF JOAN S. GINTER, his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : V, : · NO. 96-4087 CIVIL BLAIN A. HARDY, Jr., : Defendant : IN RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J., OLER, J. and GUIDO, J. .OPINION HOFFER, J.: In this opinion, we address Plaintiffs' Motion for Summary Judgment. The facts of this case are as follows: November 11, 1990, Plaintiffs, Paul A. Ginter and his wife Joan S. Ginter, and Defendant, Blain A. Hardy, Jr., entered into a written agreement for Defendant to pay $26,000 for the right to harvest timber from the Plaintiffs' land. Defendant paid $13,000 before cutting any timber. The timber was then removed from Plaintiffs' property. Pursuant to the agreement, the balance was due no later than November 11, 1991. Defendant failed to pay the balance due. Plaintiffs agreed to defer payment until demand was made in the future. The parties agreed that the unpaid balance was to accrue interest at a rate of eight percent per annum. Each November for the following four years, Defendant promised that he would pay the Plaintiffs. After the repeated failures of the Defendant to pay what was owed under the agreement, Plaintiffs made demand 96-4087 CIVIL TERM upon the Defendant to pay the balance due on July 1, 1996. Defendant failed to pay the outstanding debt. Plaintiffs filed their complaint alleging breach of contract and demanding payment of the outstanding debt, July 17, 1996. The case was designated for arbitration. On June 4, 1997, the Board of Arbitrators heard the case and awarded the Plaintiffs $13,000 plus interest. Defendant appealed the arbitration decision to this Court. December 31, 1997, before trial was to begin, Defendant's attorneys were given leave of court to withdraw. The case was stricken from the February 1998 trial list. As part of discovery in this case, Plaintiffs submitted, to the Defendant, requests for admissions on December 29, 1997. The requests covered ten points of fact concerning the existence of the contract between the parties, the duties which accompanied the contract and the Defendant's failure to pay the debt owed under the contract. Defendant failed to respond to the requests for admissions. Plaintiff's Motion for Summary Judgment was filed May 15, 1998. The motion was listed for argument May 28, 1998. Oral argument was held before the Court on June 24, 1998. Defendant has not responded to Plaintiffs' motion. Discussion Requests for admissions are an acceptable mode of discovery in 2 96-4087 CIVIL TERM Pennsylvania. Parties may serve upon any other party requests to admit or deny statements of fact, or opinions of fact, or of the application of law to fact. Pa. R. Civ. P. 4014(a). The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission an answer verified by the party or an objection, signed by the party or by his attorney. Pa. R. Civ. P. 4014(b). Parties may move for summary judgment when there is no genuine issue of material fact as to any necessary element of the cause of action or a defense to the action. Pa. R. Civ. P. 1035.2. The summary judgment rules, effective July 1, 1996, state that a party adverse to the motion "may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service." Pa. R. Civ. P. 1035.3. Summary judgment may be entered against a party who does not respond to the motion. Pa. R. Civ. P. 1035.3(d). When a party fails to respond to requests for admissions, that party runs the risk that the facts sought will be deemed admitted. Richard T. Byrnes Co., Inc. v. Buss Automation, Inc., 415 Pa. Super. 549, 563, 609 A.2d 1360, 1367 (1992). In Byrnes, plaintiff made an agreement with Buss Automation, Inc. to receive a commission for sales of Buss-built machinery to one of plaintiff's clients. Byrnes 3 96-4087 CIVIL TERM at 552, 609 A.2d at 1361. Buss Automation, Inc. was subsequently sold and the new owners retained the corporate name. Id. Plaintiff's commission was not paid and a lawsuit was filed against Buss' new owners. Byrnes at 552, 60 A.2d at 1362. Plaintiff sent to defendant requests for admissions which asked the defendant to admit or deny (1) that the new owners only defense was that the agreement was made by the old owners and (2) that the new owners agreed to indemnify the old owners in the plaintiff's action. Byrnes at 556, 609 A.2d at 1364. Defendant failed to respond to the plaintiff's request and the facts were deemed admitted. Byrnes at 557, 609 A.2d at 1364. In Byrnes, the Superior Court found the order granting summary judgment based upon the facts established by defendant's failure to respond to plaintiff's requests for admissions to be proper. Byrnes at 564, 609 A.2d at 1367. In the case at bar, Defendant's failure to respond to Plaintiffs' requests for admissions renders the facts therein admitted.~ No genuine issue of material fact remains to be determined. Defendant harvested timber from the Plaintiffs' property. Defendant has failed to pay the balance due of $13,000. Based upon the ~ The facts deemed admitted in the case at bar were properly addressed in requests for admissions. Summary judgment would be improper if the requests for admissions had asked for conclusions of law. See Brindle¥ v. Woodland Village Restaurant1 Inc., 438 Pa. Super. 385, 652 A.2d 865 (1995). 4 96-4087 CIVIL TERM facts of record, Plaintiffs' are entitled to the remaining debt owed by the Defendant plus interest. Defendant has been given every opportunity to respond to the Plaintiffs' motion for summary judgment, yet has failed to do so. Therefore, Plaintiffs' Motion for Summary Judgment is granted. 5