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HomeMy WebLinkAbout97-1462 civilSENSORMATIC ELECTRONICS : IN THE COURT OF COMMON PLEAS OF CORP., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : v. : NO. 97-1462 : WHERE ON EARTH, INC., : Defendant IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, June 30, 1998, upon consideration of the Plaintiff's Motion for Summary Judgment and Plaintiff's brief, Plaintiff's Motion for Summary Judgment is granted in the amount of $61,593.84, plus interest. Defendant has failed to show that there is any issue of material fact remaining which must be tried before a jury. By the Court, James W. Adelman, Esquire Dennis Bolze Morris & Adelman, P.C. Where on Earth, Inc. P.O. Box 30477 21 Fdsch Drive Philadelphia, PA 19103-8477 Duncannon, PA 17020 For the Plaintiff For the Defendant SENSORMATIC ELECTRONICS : IN THE COURT OF COMMON PLEAS OF CORP., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : NO. 97-1462 CIVIL TERM WHERE ON EARTH, INC., : Defendant : IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OPINION HOFFER, P.J.: In this opinion, we address Plaintiff's Motion for Summary Judgment. The facts are as follows: Plaintiff contracted with Defendant to lease security equipment to the Defendant for its retail operations in various Pennsylvania malls. After the equipment was installed, Defendant failed to make the necessary payments. Plaintiff filed its complaint on March 20, 1997, making a demand for payment. Defendant filed an answer, new matter, and counterclaim on April 25, 1997. Defendant alleged that it did not receive all of the security equipment, that the Plaintiff's demand was not the true amount due and that Plaintiff failed to substantially perform all terms of the contract before Defendant failed to pay. On May 7, 1997, Plaintiff sent a request for admissions to Defendant's counsel. Receipt of the requests was acknowledged on May 12, 1997. Plaintiff's requests for admissions listed twenty two items. Plaintiff asked that Defendant admit or deny each matter. The list included: Defendant had received 97-1462 CIVIL TERM all documents attached to Plaintiff's complaint; Defendant had received all equipment described in Plaintiff's complaint; the rate charged was agreed upon, usual and customary, and fair and reasonable; the balance sued for is due and owing by the Defendant, to the Plaintiff; all equipment leased to the Defendant conformed to any representations and warranties made by Plaintiff; none of the equipment Defendant received was damaged; Defendant has no claim against the plaintiff; and "all conditions precedent in the lease required for suit on the sums sued upon have occurred." Plaintiff's Request for Admissions. Defendant had until June 11, 1997 to respond to Plaintiff's request for admissions. No response has been filed. Plaintiff filed for summary judgment on August 1, 1997. Plaintiff claims that it is entitled to summary judgment because, pursuant to Pa. R. Civ. P. 4014(b), Defendant's failure to respond to Plaintiff's request for admissions results in these matters being deemed admitted by the Defendant. Plaintiff argues further that, because Defendant is deemed to have admitted that Plaintiff fulfilled all terms and conditions of the contract, no issue of material fact exists and Plaintiff is therefore entitled to summary judgment. Discussion A party to an action may serve upon any other party a request for admissions that relates to statements or opinions of fact or of the application of law 97-1462 CIVIL TERM to fact. Pa. R. Civ. P. 4014(a). "Requests for admissions must call for matters of fact rather than legal opinions and conclusions." Brindley v. Woodland Village Restaurant, Inc., 438 Pa. Super. 385, 397, 652 A.2d 865, 871 (1995). The Pennsylvania Rules of Civil Procedure state: The matter is admitted unless, within thirty days after the 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). Facts set forth in a request for admissions are treated as admitted if a response is untimely. Brindley at 395, 652 A.2d at 870. See also Richard T. Byrnes, Co., Inc. v. Buss Automation, Inc., 415 Pa. Super. 549, 609 A.2d 1360 (1992). Plaintiff served Defendant with a request for admissions in May of 1997. Upon review, it is clear that Plaintiff's request called for matters of fact, not conclusions of law. As of this date, no response has been received by the Plaintiff. In October of 1997, Defendant's counsel was granted permission to withdraw because he had been unable to reach Defendant for approximately five months. Defendant is responsible for its failure to respond to the request for admissions. Pursuant to Pa. R. Civ. P. 1014(b), this Court must treat the facts included in Plaintiff's request for admissions as admitted. 3 97-1462 CIVIL TERM "An entry of summary judgment may be granted only in cases where the right is clear and free from doubt, if there is no issue of material fact, and if the moving party is entitled to judgment as a matter of law." Shoats v. Commissioner, Pennsylvania Dept. of Corrections, 139 Pa. Cmwlth. 607, 614, 591 A.2d 326, 330 (1991). Parties seeking to avoid an entry of summary judgment may not rely on the averments contained in their pleadings and are required to show, by depositions, answers to interrogatories, admissions and/or affidavits, that there is a genuine issue of fact to be tried. Spirer v. Freeland & Kronz, 434 Pa. Super. 341,344, 643 A.2d 673, 675 (1994). Plaintiff filed its motion for summary judgment on August 1, 1997. Defendant is deemed to have admitted all matters listed in Plaintiff's request for admissions because Defendant failed to respond. No issue of material fact remains because Defendant's admissions include the fact that "all conditions precedent in the lease required for suit on the sums sued upon have occurred." Because Defendant has admitted that Plaintiff fulfilled all terms and conditions of the contract to supply security equipment, Plaintiff is owed the sums which Defendant agreed to pay in exchange for the equipment. In the absence of any material issue of fact, Plaintiff is entitled to summary judgment.1 ' The fact that Plaintiff's Motion for Summary Judgment is unopposed by Defendant does not render this decision improper because, based on the merits of the case at bar, there is no genuine issue of material fact remaining. Therefore Plaintiff is entitled to summary judgment. See Dillon by Dillon v. National R.R. Corp. (AMTRAK), 345 Pa. Super. 126, 497 A.2d 1336 (1985).