Rule 1035.3. Response. Judgment for Failure to Respond.
(a) Except as provided in subdivision (e), 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
If the moving party has supported the motion with oral testimony only, the response may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).
(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.
(b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.
(c) The court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such other order as is just.
(d) Summary judgment may be entered against a party who does not respond.
Procedural requirements with respect to argument and briefs are governed by local rule.
In certain counties, the failure to respond to a motion may result in the motion being deemed uncontested and the entry of the judgment sought.
See Rule 1035.2 providing for the entry of judgment in whole or in part.
(e)(1) 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 he or she is not given a full and fair opportunity to supplement the record and to oppose the motion.
(2) A court granting a motion under subdivision (e)(1) shall state the reasons for its decision in a written opinion or on the record.
Subdivision (e) does not abrogate the requirement that a motion for summary judgment be timely filed pursuant to Rule 1035.2 or case management order.
If a motion is not timely filed, subdivision (e) provides the court with the discretion as to the manner of proceeding, including whether to consider the motion at all. The court should not consider the motion except in the interests of justice.
The provisions of this Rule 1035.3 adopted February 14, 1996, effective July 1, 1996, 26 Pa.B. 862; amended May 16, 2003, effective September 1, 2003, 33 Pa.B. 2587. Immediately preceding text appears at serial pages (212305) to (212306).
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