HIBU, Inc. v. Geibig, J.
3533 EDA 2016
| Pa. Super. Ct. | Oct 31, 2017Background
- Hibu, Inc. (formerly Yellowbook), a Delaware corporation, sued attorney James J. Geibig for breach of an advertising contract and unjust enrichment for unpaid Yellow Book advertising and listings.
- Geibig initially appealed a magisterial district court judgment and then filed untimely preliminary objections to Hibu’s complaint alleging improper venue and pleading defects.
- The Montgomery County trial court dismissed Geibig’s preliminary objections for untimeliness under Pa.R.C.P. 1026 and the county’s Local Rule 1028(c), and denied his request for oral argument.
- Hibu moved for summary judgment; Geibig did not file any response to the motion within the thirty-day period set by Pa.R.C.P. 1035.3 and the local rule.
- The trial court entered summary judgment for Hibu for $5,999.56 plus interest and costs; Geibig appealed.
Issues
| Issue | Plaintiff's Argument (Hibu) | Defendant's Argument (Geibig) | Held |
|---|---|---|---|
| 1. Whether court erred by not scheduling oral argument on preliminary objections | Local rules permit dismissal for untimely filings; scheduling is discretionary | Argued court abused discretion by denying oral argument on his preliminary objections | Court: No error — objections were untimely under Pa.R.C.P. 1026 and Local Rule 1028(c); denial of argument was not an abuse of discretion |
| 2. Whether court erred in dismissing preliminary objections | Timeliness rules and local procedures justify dismissal | Argued venue improper and complaint deficient; said dismissal was wrong | Court: No error — preliminary objections filed 32 days after service, beyond 20-day rule; dismissal proper under local rule |
| 3. Whether court erred by not ordering briefing/oral argument on summary judgment | Court followed local rules; scheduling argument discretionary | Claimed he was denied full and fair opportunity to oppose summary judgment | Waived — Geibig’s appellate briefing on this issue was undeveloped; alternatively, local rules made briefing schedule unnecessary and argument discretionary |
| 4. Whether summary judgment was improper because genuine issues of fact exist | Moved for summary judgment based on the record; local rule required response | Contended factual disputes about existence/terms of contract precluded summary judgment | No merit — Geibig failed to respond to the motion as required by Pa.R.C.P. 1035.3; court permissibly entered summary judgment |
Key Cases Cited
- Greenberg v. McGraw, 161 A.3d 976 (Pa. Super. 2017) (standard of review for preliminary objections)
- Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272 (Pa. 2006) (preliminary objections must be raised within twenty days)
- Liberty Mut. Ins. Co. v. Domtar Paper Co., 77 A.3d 1282 (Pa. Super. 2013) (timeliness rule is permissive and trial court has discretion)
- Yenchi v. Ameriprise Fin., Inc., 161 A.3d 811 (Pa. 2017) (summary judgment standard and appellate review)
- Walsh v. Borczon, 881 A.2d 1 (Pa. Super. 2005) (summary judgment may be entered when non-moving party fails to respond)
- Irwin Union Nat. Bank & Tr. Co. v. Famous, 4 A.3d 1099 (Pa. Super. 2010) (appellate briefs must develop arguments or issues may be waived)