Roberts, B. v. Elder, E, III.

J-A04005-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BARBARA ROBERTS, : IN THE SUPERIOR COURT OF

ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA

TERRY ALLEN SMITH, II :

:

Appellant :

:

:

v. :

: No. 611 MDA 2024

:

EDWARD ELDER, III, A&E AUTO :

SERVICES, LLC, BRYAN NEBUHR, :

AND KATIE SNYDER :

Appeal from the Order Entered March 26, 2024

In the Court of Common Pleas of York County Civil Division at No(s):

2017-SU-003185

BEFORE: LAZARUS, P.J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: JUNE 25, 2025

Barbara Roberts (Roberts), Administratrix of the Estate of Terry Allen

Smith, II, (Decedent), appeals from the order entering summary judgment in

favor of Edward Elder, III and A&E Auto Service, LLC (Elder and A&E).1 After

our review, we reverse and remand for further proceedings.

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1 On May 22, 2024, this Court entered a rule to show cause as to why this

appeal should not be quashed as it appeared the March 26, 2024 order did

not dispose of all parties—where two defendants below, Bryan Nebuhr and

Katie Snyder, still remained. See Order, 5/22/24. An appeal properly lies

only from a final order unless otherwise permitted by rule or statute.

McCutcheon v. Philadelphia Elec. Co., 788 A.2d 345, 349 (Pa. 2002). A

final order is one that disposes of all claims in parties to an action. Pa.R.A.P.

341(b)(1). On June 5, 2024, Roberts filed a response to the rule to show

cause, stating that she had resolved the claims against Defendants Snyder

(owner of 2002 Chevrolet Express G3500 van in question) and Nebuhr (driver

(Footnote Continued Next Page)

J-A04005-25

This action arises out of a fatal car accident that occurred on December

10, 2015 at the intersection of Freysville Road and East Prospect Road in

Windsor Township, York County. On December 1, 2015, Katie Snyder, the

owner of the van, took the van to A&E for service. A&E inspected the vehicle.

The A&E invoice indicates: “LABOR TO REPLACE FRONT BRAKES AND

ROTORS.2

On December 10, 2015, Nebuhr drove the van to decedent’s residence

to pick him up to travel to a worksite in Lancaster, Pennsylvania. At

approximately 6:54 a.m., Nebuhr and decedent were about five to ten miles

into their journey, traveling on Freysville Road at or near its intersection with

East Prospect Road in Windsor Township. That intersection is controlled by a

stop sign on Freysville Road; however, there is no stop sign on East Prospect

Road. Nebuhr slowed the van prior to entering the intersection and, once he

entered the intersection, Nebuhr’s vehicle collided with a vehicle (a 2015 Ford

____________________________________________

of van on day of accident) by executing a Joint Tortfeasor Release dated

October 6, 2022. Accordingly, the trial court’s order granting summary

judgment in favor of defendants Elder and A&E disposed of all remaining

claims and is a final order for purposes of appeal. See Response to Order to

Show Cause, 6/5/24, at ¶¶ 5-7. On July 22, 2024, this Court discharged the

rule to show cause. See Order, 7/22/24.

2 As indicated infra, the trial court did not consider this invoice as part of the

record as it was only attached to Roberts’ brief. Although technically correct,

the trial court overlooks the fact that other evidence presented, including the

deposition testimony of the owner of the van and Roberts’ expert report,

supports the allegation that A&E performed this work. Moreover, at argument

on its motion for summary judgment, counsel for defendants admitted A&E

worked on the front brakes of the van ten days prior to the accident. See

infra, at 9.

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F450 Dump Truck) operated by a non-party, Jack Lowe. Decedent, who was

in the passenger seat of the van, died as a result of his injuries in the collision.

Roberts’ wrongful death and survival action is based on the alleged

faulty replacement of brake pads and rotors by Elder and A&E, which caused

or contributed to the fatal accident. Roberts’ complaint alleged

the brakes on the van failed to work properly causing the vehicle

to enter the intersection without stopping and violently collide with

the vehicle lawfully traveling in the westbound direction of travel

on East Prospect Road, as a result of which the vehicle in which

Decedent was a passenger, rolled onto the passenger side killing

Decedent in the process.

Complaint, 4/23/21, at ¶ 15. The complaint further alleged that:

Elder passed the vehicle for inspection and emissions even though

the van did not meet the standards for the vehicle to pass said

inspections and tests. Id. at ¶ 17. Said crash was directly and

proximately caused by the joint and several negligent, careless,

reckless[,] and intentionally wrongful conduct of Defendants,

which consisted of the following violations according to the PA

Vehicle Equipment and Inspection Regulations, issued by the PA

Department of Transportation, 2014 (Pub. 45, Feb 2014):

- The brake reservoir should have been checked and filled

by A&E [] after the brake pads and rotors installation;

- The brake reservoir should have been checked and filled

as part of the PA State Safety Inspection;

- The brake pedal travel should have been checked and

corrected by A&E [] as part of the brake pad and rotor

installation and as part of the PA state Inspection;

- A&E [] never checked or filled the brake fluid reservoir or

the brake pedal travel. The depleted reservoir was the

cause of the excessive brake pedal travel. The depleted

reservoir was also the cause of the mushy and spongy

brakes and of the underperforming brakes reported by the

driver of the van. The van should not have passed PA State

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Inspection with either the depleted reservoir or the

excessive brake pedal travel;

- The right rear axle seal leak and saturated brake shoes

were visible without removing the wheel or drum. These

conditions would have further contributed to the

underperforming brake system. The van should not have

passed PA State Inspection with a right rear axle seal leak

and saturated brake shoes[.]

Id. at ¶ 18.

At his deposition, Nebuhr testified that he was driving slowly since it was

dark and foggy:

I definitely was going slow and later on I found out at the time of

the accident I was only going ten miles an hour. I was aware that

I was going slow because of the fog in general that morning, but

I didn’t realize I was going that slow at the time the accident

occurred.

N.T. Deposition of Bryan Nebuhr, 3/7/22, at 12. See id. at 34-35 (“Afterwards

they said they did an investigation and after the investigation was concluded,

they said that I was going ten miles an hour at the end. And [the “]they[”]

I'm referring to is the police department, I’m assuming.”).

Nebuhr also testified that because he had lost consciousness and

suffered a concussion from the accident, he had “no recollection” of how the

accident occurred. Id. at 37, 51. However, he stated: “I think at the time

of the accident I said something about the brakes.” Id. at 38. He also

testified that he did not recall talking to the police after the accident, but he

knows he did. Id. at 41. He also had little recollection of speaking with Lowe,

the driver of the dump truck. Id. at 46 (“I remember talking to the driver,

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but I don’t remember what we talked about. Like, I guess just us being in

shock and us just realizing what happened.”). Nebuhr testified that he did not

recall specifically telling Snyder, the owner of the van, that the accident

occurred because of brake malfunction, but he did “remember [talking] about

it on the day of the accident[,]” but he could not recall to whom: “Maybe the

police officer, but I honestly don’t remember.”). Id. at 65-66.

The officer on the scene, Sergeant Wyeth L. Barley, Jr., prepared an

incident report and affidavit of probable cause, which stated:

The driver of the F450 was identified as Jack Lowe. Lowe was

traveling west on East Prospect Road coming from the Landfill in

heavy fog when he was struck in the driver’s side door by the

Van[,] which was traveling north on Freysville. Lowe said he

never saw the Van until it collided with the side of his truck. He

said he asked the operator what happened and the kid said

his brakes did not work[,] thus the reason for not stopping

at the stop sign. The driver of the van was identified as Bryan

Nebuhr of Stewartstown. The occupant pinned under the van who

was pronounced dead at the scene is Terry Allen Smith, II. Officer

Price spoke to [Nebuhr] at the scene[,] who told him that he

stopped at the stop sign controlling traffic entering the

intersection. Upon inspecting the roadway, I saw no signs of

braking or pre-impact skidding[,] however the roadway was wet

when the accident occurred.

Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary

Judgment, 11/13/23, Exhibit 2 (emphasis added); Deposition of Wyeth Barley,

10/19/17, at 20, Exhibit 2. See also Deposition Testimony of Jack Lowe,

10/19/17, at 14-15 (“Q: Next statement, [Officer Barley] said he asked the

operator what happened and the kid said that his brakes did not work thus

the reason for not stopping at the stop sign. Do you see that? A: Yes. Q:

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Do you recall telling an officer at the scene that statement? A: No, no, I

don’t. Q: Did you speak to police officers at the scene? A: Yes, I did. Q:

You don’t recall [] --telling the officer that statement? A: Not offhand, no. Q:

Would you have any reason to lie to any of the police officers at the scene of

the crash? A: No, absolutely not. Q: Would you agree with me that your

recollection of the events would be best at the scene than they would be

today? A: Yes.”); id. at 19-20 (“Q: So when we read in Exhibit 2 the

comment brakes did not work, as you sit here today, you’re not certain that

that’s exactly what you were told by [Nebuhr]? A: Like I said, he probably

told me that at this accident, but I don’t remember because it was so long

ago.”).

On September 14, 2023, Elder and A&E filed a motion for summary

judgment. The court heard oral argument on the motion and, on March 26,

2024, granted the motion in favor of Elder and A&E. In its opinion

accompanying the March 26, 2024 order, the court stated that it did not

consider the December 1, 2015 service invoice from A&E, which indicated that

A&E had replaced the front brake pads and rotors on the van ten days prior

to the accident. The court stated:

Here, Plaintiff has attached a plethora of documents to its brief.

These documents are not a part of the record we can consider for

purposes of summary judgment, but some of them, if they were

properly a part of the record, would likely affect our analysis

and the outcome of the instant motion.2

2 As discussed throughout our opinion, there is reference

to A&E performing work to the front brake system of

the Chevrolet van. However, the invoice outlining the

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precise work performed was attached to Plaintiff’s brief and,

therefore, is not part of the record we review.

Trial Court Opinion, 3/6/24, at 5, n.2 (emphasis added).

Roberts filed a timely notice of appeal. Both Roberts and the trial court

complied with Pa.R.A.P. 1925. Roberts raises five issues on appeal:

1. Whether the trial court abused its discretion and erred as a

matter of law in granting summary judgment for [Elder] and

A&E [] as there existed disputed issues of material fact and

credibility issues regarding the cause of the subject motor

vehicle fatality and the surrounding circumstances.

2. Whether the trial court abused its discretion and erred as a

matter of law in granting summary judgment for [Elder] and

A&E [] after failing to properly consider an invoice attached

to Plaintiff’s Brief in Opposition to Defendants’ Motion for

Summary Judgment reflecting the replacement of front

brakes and rotors by the moving defendants on December

1, 2015, when defendants conceded this fact, the invoice

was produced in discovery, was properly presented, and

when there was significant additional evidence of record

reflecting the same scope of services, including defendants’

own expert, who acknowledged and admitted the same

scope of services performed by the moving defendants in

his expert report.

3. Whether the trial court abused its discretion and erred as a

matter of law in granting summary judgment for [Elder] and

A&E [] after improperly weighing and reconciling the parties’

respective expert opinions regarding the condition of the

brakes at the time of the incident and the cause of the fatal

collision.

4. Whether the trial court abused its discretion and erred as a

matter of law in granting summary judgment for [Elder] and

A&E [], after improperly weighing, reconciling and

misconstruing plaintiff’s expert report based on a single

typographical error, which is clearly contradicted by the

remainder of this expert report. More specifically, on page

two of this trial court’s opinion, it states, “[o]f the four

deficiencies Gurreri [plaintiff’s expert] identifies, he opines

three of them were caused by the collision.” This is based

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on a single typographical error by Gurreri, but the remainder

of his report contradicts the implication of that typographical

error and expressly opines that the three deficiencies

predated the subject crash.

5. Whether the trial court abused its discretion and erred as a

matter of law in granting summary judgment for [Elder] and

A&E [] in relying on 75 Pa.C.S.A. § 4702.1, as the liability

of the moving defendants is within that contemplated by this

statutory provision and markedly similar factually to the

case of Hill v. Smith, 7 Pa. D&C 4th 422, 425 (C.P. Erie

1990).

Appellant’s Brief, at 3-4 (some capitalization omitted).

Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its

discretion or committed an error of law[,] and our scope of review

is plenary. We view the record in the light most favorable to the

nonmoving party, and all doubts as to the existence of a genuine

issue of material fact must be resolved against the moving party.

Only where there is no genuine issue as to any material fact

and it is clear that the moving party is entitled to a

judgment as a matter of law will summary judgment be

entered.

Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015),

quoting Sokolsky v. Eidelman, 93 A.3d 858, 861–62 (Pa. Super. 2014)

(quotation marks and citations omitted) (emphasis added). The issue of

whether there are no genuine issues as to any material fact presents a

question of law. Therefore, our standard of review is de novo, and we need

not defer to the determinations made by the lower tribunals. Buffalo

Township v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002); see also Valentino

v. Philadelphia Triathlon, LLC, 209 A.3d 941, 950 (Pa. 2019). Further,

“the moving party has the burden to demonstrate the absence of any issue of

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material fact, and the trial court must evaluate all the facts and make

reasonable inferences in a light most favorable to the non-moving party.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).

Moreover, the rule that a trial court must view the facts, and all reasonable

inferences therefrom, in a light most favorable to the non-moving party

“clearly includes all expert testimony and reports submitted by the

non-moving party or provided during discovery; and, so long as the

conclusions contained within those reports are sufficiently supported, the trial

judge cannot sua sponte assail them in an order and opinion granting

summary judgment.” Id. at 1161 (emphasis added).

Roberts argues the trial court erred in granting summary judgment,

claiming that the court rejected the evidence that Elder and A&E “replaced the

front brake pads and rotors on the van involved in the accident, which the trial

court admitted would have affected its decision, and[,] thus[,] was a ‘material

fact.’” Appellant’s Brief, at 21, quoting Opinion in Support of Summary

Judgment, 3/26/24, at 4. We agree.

The trial court stated: “As discussed throughout our opinion, there is

reference to A&E performing work to the front brake system of the Chevrolet

van. However, the invoice outlining the precise work performed was attached

to Plaintiff’s brief, and, therefore, is not part of the record we review.” Id. at

4, n.2.

The trial court, therefore, found no support for the allegation that A&E

performed this work. However, there was other evidence supporting this

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allegation, and, further, it was admitted by defendants. Counsel for

defendants acknowledged this before the trial court at oral argument on the

motion for summary judgment, stating: “I think it’s undisputed that the work

that A&E Auto provided for this van, as far as the brakes go, w[as] only on

the front brakes[.]” N.T. Argument on Motion for Summary Judgment,

3/19/24, at 21. See id. at 23 (defendants’ attorney stating: “The work was

done on the front wheels.”). See also Deposition Testimony of Detective

Wyeth Barley, Jr., 11/1/17, at 18 (“Q: Last sentence in that paragraph says,

it was evident that the van had new pads and rotors installed on the front

brakes. Do you see that? A: That was obvious to me, and I'm not even a

mechanic.”); Deposition Testimony of Katie Snyder, 3/7/22, at 23 (“Q: So,

if I told you based on the records we have at the inspection at A&E Auto of

the van occurred on December 1st, do you have any reason to disagree with

that? A: No.”); id. at 32 (“Q: But no reason to dispute that the new brake

pads were put on[,] as were the new rotors[,] when it was inspected? A:

No.”).

The court further states that outside of Joseph A. Gurreri’s expert report,

“there is nothing of record [that] shows moving defendant[s] replaced brake

pads and rotors or when that was done. At that, Gurreri’s report only states

the van had ‘new front brake pads and rotors[,]’ which he found consistent

with A&E’s invoice from the date of the inspection.” Opinion in Support of

Motion for Summary Judgment, 3/26/24, at 3 (unpaginated). The court

further opines that “Gurreri never states it was A&E who replaced the brake

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pads and never states when he believes the brake pads and rotors were

replaced.” Id. We disagree with the court’s assessment that the foregoing is

insufficient proof of the allegation in Roberts’ complaint.

When a motion for summary judgment is based on insufficient

evidence to support the factual basis for the cause of action or

defense, the non-moving party must come forward with sufficient

evidence essential to preserve the cause of action. The evidence

adduced by the non-moving party must be of such a quality that

a jury could return a favorable verdict to the non-moving party on

the issue or issues challenged by a summary judgment request.

InfoSAGE, Inc. v. Mellon Ventures L.P., 896 A.2d 616, 626 (Pa. Super.

2006) (citation omitted).

As our Supreme Court has observed:

Allowing non-moving parties to avoid summary judgment where

they have no evidence to support an issue on which they bear the

burden of proof runs contrary to the spirit of [Pennsylvania Rules

of Civil Procedure 1035.1–.5]. We have stated that the “‘mission

of the summary judgment procedure is to pierce the pleadings and

to assess the proof in order to see whether there is a genuine need

for a trial.’” We have a summary judgment rule in this

Commonwealth in order to dispense with a trial of a case (or, in

some matters, issues in a case) where the party lacks the

beginnings of evidence to establish or contest a material issue. []

Forcing parties to go to trial on a meritless claim under the guise

of effectuating the summary judgment rule is a perversion of that

rule. [] Thus, we hold that a non-moving party must adduce

sufficient evidence on an issue essential to his case and on which

he bears the burden of proof such that a jury could return a verdict

in his favor.

Ertel v. Patriot–News Co., 674 A.2d 1038, 1042 (Pa. 1996). The evidence

relied upon by the non-moving party to defeat a summary judgment motion

“need not be direct evidence, but may be circumstantial evidence and the

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inferences reasonably deducible therefrom.” InfoSAGE, Inc. v. Mellon

Ventures L.P., 896 A.2d at 626.

Here, we find the evidence upon which Roberts relies is sufficient to

support the allegations that A&E performed the work in question on December

1, 2015. The evidence is also sufficient to support an inference that the work

was negligently performed and caused or contributed to the accident on

December 10, 2015.

With respect to the competing expert reports, the trial court reasoned

as follows:

Plaintiff and moving defendants each rely upon inspections of the

van performed after the collision. Plaintiff’s inspection was

performed by Joseph A. Gurreri, who then authored a written

report. In his report, Gurreri opines there were 4 deficiencies on

the part of Elder and/or A&E: 1) The master brake reservoir

should have been checked and filled both as part of the

replacement of the front brake pads and as part of the

annual state required inspection; 2) the right rear axle seal

was leaking and caused the rear brakes shoes to be saturated with

oil; 3) the van’s tailpipe was missing; and 4) the front right wheel

had a broken wheel stud and missing lug nut. Of the [four]

deficiencies Gurreri identifies, he opines [three] of them were

caused by the collision. He attributes only the low brake fluid

level in the reservoir to Elder and/or A&E.

Opinion in Support of Summary Judgment, supra at 2 (unpaginated), citing

Motion for Summary Judgment, Exhibit N (emphasis added).

Defendants rely upon an inspection performed by Brian Baker,[]

an experienced auto inspection mechanic. Baker’s inspection of

the van was undertaken at the request of York County Regional

Police Department (then York Area Regional Police Department)

as part of its investigation. Baker observed the van at the scene

while still tipped on its passenger side. Baker righted the van and

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towed it to his service station, where it was secured and sat until

the time of his inspection. While at the scene, Baker manually

engaged the brakes of the van and found them to operate

normally. Upon his later inspection of the van, he found no

abnormality with the braking system of the van. He did not

check the brake fluid level in the reservoir at this time, as

he found no evidence of an underperforming brake system

and found no evidence of a leak in the hydraulic brake

system.

Id. at 2-3, citing Motion for Summary Judgment, 9/15/23, Exhibit F (emphasis

added).

The trial court rejected Gurreri’s expert opinion attributing the low brake

fluid level in the reservoir to Elder and/or A&E. The court acknowledged

checking brake pedal travel is required as part of the state inspection process,

but it rejected “Gurreri’s conclusion that because the brake pedal did not

function properly [nine] months after the collision, moving defendants must

not have tested it during the state inspection before the collision.” Id. at 10.

The court added that its “rejection of an expert opinion with a clear logical

flaw” was “neither a determination of credibility nor does it create a dispute

of fact.” Id. at 10-11.

We disagree with court’s characterization of Gurreri’s conclusion—the

two are not necessarily mutually exclusive. It is possible that defendants did

not test the brake pedal travel at inspection, and it is possible that this is the

reason the brake fluid level was low and that this caused the brakes to

underperform. Simply because Guerreri determined the brake fluid was low

nine months after the accident does not preclude the possibility that

defendants did not test the brake pedal travel at inspection. The evidence

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supports a reasonable inference that the brake fluid level was low when the

van left the defendant inspection station only ten days before the accident,

after defendant had replaced the front brakes and rotors. It is for the fact-

finder to weigh the evidence and the expert opinions and to reach a

determination. We conclude, therefore, that defendants are not entitled to

summary judgment because a genuine issue of fact exists that, if the brake

fluid level was too low while the van was being driven, the brakes could fail or

underperform, thus risking harm to the van’s driver and passengers. See

Straw v. Fair, 187 A.3d 966, 987 (Pa. Super. 2018) (genuine issues of

material fact existed as to whether automobile repair shop that performed

required annual state inspection on vehicle and performed repairs on hood

latch assembly owed motorist and his family, who were passengers in vehicle,

duties of care and breached those duties, precluding summary judgment in

action brought by motorist and wife alleging that hood latch failed while

motorist was driving vehicle, causing him to stop in middle lane of highway,

after which another motorist rear-ended vehicle, resulting in serious injuries

to motorist, his wife and child, and death of six-year-old son). See also 75

Pa.C.S.A. § 4702.1(a) (“An inspection conducted pursuant to section 4702(a)

(relating to annual inspection) . . . shall not be construed as a guaranty of the

safety of any vehicle and neither the official inspection station issuing the

certificate of inspection nor the official inspection mechanic performing the

inspection shall be liable to the owner or occupants of any inspected vehicle

for any damages caused by the failure or malfunction of that vehicle or to the

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owner or occupants of any vehicle involved in an accident with that inspected

vehicle or to any pedestrian injured in the accident unless it can be shown

by a preponderance of the evidence that the failure was caused by the

negligence of the inspection station or mechanic.”) (emphasis added).

Viewing the record in the light most favorable to Roberts, as the

nonmoving party, we conclude that there remain genuine issues as to material

facts regarding the work done on the van in question and whether that work

caused or contributed to the accident in question. A record that supports

summary judgment will either show the material facts are undisputed or

contain insufficient evidence of facts to make out a prima facie cause

of action or defense and, therefore, there is no issue to be submitted to the

factfinder. Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014). Here,

it appears that the trial court engaged in weighing the evidence presented,

rather than simply viewing it. See Jones v. SEPTA, 772 A.2d 435, 438 (Pa.

2001) (trial court does not weigh evidence; that is role of jury). Accord:

Redland Soccer Club v. Department of the Army, 696 A.2d 137, 147 (Pa.

1997). The issue here is whether a trier of fact could have looked at the

evidence and found that defendants Elder and A&E were liable. The fact that

one expert testified that the brakes were deficient, and the other testified that

they were not, is prima facie a dispute about the evidence. Two qualified

experts reached differing opinions about how the accident occurred and what

defects were involved; this, by definition, constitutes disputed issues of

material fact. Further, whether the jury would credit Roberts’ expert is not

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the issue at this juncture. Whether one opinion should be given more weight

than another is also not the issue. These are matters for a jury to consider.

See Summers, supra at 1161; see also DeArmitt v. New York Life Ins.

Co., 73 A.3d 578, 595, 598 (Pa. Super. 2013) (“[T]he parties presented

conflicting evidence through the presentation of expert evidence. [] The court

erred when it chose between conflicting expert evidence at the summary

judgment stage and relied on the moving party’s expert report to decide a

material issue of disputed fact. . . . The credibility and weight to be attributed

to the experts’ conclusions were not proper considerations at summary

judgment.”).3 Accordingly, we reverse the order granting summary judgment

and remand to the trial court for proceedings not inconsistent with the dictates

of this memorandum.

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3 Notably, at the argument on the motion for summary judgment, the trial

court stated that defendants’ counsel made a good argument as to why

defendants’ expert “is more credible than” Roberts’ expert; the court

acknowledged, however, that “that’s exactly what that is, [it’s] a credibility

determination and not one I can rely on for purposes of summary

judgment. So if your motion is going to be successful, I think it's going to

be successful on the issue of what liability your Defendants have based on the

work that they did or did not perform.” N.T., Argument on Motion for

Summary Judgment, supra at 24.

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Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 6/25/2025

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