The opinion of the court was delivered by: Mannion, M.J.
Presently pending before the court is the defendant's motion for summary judgment. (Doc. No. 17). Based upon the court's review of the record, as well as consideration of the oral argument held on June 29, 2007, the defendant's motion will be granted.
By way of procedural background, on July 20, 2005, the plaintiff commenced an action in the Court of Common Pleas of Schuylkill County, Pennsylvania, by the filing of a writ of summons.
On August 3, 2005, the defendant filed a praecipe to file a complaint pursuant to Pennsylvania Rule of Civil Procedure 1037(a), and the Prothonotary of Schuylkill County issued a Rule upon the plaintiff to file a complaint.
On August 25, 2005, the plaintiff filed a complaint against the defendant in the Court of Common Pleas of Schuylkill County.
On September 23, 2005, the defendant filed a notice of removal in this court. In addition, the defendant filed an answer to the plaintiff's complaint.
On November 12, 2006, the defendant filed the instant motion for summary judgment, along with a supporting brief, statement of material facts and supporting exhibits. After having been granted an extension of time to do so, on March 19, 2007, the plaintiff filed a brief in opposition to the defendant's motion. Supporting exhibits were filed by the plaintiff on March 23, 2007*fn1 . In the meantime, the defendant filed a reply brief on March 20, 2007. A supplemental reply brief was filed by the defendant on March 27, 2007.
Upon the request of the plaintiff's counsel, oral argument was held on the motion for summary judgment on June 29, 2007. At oral argument, the plaintiff's counsel officially withdrew Count IV of the complaint, which alleges a violation of the Unfair Trade Practices and Consumer Protection Law. In addition, counsel conceded that Count V of the complaint which alleges negligence was "not legitimate." Therefore, Counts IV and V are considered withdrawn and will not be discussed further in this memorandum.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The Supreme Court has stated that:
". . . [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."
The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. The moving party can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Issues of fact are genuine "only if a reasonably jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citations omitted). Material facts are those which will effect the outcome of the trial under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact ...