Before PALLADINO and McGINLEY, JJ., and BARRY, Senior Judge.
BARRY, Senior Judge.
Debbie Salazar (appellant) appeals from an order of the Court of Common Pleas of Allegheny County which granted a motion for summary judgment filed by Hartford Heights Volunteer Fire Department, Mark Dawson, Rebecca Rowe, Thomas Dawson and John D. Dawson (the appellees).
On March 30, 1987, appellant instituted a wrongful death and negligence action against the appellees and others. In the complaint, appellant alleged that the death of appellant's husband, Ronald Salazar (Salazar), was a result of appellees' negligent conduct in continuing to serve alcoholic beverages to Salazar when he was visibly intoxicated, which subsequently resulted in Salazar's inability to safely operate a motor vehicle. Salazar's vehicle ultimately crashed, causing his death.
Following discovery, appellees, filed a motion for summary judgment. Appellant did not file opposing affidavits, a brief, nor appear at oral argument to oppose the motion for summary judgment. The trial court granted the motion for summary judgment on September 5, 1989, on the basis of the trial court's conclusion that the appellees were immune. Not addressed by the trial court was another motion for summary judgment filed by the individual appellees based upon a claim that the appellant had failed to state a cause of action against them. On October 4, 1989, appellant filed a notice of appeal from the order granting summary judgment.
On appeal to this Court, appellant raises one issue: whether appellees' action of serving alcoholic beverages is protected by governmental immunity as set forth in 42 Pa. C.S. § 8541. However, before we can address this issue, appellees, in their brief have raised another question, i.e. whether, because appellant did not file any response to the motion for summary judgment in the trial court, all issues have been waived.
Although appellant's counsel filed a brief with this Court, and requested oral argument, appellant's counsel failed to appear at the time scheduled for argument. Appellees did argue before the Court.
We note that under Pa.R.A.P. 302, issues not raised in the trial court are waived and cannot be raised on appeal. Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Appeal of Lawrence Township, 117 Pa. Commw. 508, 544 A.2d 1070 (1988). However, in all these cases, issues which should have been raised in the trial tribunal were not raised. The issue of immunity was squarely raised and decided by the trial court in this case.
Appellees have cited Pa.R.A.P. 302 for the proposition that, by failing to respond to the motion for summary judgment, the appellant has not preserved any issues for our review. Rule 302(a) states: "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." In this case there was no waiver. The appellees sought summary judgment, asserting immunity defenses. The appellees placed the issue of their immunity before the court. The burden was on them to show the absence of any material issue of fact and their clear entitlement to judgment as a matter of law. The court then performed its duty and decided the merits of the appellees' claim, concluding that they were immune. The appellant's failure to respond to the appellees' motion deprived the court of the opportunity to consider the appellant's arguments against immunity. Nevertheless, the court had an obligation to consider the issue of whether the appellees' claim of immunity was valid in the context of the allegations of the appellant's complaint. In a case where a defendant seeks summary judgment on the basis of a perhaps meritless claim of immunity, the court cannot properly grant the motion simply because the plaintiff failed to oppose it.
Here the appellant's failure to respond was unhelpful, but it was not tantamount to a default by a defendant or a failure to deny material allegations of fact or a failure to raise challenges to jury instructions at the time of trial. Where the trial court has decided the immunity issue on the merits, we do not believe that the appellant waived the right to challenge that ruling in this Court. Nor do we believe that the appellant has waived our review of this case by failure to appear at oral argument. Not all cases in the discretion of the court are orally argued. Appellant has filed the requisite record and brief, which address the issue decided by the trial court.
Our conclusion that there is no waiver is supported by cases in which the Supreme Court and the Superior Court have refused to give effect to local rules that required the dismissal of a case for failure to file a brief in a timely fashion. In Richland Mall Corp. v. Kasco Construction Co., 337 Pa. Super. 204, 486 A.2d 978 (1984), one appellee filed a motion to dismiss the appeal from a grant of summary judgment, arguing that the appellant's failure to respond properly to the summary judgment motion in the trial court meant that the appellant had waived its right to appeal, pursuant to Pa.R.A.P. 302(a). The appellant had failed to comply with a local rule that required the non-moving party to file a responsive brief or memorandum of law within ten days of the date of mailing of the moving party's brief or memorandum or suffer, in the judge's discretion, a dismissal.
The Superior Court denied the motion to dismiss the appeal, relying on the Supreme Court's opinion in Brogan v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983). Brogan held that local rules of procedure may not conflict with the Pennsylvania Rules of Civil Procedure, and that strict enforcement of a local rule requiring the automatic grant of a motion for summary judgment if the non-moving party failed to file a timely brief conflicted with the requirements of Pa.R.C.P. 126. That rule provides that the rules are to be liberally construed to secure the just, speedy and inexpensive determination of actions, and that courts may disregard procedural defects or errors that do not affect the substantive rights of parties. The court stated that Rule 126 is a statement of the requirement of fairness that must attend judicial proceedings. Brogan reversed a trial court's entry of summary judgment under the local rule solely for failure to file a timely brief. Pa.R.C.P. 126 has its counterpart in Pa.R.A.P. 105 and the logic of Brogan and its progeny apply to an appellate concept.
Accord Troy v. Kampgrounds of America, Inc., 41 Pa. Super. 399, 581 A.2d 665 (1990). In a case arising from an explosion and fire at a campground, the plaintiffs appealed from grants of summary judgment in favor of two of the multiple defendants, and two defendants appealed from grants in favor of two other defendants. The Superior Court rejected an argument that the defendant appellants lacked standing to appeal because they did not file an answer or a brief in opposition to the motion for summary judgment in the trial court, noting that failure to file documents in response to such a motion does not render summary judgment automatic, and that the trial court had received and considered a report from the defendant appellants' expert. Id., 399 Pa. Super. at 45 n. 2, 581 A.2d at 667 n. 2.
We do not mean to condone the conduct of counsel for the appellant in this case. Nevertheless, we believe that the issue of whether the immunity of volunteer fire companies and their employees extends to tavern operations, as opposed to fire fighting activities, was raised in the trial court and has been preserved for appeal to this court.
The Dissenting Opinion states that we are now overruling Department of Public Welfare v. Ward, 108 Pa. Commw. 572, 530 A.2d 145 (1987). That case involved a failure to file an answer and a failure to address the imposition of counsel fees which should have been addressed in new matter. The failure to respond to a motion for summary judgment, in our view, does not involve the dereliction of duty inveighed against in Ward.
It is our belief that a volunteer fire company when it is accused of negligently dispensing alcoholic beverages is not entitled to the immunity of a local agency. The case of Wilson v. Dravosburg Volunteer Fire Department No. 1, 101 Pa. Commw. 284, 287, 516 A.2d 100, 102 (1986), stated as follows: "We construe the term 'local agency' to include volunteer fire companies as a government unit entitled to immunity under the 1980 Immunity Act. Volunteer fire companies, in the performance of public firefighting duties, exist as an entity acting on the behalf of local government units." (Emphasis supplied.) The case of Weaver v. Union City Volunteer Fire Department, 102 Pa. Commw. 298, 518 A.2d 7 (1986), again quotes this language and emphasizes the words "in the performance of public firefighting duties." It is clear that our prior cases on the immunity of volunteer fire companies were much more restrictive than the appellees contend. Also, in the case of Cleveland Guinn v. Alburtis Fire Company, 134 Pa. Commw. 270, 577 A.2d 971 (1990), it was alleged that the appellees improperly had served the appellant intoxicants. This Court, although it did not directly decide the immunity question, reversed the trial court, which had sustained preliminary objections, on the ground that the trial court should not have decided on preliminary objections that the fire company was a local agency entitled to immunity. Attention must be called to the provisions of 42 Pa. C.S. § 8522(b)(7) which waives immunity where there is the sale of liquor at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board if such sale is made to a minor, to a person visibly intoxicated or to an insane person, an habitual drunkard or a person of known intemperate habit. Section 497 of the Liquor Code, Act of April 12, 1951, P.L. 90, added by the Act of December 22, 1965, P.L. 1144, 47 P. S. § 4-497, also imposes possible liability upon licensees where sales are made to one who is visibly intoxicated. A local agency is ordinarily not involved in the selling of intoxicants but to include within the definition of "local agency" a volunteer fire company, which is a licensee under the Liquor Code and subject to liability under that code, and then give it immunity under these circumstances when the Commonwealth itself is not immune for the negligent sale of intoxicants is incongruous and not in accordance with the intent of the legislature.
An order has been entered which vacates the judgment of the court of common pleas in this case and remands for further proceedings including the disposition of the individual appellees' motion for summary judgment that a cause of action was not stated against them, which motion was not addressed by the trial court.
ORDER
NOW, December 6, 1990, the summary judgment of the Court of Common Pleas of Allegheny at G.D. 86-8507, entered September 5, 1989, is vacated and the case is remanded for further proceedings not inconsistent with this opinion, including the disposition of the individual appellees' motion for summary judgment which alleges that a cause of action has not been stated against them.
Jurisdiction relinquished.