J.   S29045/19

NON-PRECEDENTIAL DECISION              - SEE SUPERIOR COURT I.O.P.        65.37
NICOLE STAMPS,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellant

                      v.                              No. 2069 EDA 2018

KAREN WILK AND RONALD WILK


                   Appeal from the Order Entered June 28, 2018,
             in   the Court of Common Pleas of Montgomery County
                          Civil Division at No. 2016-11049


BEFORE:     BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 12, 2019

        Nicole Stamps ("appellant") appeals from the June 28, 2018 order" of

the Court of Common Pleas of Montgomery County entering summary

judgment    in   favor of Karen Wilk and Ronald Wilk (collectively, "appellees")

and against appellant. After careful review, we affirm.

       The trial court provided the following factual and procedural history:

             The instant matter commenced on June 2, 2016, when
             appellant filed [a] complaint in civil action averring
             negligence on the part of [appellees] after she slipped
             and fell on ice outside of appellees' residence resulting
             in injuries to her leg.

             The underlying facts which resulted in the instant civil
             action began on February 9, 2015, when appellant
             travelled to appellees' home to partake in a personal

1Appellant purported to appeal from an order entered July 9, 2018; however,
a review of the docket reflects that the trial court entered summary judgment
on June 28, 2018. We have amended the caption accordingly.
J.   S29045/19

            physical training session conducted by Mrs. Karen
            Wilk.   Appellant had a standing appointment for
            personal training sessions every Monday and
            Wednesday morning at [appellees'] home gym at
            7:15 a.m. or 7:30 a.m. Appellant compensated
            Mrs. Wilk $60.00 for each training session.

            Upon    pulling into appellees' driveway, appellant
            overheard a cautionary statement on the radio,
            warning people to be careful on the road because the
            roads are slippery.     Appellant purported to be
            surprised by this statement as she did not experience
            slippery conditions while driving to [appellees']
            residence. Moreover, appellant did not recall any
            weather event the night prior and described the night
            as, "being a cool, cold, normal night.             No
            precipitation."

            Appellant then exited her vehicle and noticed that the
            pavers leading to the front entrance of the home were
            wet. Appellant further testified that she did not see
            ice or mounds of ice prior to walking on the pavers.
            At some point upon walking on the pavers, appellant
            slipped and fell, incurring an injury to her left ankle
            area.

            After appellant slipped and fell, Mr. Wilk opened the
            front door, took a step outside and fell down before
            making his way to appellant. Soon after reaching
            appellant, Mr. Wilk dialed 9-1-1 and requested
            medical assistance to his home. Once the emergency
            rescue squad arrived, they parked their vehicle on the
            street and salted from the beginning of the driveway
            up to where appellant was lying.

            After the completion of discovery, appellees filed a
            motion for summary judgment on April 16, 2018. On
            June 15, 2018, the trial court scheduled an oral
            argument pursuant to appellees' motion.         Upon
            consideration of said motion, appellant's response,
            and hearing oral argument on June 25, 2018, the trial
            court granted appellees' motion for summary
            judgment on June 28, 2018.
J.   S29045/19

               On July 10, 2018, appellant filed her   timely notice of
               appeal from the trial court's June 28, 2018 order. The
               trial court required a clarification of the errors
               complained of on appeal, and thus, it directed
               appellant to file a concise statement of issues
               complained of on appeal in accordance with
               Pa.R.A.P. 1925(b).

Trial court opinion, 1/4/19 at 1-2 (citations to the record and extraneous

capitalization omitted). Appellant timely complied with the trial court's order.

The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

       Appellant raises the following issue for our review:

               Whether the trial court abused its discretion and
               otherwise committed an error of law when it
               improperly granted [appellees'] Motions for Summary
               Judgment and discontinued [appellant's] case?

Appellant's brief at vii.

       A reading of appellant's brief, reflects    that beyond the Statement of

Question Presented, appellant does not directly address her identified issue

further; rather, she has divided the argument section into the following three

sub -issues:

               A.    [Whether] entry of summary judgment is
                     improper under the Pennsylvania Supreme
                     Court's holding in [Borough of] Nanty Glo[ v.
                     Am. Sur. Co., 163 A. 523 (Pa. 1932)?]

               B.    [Whether] in granting appellees' motions for
                     summary judgment, the trial court improperly
                     inserted itself as the fact finder in determining
                     several material issues of fact that should have
                     been determined by a jury[?]




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J.   S29045/19

             C.    [Whether] the hills and ridges doctrine does not
                   apply to the instant action; thus, there exists an
                   issue of material fact[?]

Appellant's brief at 1, 2, 4 (extraneous capitalization omitted).2

        In reviewing an appeal from the trial court's grant of       a   motion for

summary judgment, we are governed by the following standard of review:

                   [O]ur 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. Our scope of review is
                   plenary. In reviewing a trial court's grant
                   of summary judgment, we apply the same
                   standard as the trial court, reviewing all
                   the evidence of record to determine
                   whether there exists a genuine issue of
                   material fact. We view the record in the
                   light most favorable to the non-moving
                   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 of
                   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. All doubts as to the existence of
                   a genuine issue of a material fact must be
                   resolved against the moving party.
                   * * *




2 The Pennsylvania Rules of Appellate Procedure require the argument section
of a brief to be "divided into as many parts as there are questions to be
argued[.]" Pa.R.A.P. 2119(a). Here, the argument section in appellant's brief
contains three parts, despite only presenting one question for argument. (See
appellant's brief at vii, 1-7.) We will address the three sub -issues identified
in appellant's argument section, as our ability to render meaningful appellate
review has not been hindered. See PHH Mortg. Corp. v. Powell, 100 A.3d
611, 615 (Pa.Super. 2014).

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                  Upon appellate review, we are not bound
                  by the trial court's conclusions of law, but
                  may reach our own conclusions.

            Petrina     v.   Allied Glove Corp., 46 A.3d 795, 797-798
            (Pa.Super. 2012) (internal citations omitted).

            Rule of Civil Procedure 1035 governs motions for
            summary judgment and provides, in relevant part, as
            follows:

                  After the relevant pleadings are closed,
                  but within such time as not to
                  unreasonably delay trial, any party may
                  move for summary judgment in whole or
                  in part as a matter of law

                  (1)        Whenever there is no genuine
                             issue of any material fact as
                             to a necessary element of the
                             cause of action or defense
                             which could be established by
                             additional discovery or expert
                             report, or

                  (2)        If, after the completion of
                             discovery relevant to the
                             motion,      including   the
                             production of expert reports,
                             an adverse party who will
                             bear the burden of proof at
                             trial has failed to produce
                             evidence of facts essential to
                             the cause of action or defense
                             which in a jury trial would
                             require the issues to be
                             submitted to a jury.

            Pa.R.C.P.  1035.2.      This Court has explained the
            application of this rule as follows:

                  Motions       for     summary     judgment
                  necessarily and directly implicate the
                  plaintiff's proof of the elements of a cause


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                       of action.   Summary judgment is proper
                       if, after the completion of discovery
                      relevant to the motion, include the
                      production of expert reports, an adverse
                      party who will bear the burden of proof at
                      trial has failed to produce evidence of fact
                      essential to the cause of action or defense
                      which in a jury trial would require the
                      issues to be submitted to a jury. In other
                      words, whenever there is no genuine
                      issue of any material fact as to a
                      necessary element of the cause of action
                      or defense, which could be established by
                      additional discovery or expert report and
                      the moving party is entitled to judgment
                      as a matter of law, summary judgment is
                      appropriate. Thus, a record that supports
                      summary judgment either (1) shows the
                      material    facts   are    undisputed    or
                      (2) contains insufficient evidence of facts
                      to make out a prima facie cause of action
                      or defense.

                Petrina, 46 A.3d at 798.
Criswell   v.   At/. Richfield Co., 115 A.3d 906, 908-909 (Pa.Super. 2015).
        In her first issue, appellant contends that the trial court abused its

discretion when it granted appellees' motion for summary judgment because

it precluded     a   jury from making "a determination              as to the credibility of

[the witnesses'] testimony." (Appellant's brief at 1.) Appellant further argues

that, "[o]ral testimony alone,        .   .   .   of the moving party or the moving party's

witnesses, even if uncontradicted, is generally insufficient to establish the

absence of genuine issues of material fact."                (Id. (emphasis omitted), citing
Penn Center House, Inc. v. Hoffman, 553 A.2d 900 (Pa. 1989),

Pa.R.Civ.P. 1035.2 note.)           See also Nanty Glo, 163 A. at 524. Appellees


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aver that appellant failed to preserve this issue for appellate review, thereby

waiving it on appeal. (Appellees' brief at 9-12.)

         It   is   axiomatic that in this Commonwealth, issues not raised before the

trial court are waived on appeal. Pa.R.A.P. 302(a). See also B.G. Balmer &

Co., Inc. v. Frank Crystal & Co.,               Inc.,   148 A.3d 454, 468 (Pa.Super. 2016),

appeal denied, 169 A.3d                9 (Pa.   2017).     Here, appellant failed to raise     a


Nanty Glo argument                 in her response to appellees' motion       for summary

judgment, nor did she raise the issue               in the accompanying    memorandum of

law. Accordingly, appellant waived the first issue on appeal. See                  Lineberger
v.      Wyeth, 894 A.2d 141, 149 (Pa.Super. 2006) (finding waiver when

appellant raised           a   Nanty Glo   issue for the first time on appeal).3

         Appellant next contends that the trial court ignored issues of material

fact and failed to consider those issues when it granted appellees' motion for

summary judgment. (Appellant's brief at 2.) Specifically, appellant avers that

"[t]here was         no   testimony as to any precipitation [the] morning" of appellant's

fall.     (Id.)           Appellant, however, further argues that "[t]here             is   also

contradictory testimony as to whether or not there was any precipitation on

the day of the fall."             (Id. at 3.) Appellees argue that appellant failed to


3 Even if appellant had properly raised her first issue before the trial court, the
issue would nevertheless be waived on appeal because she failed to include
the issue in her Rule 1925(b) statement.             See Pa.R.A.P. 1925(b)(4);
U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v.
Hua, 193 A.3d 994, 996-997 (Pa.Super. 2018), citing Greater Erie Indus.
Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa.Super.
2014) (en banc) (citations omitted).

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J.   S29045/19

establish that appellees had any notice of the dangerous condition, thus

justifying summary judgment. (Appellees' brief at 14-24.)

        In any negligence cause of action,           a   plaintiff   is   required to establish the

following by     a   preponderance of the evidence: "(1)                     a   duty or obligation

recognized by law; (2)       a   breach of that duty; (3)       a    causal connection between

the conduct and the resulting injury; and (4) actual damages."                             Toro v.

Fitness   Intl LLC,     150 A.3d 968, 976-977 (Pa.Super. 2016), quoting Estate

of Swift by Swift       v.   Northeastern Hosp., 690 A.2d 719, 722 (Pa.Super.
1997), appeal denied, 701 A.2d 577 (Pa. 1997). In order to prevail in                             a


premises liability case,     a   plaintiff must prove that:

                      [the       landpossessor] knows of or
                      reasonably should have known of the
                      condition and the condition involves an
                      unreasonable      risk    of   harm,     [the
                      possessor] should expect that the
                      invitee[4] will not realize it or will fail to
                      protect [herself] against it, and the
                      [possessor] fails to exercise reasonable
                      care to protect the invitee against the
                      danger.

             Estate of Swift[,] 690 A.2d [at 722] (citation
             omitted). An invitee must present evidence proving
             "either the [possessor] of the land had a hand in
              creating the harmful condition, or he had actual or
              constructive notice of such condition." Id. What
              constitutes constructive notice depends on the
              circumstances of the case, but one of the most
              important factors to consider is the time that elapsed
              between the origin of the condition and the accident.


4 There is no dispute that appellant was an invitee at the time of her fall and
that appellees possessed the premises.

                                             - 8 -
J.   S29045/19

               Neve v. Insalaco's, 771 A.2d 786, 791 (Pa.Super.
               2001).

Collins v. Philadelphia Suburban Dev. Corp., 179 A.3d 69, 74 (Pa.Super.

2018.

        Proof of notice, however, cannot be the product of mere speculation.

Indeed, our cases hold that        a   non-moving party "cannot survive summary

judgment when mere speculation would be required for the jury to find         in   [the

non-moving party's] favor." Krishack v. Milton Hershey School, 145 A.3d

762, 766 (Pa.Super. 2016), quoting Krauss v. Trane U.S.             Inc.,   104 A.3d

566, 568 (Pa.Super. 2014). The Krauss court further explained that,

               A jury is not permitted to find that it was a defendant's
               [negligence] that caused the plaintiff's injury based
               solely upon speculation and conjecture; there must be
               evidence upon which logically its conclusion must be
               based. In fact, the trial court has a duty to
               prevent questions from going to the jury which
               would require it to reach a verdict based on
               conjecture, surmise, guess or speculation.
               Additionally, a party is not entitled to an
               inference of fact that amounts merely to a guess
               or conjecture.
Krauss, 104 A.3d at 568 (citations and quotation marks omitted; brackets             in

original; emphasis added).

        When       it addressed   notice, the trial court reached the following

conclusion:

               .   Appellant has not provided any evidence as to how
                   .   .


               long the icy condition existed on [a]ppellees' walkway
               prior to her accident.        Neither [a]ppellant nor
               [a]ppellees remember any precipitation in the evening
               prior to the accident, nor can they recall the definite

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              date that the last snowfall occurred. Appellant offers
              a speculative theory that the possibility the dangerous
              condition may have formed as a result of morning dew
              freezing over.

Trial court opinion, 1/4/19 at   5   (citations to the record omitted).

        Based on our review of the record, we find that the trial court did not

abuse its discretion when it granted appellees' motion for summary judgment.

As noted, appellant presented no evidence            that appellees had actual or

constructive notice of the harmful condition and relied on mere speculation.

See Petrina, 46 A.3d at 798.

        Because appellant failed to produce evidence of facts to make out          a


prima facie negligence cause of action, we        need not address appellant's third

issue on appeal.

       Appellees' application to strike portions of the reproduced record is

granted.    Pages 18-60 of appellant's reproduced record were stricken from

consideration.

        Order affirmed. Application to strike granted.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary




Date: 8/12/19



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