Stamps, N. v. Wilk, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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