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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

1 Appellant 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 land possessor] 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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