J-A16021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL FRIE IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

FAIRLANE VILLAGE MALL AND HUDSON 

ASSOCIATES, LLC

Appellee No. 1508 MDA 2019

Appeal from the Order Entered August 16, 2019

In the Court of Common Pleas of Schuylkill County

Civil Division at No: S-1696-16

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2020

Appellant, Carol Frie, appeals from an order granting summary 

judgment to Appellee, Fairlane Village Mall and Hudson Associates, LLC, in this

personal injury action. Appellant tripped and fell while visiting Appellee’s 

premises, a shopping mall. The trial court entered summary judgment against 

Appellant by concluding that she “failed to introduce any evidence as to what 

caused her to fall.” Pa.R.A.P. 1925 Opinion, 12/2/19, at 4. We disagree. 

Viewed in the light most favorable to Appellant, the evidence indicates that an 

uneven sidewalk was the cause of Appellant’s fall. Accordingly, we vacate the 

order granting summary judgment to Appellee and remand for further 

proceedings.

The accident. The record reflects that Appellee is the owner of a 

shopping mall in Pottsville, Pennsylvania. On October 7, 2014, Appellant 
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tripped and fell on Appellee’s property in the course of her activities as a 

business invitee. Prior to the accident, Appellant parked her car and walked 

toward the mall. Deposition of Appellant (“Frie dep.”) at 21. She stepped 

onto a sidewalk near the south entrance of the mall, intending to visit Brothers 

Buffet inside the mall. Id. The sun was out and there were no adverse 

weather conditions. Id. at 22. 

Appellant fell forward on the sidewalk while looking straight ahead (not 

at the ground). Id. at 22-24. She did not recall which leg she was stepping 

with when she fell. Id. at 23. In her responses to Appellee’s interrogatories, 

she stated that she tripped and fell due to “unkempt property” on Appellee’s 

premises. Appellant’s Response to Interrogatories, # 18.

During her deposition, Appellant testified:

Q. Did you look to see what if anything caused you to fall? 

A. Yes, I looked around. 

Q. And what if anything did you see? 

A. Just the pavement. 

Q. And when you fell do you recall whether . . . the foot you 

were walking with came into contact with something? 

A. No. 

Q. You don’t remember? 

A. No.

Frie dep. at 25.
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Photographs of the accident scene. After falling, Appellant reported 

the incident to Jessica Miller, an employee in the mall’s management office. 

Id. at 30-31. Appellant and Miller walked to the location where Appellant fell, 

and Miller took photographs of the scene. Id. at 31. With regard to the 

photographs, Appellant testified:

Q: Looking at these . . . three pages of photographs, does this 

look like the area where you fell?

A: If the pictures are here, I guess . . . .

Q: Ms. Miller attached these photographs to the incident report, 

do you believe this is the area where you fell if she attached the 

photos?

A: Yes.

Q: And you can see the date on those photos correct?

A. Yes.

Q: And the date indicates 10/7 of 2014, correct?

A: Yes.

Q: And that’s the date of your fall, correct?

A: Yes.

Id. at 33, 34. 

When Miller was asked how she made the decision to photograph this 

area, Miller testified that Appellant “pointed in the area.” Deposition of Jessica 

Miller (“Miller dep.”) at 49. Miller noticed that the sidewalk had a “little lip,” 

and she “decided . . . to show how much of a lip there was.” Id. Miller took 
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a close-up photograph of the lip and two other photographs at “more of a 

distance so you can kind of see where [Appellant] was claiming she fell.” Id.

Incident report. After taking the photographs, Miller filled out an 

incident report in which she wrote that Appellant “tripped over the uneven 

sidewalk.” Incident Report, 10/7/14, at 2. The incident report asked for the 

“exact location” of the incident with “landmarks.” Incident Report at 1. Miller 

testified that she filled out this section of the incident report “after [Appellant] 

had taken me out there to show me.” Miller dep. at 36. Miller wrote that 

Appellant “tripped over the uneven sidewalk and fell . . .” Id. at 41. Miller 

testified that the words “uneven sidewalk” were her own words, not 

Appellant’s. Id. at 38. When asked how she made that observation, she 

testified: 

A. [Appellant] told me where she tripped. She showed me where 

she tripped, so I said that she tripped over the uneven sidewalk 

that was there where she showed me.

Q. Okay. And that was based upon what you were seeing in 

conjunction with what she was saying?

A. Yes.

Id. at 41-42. 

When Miller was asked whether Appellant “specifically indicate[d] that 

she tripped on the differential in the sidewalk,” Miller answered, “No, she just 

pointed in the general area of where she fell.” Id. at 63. Miller testified:

Q. So did you assume that [the lip of the sidewalk was] what 

caused her to fall?
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A. I assumed that, yes.

Q. But didn’t she tell you that?

A. No.

Id. at 64.

Significantly, during Appellant’s deposition, Appellant reviewed Miller’s 

summary and was asked whether she disagreed with anything in the 

summary. Frie dep. at 39-40. Appellant answered, “No.” Id. at 40.

Trial court’s decision. The trial court concluded that Appellant

failed to introduce any evidence as to what caused her to fall. She 

did not identify the ‘little lip’ identified by Miller as the assumed 

location where [she] tripped. She simply stated that she was 

walking along, and she fell. [Appellant’s] testimony failed to 

identify what caused her to fall. In order to establish liability in 

an action of this nature, it is necessary for the plaintiff to prove 

what actually caused the accident, not what might possibly have 

caused it . . . Here, [Appellant] was the only eyewitness 

presented. [Appellant] may very well have tripped on the little 

lip, but she may also have tripped on a properly maintained 

section of the sidewalk. For this reason, we granted summary 

judgment to [Appellee].

Trial Court Opinion, 12/2/19, at 4-5 (citations omitted). 

On August 16, 2019, the trial court entered summary judgment in favor 

of Appellee. On September 13, 2019, Appellant filed a timely appeal to this 

Court. The trial court filed a Pa.R.A.P. 1925 opinion and then permitted 
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Appellant to file a Pa.R.A.P. 1925(b) statement nunc pro tunc.

1

 Accordingly, 

we will address the issues raised in this appeal.

Appellant raises the following issues in this appeal:

[1.] Whether the trial court erred in granting summary judgment 

as to all defendants striking [Appellant’s] complaint with 

prejudice?

[2.] Whether the trial court erred in granting summary judgment 

where the facts viewed most favorably to [Appellant] demonstrate 

sufficient evidence exists regarding the alleged defect?

[3.] Whether the trial court erred in granting summary judgment 

where there are genuine issues of material facts such that a jury 

determination is required?

____________________________________________

1 On September 12, 2019, upon receiving a courtesy copy of Appellant’s notice 

of appeal, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Appellant failed to do so. On 

December 3, 2019, the trial court filed a Pa.R.A.P. 1925 opinion that 

mentioned Appellant’s failure to file a Pa.R.A.P. 1925(b) statement but also 

explained why it found the substance of Appellee’s summary judgment motion 

meritorious. 

On December 11, 2019, Appellant filed an application in this Court requesting 

remand of this case to the trial court for the filing of a nunc pro tunc Pa.R.A.P. 

1925(b) statement. The application included, as an exhibit, a Pa.R.A.P. 

1925(b) statement that Appellant proposed to file in the trial court. On 

December 27, 2019, we ordered the record remanded to the trial court in 

order for that court to rule on the merits of Appellant’s application. On January 

2, 2020, the trial court granted Appellant’s application and directed her to file 

the proposed Pa.R.A.P. 1925(b) statement within the next ten days. In the 

same order, the court directed the prothonotary to return the record to this 

Court after Appellant filed her Pa.R.A.P. 1925(b) statement, because the court 

“reviewed the proposed [Pa.R.A.P. 1925(b)] statement and . . . adopt[ed] our 

earlier 1925 opinion filed December 2, 2019 without change.” Order, 1/2/20. 

Appellant complied with the court’s order by filing a Pa.R.A.P. 1925(b) 

statement on January 10, 2020.
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Appellant’s Brief at 6. We need only address the third issue, whether a 

genuine issue of material fact exists that precludes summary judgment.

An order granting summary judgment

may be disturbed by an appellate court only if the court committed 

an error of law; thus, our standard of review is de novo, and our 

scope of review is plenary. The entry of summary judgment is 

proper whenever no genuine issue of any material fact exists as 

to a necessary element of the cause of action. The moving party’s 

right to summary judgment must be clear and free from doubt. 

We examine the record, which consists of all pleadings, as well as 

any depositions, answers to interrogatories, admissions, 

affidavits, and expert reports, in a light most favorable to the nonmoving party, and we resolve all doubts as to the existence of a 

genuine issue of material fact against the moving party. 

LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 647 (Pa. 2009) 

(citations omitted).

Property owners have a duty to keep their sidewalks in a reasonably

safe condition for travel by the public. Mull v. Ickes, 994 A.2d 1137, 1140 

(Pa. Super. 2010). Property owners must maintain their sidewalks so that 

they do not present an unreasonable risk of harm to pedestrians. Id. Courts 

determine whether a property owner has complied with this duty on a caseby-case basis by looking at all of the surrounding circumstances. Id. To 

establish liability, an individual who falls on a sidewalk “must prove what 

actually caused the accident, not what might possibly have caused it.” 

DuBois v. City of Wilkes-Barre, 189 A.2d 166, 167 (Pa. 1963) (emphasis 

in original) (trial court properly entered nonsuit when plaintiff’s testimony 

failed to establish what caused her to fall). 
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Citing DuBois, the trial court entered summary judgment against 

Appellant by determining that she could not identify the cause of her accident. 

The court reached its decision by focusing on several pieces of evidence 

favorable to Appellee, such as Appellant’s testimony that she did not 

remember whether her foot came into contact with anything, Frie dep. at 25, 

and Miller’s testimony that Appellant did not tell her that the lip of the sidewalk 

caused her fall, Miller dep.at 64. In our view, the trial court failed to apply

the proper standard of review by neglecting to construe the record in the light 

most favorable to Appellant, the non-moving party. Viewed in this light, the 

record indicates that there is an identifiable cause of the accident—the lip of 

the sidewalk. Five items of evidence point to this conclusion: (1) Appellant’s 

answer to interrogatories that “unkempt property” caused the accident; (2) 

Miller’s testimony that Appellant “showed me where she tripped”; (3) Miller’s 

incident report, which stated that Appellant “tripped over the uneven 

sidewalk” and included a photograph of the sidewalk lip; (4) Appellant’s 

testimony that Miller’s photographs showed the area where she fell; and (5) 

perhaps most importantly, Appellant’s testimony that she did not disagree 

with Miller’s summary of the accident in the incident report. 

Summary judgment is unavailable because these items of evidence 

create a genuine issue of material fact as to the cause of Appellant’s accident. 

A factfinder must resolve whether to accept Appellant’s position that the lip of 

the sidewalk caused her fall or to accept Appellee’s position that Appellant 
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cannot identify the cause of the accident. Accordingly, we vacate the order 

granting summary judgment and remand for further proceedings. 

Order vacated. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/09/2020