J-A07018-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MAXINE LACROIX 

Appellant

v.

TRI-STATE PROPERTIES LLC, 

WAFFLE HOUSE, AND EAST COAST 

WAFFLES INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1265 MDA 2020

Appeal from the Order Entered September 14, 2020

In the Court of Common Pleas of Franklin County Civil Division at No(s): 

2019-01980

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: MAY 11, 2021

Appellant, Maxine LaCroix, appeals from the September 14, 2020 Order 

entering summary judgment in favor of East Coast Waffles, Inc. (“ECW”), and 

dismissing her Complaint with prejudice in this slip-and-fall negligence action. 

She challenges, inter alia, the trial court’s application of the doctrine of hills 

and ridges. After careful review, we affirm.

The relevant facts and procedural history are as follows. On November 

24, 2018, at 8:55 AM, Appellant and her friend Maynard Burt entered the 

Chambersburg Waffle House (“Waffle House”) owned by ECW. Appellant and 

Mr. Burt left Waffle House approximately 25 minutes later, at 9:18 AM. After 

stepping off the sidewalk and into the parking lot, Appellant slipped and fell. 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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As a result of her fall, Appellant sustained a left knee sprain and right rotator 

cuff tear. 

On May 17, 2019, Appellant filed a Complaint against ECW1 alleging 

negligence. Appellant asserted that, on the morning of her fall, the weather 

conditions were icy and the sidewalk by the entrance to Waffle House had not 

been properly treated. Appellant noted the absence of signage alerting 

patrons to possible slippery conditions. Appellant claimed that Waffle House 

had breached its duty to her to ensure that its property was safe and suitable 

for its intended purpose because it was foreseeable that icy weather conditions 

were occurring and because it was aware that the ice on the sidewalk was a 

hazard.

On June 18, 2019, ECW filed an Answer, and the matter proceeded 

through discovery. On August 21, 2019, Appellant served her first set of 

Interrogatories and Request for Production. On October 10, 2019, prior to 

serving a formal response to the discovery request, ECW provided to Appellant 

a surveillance video of Waffle House premises from the time of the fall. On 

October 31, 2019, ECW served its formal Answers to Appellant’s discovery 

request. In its Answers, ECW identified five employees it believed were 

working at Waffle House at the time of the incident. 

____________________________________________

1 Appellant originally named Tri State Properties, LLC, and Waffle House as 

defendants in the Complaint. By stipulation of the parties, on July 25, 2020, 

the trial court entered an Order permitting Appellant to amend the case 

caption to substitute East Coast Waffles as the defendant. 
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On November 4, 2019, Appellant filed a Motion to Compel complete 

discovery responses from ECW asserting that ECW’s Answers to 

Interrogatories were insufficient. ECW filed a Response to the Motion to 

Compel, and a Supplemental Response to Appellant’s First Set of 

Interrogatories and Request for Production of Documents. Relevantly, in the 

Supplemental Responses, ECW informed Appellant that, inter alia, it did not 

possess any witness, employee, agent, and/or party statements. ECW also 

provided additional information regarding Waffle House employees who were 

working at the time of Appellant’s fall.

On January 24, 2020, Appellant deposed ECW employees Danielle 

Manning and Michael Reed. That same day, ECW deposed Appellant.

On February 3, 2020, Appellant filed a Motion for Sanctions asserting,

relevant to the instant appeal, that, through the depositions, she discovered 

that the Waffle House employees present at the time of Appellant’s fall each 

prepared a report of the incident. Appellant alleged that the employees 

presented the incident reports to ECW, that ECW retained the reports, and 

that ECW had failed to produce these reports to her in discovery. Appellant 

sought the immediate production of the reports, the payment of attorney’s 

fees and punitive sanctions, and a jury instruction adverse to ECW.

On February 14, 2020, ECW filed a Response to Appellant’s Motion for 

Sanctions. Although ECW conceded that Danielle Manning had testified that 

she remembered completing a document or incident report and remembered 

other employees also doing so and that Mike Reed had testified that 
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employees, including him, may have completed incident reports, which could 

have been sent on to Waffle House’s division manager, Matthew Kretsch, ECW 

was unable to independently confirm the existence of any incident reports or 

employee statements prepared following Appellant’s fall. In addition, ECW 

denied that it failed to preserve such incident reports or employee statements, 

if they had ever existed.2 

ECW also included in its Response affidavits from: (1) Matthew Kretsch, 

a Waffle House division manager; (2) Craig Knight, a representative of Waffle 

House’s general liability department; and (3) Teresa Jenkins, the general 

liability supervisor at Brentwood Services, the third-party administrator 

responsible for administering general liability claims filed against ECW, each 

of whom testified regarding the non-existence of employee reports or 

statements pertaining to Appellant’s slip-and-fall incident. 

Mr. Kretsch attested that he searched his records for the employee 

statements referred to by Mike Reed and found no evidence of any incident 

reports, statements, or any other documents related to Appellant’s fall. He 

further attested that he did not destroy or dispose of any such statements, 

and that he could not produce any such statements. 

____________________________________________

2 ECW also asserted that, even if the incident reports or statements had 

existed, Appellant was not prejudiced by ECW’s failure to produce them 

because Appellant had the opportunity to speak with every person who had 

been present when Appellant fell and because it produced surveillance video 

of Appellant’s fall. 
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In his affidavit, Mr. Knight described Waffle House’s policy of gathering 

handwritten statements from employees working at the time of an alleged slip 

and fall. He affirmed that Waffle House’s general liability department 

conducted an extensive search for incident reports from Appellant’s fall but 

could not locate any. 

Ms. Jenkins attested that, when Brentwood receives notice of a general 

liability claim against ECW, it prepares an electronic claim file into which it 

places documents related to the claim, including employee and witness 

statements. She further attested that, upon receiving a discovery request in 

this case for employee statements or incident reports, she conducted an 

extensive search of Brentwood’s electronic claims files and could not locate 

any evidence of any incident reports, statements, or other investigative 

documents related to Appellant’s fall that predated the service of Appellant’s 

Complaint. Ms. Jenkins noted that if such documents had existed, they would 

have been saved to Brentwood’s electronic claims investigation files and could 

not be destroyed, altered, or lost without a record, and no such record exists.

On March 30, 2020, the trial court entered two Orders. One Order 

denied Appellant’s Motion for Sanctions and set May 1, 2020, as the deadline 

for the exchange of written discovery and exchange of photos, videos, audio 

recordings, documents, statements, interviews, or information in either 

party’s possession. The court contemplated imposing sanctions if either party 

discovered any evidence after the May 1, 2020 discovery deadline. The 

second Order was hand-written on the preprinted proposed form of order 
J-A07018-21

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annexed to Appellant’s Motion and stated: “Granted. The Defense must 

provide the statements in question to Plaintiff’s counsel within 10 days.” The 

court denied Appellant’s request for monetary sanctions and an adverse jury 

instruction “at this time; [b]ut court may issue such relief prior to trial if 

necessary.” 

ECW did not provide any “statements in question” within 10 days of the 

Order, presumably owing to the non-existence of the statements. Appellant 

did not notify the court that ECW had not produced the statements. Further, 

Appellant did not thereafter file any additional motions to compel or for 

sanctions, did not take any additional depositions, and did not engage in any 

additional discovery. 

After the close of discovery, on May 4, 2020, ECW filed a Motion for 

Summary Judgment. ECW asserted in the Motion that the “doctrine of hills 

and ridges” applied to Appellant’s negligence claim, and that there was no 

genuine dispute of the material fact that no hills or ridges of ice or snow 

existed in the area where Appellant fell. 

On May 26, 2020, Appellant filed an Answer to ECW’s Motion for 

Summary Judgment. In lieu of a brief, Appellant attached portions of 

Appellant’s deposition transcript. On June 8, 2020, Appellant submitted the 

June 3, 2020 affidavit of a former ECW employee, Dustin Gonzales, as another 

exhibit in lieu of a brief. Mr. Gonzales attested that, when he attended to 

Appellant immediately after her fall, the location where she fell was slick and 
J-A07018-21

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slippery and that Waffle House’s manager had, earlier that day, placed ice salt 

on the walkway. 

On June 22, 2020, Appellant filed a Brief in support of her Answer. 

Appellant argued that the court should deny ECW’s Motion for Summary 

Judgment because ECW failed to meet its burden to demonstrate the nonexistence of any genuine issues of material fact. Appellant asserted that ECW

had still not produced, and, in fact had “spoiled,” the employee statements 

she sought, which she intended to use as evidence to disprove ECW’s defenses 

to Appellant’s negligence claim. Brief in Opposition, 6/22/20, at 4. Appellant 

also argued that ECW was not entitled to entry of summary judgment because 

the doctrine of hills and ridges was inapplicable “due to the facts of the 

conditions on the premises” and, even if it were applicable, pursuant to 

Restatement (Second) of Torts § 323, it was “abrogated by the intervening 

acts of ECW,” i.e., Waffle House’s manager placing salt in front of Waffle House

on the morning of Appellant’s fall. Id. at 4-5.

On September 14, 2020, the trial court entered an Order granting ECW’s 

Motion for Summary Judgment. In its accompanying Opinion, the court 

explained that it found no genuine issue of material fact as to the applicability 

of the doctrine of hills and ridges because an ongoing weather event created 

generally slippery conditions in the community at the time of Appellant’s fall. 

It further found that ECW did not breach its duty of care to Appellant because 

ECW did not allow any accumulations of snow or ice of such size and character 
J-A07018-21

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as to constitute a danger to Appellant, and that Restatement (Second) of Torts 

§ 323 was inapplicable. Opinion, 9/14/20, at 2, 11-13. 

This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 

1925 Statement asserting that: (1) the trial court failed to resolve all doubts 

as to the existence of a genuine issue of material fact in Appellant’s favor; (2) 

the trial court failed to consider alleged spoliation of evidence by ECW as a 

material fact; and (3) the trial court misapplied the doctrine of hills and ridges 

due to ECW’s intervening maintenance on the property. The trial court filed a 

responsive Rule 1925(a) Opinion.

Appellant raises the following issues on appeal:

1. Did the lower [c]ourt err in failing to follow the precedent of 

Rodriguez v. Kra[vc]o Simon Co[.], 111 A.3d 1191 (Pa. 

Super. 2015)[,] and by granting [ECW’s] Motion for Summary 

Judgment [w]here [ECW] spoiled [sic] evidence that may have 

been favorable to [Appellant], defied a [c]ourt [o]rder directing 

them to provide said evidence, and then relief on the lack of 

said evidence to meet their burden re: summary judgment, 

while also avoiding a possible unfavorable jury instruction on 

the issue of spoilage [sic]?

2. Did the lower [c]ourt err in its misapplication of the [d]octrine 

of [h]ills and [r]idges, [and,] thus[,] improvidently enter and 

Order for [s]ummary [j]udgment in favor of [ECW]?

Appellant’s Brief at 4.

Standard of Review

Our Supreme Court has clarified our role in reviewing summary 

judgment dispositions as follows: 

On appellate review[ ], an appellate court may reverse a grant of 

summary judgment if there has been an error of law or an abuse 

of discretion. But the issue as to whether there are no genuine 
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issues as to any material fact presents a question of law, and 

therefore, on that question our standard of review is de novo. This 

means we need not defer to the determinations made by the lower 

tribunals. To the extent that this Court must resolve a question 

of law, we shall review the grant of summary judgment in the 

context of the entire record. 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations 

omitted). A trial court may grant summary judgment “only in those cases 

where the record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law.” Id. (citation omitted); see also Pa.R.C.P. 1035.2(1). “When 

considering a motion for summary judgment, the trial court must take all facts 

of record and reasonable inferences therefrom in a light most favorable to the 

non-moving party.” Summers, supra at 1159 (citation omitted). “In so 

doing, the trial court must resolve all doubts as to the existence of a genuine 

issue of material fact against the moving party, and, thus, may only grant 

summary judgment where the right to such judgment is clear and free from 

all doubt.” Id. (citation and internal quotation marks omitted). 

Issue 1 - Spoliation

In her first issue, Appellant claims that the trial court erred in not 

applying the holding in Rodriguez v. Kravco Simon Co., 111 A.3d 1191,

1196 (Pa. Super. 2015) (holding that an “open question about spoliation 

precludes the entry of summary judgment”). Id. at 10-16. Our review of the 

record, including Appellant’s Response to ECW’s Motion for Summary 

Judgment and Appellant’s Rule 1925(b) Statement, indicates that Appellant 

has raised this specific argument for the first time in her appellate brief. Thus, 
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Appellant has not preserved this argument for appellate review. See

Pa.R.A.P. 302(a) (“Issues not raised in the [lower] court are waived and 

cannot be raised for the first time on appeal.”). See also Citizens Nat. Bank 

of Evans City v. Gold, 653 A.2d 1245, 1248 (Pa. Super. 1995) (“It is wellsettled that a new theory of relief cannot be advanced for the first time on 

appeal.”).

Moreover, there is no open issue of spoliation. Appellant presumptively 

argues that ECW spoliated evidence and defied, without penalty, the trial 

court’s Order to produce this evidence. She avers that these actions severely

hampered her efforts to prove her case and, thus, the trial court should not 

have granted summary judgment. Appellant’s Brief at 12-15. This claim, 

based on a mischaracterization of the court’s conclusions, warrants no relief. 

First, Appellant’s argument presumes that ECW engaged in spoliation. 

However, Appellant ignores the fact that the trial court rejected Appellant’s 

spoliation presumption when, on March 30, 2020, it “denied [Appellant’s] 

motion for a spoliation inference.” Trial Ct. Op., 11/18/20, at 2, 4. Appellant 

has not separately challenged the March 30, 2020 Order denying the spoliation 

inference by presenting it as a separate claim in her Rule 1925(b) Statement 

and her Brief.3 

____________________________________________

3 Appellant also failed to include in her Brief a statement of our scope and 

standard of review of orders pertaining to evidence spoliation. See Pa.R.A.P. 

2111(a)(3) (requiring that an appellate brief include a statement of the scope 

of review and standard of review). 
J-A07018-21

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Additionally, to the extent that Appellant claims that the trial court 

should not have entered summary judgment in ECW’s favor because ECW 

“defied” the trial court’s discovery order, Appellant has waived this claim by 

abandoning her pursuit of the issue before the close of discovery on May 1, 

2020. Although the court ordered ECW on March 30, 2020, to “provide the 

statements in question to [Appellant’s] counsel within 10 days,” when ECW 

failed to produce any additional discovery, Appellant did not file any additional 

motions to compel or a motion for sanctions to alert the court to ECW’s 

inaction. In fact, Appellant took no further action to obtain any statements or 

enforce the court’s March 30, 2020 directive before ECW filed its Motion for 

Summary Judgment on May 4, 2020. Accordingly, any challenge to the grant 

of summary judgment based on ECW’s failure to produce discovery in 

response to the March 30, 2020 Order is waived. 

Issue 2 – Hills and Ridges

In her second issue, Appellant claims that the trial court should not have 

applied the doctrine of hills and ridges to the instant facts. Appellant’s Brief 

at 17-19. She avers, in the alternative, that, even if the doctrine was 

applicable, it is “moot” because of ECW’s intervening act of laying salt on the 

premises. Id. at 19-22. 

Preliminarily, we note that, to prove a negligence claim, a plaintiff must 

demonstrate that “the defendant owed a duty of care to the plaintiff, that duty 

was breached, the breach resulted in the plaintiff’s injury, and the plaintiff 
J-A07018-21

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suffered an actual loss or damages.” Merlini v. Gallitzin Water Auth., 980 

A.2d 502, 506 (Pa. 2009). 

Here, the parties agree that Appellant was a business invitee of Waffle 

House. A possessor of land is subject to liability for his invitee’s injuries if the 

possessor: (1) knows or by the exercise of reasonable care would discover the 

condition, and should realize that it involves an unreasonable risk of harm to 

such invitee; (2) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it; and (3) fails to exercise 

reasonable care to protect the invitee against the danger. Wentz v. 

Pennswood Apartments, 518 A.2d 314, 315 (Pa. Super. 1986). 

Here, the trial court found that the “hills and ridges” doctrine supported 

the grant of summary judgment to ECW. The “hills and ridges” doctrine 

protects an owner or occupier from liability for slippery conditions resulting 

from ice and snow where generally slippery conditions prevail in the 

community, unless the owner has permitted the ice and snow to accumulate 

unreasonably into ridges or elevations. See generally Harmotta v. Bender, 

601 A.2d 837, 841-42 (Pa. Super. 1992) (reviewing the “hills and ridges” 

doctrine). To overcome the application of the “hills and ridges” doctrine in 

this context, a plaintiff is required to prove: “(1) that snow and ice had 

accumulated on the sidewalk in ridges or elevations of such size and character 

as to unreasonably obstruct travel and constitute a danger to pedestrians 

travelling thereon; (2) that the property owner had notice, either actual or 

constructive, of the existence of such condition; (3) that it was the dangerous 
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accumulation of snow and ice which caused the plaintiff to fall.” Id. at 841 

(quoting Gilligan v. Villanova University, 584 A.2d 1005, 1007 (Pa. Super. 

1991). Where “a specific localized patch of ice exists . . . the existence of 

‘hills and ridges’ need not be established.” Harmotta, 601 A.2d at 842 

(citation omitted). To the contrary, the hills and ridges doctrine will apply 

where there are general slippery conditions in the community. Collins v. 

Phila. Suburban Dev. Corp., 179 A.3d 69, 74 (Pa. Super. 2018); Morin v. 

Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1088 (Pa. Super. 1997). 

“[T]he entire ‘gist’ of the hills and ridges doctrine is that a landowner 

has no duty to correct or take reasonable measures with regard to stormcreated snowy or icy conditions until a reasonable time after the storm has 

ceased.” Collins, 179 A.3d at 76.

Appellant first argues that the trial court erred in applying the doctrine 

of hills and ridges to granting summary judgment in ECW’s favor because the 

trial court indicated in its Opinion that there was a “genuine dispute over 

whether there was ice on the premises where [Appellant] fell.” Appellant’s 

Brief at 18. She posits that the trial court’s finding that “[t]he slippery 

conditions [on the premises] were due to ‘sleet, freezing rains and normal 

rain[,]” indicates that Appellant must “clearly” have fallen on a “specific 

localized patch of ice [] on a sidewalk otherwise free of ice and snow.” Id. at 
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19. This “finding,” she concludes, renders the doctrine of hills and ridges 

inapplicable.4

The trial court set forth the evidence upon which it relied in determining 

that ECW was entitled to summary judgment as follows:

[O]n November 24, 2018, at about 9:18 [AM], at the 

Chambersburg Waffle House, there was no accumulation of ice 

and snow on the premises. However, all parties agree that it was 

precipitating, and that the sidewalk and parking lot on which 

[Appellant] fell were slippery. Danielle Manning and Michael Reed 

both testified that it was raining outside when they arrived at 

work, but that the weather report for the day called for freezing 

rain. [Appellant] admitted that it was sleeting outside when 

Waffle House personnel came out immediately after her fall to 

tend to her. Finally, the NOAA report for Shippensburg, PA shows 

a high of 33 degrees Fahrenheit and a low of 21 degrees 

Fahrenheit with 1.05 inches of precipitation. 

Trial Ct. Op., 9/14/20, at 8. 

In addition, Appellant testified that, after she fell, Mr. Burt exited Waffle 

house and slipped on the sidewalk. Deposition, 1/24/20, at 64-65. She 

further testified that, after an ambulance had been called, she was informed 

that “the ambulance said it was so slippery that . . . it was going to take time 

to get there,” and that “it took quite a few people to put me up on the gurney 

because it was so slippery.” Id. at 50, 66. Furthermore, Waffle House video 

surveillance showed that precipitation was ongoing and that after Appellant 

fell, an ECW employee came around the side of the building and slipped and 

fell on the sidewalk in front of the entrance to the restaurant. The video did 

____________________________________________

4 Appellant never claimed that she had fallen on a localized patch of ice, and 

contrary to Appellant’s assertion, the trial court did not find that Appellant had 

fallen on a localized patch of ice. 
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not show the existence of hills and ridges of snow or ice. In sum, all the 

evidence, including the testimony, surveillance video, ambulance report and 

weather data, established that generally slippery conditions existed during an 

ongoing weather event at the time of Appellant’s fall. 

From this evidence, the court concluded that there was no genuine issue 

of material fact that the sidewalk and parking lot at Waffle House were 

generally slippery as a result of ongoing precipitation at the time of Appellant’s 

fall. In addition, the court concluded that the evidence indicated that these 

conditions were prevalent in the community at the time of the fall, and 

observed that Appellant had not alleged the existence of hills and ridges of 

snow and ice. Accordingly, the court concluded that there was no genuine 

issue of material fact in dispute. The record supports this conclusion.

In the alternative, Appellant argues that, even if the doctrine of hills and 

ridges does apply, ECW violated its duty of care when it negligently undertook 

to render services to her. She claims that when Mr. Reed salted the premises 

at the beginning of his shift at 6:30 AM, the hills and ridges doctrine “was 

abrogated [] by the intervening acts of ECW as set forth in Section 323 of the 
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Restatement (Second) of Torts.”5, 6 Appellant’s Brief at 19. She asserts that 

Mr. Reed’s failure to continue to salt the premises before Appellant fell at 9:18 

AM constituted a negligent performance of a duty he undertook. 

The trial court rejected Appellant’s argument, relying on Morin, 704 

A.2d 1085. In Morin, the plaintiff fell in a parking lot “covered with a thin 

glaze of ice.” Id. at 1088. About one hour before the plaintiff’s fall, the 

defendant motel’s manager, upon arriving at 6:30 AM, “spread salt and sand 

around part, but not all of the motel parking lot.” Id. at 1087. Morin argued, 

like Appellant, that the defendant had “created a duty to exercise reasonable 

____________________________________________

5 Section 323 provides: 

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to liability 

to the other for physical harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if 

(a) his failure to exercise such care increases the risk of such 

harm, or 

(b) the harm is suffered because of the other’s reliance upon the 

undertaking. 

Restatement (Second) of Torts § 323.

6 To the extent that Appellant also asserts that Restatement (Second) of Torts 

§ 324A “is applicable to this case[,]” Appellant’s Brief at 21, we find this claim 

waived as Appellant has not explained how or why it is applicable given the 

facts of this case or otherwise developed an argument in support of its 

applicability. See Pa.R.A.P. 2119(a) (the argument section of an appellate 

brief must include “discussion and citation of authorities as are deemed 

pertinent.”); Sephakis v. Pa. State Police Bureau of Records and Id., 

214 A.3d 680, 686-87 (Pa. Super. 2019) (an appellant waives any issue she 

fails to develop sufficiently).
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care in salting and sanding its parking facility based upon the motel manager’s 

voluntary undertaking to salt and sand parts of the motel parking lot.” Id. at 

1088. 

In affirming summary judgment in favor of the defendant, this Court 

interpreted Section 323 and, because no Pennsylvania authority on this issue 

existed, adopted the reasoning of two New York cases, which held that “one 

who voluntarily undertakes to salt and sand an icy area where no duty exists, 

does not create a duty merely by salting and sanding some of the area.” Id. 

We further held that “there is no evidence that [the manager’s] activities 

actually increased the natural hazards of the ice nor is there any evidence 

tending to demonstrate that [the plaintiff] relied upon [the manager’s] salting 

and sanding. Indeed, [the plaintiff] did not know that portions of the parking 

lot had been treated until after she fell.” Id.

Instantly, the trial court here opined as follows:

Exactly like in Morin, the manager of Waffle House arrived at work 

at 6:30 AM and salted and sanded the premises. Just like Morin, 

even if ECW’s salting and sanding did create a voluntary 

undertaking, [Appellant] presents no evidence that [she] relied 

upon, or even knew, that ECW had salted and sanded the 

premises. Neither did [Appellant] present any evidence that 

ECW’s salting and sanding increased [her] risk of falling.

Trial Ct. Op., 9/14/20, at 13.

Accordingly, the trial court concluded that summary judgment in favor 

of ECW was appropriate because Appellant had not set forth sufficient 

“evidence or facts to make out a prima facie cause of action or defense.” Id. 
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We agree with the trial court that Morin controls.7 Accordingly, 

Appellant’s argument, based on Restatement Section 323, fails. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/11/2021

____________________________________________

7 Appellant argues that the holding in Morin is inapplicable to this case 

because Appellant fell on the sidewalk and not in the parking lot. Appellant’s 

Brief at 22. The record, including the testimony of Appellant and other 

witnesses and the surveillance video, belies this claim. Appellant testified that 

she fell in the Waffle House parking lot. See Deposition, 1/24/20, at 55. (“No, 

I didn’t slip on the sidewalk.”).