J. A06007/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JOSHUA DEVITIS, AS ADMINISTRATOR         :    IN THE SUPERIOR COURT OF
OF THE ESTATE OF GINA DEVITIS            :         PENNSYLVANIA
DECEASED, AND IN HIS OWN RIGHT           :
AS DECEDENT'S HUSBAND                    :
                                         :
                        APPELLANT        :
                  v.                     :
                                         :
KEITH DASHER, AND EAGLE ROCK             :
COMMUNITY ASSOCIATION, INC               :
                                         :
                                         :    No.874 MDA 2015

                Appeal from the Ordered Entered May 5, 2015
               In the Court of Common Pleas of Luzerne County
                      Civil Division at No(s): 2012-11788

BEFORE: LAZARUS,J., STABILE,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                             FILED MAY 18, 2016

     Appellant, Joshua DeVitis, as Administrator of the Estate of Gina

DeVitis, deceased, appeals from the trial court’s orders granting summary

judgment in favor of Appellees, Keith Dasher and Eagle Rock Community

Association, Inc. (“ERCA”), following the death of Appellant’s decedent as a

result of a boating accident.       Appellant alleged that Appellees were

responsible for the decedent’s death.
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      The trial court granted Motions for Summary Judgment in favor of the

Appellees and dismissed the Complaint, finding that there was no evidence

that the Appellees’ alleged negligence caused the decedent’s death.1

      On appeal, however, Appellant has not challenged the trial court’s

finding that Appellant could not establish causation, but rather has argued

that the trial court erred in failing to find a genuine issue of material fact

regarding vicarious liability, violation of Pennsylvania law of boating

regulations, and condoning a boat party. Since Appellant never challenged

the actual basis for the trial court’s decision, Appellant waived its challenge

to the grant of the Motions for Summary Judgment and we must affirm the

decision of the trial court.

      Procedural Background

      A detailed recitation of the factual and procedural history is not

necessary for our analysis. As the trial court succinctly stated:

         This matter concerns an alleged drowning on a private
         lake. It is uncontested that Gina DeVitis, [d]eceased, was
         part of a group partying on a boat navigated by Keith
         Dasher. At some point in the evening Dasher attached a
         floating dock owned by Eagle Rock Community Association,
         Inc. (ERCA) and relocated it. Subsequent to this activity,
         Gina utilized the still attached dock, entered the lake, and

1
   The trial court granted the Motion for Summary Judgment in favor of
Appellee ERCA on January 8, 2015 and the Motion for Summary Judgment in
favor of Appellee Keith Dasher on May 5, 2015. Entry of the May 5, 2015
order rendered the January 8, 2015 order final for purposes of appeal. See
Betz v. Neumo Abex, LLC, 44 A.3d 27 (Pa. 2012) (holding an appeal of a
final order subsumes challenges to previous interlocutory decisions).




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         proceeded to swim toward the shore. Gina was followed
         by her husband [Appellant herein] who found her floating
         face down in the water with no signs of life. No autopsy
         was performed.

Trial Ct. Op., 1/8/15, at 1 (unpaginated).

      On October 17, 2014, upon the completion of discovery, Appellee

ERCA filed a Motion for Summary Judgment in which it argued that Appellant

“failed to produce sufficient evidence to support a claim of negligence

against ERCA[,] and that “[n]o act or omission on the part of [ERCA] caused

Gina to drown.”      Brief of ERCA in Supp. of its Mot. for Summ. J.,

10/17/2014, at 2.

      Following a hearing on the motion, on January 8, 2015, the trial court

granted Appellee ERCA’s Motion for Summary Judgment. The trial court filed

an opinion stating its reasons for granting the Motion. The trial court initially

made a finding that there was an issue of material fact regarding the

Appellant’s agency relationship with Appellee ERCA:

         [Appellant] alleges that at all relevant times ERCA’s
         negligent omissions and commissions were carried out by
         [Appellee] Keith Dasher, as its agent. More specifically,
         that Dasher’s recovery and relocation of the floating dock
         was pursuant to an alleged agreement between Dasher
         and a representative of ERCA.       Clearly the record
         contains genuine issues of material fact as to the
         scope of the alleged agency and Dasher’s conduct.

Trial Court Op., at 1 (unpaginated) (emphasis added).

      The trial court then held that “resolution of the agency issue is not

essential to resolve ERCA’s Motion for Summary Judgment.” Id. The trial



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court concluded, and explicitly based its grant of the Motion for Summary

Judgment on its finding, that there was no evidence of a “casual connection”

between allegations of negligence and the harm the decedent suffered:


           The record is void of any evidence as to a causal
           connection between any of the alleged allegations of
           negligence of Dasher (which for purposes of this Motion
           are deemed true) and the actual harm suffered by
           [Appellant].

Id. at 2 (unpaginated).

     Appellant filed a Motion for Reconsideration of the January 8, 2015

Order, which the trial court denied on January 30, 2015.

     On February 25, 2015, Appellee Dasher filed a Motion for Summary

Judgment, raising the issue on which the trial court granted the Motion for

Summary Judgment in favor of Appellee ECRA.          In particular, Appellee

Dasher argued that Appellant “failed to demonstrate any causal connection

between any alleged breach of duty of Mr. Dasher owed to [Appellant] and

the resulting damages.”    Keith Dasher’s Mot. for Summ. J., 2/25/15, at 3

(unpaginated).

     The trial court also granted Appellee Dasher’s Motion for Summary

Judgment on May 5, 2015, but did not file a supporting Opinion. Appellant

timely appealed on May 21, 2015.       Appellant filed a Pa.R.A.P. 1925(b)

statement on June 26, 2015.      The trial court did not file a Rule 1925(a)

Opinion.




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      Appellant raised two allegations of trial court error in his Rule 1925(b)

statement and his brief.       Appellant, however, does not challenge basis for

the trial court’s grant of the Motions for Summary Judgment, but rather

challenges two other issues that the trial court did not decide and were

irrelevant once the trial court found that Appellant failed to establish

causation:

      It is respectfully submitted that [the trial court] abused [its] discretion
      and committed errors of law as follows:

             [1]. In finding there were no genuine issues of
             material fact in regard to ERCA’s vicarious liability to
             Appellant and the decedent involved here, where the
             deposition testimony [ ] provided that it is ERCA’s
             policy not to allow property owners to take
             possession of and moor docks in Lake Susquehanna
             wherever they desire, and Appellee Keith Dasher did
             just that in this instance, with the improper
             placement of said dock being responsible for Gina
             DiVitis’s death?

             [2]. In finding there were no genuine issues of
             material fact in regard to Appellee Keith Dasher’s
             liability to Appellant [and] the decedent involved
             here, where Appellee Keith Dasher was in violation of
             Pennsylvania law in regard to numerous aspects of
             boating safety and where Appellee Keith Dasher
             promoted and condoned a “party” atmosphere on
             [his] boat which included drinking alcohol and
             playing loud music?

Concise Statement of Errors Complained of on Appeal, 6/26/15, at 3-4; see

also Appellant’s Brief at 3.




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Legal Analysis

      Before reaching the merits of Appellant’s issues on appeal, we first

consider whether they are properly before this Court. We conclude that they

are not because the trial court based its decision on the issue of causation

and Appellant never challenged this issue.

      In its opinion in support of the order granting Appellee ERCA’s Motion

for Summary Judgment, the trial court explained, that although the record

“contained genuine issues of material fact as to the scope of the alleged

agency [between ERCA and Dasher] and Dasher’s conduct[,]” Appellant

failed to present any evidence of a causal connection between

Appellee Dasher’s negligence and Gina DiVitis’s death. Trial Ct. Op. at

1-2 (unpaginated) (emphasis added).         The court emphasized that it was

granting summary judgment because Appellant had not established “a

causal connection between the alleged negligent acts and the decedent’s

death[.]” Id. at 2 (unpaginated) (emphasis added).

      However, in his Rule 1925(b) Statement, Appellant does not challenge

the trial court’s finding that there is no evidence of causation.        Rather,

Appellant raises two separate and distinct issues unrelated to the causation

issue. First, Appellant argues that the trial court erred in finding no genuine

issues of material fact regarding Appellee ERCA’s vicarious liability for acts of

Appellee Dasher:

            [1]. In finding there were no genuine issues of
            material fact in regard to ERCA’s vicarious liability to


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              Appellant and the decedent involved here, where the
              deposition testimony [ ] provided that it is ERCA’s
              policy not to allow property owners to take
              possession of and moor docks in Lake Susquehanna
              wherever they desire, and Appellee Keith Dasher did
              just that in this instance, with the improper
              placement of said dock being responsible for Gina
              DiVitis’s death?


      Concise Statement of Errors Complained of on Appeal, at 3.

      Appellant’s second issue on appeal is equally unrelated to the

causation issue because Appellant argues that the trial court should have

found that there was a genuine issue of material fact about whether Appellee

Dasher violated Pennsylvania law regarding boat safety and condoned a boat

party:

              [2]. In finding there were no genuine issues of
              material fact in regard to Appellee Keith Dasher’s
              liability to Appellant [and] the decedent involved
              here, where Appellee Keith Dasher was in violation of
              Pennsylvania law in regard to numerous aspects of
              boating safety and where Appellee Keith Dasher
              promoted and condoned a “party” atmosphere on
              [his] boat which included drinking alcohol and
              playing loud music?


Id. at 3-4.

      Even if this court were to find that there was a genuine issue of

material fact regarding vicarious liability, violating Pennsylvania laws about

boat safety and condoning a boat party, the trial court’s finding that

Appellant failed to prove causation is dispositive of the Motion for Summary

Judgment.


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      Moreover, the issues that Appellant raised in its 1925(b) Statement

and its brief cannot be construed to challenge the trial court’s finding on

causation.   Although Pa.R.A.P. 1925(b)(4)(v) provides that “each error

identified in the Statement will be deemed to include every subsidiary issue

contained therein which was raised in the trial court,” we find that the

causation issue is separate and distinct from, and not a subsidiary issue of,

the issues of vicarious liability, violation of Pennsylvania laws and condoning

a party boat. Therefore, Appellant waived his challenge to the legal basis for

the trial court’s grant of the Motions for Summary Judgment.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2016




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