J. E04005-14

                              2015 PA Super 137

FAYE M. MORANKO, ADMIN. OF THE                IN THE SUPERIOR COURT OF
ESTATE OF RICHARD L. MORANKO,
DECEASED                                            PENNSYLVANIA



                         Appellant



                    v.



DOWNS RACING LP, D/B/A MOHEGAN
SUN AT POCONO DOWNS



                         Appellee                  No. 192 MDA 2013



                    Appeal from the Order January 4, 2013
               In the Court of Common Pleas of Luzerne County
                    Civil Division at No(s): 2011-CV-10312


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J., OTT, J.

OPINION BY PANELLA, J.                              FILED JUNE 10, 2015

     Appellant, Faye M. Moranko, Administratrix of the Estate of Richard L.

Moranko, deceased, appeals from the order entered January 4, 2013, by the

Honorable William H. Amesbury, Court of Common Pleas of Luzerne County,

which entered summary judgment in favor of Appellee, Downs Racing LP,

d/b/a Mohegan Sun at Pocono Downs (“Mohegan Sun”). This case raises an

issue of first impression in this Commonwealth regarding the duty and

ultimate liability of a valet service when an automobile is returned to an
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allegedly   intoxicated   patron.   We     find   no   such   duty   exists   under

Pennsylvania law.    Accordingly, we affirm the entry of summary judgment.

      Moranko instituted this wrongful death and survival action by way of

Complaint filed August 9, 2011. Moranko alleges that on January 15, 2011,

her son, Richard Moranko (the “decedent”), consumed “copious amounts of

alcohol” while at Mohegan Sun. Complaint, 8/9/11 at ¶ 7. Thereafter, at

approximately 8:30 p.m., the decedent retrieved his vehicle from valet

services, despite his alleged visible intoxication. See id., at ¶¶ 8-9. After

the decedent departed Mohegan Sun, he was involved in an automobile

accident resulting in his death. See id., at ¶¶ 12-16. Moranko argues in

her Complaint that Mohegan Sun was negligent in serving the decedent

alcoholic beverages and in handing over the keys to his vehicle when he was

allegedly visibly intoxicated.

      On July 30, 2012, following the completion of discovery, Mohegan Sun

filed a motion for summary judgment. Mohegan Sun argued, among other

things, that Moranko had failed to produce sufficient evidence that it served

the decedent alcoholic beverages while he was visibly intoxicated and that

there is no cause of action in Pennsylvania allowing recovery against a valet

service for giving a visibly intoxicated customer the keys to his vehicle.     The

trial court granted the motion and entered summary judgment in favor of

Mohegan Sun. Moranko appealed. A panel of this Court issued an opinion

affirming the grant of summary judgment.               See Moranko v. Downs

Racing LP, 192 MDA 2013 (Pa. Super., filed 6/24/14) (withdrawn). Judge

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Mundy filed a dissenting opinion.    Moranko sought reargument, which this

Court granted.     After the filing of supplemental briefs, this matter is ready

for disposition.

      Moranko argues that “the trial court erred in granting [Mohegan Sun’s]

motion for summary judgment when there exists genuine issues of material

fact and [Mohegan Sun] was not entitled to judgment as a matter of law.”

Appellant’s Brief, at 3.   We review a challenge to the entry of summary

judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      Herein, although Moranko devotes much of her brief to arguing the

evidence supports a finding that the decedent was visibly intoxicated while



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at Mohegan Sun, we again note that our standard when reviewing a trial

court’s entry of summary judgment requires that we resolve all doubts as to

the existence of a genuine issue of material fact in her favor.       See id.

Therefore, for the purposes of our analysis, we will accept Moranko’s

contention and analyze the issues with the understanding that the decedent

was visibly intoxicated.   The crux of this case then hinges upon whether

Pennsylvania law imposes a duty upon Mohegan Sun and its valet service to

withhold the keys to a vehicle if the owner appears visibly intoxicated. We

find that it does not.

      It is axiomatic that the elements of a negligence-based cause of action

are a duty, a breach of that duty, a causal relationship between the breach

and the resulting injury, and actual loss. See Wright v. Eastman, 63 A.3d

281, 284 (Pa. Super. 2013). The question of whether a duty exists, as part

of a negligence claim, is a question of law, assigned in the first instance to

the trial court and subject to plenary appellate review. See Thierfelder v.

Wolfert, 52 A.3d 1251, 1264 (Pa. 2012).

      The determination of whether a duty exists in a particular case
      involves the weighing of several discrete factors which include:
      (1) the relationship between the parties; (2) the social utility of
      the actor’s conduct; (3) the nature of the risk imposed and
      foreseeability of the harm incurred; (4) the consequences of
      imposing a duty upon the actor; and (5) the [over all] public
      interest in the proposed solution.

Montagazzi v. Crisci, 994 A.2d 626, 631 (Pa. Super. 2010) (citations

omitted).



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      “When considering the question of duty, it is necessary to determine

whether a defendant is under any obligation for the benefit of the particular

plaintiff ... and, unless there is a duty upon the defendant in favor of the

plaintiff which has been breached, there can be no cause of action based

upon negligence.” Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785,

789 (Pa. Super. 2005) (citation and internal quotation marks omitted).

      At the outset, we note that Moranko makes no citation to the record,

and we have found no evidence of record, to support her claim that Mohegan

Sun served alcohol to the decedent while he was at the casino prior to the

tragic accident. Moranko presents no testimony, video surveillance, or other

evidence establishing that Mohegan Sun served the decedent alcohol on the

casino premises.

      To support her claim against the parking service, Moranko does not

cite case law from any jurisdiction that imposes an affirmative duty upon the

valet employed by Mohegan Sun. Rather, she relies upon general concepts

of “ordinary care” and public policy to create such a duty. More specifically,

Moranko relies upon Section 324A of the Restatement (Second) of Torts,

Liability to Third Person for Negligent Performance of Undertaking, to

support the imposition of a duty in this matter. 1 Section 324A provides as

follows:

1
  Moranko additionally cites Section 390 of the Restatement (Second) of
Torts, Chattel for Use by Person Known to be Incompetent, in support of her
argument. However, it appears from our review of the record that Moranko
failed to raise Section 390 of the Restatement as a basis for relief in the trial
court at any point in the proceedings. It is well-settled that issues raised for
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      One who undertakes, gratuitously or for consideration, to render
      services to another which he should recognize as necessary for
      the protection of a third person or his things, is subject to
      liability to the third person for physical harm resulting from his
      failure to exercise reasonable care to protect his undertaking, if

      (a) his failure to exercise reasonable care increases the risk of
      such harm, or

      (b) he has undertaken to perform a duty owed by the other to
      the third person, or

      (c) the harm is suffered because of reliance of the other or the
      third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965) (emphasis added).

      The comments to Section 324A of the Restatement makes clear that

“[t]his section deals with the liability to third persons.”   Id., Comment a.

Here, Moranko’s claims do not invoke third party liability, but rather concern

an alleged failure to act resulting in direct harm to the decedent. Therefore,

we do not find that Section 324A of the Restatement provides Moranko with

a basis for relief.

      Moranko alternatively argues that Mohegan Sun’s duty is manifest in

its failure to comply with internal organizational policies “designed to identify

visibly intoxicated patrons and to prevent them [sic] from the gaming floor.”


the first time on appeal are waived. 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.”).

   Even if we were to ignore waiver, however, we would find this issue to be
without merit. As discussed in detail below, because we find that Mohegan
Sun, as bailee, was duty bound to return the decedent’s vehicle despite his
alleged intoxication, the negligent entrustment theory of tort liability does
not apply to this case.
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Appellant’s Brief, at 16 (emphasis added). This internal policy of Mohegan

Sun is aimed not at preventing their valets from withholding an automobile

from a visibly intoxicated patron, but from keeping visibly intoxicated

patrons from gambling on the casino gaming floor. As such, it cannot serve

to place a legal duty on Mohegan Sun.

      We further find Moranko’s reliance on 58 Pa.Code § 501a.3(a) to be

misplaced. That section provides, in pertinent part:

      § 501a.3. Employee training program.

      (a) The employee training program required under §
      501a.2(d)(5) (relating to compulsive and problem gaming plan)
      must include instruction in the following:

      (1) Characteristics and symptoms of compulsive behavior,
      including compulsive and problem gambling.

      ...

      (6) Procedures designed to prevent serving alcohol to visibly
      intoxicated gaming patrons.

      (7) Procedures designed to prevent persons from gaming after
      having been determined to be visibly intoxicated.

      ...

58   Pa.Code   §   501a.3(a).    To   the   extent   this   section   mandates

implementation of employee training procedures to prohibit serving alcohol

to visibly intoxicated gaming patrons, this internal policy of Mohegan Sun is

not aimed at requiring valets to withhold an automobile.2



2
  Significantly, Moranko’s focus on policies prohibiting the service of alcohol
to intoxicated patrons ignores a fatal defect to her argument—nowhere does
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      Moranko next argues that Section 323 of the Restatement (Second)

Torts is applicable. Moranko did not raise this in her response to the motion

for summary judgment, in her brief in support thereof, nor did she even

raise this claim in the appellate brief originally filed in this appeal. Moranko

raises this argument for the first time on appeal in her supplemental brief

submitted on reargument.       We find it waived.    See generally 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.”).

      As noted, Moranko did not raise Section 323 in her response to

Mohegan Sun’s motion for summary judgment.           “[A]rguments not raised

initially before the trial court in opposition to summary judgment cannot be

raised for the first time on appeal.”     Krentz v. Consolidated Rail Corp.,

910 A.2d 20, 37 (Pa. 2006) (citing McHugh v. Proctor & Gamble, 875

A.2d 1148, 1151 (Pa. Super. 2005); Devine v. Hutt, 863 A.2d 1160, 1169

(Pa. Super. 2004)).     This canon of appellate practice comports with “our

Supreme Court’s efforts to promote finality, and effectuates the clear

mandate of our appellate rules requiring presentation of all grounds for relief

to the trial court as a predicate for appellate review.” Hutt, 863 A.2d at

1169. See also Keystone Bldg. Corp. v. Lincoln Sav. & Loan Ass'n, 360

A.2d 191, 194 (Pa. 1976) (deeming contention waived due to appellant’s

failure to raise it before appealing to this Court); Commonwealth v.



Moranko cite to any evidence that Mohegan Sun served alcohol to the
decedent while at the casino prior to the tragic accident.
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Dennis, 695 A.2d 409, 411 (Pa. 1997) (stating that “trial courts should be

given the opportunity to correct an error and conserve judicial resources.”).

      Accordingly, we find Moranko’s argument based on Section 323 of the

Restatement (Second) Torts waived.

      Mohegan Sun directs this Court to the Pennsylvania Supreme Court’s

decision in Congini v. Portersville Valve Company, 470 A.2d 515, 519

(Pa. 1983), in which the Court determined that a social host who had no

right of control over or ownership of an intoxicated guest’s vehicle could not

be held liable for negligent entrustment. The Court cited with approval the

Supreme Court of Nevada’s decision in Mills v. Continental Parking Corp.,

86 Nev. 724, 475 P.2d 673 (1970), which held that a parking lot attendant

could not be liable for surrendering a vehicle to its intoxicated owner.

      In Mills, the Nevada Supreme Court affirmed dismissal of the

plaintiff’s claim for wrongful death brought by the heirs of a pedestrian who

was killed by a car driven by a drunk driver against the operator of a parking

lot who surrendered the vehicle with knowledge of the driver’s inebriation.

See id., at 724, 475 P.2d at 674. Finding that a legal relationship of bailor-

bailee is created where the parking lot attendant “collects a fee, has

possession of the keys, assumes control of the car and issues a ticket to

identify the car for redelivery,” the Court reasoned that

      [t]he negligent entrustment theory of tort liability does not apply
      to the normal bailor-bailee relationship since the bailee is duty
      bound to surrender control of the car to the bailor upon demand
      or suffer a possible penalty for conversion. Indeed, if the bailee
      refuses to return the car at the end of the bailment it is

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      presumed that the car was converted to him. Here, the bailment
      ended when [the intoxicated individual] appeared at the parking
      lot to reclaim possession of his car and paid for the parking
      services. At that moment the bailee lost right to control the car.
      Although the negligent entrustment theory may apply where one
      who has the right to control the car permits another to use it in
      circumstances where he knows or should know that such use
      may create an unreasonable risk of harm to others, it does not
      apply when the right to control is absent.

Id., at 725-726, 475 P.2d at 674.

      Under Pennsylvania law, a mutual bailment is created where a valet

service accepts possession of a patron’s keys and parks the vehicle as a

service to those gambling on the casino premises.      See, e.g., Taylor v.

Philadelphia Parking Authority, 156 A.2d 525, 527 (Pa. 1959) (holding

that when attendants collect fees, assume control of cars, park them and

issue tickets as means of identifying cars upon redelivery, a bailment is

created); Baione v. Heavey, 158 A. 181, 182 (Pa. Super. 1932) (holding

relationship between a parking lot owner and an automobile owner parking a

car therein was that of bailor and bailee). Therefore, we must examine what

legal duty, if any, Pennsylvania has imposed upon bailees in their dealings

with bailors.

      Although no Pennsylvania appellate decision addresses the specific

issue of parking attendant/valet liability, a number of other jurisdictions

have reached the same conclusion as in Mills. See Umble v. Sandy McKie

and Sons, Inc., 294 Ill.App.3d 449, 451-52, 690 N.E.2d 157, 158-157

(1998) (holding vehicle repair shop was bailee for hire, and once intoxicated

vehicle owner paid for repairs and demanded return of his keys, shop had no


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discretion to refuse); Knighten v. Sam’s Parking Valet, 206 Cal.App.3d

69, 75, 253 Cal.Rptr. 365, 367 (1988) (holding valet parking service had no

duty to withhold automobiles from an intoxicated patron).

      We find the reasoning in Mills applicable to this case. The Mohegan

Sun valet service, as bailee, was duty bound to surrender control of the

decedent’s vehicle when it was demanded, notwithstanding the decedent’s

alleged intoxication. When the decedent requested the return of his vehicle,

Mohegan Sun as bailee lost the right to control the car. As Mohegan Sun

had no right of control, we cannot find it liable for decedent’s actions when

the car was returned to his possession. In so finding, we find instructive the

Nevada Supreme Court’s comment in Mills: “The imposition of civil liability

in the circumstances here alleged would lead to unforeseeable consequences

limited only by the scope of one’s imagination. We decline to venture into

that wonderland.” 86 Nev. at 726, 475 P.2d at 674.

      While we sympathize greatly with Moranko’s loss, we cannot find that,

as a matter of law, Mohegan Sun had the power, let alone the duty, to

withhold the decedent’s keys.     As such, we find the trial court properly

entered summary judgment in Mohegan Sun’s favor.3


3
   Moranko additionally raises the issue of Mohegan Sun’s “Dram Shop
liability” on appeal. Appellant’s Brief, at 20-21. However, Moranko fails to
provide a single legal citation in support of this argument, or to otherwise
develop this issue in any meaningful way. “It [is] well settled that a failure
to argue and to cite any authority supporting any argument constitutes a
waiver of issues on appeal.” Jones v. Jones, 878 A.2d 86, 90 (Pa. Super.
2005). Accordingly, we are constrained to find that Moranko has abandoned
this claim on appeal.
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     Order affirmed. Jurisdiction relinquished.

     President Judge Gantman, President Judge Emeritus Ford Elliott, and

Judges Shogan, Olson, and Ott join the opinion.

     Judge Mundy files a dissenting opinion in which President Judge

Emeritus Bender and Judge Donohue join.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2015




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