J-A16001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    A.S. A MINOR, BY THOMAS J. SAK,   :           IN THE SUPERIOR COURT OF
    III AND MARIA SAK, NATURAL        :                PENNSYLVANIA
    PARENTS AND GUARDIANS, AND        :
    THOMAS J. SAK, III AND MARIA SAK, :
    HIS WIFE, INDIVIDUALLY            :
                                      :
                   Appellants         :
                                      :
                                      :           No. 886 MDA 2019
              v.                      :
                                      :
                                      :
    THE SCHOOLHOUSE DAY CARE          :
    CENTERS, INC. AND CHILD-ED, INC., :
    INDIVIDUALLY & T/D/B/A THE        :
    SCHOOLHOUSE DAY CARE CENTER       :

                Appeal from the Judgment Entered April 28, 2020
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 2014-12587


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

MEMORANDUM BY PANELLA, P.J.:                   FILED: AUGUST 31, 2020

       A.S., a minor, Thomas J. Sak, III, and Maria Sak (collectively “the Saks”)

appeal from the judgment entered on April 28, 2020, in this action arising

from an incident where A.S. was resuscitated after drowning.1 The Saks
____________________________________________


1 The Saks improperly purport to appeal from the order dated May 7, 2019,
that denied their request for post-trial relief. An appeal from the denial of a
post-trial motion is interlocutory and as such is not a final appealable order.
See Hackett v. Indian King Residents Association, 195 A.3d 248, 250
n.3 (Pa. Super. 2018) (citation omitted). However, since filing their notice of
appeal, the Saks have filed a praecipe to enter judgment, which was thereafter
entered by the prothonotary/clerk on April 28, 2020. Accordingly, the entry of
judgment sufficiently perfects our jurisdiction, and we may proceed in our
review of this appeal. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after
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contend that the trial court erroneously denied their motion in limine, which

sought to exclude evidence related to the Sak parents’ failure to provide A.S.

with inflatable armbands known as “swimmies” on the date that A.S. suffered

a pool-based drowning experience. As the jury found Appellee, The

Schoolhouse Day Care Centers, Inc., not negligent, it never reached the

causation question of whether the Sak parents were comparatively and/or

contributorily negligent for not furnishing A.S. with those “swimmies.”

Therefore, admission of the “swimmies” testimony was, at most, harmless

error and independent of any adjudication of the Appellee’s negligence.

Accordingly, we affirm.

       Briefly, Appellee operated a field trip to a state park. Five-year-old A.S.

was a participant on this trip, which included time spent at an on-site pool.

A.S. could not swim and was supposed to be limited to the three-foot-deep

section of the pool. However, after entering the pool without any flotation

device, A.S. was found submerged in the water. Eventually, the pool’s

lifeguards pulled him out of the water and resuscitated him. An ambulance

then transported A.S. to a hospital and then later a medical center. After

treatment, A.S. was released.

       Following this incident, the Saks filed a lawsuit against Appellee,

claiming that it was negligent for failing to properly supervise A.S. while he

____________________________________________


the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”) The
caption reflects that the appeal is from the April 28, 2020 judgment.

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was in the pool. The Saks, among other things, not only sought damages on

behalf of A.S., but they also pursued compensation for themselves to provide

for A.S.’s past and future medical expenses. Appellee, in response, insisted

that at least some of the Saks’ claims were barred or limited as a result of the

Saks parents’ alleged comparative and/or contributory negligence.

      The Saks filed a motion in limine seeking to exclude evidence that the

family did not provide A.S. with “swimmies” for the trip. They argued that

such information “was wholly irrelevant and not causally connected to the

issue of negligence asserted against [Appellee.]” Appellant’s Brief, at 8. In

denying the motion, the trial court found the “swimmies” evidence to be

relevant   to    Appellee’s    comparative   and/or   contributory   negligence

averments. Ultimately, the case proceeded to trial, and a jury found Appellee

not negligent.

      Following the conclusion of the trial, the Saks filed a motion for post-

trial relief, which was denied. After that, the Saks filed a premature notice of

appeal to our Court that has since been corrected through the entry of

judgment in favor of Appellee. Both the Saks and the trial court have complied

with their respective obligations under Pa.R.A.P. 1925.

      In this appeal, the Saks raise one issue for our review:

      1. Was the trial court’s denial of the Saks’s motion in limine an
         error of law or abuse of discretion?

See Appellants’ Brief, at 4.




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   “When reviewing a ruling on a motion in limine, we apply an

evidentiary abuse of discretion standard of review. The admission of the

evidence is committed to the sound discretion of the trial court and our

review is for an abuse of discretion.” Commonwealth v. Parker, 104

A.3d 17, 21 (Pa. Super. 2014) (citation omitted).

   Although the Saks ably argue that admission of the “swimmies”

evidence was wholly irrelevant to A.S.’s injuries, highly prejudicial, and

could not have formed the basis for a comparative and/or contributory

negligence assertion against the Sak parents, our prior case law

establishes that any purported error in admitting this evidence is

harmless.

      “An error is harmless if the court determines that the error could

not have contributed to the verdict.” Bensinger v. University of

Pittsburgh Medical Center, 98 A.3d 672, 683 n.12 (Pa. Super. 2014)

(internal alterations and citation omitted). Under Pennsylvania law,

“where a jury finds no negligence on the part of a defendant, purported

error regarding questions of comparative and/or contributory negligence

are not prejudicial and cannot serve as a basis for the award of a new

trial.” Boyle v. Independent Lift Truck, Inc., 6 A.3d 492, 496 (Pa.

2010) (citations omitted) (emphasis added); see also Whitton v. H.A.

Gable Co., 200 A. 644, 646 (Pa. 1938) (“[A]s the jury found no

negligence on the part of appellee the question of contributory


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negligence passes out of the case, and any error in the charge in this

respect would not have been prejudicial”).

      Here, the jury found that Appellee was not negligent and therefore

had no opportunity to reach the issue of causation. Accordingly, the trial

court’s admission of evidence suggesting the parents’ contributory

and/or comparative negligence was harmless and simply did not affect

the verdict. As any error related to the trial court’s denial of the Saks’s

motion in limine was harmless, the Saks are not entitled to relief.

  Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2020




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