J-A16001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.S. A MINOR, BY THOMAS J. SAK, 

III AND MARIA SAK, NATURAL 

PARENTS AND GUARDIANS, AND 

THOMAS J. SAK, III AND MARIA SAK, 

HIS WIFE, INDIVIDUALLY 

Appellants

v.

THE SCHOOLHOUSE DAY CARE 

CENTERS, INC. AND CHILD-ED, INC., 

INDIVIDUALLY & T/D/B/A THE 

SCHOOLHOUSE DAY CARE CENTER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 886 MDA 2019

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 

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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 posttrial 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