NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 3229

_____________ JULIE L. HEETER , Individually and as Administrator of the Estate of Bryan E. Harris, Deceased, Appellant

v. HONEYWELL INTERNATIO NAL INC, DBA Honeywell Security; ADT LLC; ADT CORP

___________ __ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2

- 16

- cv - 0 0557 ) District Judge: Honorable Eduardo C. Robreno

______________ Argued: March 27, 2017
Before: AMBRO, VANASKIE , and RESTREPO, Circuit Judges

(Filed: July 24 , 2017)

_____________ Lane R. Jubb , E sq. Dion G. Rassias, Esq. David A. Yanoff, Esq. [Argued] The Beasley Firm 11 2 5 Walnut Street Philadelphia, PA 19107 Cou nsel for Appell ant2

Jeannine L. Lee, Esq . [Argued] Stinson Leonard Street 150 South Fifth Street Suite 2300 Minneapolis, MN 55402 James T. Moughan, Esq. Bennett Bricklin & Saltzburg 1601 Market Street 16th Floor Philadelphia, PA 19103 Counsel for Appe llee Honeywell International Kerensa Cassis, Esq

. Charles C. Eblen, Esq. [Argued] Shook Hardy & Bacon 2555 Grand Boulevard Kansas City, MO 64108 Joanna Vassallo, Esq. Shook Hardy & Bacon Two Commerce Square 2001 Market Street, Suite 3000 Philadelphia, PA 19103 Counsel for Appellee s ADT LLC, ADT Corp.

______________ OPINION *

______________
RESTREPO, Circuit Judge
Plaintiff

- Appellant Julie Heeter challenges the District Court’s dismissal of her claims against Defendant s - Appellee s Honeywell and ADT

. We agree with the District
Court that Ms. Heeter’s claims lack proximate cause, and, therefore, we will affirm

.

* This disposition is not an opinion of the full C ourt and, pursuant to I.O.P. 5.7, does not constitute binding precedent.3 I As we write for the benefit of the parties, we set out only the facts necessary for
the discussion that follows. Ms. Heeter and her husb and Robert Heeter contacted ADT in
late 2014 about installing a security system in their weekend residence in Benton, Pennsylvania. When speaking with an ADT representative, the Heeters stated that they were “not so much concerned about the property in th e house but want a system that will
alert us when someone comes into the house

. ” App. 40

. The representative explained
that the Heeters would receive an immediate text and call notification anytime there was an interruption with the service or connection of the system, and that ADT provided 24/7
coverage. Ms. Heeter was particularly concerned about one resident of the area, Mr. Cea Jay Chattin , who m Ms. Heeter knew to have “a tortured past” and “conscious disregard
for the well

- being of others and in par ticular, her son, Bryan Harris

. ” Id. at 41

. Mr. and
Ms. Heeter had ADT install the “ADT Pulse” security system in November 201 4

. At approximately 7:00 a

. m
. on March 26, 2015 , a weekday when the Heeters were
not at their Benton residence , Chattin broke into it . He entered through a window, disconnected the phone lines on the ADT alarm system, and removed the Honeywell control panel from the wall

. The Heeters did not receive an alert or notif ication about the
break

- in. Chattin proceeded to steal severa l of the Heeters’ heirloom firearms before leaving the house. From the Heeters’ residence, Chattin drove approximately twenty
minutes to reach Harris’s apartment, where Chattin waited for hours for Harris to return
from work

.4

Harris arrived at his apart ment at about 8:00 p

. m
. , where he saw Chattin outside

. The two men had a conversation before Harris went inside. At some time after 10:30 p.m., Chattin entered the apartment and killed Harris, shooting him in the face with one of the stolen rifle s
. Chat tin then attempted to stage th e scene to look like a suicide. The following day, March 27, the Heeters began their usual weekend trip to the
Benton residence. When they arrived at 8:45 p.m., the Heeters saw their house had been burglarized, and immediat ely att empted to contact Harris. When they could not reach
him , t hey called the police and Harris’s employer

. Harris’s employer eventually found
Harris inside his apartment and informed Ms. Heeter that her son had been murdered

. The Heeters never receiv ed a notification from ADT about the break

- in or the disconnection of the phone lines

. I I
Ms. Heeter initiated this diversity action in federal court on February 3, 2016. In her complaint, she asserted several claims under Pennsylvania law : (1) f raud a gainst
ADT ; (2) product liability for defective design against ADT and Honeywell ; (3) negligence against ADT and Honeywell ; 1 (4) wrongful death against ADT and Honeywell ; (5) survival against ADT and Honeywell ; and (6) a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law against ADT

. Honeywell moved to dismiss Ms. Heeter’s complaint pursuant to Federal Rul e of Civil Procedure 12(b)(6). A DT answered the complaint and then moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). After hearing oral

1 Ms. Heeter later withdrew this claim against Honeywell.5

argument, the District Court granted both motions on July 1, 2016 , finding that Appellees ’ conduct was not the proximate cause of Harris’s tragic murder. Ms. Heeter appeals.
II I 2
Causation consists of “ two separate and essential concepts ” in Pennsylvania law :

“ cause - in

- fact and legal, or proximate, cause. ” Reott v. Asia Trend, Inc. , 55 A.3d 1088 , 11 03 (Pa. 2012). “Cause

- in

- fact” means causation in the “but for” sense

– that “a defendant’s allegedly w rongful act is a cause

- in

- fact if the plaintiff proves that the harm
he su stained would not have happened . . . but for the defendant’s act.” Id. P roximate cause refers to “that point at which legal responsibility should attach to the defendant as a
matt er of fairness. ” Id. ; see also Klages v. Gen. Ordnance Equip. Corp. , 367 A.2d 304, 313 ( Pa. Super. Ct. 1976) (“Proximate cause is designed not only to allow recovery for damages incurred because of another’s act, but also to define such limits on recovery as are economically and socially desirable.” (citing Whitner v. Lojeski , 263 A.2d 889 (Pa. 1970)) )

. There is no dispute between the parties that liability under all of Ms. Heeter’s

2 The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1332. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of Rule 12(b)(6) and Rule 12(c) motions de novo

. Phillips v. C ty. of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008); DiCarlo v. St. Mary Hosp. , 530 F.3d 255, 259 (3d Cir. 2008). On a motion to dismiss pursuant to Rule 12(b)(6), we, like the district court, must “accept all factual allegations as true, construe the comp laint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips , 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd. , 292 F.3d 361, 374 n.7 (3d Cir. 2002)). On a motion pursuant to Rule 12(c), judgment should “be granted where the moving party clearly establishes there are no material issues of fact, and that he or she is entitled to judgment as a matter of law.” DiCarlo , 530 F.3d at 259.6

state law claims requires a showing of proximate cause. And because Ms. Heeter ’s failure to allege proximate cause was the sole basis for the District Court’s decision, it is the only issue before us in this appeal. As an initial matter, Ms. Heeter and the Appellees dispute under what circumstances proximate cause can be deter mined by the court

. Under Pennsylvania law,
a “ judge may determine that no jury could reasonably differ as to whether the plaintiff has sufficiently established a causal link. In such cases, our trial courts are charged with performing their standard gat ekeeping function in determining which cases should be permitted to be argued to a jury.” Toney v. Chester Cty. Hosp. , 36 A.3d 83 , 99 ( Pa. 2011) (citing Ford v. Jeffries , 379 A.2d 111, 114 (Pa. 1977) ) ; s ee also Vattimo v. Lower Bucks Hosp., Inc. , 465 A.2d 1231, 1234 (Pa. 1983) (“If issues are raised on which a jury may not reasonably differ, it is proper for th e trial court to decide them” (citing Restatement (Second) of Torts , § 434 ( Am. Law. Inst

. 1965 ) ) )

. Because we hold that a jury could not
reasonabl y differ as to whether A ppellees’ conduct proximately caused Ms. Heeter’s
harm in this case , the District Court did not err in deciding the issue itself

. In order to establish proximate cause under Pennsylvania law, a plaintiff must
show that “ the defenda nt’s act was a ‘ substantial facto r ’

. . . in bringing about the plaintiff’s harm.” Reott , 55 A.3d at 1103 (quoting Ford , 379 A.2d at 114). Three considerations are important when determining w hether a defendant’s conduct was a “substantial factor” i n bri nging about the h arm at issue : (1) “ the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it ”; (2) “ whether the actor’s conduct has created a force or series of forces7

which are in cont inuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; ” and (3) “ lapse of time

. ” V attimo , 465 A.2d at 12 3 4 ( quoting R estatement (Second) of Tort s § 433 ( Am. Law Inst. 1965 ) )

. Having independently weighed these
considerations , w e agree with the District Court that in this case Appellees’ conduct was not a substant ial factor in producing the harm

. First, we agree with the District Court that myri ad other matters had a far grea ter effect on the murder of Harris than the conduct of the A ppellees. These matters include: Chattin’s “conscious disregard for the well

- being of

. . . in particular, [Ms. Heeter’s] son, Bryan Harris , ” App. 41 ; his decision to steal the heirloom firearms ; his decision to drive

to Harris’s apartment twenty minutes away and stake it out for hours ; his conversation
with Harris outside the apartment ; and the premeditated nature of the murder.
As to the second consideration , App ellees’ actions here did not create a force in continuous operation up to the time of the harm . The chain of events on the day of Harris’ s murder did not begin with the faulty alarm system. Rather, Appellees’ actions

were harmless until “ acted upon by ot her forces for which the actor is not responsible”
Vattimo , 465 A.2d at 1234 (quoting Restatement (Second) of Torts § 433 )

. H ere, that
other force was Chattin.
Third , although t he lapse of time between the conduct at issue and the harm
incurred is not d ispositive on its own, it works in concert with the other two
considerations to negat e proximate cause in this case. See, e.g. , Am. Truck Leasing , Inc.
v. Thorne Equip. Co. , 583 A.2d 1242 , 1243

- 44 ( Pa. Super. Ct. 1991) ( holding the harm to8

be too far remo ved chronologically and factually from the original negligence )

. The
fifteen

- hour time la pse between Appellees’ conduct and Harris’s murder , including many hours spent by Chattin waiting for Harris , speak s to the remoteness of events. Further, Chattin’s premeditated murder, remote in distance and time from Appellee s ’ conduct , was not foreseeable and constitutes a superseding cause

. I ntervening
criminal action is not per se superseding , but becomes so when , “looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.” Vattimo , 465 A.2d at 1237 ; see also Powell v. Drumheller , 653 A.2d 619, 624 ( Pa. 1995)

. T he chain of events and
ultimate harm here were n ot foreseeable , and the criminal action of Chattin is , therefore, a superseding cause of harm that breaks the causal chain

. H ad the harm to Harris o ccurred near the Heeter s ’ residence, which ADT was contracted to protect, the question of proximate cause might well have been one for a jury
to decide . Harm inflicted this far from th e residence is another matter. Ms. Heeter has not identified any authority holding an alarm company liable for harm distant from the premises that the compa ny was charged with securing. At bottom, and notwithstanding our deep sympathy for the Heeters and all affected by the tragic loss of Bryan Harris , t he causal chain here is simply too attenuated in time and distance , and too disrupted by the
decisions and actions of Chattin , to justify a finding of proximate cause. See, e.g. , Brown9

v. Phila. Coll. of Osteopathic Medicine , 760 A.2d 863, 870 (Pa. Super . Ct. 2000) (rejecting “attempts

. . . to link damages to acts well beyond the point of foreseeability”). 3
I V For the foregoin g reasons, we will affirm the District Court’s dismissal of this
action.

3 Ms. Heeter also argues that reversal is due under the “relaxed” standard of the “doctrine of increased risk of harm.” Br. of Appellant 35. Under this doctrine, drawn from the Restatement (Second) of Torts § 323(a), “once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to” plaintiff, and “the harm was in fact sustained,” the jury must determine “whether or not that increased risk was a substantial factor in producing the harm.” Hamil v Bashline , 392 A.2d 1280, 1286 (Pa. 1978). Ms. Heeter raises this argument for the first time on appeal, and therefore it has been waived. See In re Diet Drugs Prod. Liab. Lit. , 706 F.3d 217, 226 (3d. Cir. 2013).