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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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