J. A06007/16

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

JOSHUA DEVITIS, AS A DMINISTRATOR : IN THE SUPERIOR COURT OF OF THE ESTATE OF GINA DEVITIS : PENNSYLVANIA DECEASED, AND IN HIS OWN RIGHT : AS DECEDENT'S HUSBAN D : : APPELLANT : v. : : KEITH DASHER, AND EA GLE ROCK : COMMUNITY ASSOCIATIO N, 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

BEF ORE: 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.J. A06007/16

- 2

-

The trial court granted Motions for Summary Judgme nt 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 cou ld 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 Appellan t 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 fact ual 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 naviga ted 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 App ellee 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 inte rlocutory decisions).J. A06007/16

- 3

- 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 compl etion 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 reaso ns 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 cont ains 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 Moti on for Summary Judgment.” Id . The trialJ. A06007/16

- 4

-

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 suf fered:

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 t he 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.” K eith 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.J. A06007/16

- 5

-

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 tr ial 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 tes timony [ ] 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 bein g 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 Pennsylvani a 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, 6/2 6/15, at 3

- 4; see

also Appellant’s Brief at 3.J. A06007/16

- 6

-

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 de cision 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 mater ial 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 (unpagina ted) (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 tr ial 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 toJ. A06007/16

- 7

- 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 in stance, 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 argu es 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 fac t 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 co ndoned 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.J. A06007/16

- 8

-

Moreover, the issues that Appellant raised in its 1925(b) Statement

and its brief cannot be con strued 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