J-A23007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH LOOMIS AND JANAN : IN THE SUPERIOR COURT OF
LOOMIS, INDIVIDUALLY AND AS : PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE :
OF LEAH LOOMIS, DECEASED :
:
Appellants :
:
:
v. : No. 367 MDA 2021
:
:
MIA BOMBA, GINA BOMBA, WILLIAM :
FARBER, JR. :
Appeal from the Judgment Entered March 15, 2021
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2018-00930
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED: DECEMBER 1, 2021
Plaintiffs/Appellants Joseph and Janan Loomis, individually and on
behalf of the estate of Leah Loomis (the Loomises), appeal from the judgment
entered in favor of Defendants/Appellees Mia Bomba, Gina Bomba, and
William Farber, Jr. (collectively Appellees), following a jury trial. Upon review,
we affirm.
The trial court detailed the underlying facts as follows:
This action arose from a tragic boating incident that occurred at
Newton Lake on September 26, 2017, when defendant, Mia
Bomba (“Mia”), was operating a motorboat that was co-owned by
her mother Gina Bomba, (“Gina”), and William Farber, Jr.
(“Farber”). ... In August 2017, Gina and Farber purchased the
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* Former Justice specially assigned to the Superior Court.
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subject motorboat ... and prior to the boating accident on
September 26, 2017, Mia operated the motorboat on more than
20 occasions.
On the afternoon of September 26, 2017, Mia requested her
mother’s permission to use the motorboat with her friend and
classmate, Leah Loomis (“Leah”), and Gina granted her consent
provided that Leah first secured the permission of “[Leah’s]
mother or father.” Mia contacted another friend, Alexis Igneri
(“Igneri”), who joined Mia and Leah at Newton Lake for the boat
ride. The motorboat was equipped with a passenger seat to the
right of the operator, a transom bench seat situated directly
behind the operator, and front seats with grab rails positioned in
the front (bow) section which faced towards the operator. When
the motorboat departed from its dock on September 26, 2017,
Mia was driving, Igneri was positioned behind her on the transom
bench seat, and Leah was seated in the front seat while facing
Mia.
Mia and her passengers intended to drive one lap around
the lake in a counterclockwise direction, as required by Newton
Lake rules, dock the boat in the center of the lake, and swim in
that area. At the time, Newton Lake did not have nor enforce a
speed limit for the operation of motorboats. A Newton Lake
resident, William Dunstone, observed Mia and her passengers
drive by at a “cruising speed” of 20 to 25 miles per hour that was
“just fast enough to get the boat on plane.” Jeff Williams, who
was pulling his motorboat into its dock as Mia and her passengers
passed behind him, estimated their speed to be 35 to 40 miles per
hour.
As Mia’s motorboat was completing its first turn and starting
to straighten while it continued its lap around the lake, Leah
“suddenly” positioned herself on her knees on the front seat
cushion, faced away from Mia and towards the bow and lake, and
was “striking a pose” on her knees and with outstretched arms “as
if flying on the bow of the boat.” As the boat simultaneously
approached a wave or wake, which Mia believed had been caused
by the travel of the motorboat before its turn, Mia reduced the
speed of the boat while it “started to bounce,” and once the
motorboat hit the wave or wake, Leah fell over the front of the
boat and into the water “more towards the right side.” Mia
instinctively turned the boat to the left to avoid Leah, but heard
the boat make contact with Leah.
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Mia immediately stopped the boat, jumped in the lake to
search for Leah, and told Igneri to call 911. Since Mia could not
find Leah and Igneri appeared to be in shock and unable to
communicate with the 911 operator, Mia climbed back into the
boat to speak to the operator on Igneri’s cellphone while Mia also
attempted to contact her mother, Gina, on her own cellphone. Mr.
Dunstone heard someone scream “help” and observed two young
women “waving their hands and yelling for help,” so he and his
father boarded their boat and drove to their location. Mr. Williams
likewise heard their screams, and backed his boat out of its dock,
“drove around to the other side” of the lake, and arrived to find
Mia and Igneri who “were pretty hysterical.”
***
Upon arriving at Mia’s boat, Mr. Dunstone threw an anchor and
lifejacket into the water to designate the spot where Leah was last
seen[.] . . . Emergency personnel promptly arrived via a pontoon
boat, and advised Mr. Dunstone to drive Mia and Igneri to the
shoreline in Mia’s boat. Leah was not found by nightfall, but her
deceased body was discovered and recovered the following day.
Trial Court Opinion, 3/12/21, at 2-6 (record citations and footnotes omitted).
On July 24, 2018, the Loomises filed a complaint against Appellees
alleging negligence under the Wrongful Death and Survival Act, 42 Pa.C.S.A.
§§ 8301-8302. A trial was held in October 2020, after which the jury found
in favor of Appellees. On October 19, 2020, the Loomises filed post-trial
motions, which the trial court denied on March 12, 2021. This timely appeal
followed.1
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1 The Loomises and trial court have complied with Pa.R.A.P. 1925. As the trial
court noted, the Loomises raised four issues in their post-trial motion, but
“their statement identifies 15 alleged errors that they intend to assert on
appeal.” Supplemental Order Pursuant to Pa.R.A.P. 1925(a), 5/10/21, at 1
(Footnote Continued Next Page)
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In their brief, the Loomises present two questions for our review:
1. Whether the Trial Court erred in failing to instruct the jury on
the applicable sections of the Pennsylvania Boating Handbook[?]
2. Whether the Trial Court erred in concluding that Trooper Ives’
testimony regarding [the] hearsay statement of Alexis Igneri was
admissible under the course of conduct exception[?]
Loomis Brief at 4.
In their first issue, the Loomises contend the trial court erred in failing
to instruct the jury on the authoritative nature of the Pennsylvania Boating
Handbook.2 The Loomises claim they were prejudiced by the court’s denial of
their request to read excerpts from the Handbook to the jury, in conjunction
with Pennsylvania Standard Civil Jury Instruction 13.110, which states:
[A] [An] [insert regulation or standard] in effect at the
time the accident occurred provided:
[quote relevant regulatory provisions]
[Name of plaintiff] claims that [name of defendant] violated this
[regulation] [standard]. If you find that [name of defendant]
violated the [regulation] [standard], then [name of defendant]’s
violation of this [regulation] [standard] is evidence you must
consider, along with all other evidence, in deciding whether [name
of defendant] was negligent.
Pa. SSJI (Civ) 13.110. See Loomis Brief at 25-26.
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(citations omitted). The court concluded—and we agree—that to the extent
the Loomises assert issues that were not properly preserved, those issues are
waived on appeal. Id. at 2 (citations omitted).
2The Pennsylvania Boating Handbook is published by the Pennsylvania Fish
and Boating Commission and serves as the text for the Commission’s eight-
hour boating course. Pennsylvania Boating Handbook, 3/17, at 2.
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We are not persuaded by the Loomises’ argument. It is well-settled
that,
We review the trial court’s jury instructions for an abuse of
discretion or legal error controlling the outcome of the case. A
jury charge will be found to be adequate unless, when read in its
entirety, the charge confused the jury, misled the jury, or
contained an omission tantamount to fundamental error. “[I]t
must appear that the erroneous instruction may have affected the
jury’s verdict.” Consequently, the trial court has great discretion
in forming jury instructions.
Meyer v. Union R. Co., 865 A.2d 857, 862 (Pa. Super. 2004) (citations
omitted). Trial courts are not required to use the language of requested jury
charges, but may utilize different formulations so long as they “adequately
and clearly” cover their subjects. Buckley v. Exodus Transit & Storage
Corp., 744 A.2d 298, 306 (Pa. Super. 1999). The court may refuse to submit
for the jury’s consideration a point for charge that is not strictly in accordance
with the facts in evidence or the law in the case. Id.
Here, the Loomises allege the trial court’s failure to give the requested
verbatim charges impacted the jury’s verdict. Specifically, they contend the
court erred in denying their charges quoting the Pennsylvania Boating
Handbook as follows:
4. A standard in effect at the time the accident occurred
provided:
Boat operators are responsible for:
● the safety of all passengers in the boat
● the boat’s wake and any damage caused by it
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● maintaining a proper lookout and operating at a safe speed for
conditions;
● using good seamanship which is the foundation of the navigation
rules
Plaintiffs claim that Defendant Mia Bomba violated this standard.
If you find that Defendant Mia Bomba violated the standard, then
Defendant Mia Bomba’s violation of this standard is evidence you
must consider, along with all other evidence, in deciding whether
Defendant Mia Bomba was negligent.
Pa. SSJI (Civ) 13.110.
Pennsylvania Boating Handbook
5. A standard in effect at the time the accident occurred provided:
Boating operators are responsible for the actions of all
persons on board their boats.
Plaintiffs claim that Defendant Mia Bomba violated this standard.
If you find that Defendant Mia Bomba violated the standard, then
Defendant Mia Bomba’s violation of this standard is evidence you
must consider, along with all other evidence, in deciding whether
Defendant Mia Bomba was negligent.
Pa. SSJI (Civ) 13.110.
Pennsylvania Boating Handbook 2015 and 2017 edition
8. A standard in effect at the time the accident occurred provided:
Boats must be operated at a rate of speed that does not
endanger the life or property of any person
Plaintiffs claim that Defendant Mia Bomba violated this standard.
If you find that Defendant Mia Bomba violated the standard, then
Defendant Mia Bomba’s violation of this standard is evidence you
must consider, along with all other evidence, in deciding whether
Defendant Mia Bomba was negligent.
Pa. SSJI (Civ) 13.110.
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Pennsylvania Boating Handbook 2015 and 2017 edition
9. A standard in effect at the time the accident occurred provided:
To ensure a safe and problem free boating experience, make a
checklist and use it before each trip
***
● Conduct an onboard safety discussion with passengers:
Everyone on board needs to know in advance what is
expected of them and where they can find needed
equipment. The discussion should include information on
the location and proper use of life jackets (PFDs), fire
extinguishers, visual distress equipment and first-aid kit. Explain
emergency procedures; rules prohibiting discharging waste
overboard; basic operation of the marine radio (if one is installed);
other items such as boat operation, weather and/or water
conditions, anchoring procedures, docking and line handling, and
the dangers of falling overboard and being struck by the
propeller.
Plaintiffs claim that Defendant Mia Bomba violated this standard.
If you find that Defendant Mia Bomba violated the standard, then
Defendant Mia Bomba’s violation of this standard is evidence you
must consider, along with all other evidence, in deciding whether
Defendant Mia Bomba was negligent.
Pa. SSJI (Civ) 13.110
Pennsylvania Boating Handbook
See Loomis Brief at 26-29 (emphases in original).
In response, the trial court explained its denial of the requested charges,
stating:
Many of the boating handbook’s provisions contained in the
Loomises’ proposed points for charge were addressed in the
prepared instructions based upon Pa. SSJI (Civ.) §§ 13.100 and
13.110 (5th ed.). For example, the requested instructions in Nos.
4 and 5 concerning the operator’s responsibility for the safety and
actions of passengers, maintaining a proper lookout, operating at
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a safe speed, and using good seamanship were discussed in the
prepared instructions based upon 30 Pa.C.S.A. § 5501(b) and 58
Pa. Code §§ 103.4 — 103.5. Proposed point for charge No. 8
quoting the handbook’s language regarding the proper “rate of
speed” was covered in the distributed instructions with respect to
58 Pa. Code. §§ 103.16, 105.3(2). Consequently, the only boating
handbook comments that were not discussed in the drafted
instructions were . . . the pre-departure “checklist” in No. 9. In
that regard, it is noteworthy that no lay or expert witness ever
mentioned the operator’s alleged duty with respect to a checklist
as to life jackets, weather, float plan, fuel, battery, fire
extinguishers, or boat maintenance.
During the charge conference, the Loomises requested jury
instructions … based on their proposed points for charge No.s. 4-
5, 8-9. In response, it was announced that such an instruction
would be provided based upon the Fish and Boat Commission’s
regulations, but not on any provisions contained in the handbook
that were not reflected in a regulation. To that end, an
observation was made that the Suggested Standard Civil Jury
Instructions “Subcommittee Note references Section 286 of the
Restatement (Second) of Torts,” [] states that such an instruction
is warranted only with “an administrative regulation.” … The
Loomises were advised that they were at liberty to reference any
provision in the handbook and argue “that [it] was part of the
standard of care,” but would not be granted “a specific instruction”
advising the jury that it was “a government regulation standard
of care” under Pa. SSJI (Civ.) § 13.110 (5th ed.).
Trial Court Opinion, 3/12/21, at 27-29 (citations and footnote omitted).
Upon review, we agree that with the exception of requested charge 9
(the boating checklist), the trial court’s charges, as given, encompassed the
Loomises’ requests. N.T., 10/9/20, at 10-12.3 In their argument, the
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3 Pertinently, the trial court charged the jury:
Now, what are the duties under the law for an operator of a boat
in Pennsylvania? Section 5501 Sub-paragraph B of the
(Footnote Continued Next Page)
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Loomises do not discuss the charge as given, or explain how the court’s
decision not to use the verbatim language from the Boating Handbook was
improper. See Loomis Brief at 31-37.
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Pennsylvania Fish and Boat Code states that no person shall
operate a watercraft upon water in a negligent manner. And that
a person operates a watercraft negligently if he or she operates
the watercraft without due regard for the safety of other persons
in, upon or along the water. [The Loomises] claim that Defendant
Mia Bomba violated this law. If you find that Defendant Mia
Bomba violated this law, then you must find her negligent. If you
find that Defendant Mia Bomba did not violate this law, then you
must still decide whether she was negligent because she failed to
act as a reasonably careful person would under the circumstances
established by the evidence in this case. The Fish and Boat
Commission has promulgated regulations establishing rules of the
road so-to-speak for boat operators in Pennsylvania. Section
103.4 of those regulations states that every boat operator shall
maintain a proper lookout by sight and hearing in order to make
a full appraisal of the situation and of the risk of collision. Section
103.5 provides that every boat must proceed at a safe speed so
that it can take proper and effective action to avoid a collision and
to be stopped within a distance appropriate for the prevailing
circumstances and conditions. Section 103.16 states that no
person may operate a watercraft at a speed greater than is
reasonable and prudent under the circumstances, having regard
for the actual and potential hazards then existing nor at a speed
greater than will permit the operator to maneuver the boat with
safety. Section 105.3 Subsection 2 states that an operator of a
boat less than 20 feet in length shall not operate at a greater than
slow no wake speed while a person is standing on a boat. [The
Loomises] claim that the Defendant Mia Bomba violated those Fish
and Boat Commission regulations. If you find that the Defendant
Mia Bomba violated any of those regulations, then her violation of
that regulation is evidence you should consider along with all other
evidence in deciding whether she was negligent.
N.T., 10/9/20, at 9-12.
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Without citing applicable legal authority, the Loomises claim the
language in Boating Handbook constitutes “boating regulations” and
“governmental and industry standards.” Loomis Brief at 30-31. They argue
it was reversible error for the court to not charge the jury with the verbatim
language, and cite this Court’s decision in Wood v. Smith, 495 A.2d 601 (Pa.
Super. 1985), and the Commonwealth Court’s decision in PennDot v. Weller,
574 A.2d 728 (Pa. Cmwlth. 1990).4 We find both cases distinguishable.
In Wood, a homeowner was killed after falling off scaffolding erected
by masons outside his home. The jury entered a defense verdict, and on
appeal, the plaintiff/estate argued the trial court erred in only charging the
jury on negligence generally, and “by refusing to explain the legal significance
of government and industry standards which had been testified to during the
trial.” Id. at 603. In finding the trial court’s charge to be misleading, this
Court stated:
We find that in the context of the entire charge and in view of
the fact that the jurors were presented with two standards of
conduct, the above quoted charge is an insufficient explanation of
the degree of care required by the defendants. Without further
explanation, the jury may very reasonably have assumed that
since the defendants were not required by law to adhere to the
OSHA [Occupational Health and Safety Act] or ANSI [American
National Standards Institute] standard, their failure to do so was
irrelevant. As it reads, the charge seems to indicate that the
defendants’ conduct need only be measured against that generally
used in the trade and not against the more stringent OSHA and
ANSI standards. The customary method of performing work could
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4As a Commonwealth Court case, Weller is not binding on this Court. See
Commonwealth v. Ortega, 995 A.2d 879, 885 (Pa. Super. 2010).
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be a negligent method despite the fact that it was in general use
in the trade and could, if the evidence warranted it, be found so
by the jury.
Id. at 603-04 (citations and footnotes, emphasis added).
Here, the Loomises do not allege error in the trial court’s general
negligence charge, or that the jury was presented with contradictory
standards of conduct which needed clarification as in Woods. Reading the
court’s charges “in context,” we do not find Woods useful.
In the Loomises’ next case, Weller, the plaintiff sued the Department
of Transportation, claiming negligence relating to snowplowing. Weller, 574
A.2d at 729. On appeal, the DOT claimed the trial court erred in charging the
jury that the DOT’s winter maintenance manual was a regulation. Id. at 731.
The Commonwealth Court rejected this argument. It explained:
The manual is not a formal regulation adopted under the
Commonwealth Documents Law in order to have the force of law.
However, Arthur Battistone, a DOT assistant maintenance
manager in Washington County and Harry Byrd, Jr., a DOT
foreman in Washington County, both referred to the manual as
“the Bible”. Specifically, Battistone stated “[i]t’s what we are to
follow”. No evidence in the record indicates otherwise.
In context, the trial judge used the word “regulations” in a generic
sense, rather than in the specific Commonwealth Documents Law
sense; in the charge, as quoted above, we note that he labeled
the manual’s contents simply as “policies and procedures,” not as
provisions of a law. Because DOT’s own witnesses testified as to
the definitive authority of the manual, the charge was not
prejudicial.
Id. at 731-32.
We must review each case and charges independently and in context.
Unlike Weller, there was no testimony in this case by employees of a state
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agency — or otherwise — regarding the authoritative nature of the Boating
Handbook, and the trial court charged the jury using language from the actual
and applicable Pennsylvania Boating Regulations. See N.T., 10/9/20, at 10-
12; see also 30 Pa.C.S.A. § 5501(b) and 58 Pa. Code §§ 103.4-103.5. The
Loomises have provided no support, either evidentiary or legal, for their
contention that the Pennsylvania Boating Handbook constituted regulatory
authority or an industry standard; likewise, there is no evidence regarding
policies and procedures based on the Handbook.
The Handbook states:
PLEASE NOTE: This handbook was prepared to provide
boaters with information they need to know when
operating watercraft in Pennsylvania waterways. It reviews
the Commission’s boating regulations and includes information
and tips to follow while boating. It does not present the actual
laws and regulations. This handbook is the text for the
Commissioner’s Pennsylvania Basic Boating 8-hour boating
course.
Pennsylvania Boating Handbook, 3/17, at 2 (some emphasis added). By its
express language, the Handbook does not “present the actual laws and
regulations.” Accordingly, we are not persuaded by the Loomises’ argument
that the trial court’s denial of their requested jury charges “likely confused the
jurors as to the state of the law” or misled the jury. Loomis Brief at 35-36.
In their second issue, the Loomises claim the trial court erred in
admitting hearsay testimony from Pennsylvania State Trooper Carl Ives to the
effect that Alexis Igneri “gave a statement consistent with the statement of
Mia Bomba.” Loomis Brief at 37. After the Loomises’ counsel objected to the
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trooper’s testimony, Appellees’ counsel indicated Ms. Igneri would testify.
However, she did not testify. Preliminary, we could find this claim waived.
Decisions regarding admissibility “are within the sound discretion of the
trial court and will not be overturned absent an abuse of discretion or
misapplication of law. In addition, for a ruling on evidence to constitute
reversible error, it must have been harmful or prejudicial to the complaining
party.” Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation
omitted).
Trooper Ives testified about investigating the accident and interviewing
Mia Bomba and Alexis Igneri. N.T. 10/6/20, at 12-14. The following exchange
occurred:
[Defense Counsel]: And the statement that Alexis Igneri gave you
is consistent with the statement you obtained from Mia Bomba,
correct?
[Trooper Ives]: It is consistent. The only difference was the
position of Miss Igneri.
[Defense Counsel]: In what regard?
[Plaintiffs’ Counsel]: Just note an objection your Honor, to Miss
Igneri’s statement since it’s hearsay.
The Court: The objection is on the basis of hearsay?
N.T., 10/6/20, at 16.
The Loomises’ counsel did not respond to the trial court’s question
before the court, sua sponte, determined it would instruct the jury that they
could only consider Trooper Ives’ testimony “regarding the statement from
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Miss Igneri not for the truth of what’s contained in the statement.” N.T.,
10/6/20, at 16-17.
As shown above, the Loomises’ counsel did not immediately object to
Appellees counsel’s question as to whether Alexis Igneri’s statement was
consistent with that of Mia Bomba, or to Trooper Ives’ answer; the Loomises’
counsel objected only after Appellees’ counsel asked “in what regard” Ms.
Igneri’s statement was different. Thus, we could find waiver. See Lockley
v. CSX Transp., Inc. 66 A.3d 322, 325 (Pa. Super. 2013) (“It is axiomatic
that [i]n order to preserve an issue for appellate review, a party must make
a timely and specific objection at the appropriate stage of the proceedings
before the trial court. Failure to timely object to a basic and fundamental
error will result in waiver of that issue.”) (citation and internal quotation marks
omitted; emphasis added).
However, in the absence of waiver, this issue lacks merit. Hearsay is a
statement which:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
Pa.R.E. 801(c).
Here, Trooper Ives’ testimony was not hearsay. Trooper Ives did not
quote or relate what Alexis Igneri said, he simply characterized it. Trooper
Ives did not testify about truthfulness, but merely described Alexis Igneri’s
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statement as “consistent” with the statement of Mia Bomba, with the
exception of “the position.” Finally, even if viewed as hearsay, the trial court
advised the jury that they should not consider the statement for truthfulness.
Accordingly, we discern no error in the trial court’s admission of Trooper Ives’
statement.
Judgment affirmed.
P.J. Panella joins the memorandum.
P.J.E. Stevens files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2021
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