J-A18007-21
2021 PA Super 252
DAVID KLAR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DAIRY FARMERS OF AMERICA, INC., : No. 1280 WDA 2020 A CORPORATION, AND ROGER J. : WILLIAMS, AN INDIVIDUAL :
Appeal from the Order Entered October 4, 2017 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 2015-10863
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
OPINION BY OLSON, J.: FILED: DECEMBER 17, 2021
Appellant, David Klar, appeals from the order entered on October 4,
2017, which granted the motion for judgment on the pleadings filed by Dairy
Farmers of America, Inc. (“DFA”) and dismissed Appellant’s claims against
DFA. We affirm.
Appellant filed a complaint against DFA and Roger J. Williams
(“Williams”), wherein he alleged and averred the following. On August 17,
2014, DFA organized and sponsored a golf outing for its employees at
Tanglewood Golf Course in Mercer County, Pennsylvania. Appellant’s
Complaint, 9/1/15, at ¶ 7. At the time, Williams was an employee of DFA and
DFA “encouraged its employees, including Williams, to sign up for and
participate in” the golf outing. Id. at ¶ 8. “As a prerequisite and condition
for participation in the [golf outing, DFA] required [its] employees to make a J-A18007-21
monetary contribution to offset costs and expenses related to or associated
with the [outing,] including . . . those for greens fees, food and alcohol.”1 Id.
at ¶ 9. Williams signed up for the golf outing and paid DFA the monetary
contribution that was required to participate in the outing. Id. at ¶ 10. DFA
then purchased the greens fees, food, and alcohol for the outing. Id. at ¶ 11.
While participating in the golf outing, “Williams consumed alcohol
furnished by [DFA] sufficient to render him visibly intoxicated.” Id. at ¶ 12.
“Despite his visible intoxication, [DFA] served Williams alcohol and continued
to permit Williams to consume more alcohol[,] causing his blood alcohol level
to . . . [reach] 0.23, almost three times the legal limit” in Pennsylvania. Id.
at ¶¶ 13 and 18. “Furthermore, prior to serving Williams with alcohol and
encouraging and permitting Williams to consume alcohol, [DFA] knew or
should have known that Williams was an alcoholic and habitual drunkard who
had at least twice before been arrested or convicted of alcohol-related crimes
and offenses, including [] criminal offenses involving the unsafe operation of
a motor vehicle.” Id. at ¶ 14.
Williams left the golf outing at approximately 5:45 p.m. and drove his
car north along Pennsylvania State Route 18. Id. at ¶ 23. “At or about the
same time, [Appellant] was operating [his motorcycle] . . . in the southbound
lane of” Route 18. Id. at ¶ 24. As the vehicles approached one another,
____________________________________________
1 On appeal, Appellant avers that DFA provided beer to Williams. See Appellant’s Brief at 22 (“DFA sold, provided and gave Williams beer”).
-2- J-A18007-21
Williams “suddenly and without warning[] failed to control his motor vehicle
and caused [his] vehicle to swerve left of the center line into the southbound
lane of [Route] 18 into the path of [Appellant’s motorcycle,] causing a collision
between the” two vehicles and causing Appellant to sustain multiple serious
and permanent injuries. Id. at ¶¶ 25-31.
Appellant claimed that DFA and Williams were jointly and severally liable
for his injuries. Further, as to DFA, Appellant claimed that DFA was liable
because it “furnish[ed], serv[ed,] and provid[ed] Williams alcohol when [DFA]
knew or should have known Williams was visibly intoxicated and/or a habitual
drunkard.” Id. at ¶ 33.
DFA answered the complaint and denied that it was liable for Appellant’s
injuries. See DFA’s Amended Answer, New Matter, and Crossclaims, 5/5/16,
at 1-18.
On June 16, 2017, DFA filed a motion for judgment on the pleadings.
Within its motion, DFA argued that, as a matter of law, it could not be liable
to Appellant because: 1) it does not qualify as a “licensee” under
Pennsylvania’s Liquor Code;2 2) it “did not obtain ‘licensee status’ and cannot
be treated as a licensee under the Liquor Code for purposes of Dram Shop
liability;” and 3) it was a social host and “there can be no liability on the part
of a social host who serves alcoholic beverages to [their] adult guest.” DFA’s
2 47 P.S. §§ 1-101 – 10-1001.
-3- J-A18007-21
Motion for Judgment on the Pleadings, 6/16/17, at ¶¶ 17-22; DFA’s Brief in
Support of Motion for Judgment on the Pleadings, 6/16/17, at 4.
On October 4, 2017, the trial court granted DFA’s motion for judgment
on the pleadings and dismissed all claims against DFA with prejudice. Within
the trial court’s opinion, it explained that DFA was entitled to relief because:
For negligence per se under the Dram Shop Act, [Appellant] bears the burden of showing [DFA] is either a licensee, or stepped into the shoes of a licensee. [Williams’] payment of a fee in this case to [defray] the cost of the golf outing as a whole, with alcohol being only an incidental aspect of the fee which also provided for food and the golfing itself, without profit or other indicia of commercial sale of liquor, does not satisfy the burden of [Appellant] to meet all the elements of its cause of action. Particularly, the pleadings of this case fail to establish DFA stepped into the shoes of a licensee. For these reasons, [Appellant] has failed to state a cause of action.
Trial Court Opinion, 10/4/17, at 11.
Appellant eventually settled his claim against the remaining defendant,
Williams, and, on November 6, 2020, Appellant filed a praecipe to discontinue
his remaining claims against Williams.3 On November 24, 2020, Appellant
3 We have explained:
It is well settled that the interlocutory orders dismissing various parties piecemeal from a lawsuit may not be appealed until the case is concluded as to the final remaining party and the case is therefore resolved as to all parties and all claims. [See Pa.R.A.P. 341(b)(1).] . . . [A] case may be resolved against the final defendant by other than an order of court, as happens where the case against the sole remaining defendant is discontinued or settled, and a docket entry to the effect that the claim was (Footnote Continued Next Page)
-4- J-A18007-21
filed a timely notice of appeal challenging the trial court’s October 4, 2017
order, which granted DFA’s motion for judgment on the pleadings. Appellant
raises two claims on appeal:
[1.] Whether an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to a third-party who sustains personal injuries as a result of the actions of the intoxicated employee?
[2.] Whether an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee, in exchange for remuneration, may be considered a “social host,” despite the fact that it does not sell alcohol as a going concern operating on commercial principles and the alcohol was presumably furnished without profit or other indicia of commercial sale?
Appellant’s Brief at 4.
Before considering Appellant’s claims, we must first address DFA’s
contention that we do not have jurisdiction over this appeal, as it is untimely.
See DFA’s Brief at 24. Our analysis of DFA’s jurisdictional claim requires that
we recount certain additional facts of this case.
As noted above, on October 4, 2017, the trial court granted DFA’s
motion for judgment on the pleadings and dismissed all claims against DFA.
At the time, Appellant’s claims against defendant Williams were still
outstanding; thus, the trial court’s October 4, 2017 order was interlocutory
discontinued or settled may serve to render the prior [orders] final and appealable.
Burkey v. CCX, Inc., 106 A.3d 736, 738-739 (Pa. Super. 2014).
-5- J-A18007-21
and unappealable. See Pa.R.A.P. 341(b)(1) (declaring that, generally, a final
order is one that “disposes of all claims and of all parties”); see also
Brickman Group, Ltd. v. CGU Ins. Co., 829 A.2d 1160 (Pa. Super. 2003)
(a grant of summary judgment to some, but not all, defendants is not a final,
appealable order).
After the trial court entered its October 4, 2017 order and dismissed
Appellant’s claims against DFA, Appellant filed a motion for reconsideration of
the interlocutory, October 4, 2017 order. Among other things, Appellant
requested that the trial court amend the October 4, 2017 order “to include the
requisite language contained in 42 [Pa.C.S.A.] § 702(b) to permit an
interlocutory appeal by permission to the Pennsylvania Superior Court.” See
Appellant’s Motion for Reconsideration, 10/31/17, at 21. Section 702(b),
entitled “interlocutory appeals by permission,” declares:
Interlocutory appeals by permission.--When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.
42 Pa.C.S.A. § 702(b) (emphasis added); but see F.D.P. v. Ferrara, 804
A.2d 1221, 1226-1227 (Pa. Super. 2002) (explaining that an interlocutory
appeal by permission was an inappropriate vehicle for immediately appealing
-6- J-A18007-21
an order that dismissed some, but not all, parties and claims; in such cases,
the litigant must instead follow Pennsylvania Rule of Appellate Procedure
341(c), as Rule 341(c)’s procedure “was designed to allow for an immediate
appeal of a ‘final’ order relating to less than all parties or less than all claims”).
On October 31, 2017, the trial court acceded to Appellant’s request and
amended its October 4, 2017 order to include the Section 702(b) language.
The trial court’s October 31, 2017 order reads:
it is hereby ordered that [the trial court] amends its order dated and entered October 4, 2017, to include the following statement prescribed by 42 [Pa.C.S.A.] § 702(b):
“It is the opinion of this court that the within order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of this matter.”
Trial Court Order, 10/31/17, at 1 (some capitalization omitted). On November
29, 2017, Appellant filed, in this Court, a petition for permission to appeal the
amended, October 2017 order.
DFA answered Appellant’s petition and observed that the trial court’s
addition of Section 702(b)’s language was insufficient to certify the
interlocutory, October 2017 order as a final order. See DFA’s Answer to
Petition for Permission to Appeal, 12/14/17, at 4-5. DFA noted that the
interlocutory, October 2017 order could have only been certified as a final
order if the trial court included the language mandated by Pennsylvania Rule
of Appellate Procedure 341(c). See id. Rule 341(c) declares:
-7- J-A18007-21
Determination of finality.--When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the trial court or other government unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order.
Pa.R.A.P. 341(c) (emphasis added). As DFA observed, Appellant “did not seek
certification of the [October 2017] order pursuant to Rule 341(c) and . . . the
October 2017 order was not properly certified pursuant to [Rule] 341(c).”
DFA’s Answer to Petition for Permission to Appeal, 12/14/17, at 8.
DFA further noted that the trial court’s inclusion of Section 702(b)’s
language was simply the first step in obtaining an interlocutory appeal by
permission – and, at any rate, an interlocutory appeal by permission was
improper in this case. See id.; see also F.D.P., 804 A.2d at 1226-1227.
On December 4, 2017, this Court denied Appellant’s petition for
permission to appeal the interlocutory, October 2017 order. See Order,
12/14/17, at 1.
Currently before this Court, DFA argues that we lack jurisdiction to
consider the instant appeal because Appellant filed an untimely notice of
appeal. Specifically, DFA argues that the trial court’s October 31, 2017
amendment – which included Section 702(b)’s language and presumptively
allowed for an interlocutory appeal by permission – “create[d] a final order,
-8- J-A18007-21
[which was] immediately appealable under Pa.R.A.P. 341(c).” DFA’s Brief at
25. According to DFA, since Appellant did not file his notice of appeal within
30 days of October 31, 2017, the current appeal is untimely and we lack
jurisdiction to consider the merits of this appeal. See id.
DFA’s current argument stands in direct conflict with its earlier,
successfully maintained position that the trial court’s October 31, 2017
amendment did not create a final order, as the trial court failed to include Rule
341(c)’s mandatory language. See DFA’s Answer to Petition for Permission
to Appeal, 12/14/17, at 8-10. Moreover, under the plain statutory language,
DFA’s current argument is simply incorrect. The trial court’s October 31, 2017
amendment did not transform the interlocutory, October 2017 order into a
final order, as the trial court did not include the language required by Rule
341(c). Indeed, by including the language of Section 702(b), the trial court
maintained the interlocutory nature of the October 2017 order. This is made
clear, first, by the fact that Section 702(b) is entitled “interlocutory appeals
by permission” and, second, by the fact that Section 702(b) expressly states
that the inclusion of Section 702(b)’s language maintains the interlocutory
nature of the order. See 42 Pa.C.S.A. § 702(b) (declaring that, if the trial
court properly includes the language in Section 702(b) and certifies an
interlocutory order as appealable by permission, “[t]he appellate court may
thereupon, in its discretion, permit an appeal to be taken from such
interlocutory order”) (emphasis added). Thus, when the trial court
amended its October 2017 order to include the language from Section 702(b),
-9- J-A18007-21
the trial court did not create a final order and DFA’s claim that we lack
jurisdiction over this appeal is meritless. We therefore shall proceed to the
merits of Appellant’s contentions.
Appellant claims that the trial court erred when it granted DFA’s motion
for judgment on the pleadings. “Our standard of review over a decision
sustaining a judgment on the pleadings requires us to determine whether, on
the facts averred, the law makes recovery impossible.” Cagey v.
Commonwealth, 179 A.3d 458, 463 (Pa. 2018). The Pennsylvania Supreme
Court has explained:
the same principles apply to a judgment on the pleadings as apply to a preliminary objection in the nature of a demurrer:
All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.
Id. at 463 n.2 (quotation marks and citations omitted).
Within Appellant’s complaint, Appellant alleges that DFA is liable for the
harm done to him, as DFA furnished alcohol to Williams for consideration,
while Williams was visibly intoxicated. Appellant concedes that DFA was not
licensed under the Liquor Code and that DFA could not have obtained a license,
under the Liquor Code, for the golf outing. See Appellant’s Brief at 21 (“[i]t
is conceded that DFA is not an ‘eligible entity’ that could have obtained a
license for the [golf outing] and that DFA was not otherwise licensed”).
- 10 - J-A18007-21
Nevertheless, Appellant claims that DFA is still liable for his injuries because:
1) DFA is negligent per se, as it violated the standard set forth in 47 P.S.
§ 4-493(1) by furnishing alcohol to Williams while he was visibly intoxicated;
2) DFA illegally sold alcohol to Williams and thus has “licensee status,” where
it “assumes the same liability exposure as those who are licensed and furnish
alcohol to those it should not;” and, 3) DFA otherwise breached its common
law duty when it provided alcohol to Williams when he was already intoxicated.
We will address Appellant’s claims in the order listed above.
First, we address Appellant’s claim that the trial court erred when it
granted DFA’s motion for judgment on the pleadings because DFA violated the
standard set forth in 47 P.S. § 4-493(1) and is negligent per se.
Section 4-493 is entitled “Unlawful acts relative to liquor, malt and
brewed beverages and licensees.” At all relevant times, Section 4-493(1) has
declared:
§ 4-493. Unlawful acts relative to liquor, malt and brewed beverages and licensees
The term “licensee,” when used in this section, shall mean those persons licensed under the provisions of Article IV, unless the context clearly indicates otherwise.
It shall be unlawful--
(1) Furnishing liquor or malt or brewed beverages to certain persons. For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor: Provided further,
- 11 - J-A18007-21
That notwithstanding any other provision of law, no cause of action will exist against a licensee or the board or any employe, servant or agent of such licensee or the board for selling, furnishing or giving any liquor or malt or brewed beverages or permitting any liquor or malt or brewed beverages to be sold, furnished or given to any insane person, any habitual drunkard or person of known intemperate habits unless the person sold, furnished or given alcohol is visibly intoxicated or is a minor.
47 P.S. § 4-493(1).
Appellant claims that, although Section 4-493(1) is a penal statute, it
establishes a standard of conduct for entities such as DFA, as DFA falls within
Section 4-493(1)’s stated category of “any other person.” According to
Appellant, since DFA is bound by Section 4-493(1)’s standard, DFA was
negligent per se and violated the standard set forth by the statute when it
“sold, furnished or g[ave]” beer to Williams while he was visibly intoxicated.
This claim fails.
As we have explained:
Generally, to prevail in a negligence case, a plaintiff must demonstrate the following elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.
The concept of negligence per se establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm. . . .
In order to prove a claim based on negligence per se, the following four requirements must be met:
- 12 - J-A18007-21
(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiff's injuries.
Schemberg v. Smicherko, 85 A.3d 1071, 1073-1074 (Pa. Super. 2014)
(quotation marks and citations omitted).
In relevant part, Section 4-493(1) makes it unlawful:
For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor.
Appellant concedes that DFA is not a “licensee or the board, or any
employe, servant or agent of such licensee or of the board.” See Appellant’s
Brief at 20. Nevertheless, Appellant claims that DFA falls within Section
4-493(1)’s category of “any other person” – and that DFA is negligent per se,
as it “sold, furnished or g[ave]” beer to Williams when he was visibly
intoxicated. Respectfully, we disagree and, for the reasons that follow, we
conclude that Section 4-493(1) does not apply to DFA, as DFA is a
non-licensee under the Liquor Code. Thus, Appellant’s claim fails.
- 13 - J-A18007-21
Appellant cites this Court’s 1957 opinion in Commonwealth v.
Randall, 133 A.2d 276 (Pa. Super. 1957), as holding that a non-licensee
(such as DFA) falls within Section 4-493(1)’s category of “any other person.”
See Appellant’s Brief at 17. We agree with Appellant’s interpretation of
Randall; however, we observe that, in the civil context, our Supreme Court
did not follow Randall in its subsequent opinion in Manning v. Andy, 310
A.2d 75 (Pa. 1973) – and, in Manning, our Supreme Court held that the
statutory phrase “any other person” did not encompass non-licensees.
In Randall, “a party was held in defendant Randall's home, in the
course of which some of the six minor children, whose ages ranged from 12
to 17 years, were served beer, whiskey and vodka.” Randall, 133 A.2d at
279. The defendant was charged with and convicted of violating the criminal
statute of 47 P.S. § 4-493(1). At the time, the statute declared:
It shall be unlawful (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.
Id. at 277, quoting 47 P.S. § 4-493(1) (1951).
On appeal, the defendant argued “that under the ejusdem generis rule,
the words ‘any other person’ refer to persons in the same class as those
enumerated, i.e., licensees or board or any employe, servant or agent of
licensee or the board.” Randall, 133 A.2d at 281. According to the defendant
- 14 - J-A18007-21
in Randall, since he was a non-licensee and did not fall within any of the
specified classes, he could not be convicted of violating Section 4-493(1). Id.
We rejected this claim and held:
We think that the legislature in using the words ‘or any other person’ deliberately selected these words in order to prohibit minors, visibly intoxicated persons, insane persons, habitual drunkards, and persons of known intemperate habits, from obtaining liquor, malt or brewed beverages, whether by purchase or gift, from licensees or any other persons. The intention of the legislature to protect the classes of persons named is the underlying consideration. If we were to restrict this section of the Act to ‘licensees' or their ‘servants, agents or employes,’ we would nullify the very purpose of the Act.
Id. at 282 (some quotation marks omitted).
In contrast to Randall, Manning was a civil case. In Manning, the
plaintiff filed a complaint, sounding in negligence, against his
defendant-employers. He alleged that he and a fellow-employee, named
Walters, had been at a company party, where the defendant-employers “did
furnish or supply intoxicating liquors or beverages which were consumed by
[Walters] . . . and did continue to furnish intoxicating liquors or beverages to
[Walters] when he was in a state of visible intoxication.” Manning, 310 A.2d
at 75. The plaintiff claimed that, after he and Walters left the party, he
sustained injuries “in an automobile accident caused by [Walters], who was
under the influence of liquor.” Id.
The defendant-employers filed a preliminary objection in the nature of
a demurrer and argued that the complaint did not state a viable cause of
action. See Manning v. Andy, 51 Pa. D. & C.2d 324 (Ct. Com. Pl. 1970). In
- 15 - J-A18007-21
response, the plaintiff filed a petition to amend his complaint to allege that
the defendant-employers were negligent per se for violating 47 P.S.
§ 4-493(1). At the time, the statute provided:
it shall be unlawful for any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given to any person visibly intoxicated, or to any insane person, or to any minor or to habitual drunkards or persons of known intemperate habits.
Id. at 325, quoting 47 P.S. § 4-493(1) (1951).
The trial court explained the legal theory which motivated the plaintiff
to amend his complaint:
While defendants were not licensees, plaintiff seeks to establish by his proposed amendment that they fall within the clause “or any other person” and thus that [defendants] violated a law of the Commonwealth when they gave liquor to a visibly intoxicated person. This would be sufficient to impute negligent conduct to defendants and thus, according to plaintiff's argument, his complaint would state a cause of action.
Manning, 51 Pa. D. & C.2d at 325-326.
The trial court permitted the amendment, but still sustained the
defendant-employers’ preliminary objection in the nature of a demurrer. See
id. at 327; see also Manning, 310 A.2d at 76 n.1.
In analyzing the defendant-employers’ preliminary objection, the trial
court observed that the question before it was whether “the Liquor Code, when
it prohibits [‘any person’] from giving liquor to a visibly intoxicated person,
- 16 - J-A18007-21
refer[s] to the host at a Christmas party or does it refer only to people engaged
in the liquor business?” Manning, 51 Pa. D. & C.2d at 327-328. The trial
court recognized that Randall answered the question in the criminal context,
as Randall “defined ‘any other person’ to encompass private citizens for
purposes of criminal enforcement.” Id. at 330. Nevertheless, the trial court
professed “great difficulty in extending the act to impose civil liability on
private citizens who serve liquor to their guests.” Id. Further, the trial court
concluded that the legislature did not intend for such a broad, civil application
of Section 4-493(1). The trial court thus sustained the defendant-employers’
preliminary objection and dismissed the plaintiff’s complaint. Id. at 331.
The plaintiff appealed to the Pennsylvania Supreme Court. The Supreme
Court affirmed the trial court and held:
In dismissing the complaint, the trial court held that no cause of action was stated under any theory and specifically held that [Section] 493(1) of the Liquor Code, . . . which defines certain unlawful conduct, does not impose civil liability upon [the defendant-employers].
We find no error in the trial court's dismissal of [plaintiff’s] complaint. Only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties. Jardine v. Upper Darby Lodge No. 1973, 198 A.2d 550 (Pa. 1964). [Plaintiff] asks us to impose civil liability on nonlicensed persons like [the defendant-employers], who furnish intoxicants for no remuneration. We decline to do so. While [plaintiff’s] proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.
Manning, 310 A.2d at 76.
- 17 - J-A18007-21
Manning offers compelling support for the conclusion that DFA, as a
non-licensee, is not subject to the standard applicable to licensees under
Section 4-493(1). Like today, the version of Section 4-493(1) at issue in
Manning made it unlawful for “any licensee or the board, or any employe,
servant or agent of such licensee or of the board, or any other person” to
“sell, furnish or give” “any liquor or malt or brewed beverages” “to any
person visibly intoxicated.” Compare 47 P.S. § 4-493(1) (1951) with 47
P.S. § 4-493(1) (2017). It is also important to note that the plaintiff’s
complaint in Manning specifically alleged that the defendant-employers “did
continue to furnish intoxicating liquors or beverages to [Walters] when he was
in a state of visible intoxication.” Manning, 310 A.2d at 75. Finally, although
the Manning Court observed that the liquor was provided for “no
remuneration,” the presence or absence of remuneration is neither relevant
nor dispositive under the plain terms of Section 4-493(1): the statute clearly
prohibits the selling, furnishing, or giving of liquor or beer “to any person
visibly intoxicated.” See 47 P.S. § 4-493(1).
Simply stated, by holding that the defendant-employers in Manning
could not, as a matter of law, be civilly liable for violating the standard set
forth in Section 4-493(1), the Manning Court, in fact, held that the statutory
phrase “any other person” did not encompass non-licensees. Manning,
310 A.2d at 76 (“[o]nly licensed persons engaged in the Sale of intoxicants
have been held to be civilly liable to injured parties”) (emphasis added).
Certainly, if “any other person” included non-licensees, the Supreme Court
- 18 - J-A18007-21
would have been compelled to reverse the trial court’s grant of a demurrer,
as the plaintiff alleged that the defendant-employers “furnish[ed] intoxicating
liquors or beverages to [Walters] when he was in a state of visible intoxication”
– and Section 4-493(1) clearly prohibits “any other person” from “furnish[ing]
or giv[ing]” liquor or beer “to any person visibly intoxicated.” See 47 P.S.
§ 4-493(1) (1951). Thus, in accordance with Manning, Section 4-493(1)’s
statutory phrase “any other person” excludes non-licensees.4 Manning, 310
A.2d at 76 (“[o]nly licensed persons engaged in the Sale of intoxicants
have been held to be civilly liable to injured parties”) (emphasis added); see
also Congini by Congini v. Portersville Valve Co., 470 A.2d 515, 518 n.3 ____________________________________________
4 To be sure, the dissent in Manning chastised the majority for distorting the
plain meaning of the phrase “any other person” and argued that, in Randall, the Superior Court had correctly interpreted the phrase to include non-licensees. See Manning, 310 A.2d at 80 (Manderino, J., dissenting) (declaring: “[t]he reasoning of Randall, as to the meaning of Any other person is indisputable. . . . Only by a gross [distortion] of the meaning of language can we interpret Any other person to mean Some but not All persons”). We further note that, in Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir. 1979), the United States Court of Appeals for the Third Circuit specifically declared:
We read the earlier [S]uperior [C]ourt decision of [Commonwealth] v. Randall, . . . to be inconsistent with the [S]upreme [C]ourt's subsequent decision in Manning v. Andy. . . . The [S]uperior [C]ourt had interpreted “or other person” in the [Liquor Code] to mean persons other than licensees, their servants or employees. Using this interpretation, a private host could be held liable under the statute for serving minors. The [S]upreme [C]ourt's pronouncement in Manning, however, is diametrically opposed to that of the [S]uperior [C]ourt.
Bradshaw, 612 F.2d at 141 n.29.
- 19 - J-A18007-21
(Pa. 1983) (the Pennsylvania Supreme Court declared: “[i]n Manning v.
Andy, . . . we held that a violation of the Liquor Code could not form
the basis for a cause of action against a non-licensee”) (emphasis
added).
In the case at bar, Appellant concedes that “DFA is not an ‘eligible entity’
that could have obtained a license for the [golf outing] and that DFA was not
otherwise licensed” under the Liquor Code. Appellant’s Brief at 21. Therefore,
in accordance with Manning, DFA cannot be civilly liable for violating the
standard set forth in Section 4-493(1). Appellant’s first claim on appeal thus
fails.
Next, Appellant claims, DFA must be viewed as attaining “licensee
status” under Section 4-493(1), as DFA “sold, provided and gave Williams
beer without first obtaining a license.” Appellant’s Brief at 22. According to
Appellant, “[s]ince DFA engaged in the very same conduct permitted by a
licensee, when it was not licensed and violated the law, it should be attributed
with licensee status and assume the same responsibility and liability of a
licensee.” Id.
Appellant’s argument is based entirely upon Hinebaugh v.
Pennsylvania Snowseekers Snowmobile Club, 63 Pa. D. & C.4th 140 (Ct.
Com. Pl. 2003), a court of common pleas opinion. In Hinebaugh, the plaintiff
was a member of the defendant snowmobile club. While in the defendant’s
clubhouse, the plaintiff purchased alcohol by using a “punch-out card.” “The
- 20 - J-A18007-21
amount equal to the cost of the drink was punched out when a beverage was
obtained from the bar.” Id. at 143.
After drinking alcohol in the clubhouse, the plaintiff went for a
snowmobile ride, crashed into a tree, and suffered serious injuries. He sued
the club and claimed that it was negligent per se, as it sold him alcohol while
he was visibly intoxicated in violation of Section 4-493(1). Id. at 143-144.
The defendant club filed a motion for summary judgment and claimed
that, since it was not a licensed entity under the Liquor Code, it could not be
liable for violating the standard set forth in Section 4-493(1). Id. at 141. The
trial court denied the defendant club’s motion for summary judgment and held
that the club had acquired “licensee status” because “[t]he prepaid punch-card
system created by the defendant club constitute[d] a sale requiring the
defendant club to have procured a license from the Liquor Control Board to so
operate its bar.” Id. at 147. Further, the court held that sufficient evidence
existed that the plaintiff was sold, furnished, or given alcohol while he was
“visibly intoxicated” to survive summary judgment. Id. at 148.
On appeal, Appellant claims that we should look to Hinebaugh and hold
that DFA “step[ped] into the shoes of a licensee and assume[d] the duty to
protect third parties like [Appellant] and is subject to liability for its breach.”
Appellant’s Brief at 21. We decline to apply Hinebaugh to the case at bar.
At the outset, we are “not bound by decisions of the Court of Common Pleas,
even if directly on point.” Commonwealth v. Peak, 230 A.3d 1220, 1227
n.6 (Pa. Super. 2020) (quotation marks and citations omitted). Further,
- 21 - J-A18007-21
Hinebaugh relied upon the Randall Court’s expansive definition of “any other
person” in Section 4-493(1) to deny the defendant club’s motion for summary
judgment. See Hinebaugh, 63 Pa. D. & C.4th at 146. As we explained above,
however, in at least the civil context, the Randall Court’s expansive definition
of “any other person” cannot survive after our Supreme Court’s opinion in
Manning. Finally, our Supreme Court in Manning specifically declared that
“[o]nly licensed persons engaged in the Sale of intoxicants have been held to
be civilly liable to injured parties” and cautioned that expanding civil liability
beyond this point is “a decision of [] monumental nature [that] is best left to
the legislature.” Manning, 310 A.2d at 76. We thus decline Appellant’s
invitation to expand Section 4-493(1)’s civil reach beyond the perimeters
established by Manning.
Finally, Appellant claims that DFA otherwise breached its common law
duty by providing alcohol to Williams when he was already intoxicated. See
Appellant’s Brief at 22-24.
In Klein v. Raysinger, 470 A.2d 507 (Pa. 1983), our Supreme Court
held that, at common law, a social host is not liable for serving alcoholic
beverages to a guest:
in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence. This is in accord with the recognized rule at common law. We agree with this common law view, and consequently hold that there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.
- 22 - J-A18007-21
Klein, 470 A.2d at 510-511 (citations omitted).
According to Appellant, the common law rule expressed in Klein does
not apply to this case, as Appellant averred in his complaint that DFA received
remuneration for the alcohol that it provided to Williams. Appellant observes
that, in Kapres v. Heller, 640 A.2d 888 (Pa. 1994), our Supreme Court
defined the “social host doctrine” as:
a general phrase used to designate a claim in negligence against a person (the host) who provides alcoholic beverages to another (the guest), without remuneration, where the guest then sustains injuries, or causes injury to a third person as a result of his intoxicated condition. The theory is that the host should be liable for the injuries as he is the person who furnished the intoxicating beverages.
Kapres, 640 A.2d at 889 n.1.
Appellant claims that, under the above definition, “DFA cannot be
considered a social host when it received remuneration in exchange for the
provision or furnishing of alcohol.” Appellant’s Brief at 26. We disagree.
Within Appellant’s complaint, Appellant specifically averred that, “[a]s a
prerequisite and condition for participation in the [golf outing, DFA] required
[its] employees to make a monetary contribution to offset costs and
expenses related to or associated with the [outing,] including . . . those
for greens fees, food and alcohol.” Appellant’s Complaint, 9/1/15, at ¶ 9
(emphasis added). According to Appellant, after Williams paid DFA the
requisite monetary contribution, DFA purchased the greens fees, food, and
alcohol for the outing. Id. at ¶ 10-11.
- 23 - J-A18007-21
As the trial court correctly held, the averments in Appellant’s complaint
render this case akin to Brandjord v. Hopper, 688 A.2d 721 (Pa. Super.
1997), which dealt with the collective purchase of alcohol by a group. In
Brandjord, defendant James Punch and his three friends collectively
purchased and drank beer together. When Punch was driving his friends
home, Punch struck the plaintiff with his van and caused the plaintiff to suffer
serious injuries. Id. at 722.
The plaintiff sued Punch’s three friends for negligence. The trial court
granted the three defendants’ motions for summary judgment and the plaintiff
appealed to this Court. Among his claims on appeal, the plaintiff contended
that the three defendants were not social hosts because they “shared with
Punch in the purchase, transportation, and consumption of alcohol.” Id. at
726. We rejected this claim and held:
the principle enunciated in Klein . . is not limited merely to protect hosts of parties. Our [S]upreme [C]ourt stated in Klein, “in the case of an ordinary able bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” Klein, 470 A.2d at 510. Here, Punch chose to drink and chose to drive. These actions caused [plaintiff’s] injuries.
Id.; see also Commonwealth v. Peters, 2 Pa.Super. 1 (Pa. Super. 1898)
(where three individuals pooled money to purchase a bottle of whiskey, the
actual purchaser of the whiskey could not be convicted of unlawfully “selling”
the whiskey to the other two; the Court noted: “One of the three, to effectuate
the common purpose, acting for himself and the others and at their request,
- 24 - J-A18007-21
makes the purchase, pays the price and brings the article to a place appointed.
The three, thereupon recognizing each other's rights in the thing purchased,
jointly use it as their own. How can any one of the three be deemed the vendor
of the others, or either of them?”).
Under the concept of a collective purchase, as applied in Brandjord and
Peters, the presence of remuneration will not defeat the rule adopted by our
Supreme Court in Klein, which holds that the conduct of a social host who
furnishes alcohol to an adult is not the proximate cause of a subsequent
occurrence. Here, Appellant specifically averred that Williams paid DFA “to
offset costs and expenses related to or associated with the [outing,] including
. . . those for greens fees, food and alcohol.” Appellant’s Complaint, 9/1/15,
at ¶ 9. DFA then utilized the collected money from all participants to pay for
all participants’ “greens fees, food and alcohol.” Id. at ¶¶ 10-11. As the trial
court ably explained, “[t]his type of collective fee does not qualify as
remuneration and fails to place DFA in the position of being a licensee. Hence,
DFA was a social host [and] . . . cannot be held liable for a claim of common
law negligence as stated in Klein.” Trial Court Opinion, 1/15/21, at 13.
We agree with the trial court’s able conclusion. Thus, Appellant’s final
claim on appeal fails.
Order affirmed. Jurisdiction relinquished.
Judge Musmanno joins.
Judge Nichols concurs in the result.
- 25 - J-A18007-21
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/17/2021
- 26 -