Pashkes v. Magyar

2 Pa. D. & C.5th 308
CourtPennsylvania Court of Common Pleas, Centre County
DecidedJune 27, 2007
Docketno. 2006-4772
StatusPublished

This text of 2 Pa. D. & C.5th 308 (Pashkes v. Magyar) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Centre County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pashkes v. Magyar, 2 Pa. D. & C.5th 308 (Pa. Super. Ct. 2007).

Opinion

LUNSFORD, J.,

This action arises from personal injuries plaintiff David Paschkes sustained during an assault at a fraternity house owned by defendant Beta Alpha Building Corporation of the Pi Kappa Alpha Fraternity (PIKA) and operated by defendant Beta Alpha Chapter of PIKA (collectively, the PIKA defendants). Plaintiff filed a complaint against the PIKA defendants as well as defendants Matthew Ryan Magyar, William Tyler Johnson, Jarret Mason Kleppel, Matthew N. Perry, and James J. Sisson, seeking tort damages. The PIKA defendants filed preliminary obj ections in the form of demurrers to the negligence claims, a motion to dismiss for lack of capacity to sue, and a motion to dismiss for nonjoinder of necessary parties. For the reasons discussed below, the court sustains the demurrers, reserves [310]*310decision on the issue of lack of capacity and overrules the objection based on nonjoinder.

BACKGROUND

The following facts are alleged in the complaint. In the early morning hours of October 23, 2004, plaintiff, a PIKA alumnus, was visiting the PIKA house as a guest. At about 2:30 a.m., he was sitting in the lounge of the PIKA house, speaking with a friend. Unbeknownst to him, but known to the PIKA defendants, members of another fraternity, Kappa Delta Rho (KDR), suspected members of PIKA of stealing a KDR ritual book. In fact, KDR members had made plans to enter the PIKA house that morning to retrieve the book by force.

At about 2:35 a.m., 25-35 members of KDR, including the individual defendants, entered the PIKA house, yelling, screaming, and demanding return of the ritual book. Plaintiff and several PIKA members approached the intruders and repeatedly ordered them to leave. Various fights broke out. Defendant Magyar struck plaintiff in the left eye, and plaintiff fell to the ground, where he was kicked repeatedly.

As a result of the assault, plaintiff sustained numerous personal injuries, including bruising, abrasions, a severe flapping of the mala eminence, V2 paresthesia, periorbital ecchymosis, conjunctival chemosis, and subconjunctival hemorrhage. The facture injury has required two surgeries, extensive aftercare, and a resulting loss of time from work and other activities.

On June 6, 2006, plaintiff filed the complaint in the United States District Court for the Middle District of [311]*311Pennsylvania, seeking to hold defendants responsible for his injuries. Counts V and VI of the complaint assert negligence claims against the PIKA defendants based on a theory of premises liability.

On December 8,2006, the case was transferred to this court. On May 7, 2007, the PIKA defendants filed the instant preliminary objections. Both parties have filed briefs for the court’s consideration.

A. Demurrers

1. Standard of Review

In considering the PIKA defendants’ demurrers to plaintiff’s negligence claims pursuant to Rule 1028(a) (4) of the Pennsylvania Rules of Civil Procedure, the question is whether, accepting as true all well-pleaded allegations that are material and relevant, the law will not permit recovery. Sullivan v. Chartwell Investment Partners LP, 873 A.2d 710, 714 (Pa. Super. 2005). The question must be decided solely on the basis of the pleadings, and a demurrer should be overruled unless it is clear from the face of the complaint that the claims cannot be sustained. Id. In case of any doubt, a demurrer should be overruled. Id.

The PIKA defendants assert the law will not permit recovery on plaintiff’s premises liability claims because they did not have a duty to protect him from unknown hazards. They further assert they cannot be held liable in negligence because plaintiff’s injuries were caused by intervening criminal acts of independent third parties. Plaintiff contends he was entitled to be protected from criminal acts of third parties, or at least to be warned [312]*312about the danger of a potential altercation with KDR members. The court agrees with the PIKA defendants that plaintiff has not pled a negligence cause of action under either a premises liability theory or by virtue of a general duty to protect him from acts of third parties.

2. Premises Liability

Plaintiff’s claims against the PIKA defendants are based on their duties as landowners. A landowner’s duty to an entrant on the land depends upon the entrant’s status as an invitee, licensee, or trespasser. See T.A. v. Allen, 447 Pa. Super. 302, 309, 669 A.2d 360, 363 (1995). An invitee is one who is enticed or encouraged to enter land for a public or business purpose. Id. at 309-10, 669 A.2d at 363 (citing Restatement (Second) of Torts §332). Landowners owe invitees a duty of reasonable care, which includes a duty to protect them from dangerous conditions and activities. See id. at 310, 669 A.2d at 364 (citing Restatement (Second) of Torts §342).

A licensee is one who is not an invitee but who has permission to enter the land. Id. at 309, 669 A.2d at 363 (citing Restatement (Second) of Torts §330). Landowners only owe licensees a duty to warn them of known dangerous conditions on the premises. See T.A. v. Allen, 447 Pa. Super. 302, 669 A.2d 360 (1995). Criminal acts of third persons are not “dangerous conditions” within the meaning of this rule. See id. As the Pennsylvania Supreme Court explained in a landlord/tenant case, there is a “crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person. In the former situation the [landowner] has effectively perpetuated the risk of in[313]*313jury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from criminal acts of third persons arises not from the conduct of the [landowner] but from the conduct of an unpredictable independent agent.” Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984). Trespassers are owed the lowest duty and are not at issue in this case.

The allegations of the complaint support only the conclusion that plaintiff was a licensee. He alleges he was visiting a friend at the PIKA house at the time of the assault. He further alleges that he was a “guest” and was “appropriately present” in the house on the evening of the altercation. He does not allege that he was invited to the house or that he was present for any public purpose or any purpose relating to business dealings with PIKA. Accordingly, there is no legal or factual basis for a finding that plaintiff was an invitee. Palange v. City of Philadelphia, 433 Pa. Super. 373, 377, 640 A.2d 1305, 1307 (1994) (in a slip and fall case, where there were no allegations or evidence supporting a finding that the plaintiff was an invitee, the court found plaintiff to be a licensee as a matter of law). As a licensee, plaintiff was entitled only to be placed on the same footing as the PIKA defendants with respect to known dangerous conditions.

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Related

Feld v. Merriam
485 A.2d 742 (Supreme Court of Pennsylvania, 1984)
Palange v. Philadelphia Law Dept.
640 A.2d 1305 (Superior Court of Pennsylvania, 1994)
McCandless v. Edwards
908 A.2d 900 (Superior Court of Pennsylvania, 2006)
Sullivan v. Chartwell Investment Partners, LP
873 A.2d 710 (Superior Court of Pennsylvania, 2005)
Pennsylvania Human Relations Commission v. School District of Philadelphia
651 A.2d 177 (Commonwealth Court of Pennsylvania, 1994)
Baker v. AC&S, INC.
729 A.2d 1140 (Superior Court of Pennsylvania, 1999)
T.A. v. Allen
669 A.2d 360 (Superior Court of Pennsylvania, 1995)
Plasterer v. Paine
544 A.2d 985 (Superior Court of Pennsylvania, 1988)
Luria v. LURIA
286 A.2d 922 (Superior Court of Pennsylvania, 1971)

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Bluebook (online)
2 Pa. D. & C.5th 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pashkes-v-magyar-pactcomplcentre-2007.