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MANNING v. ANDY (10/10/73)

decided: October 10, 1973.

MANNING, APPELLANT,
v.
ANDY



Appeal from order of Superior Court, April T., 1970, No. 509, affirming order of Court of Common Pleas of Washington County, Nov. T., 1969, No. 334, in case of Clair Manning v. John Andy and Frank Andy, individually and trading as J & F Rubber Company and Andy's Tire Service.

COUNSEL

Sanford S. Finder, for appellant.

Samuel L. Rodgers, with him Rodgers and Roney, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Manderino. Mr. Justice Roberts joins in this dissenting opinion.

Author: Per Curiam

[ 454 Pa. Page 238]

Clair Manning has appealed from an order of the trial court dismissing his complaint in trespass for failure to state a cause of action in negligence. The dismissal occurred following preliminary objections by appellees, John Andy and Frank Andy, individually and trading as J & F Rubber Company and Andy's Tire Service. On appeal the Superior Court sustained the trial court by a per curiam order. We granted allocatur.

The complaint alleged that appellant sustained injuries in an automobile accident caused by Russell E. Walters, who was under the influence of liquor. Appellant was a passenger in Walters' vehicle when the accident

[ 454 Pa. Page 239]

    occurred. Both appellant and Walters were employees of appellees, who had earlier held a party for their employees. Appellant further alleged that: "At said party the [appellees] did furnish or supply intoxicating liquors or beverages which were consumed by the said Russell E. Walters as well as [the appellant], and did continue to furnish intoxicating liquors or beverages to the said Russell E. Walters when he was in a state of visible intoxication."

In dismissing the complaint, the trial court held that no cause of action was stated under any theory and specifically held that § 493(1) of the Liquor Code, Act of April 12, 1951, P. L. 90, Art. IV, § 493(1), as amended, 47 P.S. 4-493(1), which defines certain unlawful conduct, does not impose civil liability upon appellees.*fn1 Section 493(1) of the Liquor Code does impose criminal liability for certain unlawful conduct and reads as follows: "It shall be unlawful . . . for any licensee or the board, or any employe, servant or agent of such licensee or the board, or any other person, to sell, furnish or give any liquor . . . or to permit any liquor . . . to be sold, furnished or given, to any person visibly intoxicated. . . ."

We find no error in the trial court's dismissal of appellant'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, 413 Pa. 626, 198 A.2d 550 (1964). Appellant asks us to impose civil liability on non-licensed persons like appellees, who furnish intoxicants for no remuneration. We decline to do so. While appellant's proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.

Order affirmed.

Disposition

Order affirmed.

[ 454 Pa. Page 240]

Concurring Opinion by Mr. Justice ...


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