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HUGH H. HART v. DENNIS MCCOLLUM AND CAROLINE MCCOLLUM AND FACE (06/29/77)

decided: June 29, 1977.

HUGH H. HART, ADMINISTRATOR OF THE ESTATE OF HUGH HART, DECEASED, APPELLANT IN NO. 1187, CHARLES LAPHEN, ADMINISTRATOR OF THE ESTATE OF MAUREEN LAPHEN, DECEASED, APPELLANT IN NO. 2008,
v.
DENNIS MCCOLLUM AND CAROLINE MCCOLLUM AND FACE, INC., T/A EARLTON BOWL LOUNGE AND UNCLE AL'S



Appeals From Orders of the Court of Common Pleas, Trial Division, Law, Philadelphia County, November Term, 1975 at No. 1601 (No. 1187) and January Term, 1976 at No. 817 (No. 2008).

COUNSEL

Marshall E. Kresman, Philadelphia, for appellant at No. 1187.

James E. Colleran, Philadelphia, submitted a brief for appellant at No. 2008.

Charles W. Craven, Philadelphia, with him E. Paul Maschmeyer, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Price, JJ., concur in the result. Van der Voort, J., dissents.

Author: Hoffman

[ 249 Pa. Super. Page 269]

Appellant-Hart filed a complaint in trespass in the Court of Common Pleas of Philadelphia County on November 13, 1975. On January 8, 1976, appellant-Laphen filed a complaint raising issues identical to those raised by Hart. Thereafter, appellees filed preliminary objections in which they challenged the exercise of in personam jurisdiction based on the Pennsylvania Long Arm Statute, Act of November 15, 1972, P.L. 1063, No. 271, §§ 8301 et seq., eff. Feb. 13, 1973; 42 Pa.C.S. §§ 8301 et seq. On February 18, 1976, the lower court granted appellees' preliminary objections and dismissed appellant-Hart's complaint without leave to amend. The court dismissed Laphen's complaint on June 10, 1976. Appellant contends that the lower court erred in so ordering. We agree, and, therefore, reverse that order.

In their complaints, appellants made the following allegations: Defendants Face, Inc., and "Uncle Al's", ("defendants", hereinafter), trading as Earlton Bowl Lounge, ("the Lounge", hereinafter), were New Jersey corporations doing "continuous and substantial business within the Commonwealth of Pennsylvania." "Through 1973 and 1974 and beyond, said Defendants advertised on an almost continual daily basis in the Philadelphia Daily News and other publications within the Commonwealth of Pennsylvania to induce Commonwealth residents to patronize their establishment, the Earlton Bowl Lounge on Kings Highway in Cherry Hill, New Jersey." They alleged specifically that "by reason of

[ 249 Pa. Super. Page 270]

    said advertising, and the reputation attained by the [Lounge] by such advertising," the defendants induced the decedent and defendant Dennis McCollum, ("McCollum," hereinafter), under-aged drinkers in Pennsylvania, to come to the Lounge to drink. In fact, the decedent and McCollum did so on January 10, 1975. As a result, McCollum, who drove to the Lounge, became visibly intoxicated. Despite that fact, the defendants carelessly and negligently continued to serve the youth.*fn1 Consequently, McCollum was involved in an accident that resulted in the death of appellant-Hart's son and appellant-Laphen's daughter.*fn2

In both cases, defendants filed preliminary objections in which they alleged inter alia:

"2. Defendant is not now, nor has it ever been doing business in Pennsylvania so as to make it ...


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