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MICHAEL KLEIN v. MARK RAYSINGER (04/16/82)

filed: April 16, 1982.

MICHAEL KLEIN, APPELLANT,
v.
MARK RAYSINGER, 600 CORP. T/A NEPTUNE INN, MICHAEL GILLIGAN AND MR. AND MRS. WILLIAM T. GILLIGAN



No. 2749 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Pennsylvania, at No. 80-7334.

COUNSEL

Joseph P. Ryan and John Paul Curran, Philadelphia, for appellant.

John O'Rourke, Norristown, for appellees.

Spaeth, Popovich and Montgomery, JJ. Spaeth, J., files concurring statement.

Author: Popovich

[ 298 Pa. Super. Page 247]

Appellant, Michael Klein, filed a personal injury action in tort against appellee, Mark Raysinger, and others as a result of an automobile accident. Preliminary objections in the form of a demurrer were filed and sustained. This appeal followed. We affirm.

The facts which are undisputed are as follows:

On or about May 8, 1978, appellant was operating a motor vehicle on the Pennsylvania Turnpike which was struck in the rear by a vehicle which was driven by appellee. Prior to the collision and prior to being a patron of the Neptune Inn, Mark Raysinger was served beer and alcoholic beverages at the home of appellees, Mr. and Mrs. William T. Gilligan, by their son, Michael Gilligan. Appellant alleged that Mark Raysinger was visibly intoxicated at the time he was served at the Gilligan home. Appellees, Michael and Mr. and Mrs. Gilligan, filed preliminary objections to appellant's complaint because, according to appellees, the complaint did not present a cognizable legal cause of action as to them. The trial court agreed and sustained their preliminary objections.*fn1

In this appeal, appellant contends that "the evolution of public awareness of that deadly combination [, an intoxicated driver and an automobile,] should dictate a revolution by the Courts of the traditional concepts of tort liability for the destruction occasioned by the indiscriminate consumption of

[ 298 Pa. Super. Page 248]

    alcoholic beverages." Brief for Appellant at 2. We decline appellant's invitation to overrule the law in this area.

The controlling case in this jurisdiction is Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). In Manning, appellant, Clair Manning, was a passenger in an automobile driven by Russell Walters when an automobile accident occurred. In his complaint, appellant alleged that appellees, John Andy and Frank, individually and trading as J & F Rubber Company, had served intoxicating liquors at a company party to Walters while he was visibly intoxicated. 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 ...


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