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MYRON KLEIN v. MARK RAYSINGER AND 600 CORPORATION T/A NEPTUNE INN (07/23/82)

filed: July 23, 1982.

MYRON KLEIN, PHILIP KLEIN, AND MYRON KLEIN, ADMINISTRATOR OF THE ESTATE OF SHIRLEY M. KLEIN, DECEASED, APPELLANTS,
v.
MARK RAYSINGER AND 600 CORPORATION T/A NEPTUNE INN, C/O LAURA FAGAN, MICHAEL GILLIGAN, MR. AND MRS. WILLIAM T. GILLIGAN AND MICHAEL KLEIN



No. 1170 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 7339 of 1980

COUNSEL

William R. Solvibile, Philadelphia, for appellants.

Dean B. Stewart, Norristown, submitted a brief on behalf of Gilligan, appellees.

Wieand, McEwen and Popovich, JJ. McEwen and Popovich, JJ., concur in the result.

Author: Wieand

[ 302 Pa. Super. Page 249]

Myron, Philip, and Shirley Klein were passengers in a vehicle that was struck in the rear by a vehicle operated by an intoxicated Mark Raysinger. An action was instituted to recover damages for injuries sustained by the Kleins. Included as defendants were Michael Gilligan and Mr. and Mrs. William Gilligan, all of whom were charged with negligence in serving one or more alcoholic beverages to Raysinger in their home at a time when Raysinger was visibly intoxicated.*fn1 They were also charged with negligence in permitting

[ 302 Pa. Super. Page 250]

Raysinger to drive his own vehicle while he was visibly intoxicated. The Gilligans filed preliminary objections in the nature of a demurrer to the Kleins' complaint, and when the trial court sustained those preliminary objections the Kleins appealed.

The standard for reviewing an order of the lower court sustaining preliminary objections in the nature of a demurrer is set forth in Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979): "It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained." Accord: Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa. Super. 37, 41, 442 A.2d 284, 285-286 (1982); Rose v. Wissinger, 294 Pa. Super. 265, 270, 439 A.2d 1193, 1196 (1982); Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 124, 437 A.2d 1236,

[ 302 Pa. Super. Page 2511237]

(1981); Chapman v. City of Philadelphia, 290 Pa. Super. 281, 283, 434 A.2d 753, 754 (1981).

Appellants contend that appellees became civilly liable by the application of common law principles of negligence when they served alcoholic beverages to a visibly intoxicated social guest. However, the complaint is defective in that it fails to allege that when Michael Gilligan served intoxicants to Raysinger he knew or had reason to know that Raysinger would operate a motor vehicle while intoxicated. Nevertheless, this is an inadequate reason to dismiss the complaint. If the possibility of stating a cause of action exists, appellants must be given an opportunity to file an amended complaint. See Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978); Harkins v. Zamichieli, 266 Pa. Super. 401, 405 A.2d 495 (1979).

In Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), the Supreme Court refused to extend civil liability to a social host for the conduct of an intoxicated guest. It said: "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 ...


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