No. 842 Pittsburgh 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Lawrence County, August Term, 1980 No. 1.
John E. Evans, Jr., Pittsburgh, for appellants.
Herman C. Kimpel, Pittsburgh, for appellee.
Price,*fn* Brosky and Montemuro, JJ. Montemuro, J., files a dissenting opinion.
[ 312 Pa. Super. Page 462]
This is an action in trespass for personal injuries sustained by Mark Congini on December 22, 1978 in an automobile accident. His parents instituted a suit on his behalf and on their own behalf in the Court of Common Pleas of Lawrence County, Pennsylvania against the Portersville Valve Company ("Portersville"). The Honorable William R. Ralph issued an order and opinion sustaining Portersville's preliminary objection in the nature of a demurrer and dismissed the Congini's complaint on August 18, 1980. The Conginis have appealed from this dismissal.
The following facts were pleaded and must be taken as true for the purposes of this appeal. At the time of the accident, Mark was eighteen years of age and an employee of Portersville. On December 22, 1978, Portersville held a Christmas party for its employees at its plant at which alcoholic beverages were served. Mark attended the party and became intoxicated.
[ 312 Pa. Super. Page 463]
Mark's car was at the plant and appellee Portersville had possession and custody of its keys. Although appellee was aware of Mark's intoxicated condition, the keys were given to Mark upon his request so that Mark could drive from the plant to his home.
While Mark was operating the car on the highway, he drove it into the rear of another vehicle which was proceeding in the same direction. As a result of this accident, Mark suffered multiple fractures and brain damage which have left him totally and permanently disabled.
Appellants allege several grounds of liability based upon negligence. The first argument is that appellee was negligent in providing Mark, a minor, with alcoholic beverages to the point that he was intoxicated and that this negligent action caused Mark to suffer injuries. The second allegation is that appellee was negligent in turning over the keys to Mark's car, in order that Mark could drive home when appellee was aware of Mark's intoxication.*fn1 Appellants have not alleged that appellee is a licensee of the Pennsylvania Liquor Control Board. The lower court held that this case was controlled by Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and sustained appellee's preliminary objections and dismissed the appellants' complaint.
Since this appeal is from the sustaining of preliminary objections in the nature of a demurrer, the facts before us are confined to appellant's complaint since the demurrer admits for present purposes every well pleaded material fact set forth in the complaint as well as the inferences reasonably deducible therefrom.
Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973). Only in cases ...