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PAUL DOUGLAS v. CHRISTINE L. SCHWENK (05/04/84)

submitted: May 4, 1984.

PAUL DOUGLAS, ADMINISTRATOR OF THE ESTATE OF MELODY DOUGLAS
v.
CHRISTINE L. SCHWENK, STANLEY BACHULSKI, T/D/B/A MAPLE BAR AND NICHOLAS DIFELICE AND AMALIA DIFELICE, T/D/B/A NICK'S CAFE AND MICHAEL TARNOSKI AND DAVID HOWE CHRISTINE L. SCHWENK. APPEAL OF NICHOLAS DIFELICE AND AMALIA DIFELICE, T/D/B/A NICK'S CAFE



No. 1504 Philadelphia 1983, Appeal from the Order entered May 11, 1983 in the Court of Common Pleas of Berks County, Civil Division at No. 188 October Term 1982 A.D.

COUNSEL

James A. Consoli, Reading, for appellants.

James L. McAneny, Pittsburgh, for Douglas, appellee.

Bradley D. Miller, Reading, for Schwenk, appellee.

Leonard J. Gajewski, Reading, for Bachulski, appellee.

David R. Eshelman, Reading, for Tarnoski, appellees.

Cirillo, Del Sole and Popovich, JJ.

Author: Popovich

[ 330 Pa. Super. Page 393]

This is an appeal from an Order of the Court of Common Pleas of Berks County sustaining the preliminary objections in the nature of a demurrer of additional defendants Michael Tarnoski and David Howe. We reverse.

[ 330 Pa. Super. Page 394]

In reviewing a demurrer we must accept as true all well-pleaded facts and the reasonable inferences therefrom. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). A demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). In accordance with the aforesaid, the factual allegations in the complaint must be examined to determine whether reasonable men might infer a lack of due care by the additional defendants which legally caused the death of Melody Douglas.

Ms. Douglas died as the result of an accident in which she was a passenger in a motor vehicle driven by Christine Schwenk, a minor. Suit was filed by the administrator of Ms. Douglas' estate against the defendants Ms. Schwenk, Stanley Bachulski, t/d/b/a Maple Bar, and Nicholas and Amalia DiFelice, t/d/b/a Nick's Cafe. The complaint submitted by the estate averred, in relevant part, that Ms. Douglas' death was caused by the negligent operation of a motor vehicle by Ms. Schwenk, and by the negligence of the other defendants in serving Ms. Schwenk alcoholic beverages knowing that she was underage and/or when she was visibly intoxicated. In response, the DiFelices also filed a complaint joining Tarnoski and Howe as additional defendants. Therein, the DiFelices alleged, in pertinent part, that:

4. Defendants, Nicholas DiFelice and Amalia DiFelice t/d/b/a Nick's Cafe, aver that if the Plaintiff [estate of Melody Douglas] sustained any damages, as alleged, they were caused as the result of the negligence of the Additional Defendants, Michael Tarnoski and David Howe, who were in the company of Christine Schwenk on January 13 and 14, 1981, and who on numerous occasions while they were in Christine Schwenk's company furnished and gave to her alcoholic and intoxicaing [sic] beverages knowing her to be underage, knowing that she would be ...


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