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KATHLEEN MCCRERY v. JOHN SCIOLI AND GENE'S RESTAURANT (12/12/84)

filed: December 12, 1984.

KATHLEEN MCCRERY, APPELLANT,
v.
JOHN SCIOLI AND GENE'S RESTAURANT, INC. AND SARAH CAPANNA AND JOSEPH CAPANNA



No. 3368 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 5386 Jan Term 1980.

COUNSEL

Peter S. Kretzu, Philadelphia, for appellant.

Edwin L. Scherlis, Philadelphia, for Gene's, appellee.

Allen H. Silverman, Philadelphia, for Capanna, appellees.

Wickersham, Wieand and Hoffman, JJ.

Author: Wickersham

[ 336 Pa. Super. Page 458]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying appellant McCrery's motion to take off a non-suit.

On February 3, 1978 at approximately 11:00 p.m., appellant, Kathleen McCrery Bennett,*fn1 was seriously injured when the car in which she was a passenger hit a utility pole along Holme Avenue in Philadelphia. The driver of the car was appellant's good friend at the time, Sarah Capanna. Appellant was 17 years old and Ms. Capanna 18 years old at the time of the accident.

On February 1, 1980, appellant filed a complaint in trespass against John Scioli [sic]*fn2 and Gene's Restaurant, Inc. In Count I, appellant charged negligence on the part of John Sciolla, in that he allegedly forced Ms. Capanna's car off the road and into the pole. In Count II, appellant charged negligence on the part of Gene's Restaurant, Inc., in that it served alcohol to a visibly intoxicated minor, Ms. Capanna, and as a consequence, shortly after leaving the bar, she was involved in the accident that left appellant with severe injuries. Thereafter, Gene's Restaurant, Inc. joined Sarah Capanna and Joseph Capanna, Sarah's father, as additional defendants. At some point before trial, John Sciolla was dismissed from the case.

Meanwhile, Gene's Restaurant, Inc. filed a timely answer to appellant's complaint, in which it declared that it was not

[ 336 Pa. Super. Page 459]

    the proper defendant in the action since it did not operate the facility, a bar and restaurant, or possess a liquor license; and that the owner of the liquor license and operator of the bar-restaurant was a distinct corporation named A.J. Sciolla, Gene's on the Boulevard, Inc.*fn3 This information was also provided to appellant by way of answers to interrogatories addressed to Gene's Restaurant Inc., and by depositions taken of Anthony J. Sciolla and Anthony J. Sciolla, Jr., the president and vice president of both corporations.

Rather than seek to amend the complaint, appellant attempted to prove at trial in December 1982 that Gene's Restaurant, Inc. was vicariously liable for appellant's injuries because of its role as landlord of the premises. In addition, she entreated the trial judge to pierce the corporate veil and hold liable A.J. Sciolla, Gene's on the Boulevard, Inc., the unnamed and distinct corporate entity, based upon Gene's Restaurant, Inc.'s alleged misleading of appellant as to the identity of the proper defendant. These efforts proved to be unsuccessful. At the close of appellant's case, upon motion of Gene's Restaurant, Inc., the Honorable Harry A. Takiff entered a compulsory non-suit in favor of Gene's Restaurant, Inc. (and therefore the Capannas) against appellant. On November 17, 1983, after argument, Judge Takiff entered an order refusing to remove the compulsory non-suit. This appeal timely followed.

Appellant raises five issues on appeal:

I. Can plaintiff sue Gene's Restaurant, Inc. and recover on the basis that the defendant provided and permitted the consumption of alcoholic beverages by a minor and a visibly intoxicated minor even though defendant was not the liquor licensee of the premises but was the owner of the premises and whose president and vice president were actually stationed at the door and permitted the minor to

[ 336 Pa. Super. Page 460]

    enter the premises for the purpose of the consumption of liquor?

II. Did the trial judge err in not permitting answers to inquiries about the duties of the defendant as landlord of the premises?

III. Did the trial judge err in not disregarding the existence of separate corporate entities where the corporation sued was the former licensee; had the same officers; had a telephone listing; and whose name was Gene's Restaurant, Inc. and corporate purpose was the dispensing of food and beverages yet purported to be only a landlord?

IV. Did the trial judge err in denying plaintiff's motion for production of tax records and insurance policies of the defendant?

V. Was a non-suit proper in this case?

Brief for Appellant at 2-3.

Despite their apparent diversity, appellant's issues all relate to the granting of the compulsory non-suit against her. Nevertheless, we will briefly address issues 2 and 4 separately.

Appellant argues that the trial court erred in not permitting answers to her inquires about the duties of Gene's Restaurant, Inc. as landlord of the premises. While questioning Anthony Sciolla, Sr. (who was president of both Gene's Restaurant, Inc. and A.J. Sciolla, Gene's on the Boulevard, Inc.), concerning the capacity in which he was present at the bar on the night in question, the following occurred:

Q. (Continued) Were you aware of any duty you had as a landlord of that particular property?

MR. SCHERLIS: Objection.

THE COURT: The objection is sustained.

Q. (Continued) As landlord of the property, did you have any power over the tenant in regard to the lease ...


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