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GENE E. FIZZ v. KURTZ (01/14/87)

filed: January 14, 1987.

GENE E. FIZZ, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF MARILYN K. FIZZ, DECEASED, APPELLANT,
v.
KURTZ, DOWD & NUSS, INC., NOW K.D.N. CORPORATION, ELMER O. MANWILLER AND DANIEL P. HUSSEY



Appeal from the Order in the Court of Common Pleas of Berks County, Civil Division, No. 87 June 1985.

COUNSEL

Jeffrey Howell, Reading, for appellant.

Robert I. Cottom, Reading, for appellees.

McEwen, Del Sole and Tamilia, JJ.

Author: Tamilia

[ 360 Pa. Super. Page 152]

This is an appeal from an Order sustaining defendant/appellees' preliminary objections in the nature of a demurrer to appellant's complaint.

Appellant brought this action against appellees after his decedent/wife was struck and killed by an automobile operated by B. Bollinger, who later pled guilty to numerous criminal offenses, including driving while intoxicated. Bollinger admitted that immediately prior to the accident he had been drinking at an establishment which was covered by an insurance policy that had been issued by appellees acting as agents of the Fireman's Fund Insurance Company. The insurance policy provided general, but not liquor, liability coverage for the premises. In his complaint, appellant alleges that appellees, as experts in commercial liability insurance, had a contractual duty to give the insureds proper advice concerning liability insurance for a drinking establishment. Appellant further alleges negligence in failure to give such advice.

On October 9, 1985, appellees filed preliminary objections to the complaint in the nature of a demurrer and a motion for a more specific pleading. On February 14, 1986, after argument, the court sustained appellees' preliminary objections and denied their motion for a more specific pleading. The Order also granted appellant leave to file any further pleadings within twenty (20) days. Appellant did not file

[ 360 Pa. Super. Page 153]

    any additional pleadings within twenty days and on March 13, 1986, an appeal was taken to this Court.*fn1

Initially, we note that this Court's scope of review is limited where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). Our inquiry goes only to determining the legal sufficiency of appellant's complaint and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hosp. Ass'n., 340 Pa. Super. 253, 489 A.2d 1364 (1985). We must be able to state with certainty that "upon the facts averred, the law will not permit recovery by the plaintiff." Berger v. Ackerman, 293 Pa. Super. 457, 459, 439 A.2d 200, 201 (1981).

Viewing appellant's complaint in light of the aforementioned standards, we find the lower court properly sustained appellees' preliminary objections. Appellant contends he has stated a claim for relief in alleging that his decedent, as a third party beneficiary of a ...


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