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ROBERT C. ORNER v. ROY MALLICK AND THEODORA MALLICK (06/02/87)

decided: June 2, 1987.

ROBERT C. ORNER, APPELLANT,
v.
ROY MALLICK AND THEODORA MALLICK, H/W, AND THE MEDIA REGENCY CORPORATION T/A THE REGENCY HOTEL, AND EDWARD ESSLINGER AND ANN ESSLINGER, AND ELIZABETH BONSALL, APPELLEES



Appeal from the Order of the Superior Court entered at No. 02835 Philadelphia 1983, on March 22, 1985, affirming the Order of the Court of Common Pleas of Delaware County at Civil Listing No 82-1174, 343 Pa. Super. 627, 494 A.2d 492 (1985)

COUNSEL

Avram G. Adler, Philadelphia, for appellant.

Donald J.P. Sweeney, Philadelphia, for Mallick & Regency.

Charles P. Menszak, Jr., Philadelphia, for Edward & Ann Esslinger.

Richard A. Mitchell, Philadelphia, for Elizabeth Bonsall.

Francis A. Allen, Philadelphia, for Paul Restall Co., Inc.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs, in the result. Nix, C.j., and Zappala, J., file dissenting opinions.

Author: Mcdermott

[ 515 Pa. Page 134]

OPINION

This case arose from the following facts. Appellant, Robert C. Orner, was a guest at a series of high school graduation parties which took place during the night of June 12, 1981, and the early morning hours of June 13, 1981. At that time Mr. Orner was approximately nineteen and one half years old. Mr. Orner attended at least three parties. The first party took place at the home of Edward and Ann Esslinger where Mr. Orner was allegedly served intoxicating beverages. The second party took place at the home of Elizabeth Bonsall where Mr. Orner was also allegedly served intoxicating beverages. The third place was at the Regency Hotel where Mr. Orner was again allegedly served intoxicating beverages.*fn1 At this last site Mr. Orner, who was allegedly intoxicated at the time, fell over a second floor railing and sustained serious head injuries.

Mr. Orner instituted suit against the hosts of all three parties in September, 1982. In May, 1983, after some procedural steps not here relevant Ms. Bonsall, the host of the second party, filed preliminary objections in the nature of a demurrer. The Honorable William R. Toal Jr., of the Court of Common Pleas of Delaware County, sustained the demurrer and dismissed Mr. Orner's action against Ms. Bonsall. The actions of Judge Toal were based upon the then prevailing law in this Commonwealth that no social host liability existed, even for service to a minor. See Congini v. Portersville Valve Company, 312 Pa. Super. 461, 458 A.2d 1384 (1983).

Mr. Orner appealed the common pleas' decision, and while his case was on appeal, this Court reversed the Congini decision, Congini v. Portersville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983), and held that social host liability could exist for service of intoxicants to minors. Nevertheless the Superior Court affirmed ...


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