Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 84 16483.
John T. Bender, Pittsburgh, for appellants.
Mark I. Bernstein, Philadelphia, for Whiton, appellee.
Robert W. Murdoch, Pittsburgh, for Kelly, appellee.
Cirillo, President Judge, and Cavanaugh, Brosky, Wieand, McEwen, Olszewski, Del Sole, Montemuro and Tamilia, JJ. Cirillo, President Judge, files a concurring statement.
Can a licensed beer distributor who unlawfully sells beer to a minor be held liable to third persons for injuries caused by the minor's subsequent intoxication? The trial court held that no such cause of action existed and sustained preliminary objections in the nature of a demurrer to a complaint which had failed to include an averment that the minor had been visibly intoxicated at the time of the sale. We reverse and remand for further proceedings.
The averments of the complaint are that, on November 12, 1983, Louis Matter, who was then eighteen years of age, purchased a case of beer from Kelly's Beer Distributor
(Kelly). Matter consumed this beer and became intoxicated. While intoxicated, he purchased additional six packs of beer from Whiton, Inc. After having consumed this beer, Matter negligently permitted the vehicle which he was driving to collide with a tree. As a result of the impact, Shawn Welsh and Jack McGaha, who had been riding as guest passengers in Matter's vehicle, were seriously injured. Welsh and McGaha filed a civil action against Matter, Whiton, Inc., d/b/a Home Plate Bar, and Sara J. Kelly, t/d/b/a Kelly's Beer Distributor, to recover damages for the injuries which they had sustained. Kelly filed preliminary objections in the nature of a demurrer to the complaint. The trial court, following argument, sustained Kelly's preliminary objections and dismissed the causes of action which had been alleged against Kelly. McGaha and Welsh appealed.
Our standard of review was defined in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503, 267 A.2d 867, 868 (1970), where the Supreme Court said:
In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959).
See: Jamison v. City of Philadelphia, 355 Pa. Super. 376, 379, 513 A.2d 479, 480 (1986); Cummins v. Firestone Tire & Rubber Co., 344 Pa. ...