Appeal from the Order of the Court of Common Pleas, Civil Division, Union County at No. 407, 1985.
F. Lee Shipman, Harrisburg, for appellant.
Jonathan E. Butterfield, Williamsport, for KAPPA Chapter, appellee.
Robert J. Menapace, Sunbury, for SIGMA CHI fraternity, appellee.
David R. Bahl, Williamsport, for Bucknell, appellee.
Cavanaugh, Brosky and Watkins, JJ.
[ 369 Pa. Super. Page 599]
This is an appeal from an order sustaining the preliminary objections, in the nature of a demurrer, of three additional defendants (herein appellees) to the joinder complaint filed by the original defendant (herein appellant), without leave to amend. Appellant now contends that the joinder complaint stated a viable cause of action as to all three appellees, and should not have been dismissed.
Upon review of the record and the briefs of counsel, we affirm the trial court's dismissal of appellees Sigma Chi Fraternity ("Sigma Chi") and Bucknell University ("Bucknell"), but reverse and reinstate the joinder complaint against appellee Kappa Chapter of Sigma Chi Fraternity ("Kappa Chapter").
This matter arises from a fire which occurred in the early morning hours of December 8, 1983, and which severely damaged the Lambda Chi Alpha fraternity house, located on the campus of appellee Bucknell University. Appellant, Ronald C. Unterberger, a then eighteen year old freshman at Bucknell, had attended two campus parties on the evening of December 7, at, respectively, the Trax Hall freshmen dormitory and the Kappa Chapter fraternity house. Appellant had consumed alcoholic beverages at both parties,
[ 369 Pa. Super. Page 600]
despite his status as a minor, and had become visibly intoxicated. As a result, appellant and another student, Van Kingsley Sullivan, accidentally set, and were unable to put out, a fire at the nearby Lambda Chi Alpha house.
On August 16, 1985, a civil complaint was filed by the Alumni Association, Delta Zeta Zeta of Lambda Chi Alpha Fraternity, against appellant and Sullivan, claiming over four hundred thousand dollars ($400,000.00) in property damage as a result of their negligence in setting the December 8 fire. On October 18, 1985, appellant had writs of summons issued to join, as additional defendants, Kappa Chapter, Sigma Chi, and Bucknell. A joinder complaint followed on November 8, 1985. Appellant's complaint alleged that: (1) Kappa Chapter, in furnishing alcoholic beverages to appellant, had created a known foreseeable risk, in that minors are presumed incompetent to handle the effects of alcohol, and was therefore liable for the fire damage negligently caused by appellant while in an intoxicated state; (2) Sigma Chi, as owner of the Kappa Chapter house, had or should have known that alcoholic beverages were being served to minors at Kappa Chapter's fraternity parties, yet had permitted the practice to continue unabated, and was therefore liable for the fire damage caused by appellant; and (3) Bucknell, through its counselors, agents, and employees, had or should have known that alcoholic beverages were being served to ...