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MALCOM L. PLASTERER v. PAUL PAINE (06/28/88)

filed: June 28, 1988.

MALCOM L. PLASTERER, APPELLANT,
v.
PAUL PAINE, JR. AND LIBERTY FIRE COMPANY MARCHING CLUB, APPELLEE. MALCOLM L. PLASTERER, APPELLEE, V. PAUL PAINE, JR. AND LIBERTY FIRE COMPANY MARCHING BAND APPEAL OF: LIBERTY FIRE COMPANY MARCHING BAND



Appeal from the Order of the Court of Common Pleas of Lebanon County, Civil at No. 947, 1983.

COUNSEL

James T. Reilly, Lebanon, for appellant (at 409) and appellee (at 422).

Bradford H. Charles, Lebanon, for appellee (at 409) and appellant (at 422).

Cavanaugh, Olszewski and Popovich, JJ.

Author: Popovich

[ 375 Pa. Super. Page 408]

These are cross appeals from an Order entered on June 19, 1987, in the Court of Common Pleas of Lebanon County, Civil Division. Plaintiff-appellant, Malcolm L. Plasterer, appeals from the order granting defendant-appellee's Liberty Fire Company Marching Club's, motion for judgment non obstante veredicto, (hereinafter referred to a "judgment n.o.v."). In addition, in the event that this Court determines that the lower court erred in granting appellee's motion for judgment n.o.v., appellee appeals from that portion of the order which rules adversely to it. We affirm.

Appellant sued appellee for personal injuries sustained when Paul Paine, Jr., assaulted him inside a barroom operated by appellee. As the result of Paine's blow, appellant suffered total loss of vision in his left eye. Both appellant and Paine were members of appellee at the time of the assault. Appellant offered evidence at trial to establish that appellee was aware of Paine's mental disabilities and propensity for violence from the time of his admission and that Paine should not have been permitted to frequent the Club.

[ 375 Pa. Super. Page 409]

A jury trial was held before the Honorable John Walter. In a trifurcated proceeding, Paine was found liable for his assault upon appellant, and appellee was found 60% negligent in causing appellant's harm. The jury awarded appellant damages in the amount of $290,000.00. Post-trial motions and supplemental post-trial motions were filed. The lower court granted appellee's motion for judgment n.o.v. and denied its motion for new trial. This appeal followed.

Appellant presents four issues for our review on appeal: (1) Where grounds for post-trial relief filed by appellee were not asserted in pre-trial proceedings, at trial or in a motion for post-trial relief, may such grounds be relied upon by the trial court in granting the relief; (2) Where an association undertakes to govern the conduct of its membership, is the negligence of the association and/or that of its officers and employees imputed to a passive member of the association who was injured while passively socializing at the association's bar; (3) When a plaintiff who is a passive member of an association is injured as a result of the negligence of the association and/or that of its officers and employees, is plaintiff a member of the public under Restatement of Torts Second, Section 344, such that landowner liability can attach to the association; and, (4) If the court finds that appellant was not a "business invitee" because he was a Club member, could the jury have found appellee negligent on general negligence principles.

With regard to issue one, we disagree with appellant's contention that the lower court erred in granting judgment n.o.v. on an issue which had never been raised before it. A careful study of the record shows that appellee consistently argued at trial and in post-trial motions that appellant could not recover since he was a member of appellee rather than a member of the public, as appellant contends. Following the conclusion of appellant's case in chief, appellee requested that the case be dismissed based upon the "member of the club" argument.*fn1 Appellee argued that appellee's

[ 375 Pa. Super. Page 410]

    knowledge of Paul Paine's propensity for violence must be imputed to appellant, as a member of the Club. Appellee again raised the "member of the club" issue in his post-trial motions. Thus, although appellee did not use the words "imputed negligence", we find that the lower court was sufficiently alerted to the existence and importance of the issue. Accord Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

Next, appellant argues that the lower court erred in granting the judgment n.o.v. based on the "imputed negligence" of appellant as a member of appellee. Appellant contends that, where an association undertakes to govern the conduct of its membership, the negligence of the association and/or that of its officers and employees should not be imputed to a passive member of the association who was injured while passively socializing at the association's bar. Under those circumstances, appellant contends that the member of the association should be considered a member of the public pursuant to Restatement Second of Torts, Section 344, such that landowner liability attaches to the association.

In the instant case, appellant was a member of Liberty Fire Company Marching Club (appellee), a non-profit unincorporated association located in Lebanon County, whose goal is to promote the welfare of the Liberty Fire Company and to provide a place for members to socialize. Only members of the Liberty Fire Company are eligible for membership in appellee.

Appellee maintains a barroom where alcohol is served to members only. On October 23, 1982, appellant was having a beer and socializing with other members in the barroom when Paul Paine, Jr., entered the barroom with a tray of

[ 375 Pa. Super. Page 411]

    meat for the kitchen from a local delicatessen. Paine set the tray down at the end of the bar and walked to the other end in order to use the phone. As the result of some sort of interaction which then took place between appellant and Paine, the exact nature of which is unknown, Paine struck appellant in the left eye with his fist. Due to Paine's action, appellant suffered a total loss of vision in the eye.

After careful study, we find that Pennsylvania law still relies on the general rule that:

In Roschmann v. Sanborn, 315 Pa. 188, 172 A. 657 (1934), members of an unincorporated fraternal association participated in a social outing in a bus owned by the association. During the trip, the bus was negligently operated, and a member was injured. The member brought suit against the organization through its trustees. A verdict was entered in favor of the plaintiff, but the lower court entered judgment n.o.v. based upon the fact that the plaintiff was a member of the association. On appeal, the Pennsylvania Supreme Court held that, since the trip was a joint enterprise, the plaintiff ...


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