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MICHAEL LEAHY AND DEBORAH LEAHY v. COMMONWEALTH PENNSYLVANIA (12/21/88)

decided: December 21, 1988.

MICHAEL LEAHY AND DEBORAH LEAHY
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD AND B. & L. TAVERN. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Michael Leahy and Deborah Leahy v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board and B. & L. Tavern, No. 336, July Term, 1987.

COUNSEL

Gary Stewart Seflin, Deputy Attorney General, for appellant.

Samuel S. Davis, for appellees, Michael and Deborah Leahy.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge MacPhail did not participate in the decision in this case.

Author: Palladino

[ 122 Pa. Commw. Page 253]

The Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board (PLCB) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) dismissing its preliminary objections to a complaint filed by Michael Leahy and Deborah Leahy (Appellees). We affirm.

On July 7, 1987, Appellees filed an action in negligence in the trial court against the PLCB and B. & L. Tavern (Tavern). The complaint alleged that on February 15, 1986, both a retail store of the PLCB and the Tavern sold alcoholic beverages to Michael Leahy when he was visibly intoxicated. The retail store and the Tavern are both located in Upper Darby, Delaware County, Pennsylvania. Appellees further alleged that after Michael Leahy purchased the alcoholic beverages from the store and Tavern, he drove his motor vehicle off a road in Haverford Township, Delaware County, and thereby sustained personal injuries.

Appellees' counsel had directed the sheriff to make service on the PLCB at 444 North 3rd Street, Philadelphia, Pennsylvania, which was then a local enforcement office of the PLCB.*fn1 Appellees did not serve the PLCB at its principal office in Dauphin County nor did Appellees serve the complaint on the Office of Attorney General.*fn2 Neither the Tavern nor the PLCB filed responsive pleadings within twenty (20) days as required by Pa. R.C.P. No. 1026.

On October 6, 1987, Appellees sent to the PLCB and the Tavern a notice of intention to take a default

[ 122 Pa. Commw. Page 254]

    judgment.*fn3 The notice to the PLCB was sent to the enforcement office located at 444 North 3rd Street, Philadelphia, and was forwarded to the Office of Attorney General in Harrisburg, Pennsylvania. By letter dated October 23, 1987, the Chief Deputy Attorney General in the Harrisburg office wrote the following to Appellees' counsel:

This will confirm our telephone conversation of this date wherein I advised you that we received your notice of default on October 22, 1987. Somehow or another, this case was never received in our office or it may have slipped through the cracks somewhere. At any rate, you graciously extended to us a reasonable time within which to file an answer to your complaint.

I will forward the case to our Philadelphia office for their handling. Thank you for your ...


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