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Michael L. Druffner, Executor of v. Roisin E. O'neill; Sean O'neill

March 23, 2011

MICHAEL L. DRUFFNER, EXECUTOR OF
THE ESTATE OF PATRICIA MURPHY WAGGONER, DECEASED, PLAINTIFF,
v.
ROISIN E. O'NEILL; SEAN O'NEILL, SR.;: O'NEILL BUILDERS, INC.; JCKN, INC., 23 J.T. ENTERPRISES, LTD.; 23 J.T. ASSOCIATES; JOSEPH A. RUFO; TONY RUFO; HARLEQUIN ENTERTAINMENT GROUP, LLC;
ANNA ARENA; MIGUEL A. DORMAN; 23 CABARET, INC.; BROWNIE'S 23
EAST; WILLIAM DAVID MAGROGRAN; JOHN P. CAULFIELD; AND PAUL R. NANGLE, DEFENDANTS.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Presently before the Court is the Partial Motion of Defendants JCKN, Inc.; 23 J.T. Enterprises, Ltd.; 23 J.T. Enterprises, Inc.; 23 J.T. Associates a/t/d/b/a 23 J.T. Associates, G.P.; Joseph A. Rufo; Tony Rufo; Brownie's 23 East; and Paul R. Nangle (collectively "Moving Defendants") to Dismiss Plaintiff Michael L. Druffner's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action stems from an automobile accident resulting in the death of Patricia Waggoner (the "Decedent"), a 63-year-old resident of Brimfield, Massachusetts. According to the facts set forth in the Amended Complaint, at approximately 12:59 a.m. on September 12, 2008, the Decedent was struck while driving southbound on I-476 in Plymouth Township, Pennsylvania. (Am. Compl. ¶ 28.) Decedent died within hours of the collision. (Id. ¶ 29.) The other vehicle was driven by Defendant Roisin O'Neill, a 24-year-old resident of Newtown Square, Pennsylvania. (Id. ¶ 28.) At the time of the crash, Defendant O'Neill was speeding in the wrong direction, traveling north in the southbound lane of I-476. (Id.) Plaintiff alleges that immediately prior to the crash, Defendant O'Neill consumed alcohol to the point of appearing visibly intoxicated at Brownie's 23 East, a bar located in Ardmore, Pennsylvania. (Id. ¶¶ 33, 34.)

As executor of the Decedent's estate, Plaintiff Michael L. Druffner commenced this litigation on August 24, 2010. The action seeks to impose joint and several liability for the Decedent's emotional and ultimately fatal physical injuries upon Defendant Roisin O'Neill, along with Sean O'Neill, Sr. and O'Neill Builders, Inc. (as owners of Defendant Roisin O'Neill's vehicle), and those relevant entities and individuals associated with or employed by Brownie's 23 East, including JCNK, Inc.; 23 J.T. Enterprises, Ltd.; 23 J.T. Enterprises, Inc.; 23 J.T. Associates a/t/d/b/a 23 J.T. Associates, G.P.; Joseph A. Rufo; Tony Rufo; Harlequin Entertainment Group, LLC; Anna Arena; Miguel Dorman; 23 East Cabaret, Inc.; Brownie's 23 East; William David Magrogran; John P. Caulfield; and Paul R. Nangle.

Plaintiff filed an Amended Complaint on October 15, 2010, alleging (1) common-law negligence on the part of Defendant Roisin O'Neill (id. ¶¶ 36-39); (2) negligent entrustment on the part of Defendants Sean O'Neill, Sr. and O'Neill Builders, Inc. (id. ¶¶ 40-43); (3) punitive damages against Defendants Roisin O'Neill, Sean O'Neill, Sr., and O'Neill Builders, Inc. (id. ¶¶ 44-51); (4) violation of the Pennsylvania Dram Shop Act, 47 Pa. C.S. §§ 4-493(1) and 4-497 by Defendants JCNK, Inc.; 23 J.T. Enterprises, Ltd.; 23 J.T. Enterprises, Inc.; 23 J.T. Associates a/t/d/b/a 23 J.T. Associates, G.P.; Joseph A. Rufo; Tony Rufo; Harlequin Entertainment Group, LLC; Anna Arena; Miguel Dorman; 23 East Cabaret, Inc.; Brownies 23 East; William David Magrogran; John P. Caulfield; and Paul R. Nangle (id. ¶¶ 52-61); (5) common-law negligence on the part of Defendants JCNK, Inc.; 23 J.T. Enterprises, Ltd.; 23 J.T. Enterprises, Inc.; 23 J.T. Associates; Joseph A. Rufo; Tony Rufo; Harlequin Entertainment Group, LLC; Anna Arena; Miguel Dorman; 23 East Cabaret, Inc.; Brownies 23 East; William David Magrogran; John P. Caulfield; and Paul R. Nangle (id. ¶¶ 62-70); (6) an action for wrongful death against all Defendants (id. ¶¶ 71-76); and (7) a survival action against all Defendants. (Id. ¶¶ 77-85.) Defendants JCKN, Inc.; 23 J.T. Enterprises, Ltd.; 23 J.T. Enterprises, Inc.; 23 J.T. Associates; Joseph A. Rufo; Tony Rufo; Brownie's 23 East; and Paul R. Nangle ("Moving Defendants") filed this Partial Motion to Dismiss on October 20, 2010. Plaintiff filed a Response on November 10, 2010. The Court will now consider the merits of Moving Defendants' Motion.

II. STANDARD OF REVIEW

Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); see alsoHedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Federal Rule of Civil Procedure 8 does not call for detailed factual allegations; rather it requires a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8; Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

The Supreme Court has made clear, however, that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the plaintiff must offer "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. To do so, the plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556-57); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (adopting Iqbal's standards).

III. DISCUSSION

In their Partial Motion to Dismiss, Moving Defendants request that the Court dismiss (1) certain allegations relating to Plaintiff's claim under the Pennsylvania Dram Shop Act, and (2) Plaintiff's claim for common-law negligence. The Court will consider these issues in turn.

A. Whether the Court Should Dismiss Certain Allegations Relating to Plaintiff's Dram Shop Claim

The Pennsylvania Dram Shop Act imposes liability on alcohol licensees for third party injuries caused by customers only where the licensee served alcohol to the customer when she was visibly intoxicated.*fn1 47 PA. CONS. STAT. § 4-497. Notably, Moving Defendants do not assert that Plaintiff has failed to state a claim under the Act -- indeed, Plaintiff has alleged that Moving Defendants continued to serve alcohol to Defendant O'Neill after she was visibly intoxicated. (Am. Compl. ¶ 57.) Instead, Moving Defendants ask that the Court dismiss extraneous allegations not supporting a plausible claim for relief under § 4-497. These allegations include: failing to stop service prior to visible intoxication (id. ¶ 58); soliciting customers to consume alcohol (id. ¶ 59(f)); encouraging customers to consume alcohol (id. ¶ 59(g)); serving other customers alcohol that may be consumed by the visibly intoxicated person (id. ¶¶ 59(h) and (k)); failing to limit drinks consumed in a certain time frame (id. ¶ 59(j)); failing to exercise an unspecified standard of care (id. ¶ 59(l)); failing to properly train or supervise staff (id. ¶¶ 59(n) and (o)); failure to investigate or have a corporate policy to determine whether alcohol was being served to Defendant O'Neill or others while they were visibly intoxicated (id. ¶¶ 59(p) and (q)); and failure to exercise due care to the Decedent and traveling public. (Id. ¶ 59(r).)

Federal Rule 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. CIV. P. 12(f). "[M]otions to strike are disfavored and usually will be denied 'unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.'" Kim v. Baik, No. CIV.A.06-3604, 2007 WL 674715, at *5 No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was ...


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