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Juszczyszyn v. Taiwo

Superior Court of Pennsylvania

April 10, 2015

CHRISTOPHER JUSZCZYSZYN, Appellant
v.
OBAFEMI SIMEON TAIWO, INDIVIDUALLY AND D/B/A LID'S LOUNGE A/K/A LID'S BAR AND LOUNGE A/K/A LID'S BAR N LOUNGE AND LOUNGE 62 AND CST ENTERTAINMENT, INC., INDIVIDUALLY AND D/B/A LID'S LOUNGE A/K/A LID'S BAR AND LOUNGE A/K/A LID'S BAR N LOUNGE AND LOUNGE 62, Appellees

Argued February 5, 2015

Page 854

Appeal from the Order Entered June 19, 2014, of the Court of Common Pleas, Philadelphia County, Civil Division, No(s): 140401076. Before MASSIAH-JACKSON, J.

Mark Jaffe, Philadelphia, for appellant.

Philip D. Priore, Philadelphia, for appellees.

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

OPINION

SHOGAN, JUDGE

Page 855

Appellant, Christopher Juszczyszyn, appeals from the order entered on June 19, 2014, that sustained the preliminary objections in the nature of a demurrer filed by Obafemi Simeon Taiwo, individually and doing business as Lid's Lounge, also known as Lid's Bar and Lounge, also known as Lid's Bar N Lounge and Lounge 62, and CST Entertainment, Inc., individually and doing business as Lid's Lounge, also known as Lid's Bar and Lounge, also known as Lid's Bar N Lounge and Lounge 62 (collectively " Appellees" ), and dismissed Appellant's complaint with prejudice. We affirm.

The facts underlying the instant case are straightforward. On April 20, 2012, Appellant, in his capacity as a Philadelphia Police Officer, responded to a disturbance call regarding an unruly patron inside Lid's Lounge. Complaint, 4/11/14, at ¶ ¶ 1, 20. While attempting to intervene in the disturbance at the bar, Appellant encountered an intoxicated patron who was groping female patrons, drinking other people's drinks, and being physically confrontational. Id., at ¶ 20. This patron allegedly assaulted Appellant causing Appellant to suffer injuries. Id., at ¶ 24. As a result of sustaining these injuries on Appellees' premises, Appellant filed a complaint against Appellees in which he alleged negligence and Dram Shop Act[1] liability. Id., at Count I and Count II. In response, Appellees filed preliminary objections in the nature of a demurrer. On June 19, 2014, the trial court sustained Appellees' preliminary objections and dismissed Appellant's complaint with prejudice. This timely appeal followed.

On appeal, Appellant raises the following issue for this Court's consideration:

Whether [the] trial court erred in sustaining Appellee's preliminary objections to the complaint and dismissing the complaint with prejudice without any opportunity for leave to amend?

Appellant's Brief at 3 (full capitalization omitted).[2]

Page 856

" The question presented in a demurrer is whether, on the facts averred, 'the law says with certainty that no recovery is possible.'" Bruno v. Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014) (quoting MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1054 (Pa. 1996)). " If doubt exists concerning whether the demurrer should be sustained, then 'this doubt should be resolved in favor of overruling it.'" Id. (quoting Bilt--Rite Contractors v. Architectural Studio, 581 Pa. 454, 866 A.2d 270, 274 (Pa. 2005)).

A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint.
Consequently, preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. Where the complaint fails to set forth a valid cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Mikhail v. Pennsylvania Organization for Women in Early Recovery, 2013 PA Super 36, 63 A.3d 313, 316 (Pa. Super. 2013) (citation omitted). Our standard of review of a lower court's decision granting a demurrer ...


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