HomeMy WebLinkAbout2011-2140
LIBERTY MUTUAL FIRE
: IN THE COURT OF COMMON PLEAS OF
INSURANCE COMPANY
: CUMBERLAND COUNTY, PENNSYLVANIA
a/s/o PAMELA S. WOLFE
:
:
v.
: CIVIL ACTION - LAW
: NO. 11-2140 CIVIL
DANE S. TILDEN and
:
TIMOTHY A. NOEL
: JURY TRIAL DEMANDED
:
v.
:
:
CONGIL INC. D/B/A CEOLTAS IRISH
:
PUB, HARRISBURG IRISH PUBS, LLC
:
D/B/A MOLLY BRANIGAN’S, CAPITOL
:
ENTERTAINMENT GROUP, LP D/B/A
:
SPICE, GATOR DEVELOPMENT, LLC
:
D/B/A PETE’S CAFE, DER
:
HARRISBURG MAENNERCHOR D/B/A
:
THE MAENNERCHOR CLUB, AND
:
DUKE’S RIVERSIDE BAR & GRILLE,
:
INC.
:
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT DER HARRISBURG
MAENNERCHOR D/B/A THE MAENNERCHOR CLUB TO JOINDER COMPLAINT
BEFORE HESS, P.J. and MASLAND, J.
OPINION and ORDER
Third Party Defendant Der Harrisburg Maennerchor d/b/a The Maennerchor Club has
filed Preliminary Objections to Defendant/Third Party Plaintiff Dane S. Tilden’s Joinder
Complaint pursuant to Pa.R.Civ.P. 1028(a). (Preliminary Objections, filed Sept. 9, 2011). The
Joinder Complaint contains six counts: a claim for a violation of the Pennsylvania Dram Shop
Act, 47 P.S. §4-492, et seq., and other “related laws of the Commonwealth of Pennsylvania”
sounding in negligence; a claim for liability imposed by way of the doctrine of Respondeat
Superior; a claim for liability imposed by way of the principles of agency law; a claim for
indemnification; contribution; and a claim for common law indemnification. (Joinder
Complaint, filed Aug. 15, 2011). The Joinder Complaint has been preliminarily objected to in
the form of a demurrer and by way of a motion to strike for the failure to conform to a rule of
law.
Plaintiff’s Complaint and Third Party Plaintiff’s Joinder Complaint may be summarized
as follows. This civil case arises out of an incident that occurred on July 4, 2009 when a fire
caused substantial damage to residential property owned by Plaintiff Liberty Mutual’s insured,
Pamela S. Wolfe. On that date, it is alleged that Defendant Noel was temporarily residing at the
home of Defendant Tilden, Defendant Tilden’s house being immediately adjacent to the home
owned by Ms. Wolfe. After a night of heavy drinking at the bars owned by the additional
defendants, it is alleged that Defendant Noel returned to Defendant Tilden’s home, without
Defendant Tilden. Defendant Noel, intending to make chicken wings, started to heat oil on a
stove. Instead of cooking, however, he fell asleep on the couch. As he slept, the kitchen was set
ablaze when the cooking oil spilled over and onto the kitchen stove. Defendant Noel was
awakened by Defendant Tilden’s girlfriend, who had been sleeping upstairs, when she heard the
smoke alarm ringing in the house. The girlfriend then raced upstairs and was able to save her
newborn child before the house was engulfed in flames. Defendant Noel was also able to escape.
Tilden’s house was destroyed, and substantial damage was caused to the neighboring home
owned by Pamela Wolfe. Pursuant to the terms of an insurance policy, Plaintiff Liberty Mutual
made payments to Ms. Wolfe, and, in accordance with the principles of subrogation, has sued
Defendants Tilden and Noel for the damages incurred in compensating Ms. Wolfe.
A Joinder Complaint was filed by Defendant/Third Party Plaintiff Tilden against
Additional Defendants Der Harrisburg Maennerchor d/b/a The Maennerchor Club, Congil, Inc.
d/b/a Ceoltas Irish Pub, Duke’s Riverside Bar & Grille, Inc., Gator Development, LLC d/b/a
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Pete’s Cafe, Harrisburg Irish Pubs, LLC d/b/a Molly Branigan’s, and Capital Entertainment
Group, LP d/b/a Spice (hereinafter “the Bars”). (Joinder Complaint, filed Aug. 15, 2011).
Defendant/Third Party Plaintiff Tilden alleges that Defendant Noel was intoxicated at the time of
the fire. The Joinder Complaint contains claims arising under the Pennsylvania Liquor Code,
known as the Dram Shop Act, and theories of common law negligence. The Joinder Complaint
avers, in pertinent part, as follows:
28. On July 3, 2009 through July 4, 2009, additional defendants, the Bars, by and
through its agents, servants, workmen and employees, willfully and unlawfully
served and continued to serve alcohol, liquor, malt and/or brewed beverages to
defendant, Timothy A. Noel, to cause him to become inebriated and visibly
intoxicated, and continued to serve him alcohol, liquor, malt and brewed
beverages while he was in a visibly intoxicated and inebriated condition, in
violation of the Liquor Code of the Commonwealth of Pennsylvania, 47 P.S. §4-
492, et seq., and other statutes of the laws of the Commonwealth of Pennsylvania.
30. As a consequence of these additional defendants’ statutory violations,
negligence and recklessness as aforesaid, Timothy A. Noel . . . was permitted to
proceed from the Bars’ premises onto the public streets and thoroughfares in an
intoxicated and inebriated condition. . . .
31. Additional defendants, the Bars, by and through their agents, servants,
workmen and employees, violated the statutes of the Commonwealth of
Pennsylvania and were carelessness [sic], negligent and reckless as follows:
* * *
(b) In serving and/or selling alcoholic beverages to the defendant,
Timothy A. Noel, to a point where he became visibly intoxicated;
* * *
(e) Violating pertinent provisions of the Liquor Code of the
Commonwealth of Pennsylvania and Pa. C.S.A. §4-493;
(f) In failing to properly and adequately train, educate, supervise and/or
restrain its agents, employees, servants and/or workmen as to prevent
service or sale of alcoholic beverages to visibly intoxicated persons
and/or so as to prevent service or sale of alcoholic beverages in such a
manner and/or extent as to cause their intoxication;
(g) In failing to prevent, control and/or monitor the serving of alcoholic
beverages to patrons, business invitees and/or guests;
3
(h) In failing to have a program and/or written courses of action to be
taken when a patron is visibly intoxicated, or, in the alternative, having
such a program and/or written course of action and, acting as aforesaid,
failing to adhere to the same;
(i) In causing persons to become intoxicated by serving them
intoxicating beverages in such amounts as to cause intoxication;
* * *
(l) In failing to meet the standard of care required of a social host in the
Commonwealth of Pennsylvania;
* * *
(n) Failing to establish, monitor and administer programs and procedures
designated and designed to identify and assist intoxicated patrons;
(o) Failing to adequately train bartenders, bartender apprentices, servers
and/or other persons with regard to intoxication and signs of visible
intoxication;
* * *
(q) Failing to have policies, practices and/or protocols in effect at the
time this incident occurred to train its agents and/or employees with
regard to the use and consumption of alcohol;
(r) Failing to have a drink cut-off for alcohol service, furnishment or
provision;
(s) Failing to have time limits so that this defendant would not sell
alcohol and/or furnish alcohol after patrons had been drinking alcohol for
a specified period of time;
(t) Having a policy to encourage patrons to continue drinking alcohol
after they had become visibly intoxicated;
(u) Encouraging patrons to drink excessively by pouring their drink of
choice for them the moment they walk into the bar;
(v) Failing to have a policy, procedure and/or plan to assist visibly
intoxicated customers to sober up before exiting the additional
defendants’ premises;
* * *
4
(x) Failing to have adequate and proper disciplinary standards for its
employees regarding the sale, service and furnishment of alcohol to
patrons.
(Joinder Complaint, filed Aug. 15, 2011).
On September 9, 2011, Der Harrisburg Maennerchor d/b/a The Maennerchor Club filed
the instant preliminary objections to Defendant/Third Party Plaintiff’s Joinder Complaint
seeking, first, to strike and dismiss such causes of action sounding in common law negligence
that may have arisen from the above-quoted paragraphs, second, to strike the allegations
contained in Paragraph 30 that the Bars were negligent for permitting Defendant Noel “to
proceed from the Bars’ premises onto the public streets and thoroughfares in an intoxicated and
inebriated condition,” third, seeking to strike any and all claims for attorney’s fees, and, fourth,
seeking to dismiss the Joinder Complaint entirely for a failure to attach a proper verification in
violation of Pa.R.Civ.P. 1024. A brief in support of the preliminary objections was attached
thereto. On December 12, 2011, Defendant/Third Party Plaintiff Tilden filed an answer to the
preliminary objections along with a supportive brief. Oral argument having been heard, the
matter is ripe for disposition.
The first preliminary objection of The Maennerchor Club is a demurrer to Paragraphs 28,
31(b), 31(e), 31(f), 31(g), 31(h), 31(i), 31(l), 31(n), 31(q), 31(r), 31(s), 31(t), 31(u), 31(v) and
31(x) of the Joinder Complaint, the paragraphs that The Maennerchor Club has asserted give rise
to causes of action sounding in common law negligence.
Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be
filed by any party to any pleading on several limited grounds, including the following:
(2) Failure of a pleading to conform to law or rule of court . . .;
(3) Insufficient specificity in a pleading;
5
(4) Legal insufficiency of a pleading (demurrer).
Pa.R.Civ.P. 1028(a)(2), (3), (4).
The standard of review for preliminary objections in this Commonwealth is well settled.
Preliminary objections are properly granted only when, “based on the facts pleaded, it is clear
and free from doubt that the complainant will be unable to prove facts legally sufficient to
establish a right to relief.” Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-41, 961 A.2d 96,
101 (2008) (internal citations omitted). Furthermore, the standard of review for a demurrer is
well settled: “[a] preliminary objection in the nature of a demurrer is properly granted where the
contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer
require the court to resolve the issues solely on the basis of pleadings, no testimony or other
evidence outside of the complaint may be considered to dispose of the legal issues presented by
the demurrer.” Strausser v. PRAMCO, III, 944 A.2d 761, 764-65 (Pa. Super Ct. 2008). A
demurrer is “an assertion that a complaint does not set forth a cause of action or a claim on
which relief can be granted.” Lerner v. Lerner, 2008 PA Super 183, ¶ 11, 954 A.2d 1229,
1234 (internal citations omitted). All material facts contained within the pleadings and all
inferences fairly and reasonably deducible from those facts must be admitted as true. Id.
However, the trial court “need not accept as true conclusions of law, unwarranted inferences
from fact, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v.
Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995). “The question presented by the demurrer is
whether, on the facts averred, the law says with certainty that no recovery is possible. Where a
doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor
of overruling it.” Wawa, Inc. v. Alexander J. Litwornia & Associates, 817 A.2d 543, 544
(Pa.Super. 2003) (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1966)).
6
The instant demurrer is premised on the Bar’s assertion that there are no common law
liabilities of a tavern owner to third persons arising from the sale of alcohol. Instead, the Bar
argues that the only cause of action permitted by Pennsylvania law is contained in Section 4-497
of the Dram Shop Act, which limits liability to a showing that a patron was served alcoholic
beverages by a licensee while visibly intoxicated and that such service was the proximate cause
of a plaintiff’s injuries. Accordingly, the question is whether Section 4-497 provides the
exclusive remedy against a liquor licensee arising out of the furnishing of alcoholic beverages so
as to preempt all other common law theories of negligence.
Initially, we set forth the following pertinent provisions of the Pennsylvania Liquor Code:
§ 4-493. Unlawful acts relative to liquor, malt and brewed beverages and
licensees
It shall be unlawful--
(1) For any licensee . . . to sell, furnish or give any liquor or malt or
brewed beverages, or to permit any liquor or malt or brewed beverages
to be sold, furnished or given, to any person visibly intoxicated . . . :
Provided further, That notwithstanding any other provision of law, no
cause of action will exist against a licensee . . . for selling, furnishing or
giving any liquor or malt or brewed beverages or permitting any liquor
or malt or brewed beverages to be sold, furnished or given to any insane
person, any habitual drunkard or person of known intemperate habits
unless the person sold, furnished or given alcohol is visibly intoxicated
or is a minor.
§ 4-497. Liability of licensees
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 sold,
furnished or given liquor or malt or brewed beverages by the said
licensee or his agent, servant or employe when the said customer was
visibly intoxicated.
47 P.S. §§ 4-493(1) & 4-497 (emphasis added).
7
Our Superior Court has noted that, since the 1951 enactment of our modern Liquor Code,
containing Section 4-493(1), and the 1965 enactment of Section 4-497, both sections have been
used to “impose (or limit) civil liability on [liquor] licensees.” Hiles v. Brandywine Club, 443
Pa.Super. 462, 467, 662 A.2d 16, 18 (1995) (citing Majors v. Brodhead Hotel, 416 Pa. 265, 205
A.2d 873 (1965) for the proposition that a violation of section 4-493(1) is negligence per se and,
where the violation is a proximate cause of plaintiff’s injury, a defendant licensee is liable for
such injury; Conner v. Duffy, 438 Pa.Super. 277, 652 A.2d 372 (1994) for the proposition that in
order for an injured plaintiff to recover for a violation of section 4-493(1), he must prove that (1)
the tortfeasor was served alcoholic beverages while visibly intoxicated and (2) this violation
proximately caused his injuries; and Peluso v. Walter, 334 Pa.Super. 609, 483 A.2d 905 (1984)
for the proposition that in order to sustain an action against a tavern owner, a plaintiff must
demonstrate that the owners served liquor to a customer when he was visibly intoxicated
pursuant to section 4-497 of the Liquor Code). The Superior Court also noted that, even after the
1965 enactment and the 1987 reenactment of Section 4-497, which relates solely to the liability
of licensees for injuries to third parties, courts and parties have continued, in some cases, to use
Section 4-493(1) as the “sole and/or partial basis for liability in cases involving injuries to third
persons.” Id. at 468, n3. The Superior Court noted this philosophy as intriguing as, “[g]iven its
history, it comes as no surprise that section 4-493(1) provides a basis for liability where the
visibly intoxicated customer is herself/himself the injured party seeking recovery. It is
perplexing, however, that with the existence of section 4-497, section 4-493(1) continues to be
cited as a basis for liability in cases involving injuries to third persons.” Id. (emphasis original).
Section 4-497 provides on its face that “No licensee shall be liable to third persons . . .
unless the customer who inflicts the damages was sold, furnished or given liquor or malt or
8
brewed beverages by the said licensee or his agent, servant or employe when the said customer
was visibly intoxicated.” 47 P.S. 4-497. The text chosen by the legislature in drafting Section 4-
497 is clear in both its limiting of the method of recovery for third parties (i.e. third parties are to
use section 4-497 as the only cognizable basis for a claim against a licensee), as well as the
limiting of the liability that could otherwise be imposed (i.e. a licensee shall not be liable to a
third party, unless the customer was visibly intoxicated when served). Indeed, the Hiles Court
found as follows:
The evolution of licensee liability continued with the addition of 47 P.S. § 4-497
in 1965 (reenacted in 1987), which specifically limits the liability of licensees to
third parties injured by a licensee's customer. See 47 P.S. § 4-497, supra. With the
exception of cases involving minors, discussed infra, section 4-497 shields liquor
licensees from liability to third persons, unless the customer invoking the injury
exhibits signs of visible intoxication at the time he/she is served.
Id. at 467 (emphasis added).
The statute, therefore, is not a gateway to any and all varieties of negligence, but instead
“Section 4-497 is clearly a limiting provision designed to specifically shield licensees from
liability to third parties except in those instances where the patron served was visibly
intoxicated.” Detwiler v. Brumbaugh, 441 Pa.Super. 110, 114, 656 A.2d 944, 946 (1995). The
section “does not create a cause of action against a licensee but in fact limits the extent of a
licensee’s liability.” Id. (internal citations omitted) (emphasis original).
Given the preceding authority, we find that Section 4-497 provides the exclusive
prerequisite for a third party seeking to impose civil liability on a licensee. We acknowledge that
no state appellate court in the Commonwealth has addressed the specific issue of whether
th
Section 4-497 offers this exclusive remedy. See Rivero v. Timblin, 12 Pa. D. & C.5 233, 254-
55 (2010); Druffner v. O'Neill, 2011 WL 1103647, 4 (E.D.Pa. 2011). Indeed, Pennsylvania
courts of common pleas remain split on the issue. Compare Rivero, supra, with Kortum v. 1K
9
Second Street Assoc., 123 Dauphin Rep. 463 (Pa.Comm.Pl. Jan. 3, 2008). We find, however,
that the plain meaning of the text “No licensee shall be liable to third persons. . .unless. . .” has
the preemptive effect of precluding all other claims asserted against a licensee by injured third
parties and thereby limits liability to a showing that a patron was served alcoholic beverages by a
licensee while visibly intoxicated and that the violation of the statute was the proximate cause of
a plaintiff’s injuries.
For these reasons, a demurrer will be granted to such causes of action that may have
arisen from the following paragraphs and subparagraphs: ¶ 30 (relating only to the portion
thereof wherein Defendant/Third Party Plaintiff has alleged negligence on the part of the Bars for
“permit[ing Noel] to proceed from the Bars’ premises onto the public streets and thoroughfares
in an intoxicated and inebriated condition, as a result of which, Timothy A. Noel caused the fire
which is the subject of this litigation”); ¶ 31(b) (relating to incidents based on the serving of
alcoholic beverages to a customer prior to his appearing visibly intoxicated); ¶ 31(e) (relating to
a violation of “other provisions of the Liquor Code of the Commonwealth of Pennsylvania and
Pa.C.S.A. §4-493”); ¶ 31(f) (relating to an alleged failure to train, educate, supervise and/or
restrain employees so as to prevent service or sale of alcohol to persons so as to cause their
intoxication); ¶ 31(g) (relating to the failure to prevent, control and/or monitor the serving of
alcohol to a patron prior to that patron appearing visibly intoxicated); ¶ 31(h) (relating to an
alleged failure to have in place a program and/or written courses of action to be taken when a
patron is visibly intoxicated); ¶ 31(i) (relating to incidents based on serving alcoholic beverages
to a customer prior to his appearing visibly intoxicated); ¶ 31(n) (relating to an alleged failure to
have in place programs and procedures designed to identify and assist intoxicated persons); ¶
31(q) (relating to an alleged failure to have in place policies or protocols to train employees with
10
regard to the use and consumption of alcohol); ¶ 31(r) (relating to an alleged failure to have a
drink cut-off for alcohol service); ¶ 31(s) (relating to an alleged failure to have limits on the time
during which a patron may consume alcohol); ¶ 31(t) (relating to an alleged policy of
encouraging patrons to continue drinking alcohol after they had become visibly intoxicated); ¶
31(u) (relating to a policy of “Encouraging patrons to drink excessively by pouring their drink of
choice for them the moment they walk into the bar”); ¶ 31(v) (relating to an alleged failure to
have a policy in place to assist visibly intoxicated customers to sober up before exiting the bars’
premises); and ¶ 31(x) (relating to an alleged failure to have in place adequate standards for
employees regarding the sale and furnishment of alcohol to patrons). Furthermore, ¶ 31(l),
relating to social host liability, will be stricken by agreement of the parties.
Third Party Defendant The Maennerchor Club has also filed a preliminary objection
seeking to strike Paragraph 28 of the Joinder Complaint for what appears to be reasons of
insufficient specificity or so-called Conner concerns. See Connor v. Allegheny General Hospital,
501 Pa. 306, 461 A.2d 600 (1983). Specifically, Third Party Defendant takes issue with an
assertion in Paragraph 28 that alleges a negligent violation of “the Liquor Code of the
Commonwealth of Pennsylvania, 47 P.S. §4-492, et seq., and other statutes of the laws of the
Commonwealth of Pennsylvania.” (Preliminary Objections, filed Sept. 9, 2011).
Pennsylvania is a fact pleading jurisdiction. Foster v. UPMC South Side Hosp., 2010 PA
Super 143, 2 A.3d 655, 666 (quoting Lerner v. Lerner, 954 A.2d 1229, 1235, (Pa. Super. 2008)).
The plaintiff must state the material facts on which a cause of action is based “in a concise and
summary form.” Pa.R.Civ.P. 1019(a). It is well established that a plaintiff’s complaint must
provide sufficient factual averments in order to sustain a cause of action. Feingold v. Hendrzak,
2011 PA Super 34, 15 A.3d 937, 942. The complaint must “not only give the defendant notice of
11
what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also
formulate the issues by summarizing those facts essential to support the claim.” Id. (internal
citations omitted). Moreover, the complaint must be sufficiently specific so the party will know
how to prepare his defense. Commonwealth ex rel. Pappert v. Pharmaceutical Products, Inc.,
868 A.2d 624 (Pa.Cmwlth. 2005).
As we have already noted, the Plaintiff has properly pled a violation of Section 4-497 of
the Liquor Code. In other words, the Plaintiff has properly pled a violation of such statutes as
prohibit the service of intoxicants to visibly intoxicated persons. We are unable to discern from
Paragraph 28 of the Complaint what other violations of the Liquor Code or “other statutes of the
laws of the Commonwealth of Pennsylvania” that the Defendant may have in mind.
Accordingly, we will sustain the preliminary objection and strike the paragraph but grant leave to
the Defendant to file an amended complaint, should they choose to do so, setting forth, with
specificity, any other applicable statutory violations.
The Maennerchor Club has also filed a preliminary objection seeking to strike any and all
claims for attorney’s fees contained in the Joinder Complaint. By agreement of the parties, this
preliminary objection will be sustained.
The last preliminary objection filed by the Maennerchor Club is in the nature of a motion
to strike for a failure to conform to rule of law. Specifically, the Third Party Defendant requests
this court to dismiss the Joinder Complaint because it lacks a verification as required by
Pa.R.Civ.P. 1024. We agree. Pa.R.Civ.P. 1024(a) provides that “[e]very pleading containing an
averment of fact not appearing of record in the action or containing a denial of fact shall state
that the averment or denial is true upon the signor’s personal knowledge or information and
belief and shall be verified.” Furthermore,
12
The verification shall be made by one or more of the parties filing the pleading
unless all the parties (1) lack sufficient knowledge or information, or (2) are
outside the jurisdiction of the court and the verification of none of them can be
obtained within the time allowed for filing the pleading. In such cases, the
verification may be made by any person having sufficient knowledge or
information and belief and shall set forth the source of the person's information as
to matters not stated upon his or her own knowledge and the reason why the
verification is not made by a party.
Pa.R.Civ.P. 1024(c).
Applying the foregoing, Defendant/Third Party Plaintiff’s Joinder Complaint does not
include a proper verification and therefore does not conform to the rules of law. The Joinder
Complaint alleges facts which are not of record and, therefore, must be verified, as required by
Pa.R.Civ.P. 1024. The Joinder Complaint contains a verification signed by counsel for the
Defendant/Third Party Plaintiff, John C. Bobber, Esquire. That verification does not state that
the parties lack sufficient knowledge or information to verify the complaint or are outside of the
jurisdiction of the court. Nor does it state any reason why it is not signed by one of the parties.
As a result, the verification to the Joinder Complaint is improper and does not comply with
Pa.R.Civ.P. 1024. Thus, the preliminary objection will be sustained, and Defendant/Third Party
Plaintiff will be granted leave to amend in accordance with the Pennsylvania Rules of Civil
Procedure.
For these reasons, the following order will be entered:
ORDER
AND NOW, this day of February, 2012, upon consideration of the Preliminary
Objections filed by Third Party Defendant Der Harrisburg Maennerchor d/b/a The Maennerchor
Club to the Joinder Complaint, and the responses filed thereto, the Preliminary Objections of the
Third Party Defendant are SUSTAINED in part and OVERRULED in part.
13
For reasons contained in the accompanying opinion, a demurrer is granted to such causes
of action that may have arisen from Paragraphs 31(b), 31(e), 31(f), 31(g), 31(h), 31(i), 31(l),
31(n), 31(q), 31(r), 31(s), 31(t), 31(u), 31(v) and 31(x), and those Paragraphs are hereby
STRICKEN to the extent that they attempt to state a cause of action. A ruling on evidentiary
relevance is reserved to the trial judge.
AND FURTHER, the allegation that the Third Party Defendants were negligent for
permitting Defendant Timothy A. Noel to “proceed from the Bars’ premises onto the public
streets and thoroughfares in an intoxicated and inebriated condition,” contained in Paragraph 30
the Joinder Complaint, is hereby STRICKEN to the extent that it attempts to state a cause of
action. A ruling on evidentiary relevance is reserved to the trial judge.
AND FURTHER, the Preliminary Objection of the Third Party Defendant seeking to
strike Paragraph 28 of the Joinder Complaint is hereby SUSTAINED with leave to amend.
AND FURTHER, by agreement of the parties, any and all claims for attorney’s fees
alleged against Third Party Defendant Der Harrisburg Maennerchor d/b/a The Maennerchor Club
are hereby STRICKEN from the Joinder Complaint, with prejudice.
AND FURTHER, Third Party Defendant’s preliminary objection to Third Party
Plaintiff’s failure to attach a proper verification to the Joinder Complaint as required by
Pa.R.Civ.P. 1024 is hereby SUSTAINED, and Third Party Plaintiff is granted leave to amend.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
14
LIBERTY MUTUAL FIRE
: IN THE COURT OF COMMON PLEAS OF
INSURANCE COMPANY
: CUMBERLAND COUNTY, PENNSYLVANIA
a/s/o PAMELA S. WOLFE
:
:
v.
: CIVIL ACTION - LAW
: NO. 11-2140 CIVIL
DANE S. TILDEN and
:
TIMOTHY A. NOEL
: JURY TRIAL DEMANDED
:
v.
:
:
CONGIL INC. D/B/A CEOLTAS IRISH
:
PUB, HARRISBURG IRISH PUBS, LLC
:
D/B/A MOLLY BRANIGAN’S, CAPITOL
:
ENTERTAINMENT GROUP, LP D/B/A
:
SPICE, GATOR DEVELOPMENT, LLC
:
D/B/A PETE’S CAFE, DER
:
HARRISBURG MAENNERCHOR D/B/A
:
THE MAENNERCHOR CLUB, AND
:
DUKE’S RIVERSIDE BAR & GRILLE,
:
INC.
:
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT DER HARRISBURG
MAENNERCHOR D/B/A THE MAENNERCHOR CLUB TO JOINDER COMPLAINT
BEFORE HESS, P.J. and MASLAND, J.
ORDER
AND NOW, this day of February, 2012, upon consideration of the Preliminary
Objections filed by Third Party Defendant Der Harrisburg Maennerchor d/b/a The Maennerchor
Club to the Joinder Complaint, and the responses filed thereto, the Preliminary Objections of the
Third Party Defendant are SUSTAINED in part and OVERRULED in part.
For reasons contained in the accompanying opinion, a demurrer is granted to such causes
of action that may have arisen from Paragraphs 31(b), 31(e), 31(f), 31(g), 31(h), 31(i), 31(l),
31(n), 31(q), 31(r), 31(s), 31(t), 31(u), 31(v) and 31(x), and those Paragraphs are hereby
STRICKEN to the extent that they attempt to state a cause of action. A ruling on evidentiary
relevance is reserved to the trial judge.
AND FURTHER, the allegation that the Third Party Defendants were negligent for
permitting Defendant Timothy A. Noel to “proceed from the Bars’ premises onto the public
streets and thoroughfares in an intoxicated and inebriated condition,” contained in Paragraph 30
the Joinder Complaint, is hereby STRICKEN to the extent that it attempts to state a cause of
action. A ruling on evidentiary relevance is reserved to the trial judge.
AND FURTHER, the Preliminary Objection of the Third Party Defendant seeking to
strike Paragraph 28 of the Joinder Complaint is hereby SUSTAINED with leave to amend.
AND FURTHER, by agreement of the parties, any and all claims for attorney’s fees
alleged against Third Party Defendant Der Harrisburg Maennerchor d/b/a The Maennerchor Club
are hereby STRICKEN from the Joinder Complaint, with prejudice.
AND FURTHER, Third Party Defendant’s preliminary objection to Third Party
Plaintiff’s failure to attach a proper verification to the Joinder Complaint as required by
Pa.R.Civ.P. 1024 is hereby SUSTAINED, and Third Party Plaintiff is granted leave to amend.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Joseph F. Rich, Esquire
600 Reed Road, Suite 105
Broomall, PA 19008
John C. Bobber, Esquire
Center Square, West Tower
1500 Market Street
Suite 4100
Philadelphia, PA 19102
Jason P. McNicholl, Esquire
th
900 E. 8 Avenue
Suite 301
King of Prussia, PA 19406
Joseph W. Denneler, Esquire
th
1818 Market Street – 13 Floor
Philadelphia, PA 19103-3638
Andrew R. Benedict, Esquire
th
2000 Market Street, 13 Floor
Philadelphia, PA 19103
Carol Ann Murphy, Esquire
th
The Curtis Center, 4 Floor
Independence Mall East
Philadelphia, PA 19106
Robert J. Daniels
Amtrust North America
P. O. Box 105500
Atlanta, GA 30348-5500
Timothy A. Noel
19 E. Main Street, Apt. 3
Mechanicsburg, PA 17055
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