J-A25011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    NICHOLAS MULLINS                               IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellant

                        v.

    SANDS BETHLEHEM GAMING, LLC D/B/A
    SANDS CASINO RESORT BETHLEHEM

                             Appellee                 No. 1075 EDA 2017


                 Appeal from the Order Entered March 20, 2017
             In the Court of Common Pleas of Northampton County
                    Civil Division at No.: c48cv2014-000242


BEFORE: OTT, STABILE, JJ, and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                             FILED APRIL 12, 2018

        Appellant/plaintiff Nicholas Mullins (“Mullins”) appeals from the March

20, 2017 judgment entered in the Court of Common Pleas of Northampton

County (“trial court”), following the grant of Appellee/defendant Sands

Bethlehem Gaming, LLC d/b/a Sands Casino Resort Bethlehem’s (“Sands”)

motion for compulsory nonsuit in this civil action.1 Upon review, we affirm.



____________________________________________


*   Former Justice specially assigned to the Superior Court.
1 Appellant attempts to appeal from the March 10, 2017 order denying his
post-trial motion to remove nonsuit. It is settled that in a case where nonsuit
is entered, the appeal properly lies from the judgment entered after the denial
of a motion to remove nonsuit. See Billig v. Skvarla, 853 A.2d 1042, 1048
(Pa. Super. 2004) (“[I]n a case where nonsuit was entered, the appeal
properly lies from the judgment entered after denial of a motion to remove
nonsuit.”). Accordingly, the appeal here lies from the judgment entered on
March 20, 2017.
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      The facts and procedural history of this case are undisputed.        On or

about January 22, 2012, Mullins and his then-fiancée, Caitlin Shields

(“Shields”), visited the Sands Casino in Bethlehem, Pennsylvania, where both

were served alcoholic beverages.        Three hours after receiving their last

alcoholic beverage, an altercation occurred between Mullins and Shields in

their hotel room. As a result of the altercation, Shields suffered serious head

trauma and Mullins was injured in the groin and face. Mullins, thereafter, was

arrested and charged with various crimes, including attempted homicide.

Mullins ultimately pleaded guilty to aggravated assault, for which he served

four years in a state correctional institute.

      On January 13, 2014, Mullins initiated the instant action by filing a

complaint against Sands, asserting violations of the Dram Shop Act (“Act”),

47 P.S. § 4-493. Mullins asserted that Sands served him and Shields alcoholic

beverages while they were visibly intoxicated. Mullins claimed relief for two

types of damages. First, he alleged that Shields inflicted physical injuries upon

him during the altercation. Second, he alleged that he suffered damages as

result of his incarceration. Specifically, Mullins claimed that his incarceration

caused him to suffer mental anguish, loss of reputation, and loss of past and

future earnings.

      The case proceeded to trial, at which Sands moved for compulsory

nonsuit following Mullins’ case in chief. The trial court granted nonsuit. Mullins

filed post-trial motions, seeking to remove nonsuit. On March 10, 2017, the

trial court denied Mullins’ post-trial motions. On March 20, 2017, Mullins filed

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a praecipe for entry of judgment and timely appealed to this Court. The trial

court directed Mullins to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Mullins complied. In response, the trial court issued

a Pa.R.A.P. 1925(a) opinion.

      On appeal, Mullins presents the following issues for review, reproduced

here verbatim:

      1. Whether the Court appropriately entered nonsuit against
      plaintiff due to its conclusion that plaintiff’s “criminal actions . . .
      were so remote and extraordinary the defendant cannot be held”
      legally?

      2. Whether the Court, in so doing, erroneously focused on the
      “criminal actions” of plaintiff in its analysis, rather the arguably
      “reasonably foreseeable” mutual fight by the two drunk casino
      patrons in the hotel room they had rented?

      2. Whether the nonsuit against plaintiff must be overturned:

      a. Due the trial court’s misunderstanding and misstatement of the
      law concerning the foreseeability of and responsibility for resulting
      “criminal actions” under our Dram Shop Act, as well as the viability
      of “first-party” actions under that Act?, and/or

      b. Due to the Court’s appearance of “bias and prejudice” against
      plaintiff’s case?

Mullins’ Brief at iv (sic).

      At the outset, we observe that, in a largely indiscernible brief that

struggles to comply with the briefing requirements detailed in our Rules of

Appellate Procedure, see Pa.R.A.P. 2111-2140, Mullins fails to challenge the

trial court’s conclusion that he presented insufficient evidence to establish that

Sands served alcohol to Shields while Shields was visibly intoxicated. See

Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)

(stating that any issue not set forth in or suggested by an appellate brief’s


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statement of questions involved is deemed waived under Pa.R.A.P. 2116(a)).

In fact, in his reply brief, Mullins confirms that he “never made an attempt to

prove to the jury that [Shields] was visibly intoxicated while she was served.

. . . [Mullins] never raised this issue as part of his Rule 1925([b]) statement.”

Mullins’ Reply Brief at 1. Even if Mullins had raised the issue of Shields’ visible

intoxication, we still would hold that he is not entitled to relief.

      To establish liability under the Act, it is not sufficient for a plaintiff to

establish merely that alcoholic beverages were served to a patron, or that the

patron was intoxicated at the time he or she caused injury to another.

Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 527 (Pa. Super. 1998), appeal

denied, 735 A.2d 1269 (Pa. 1999). Rather, for dram shop liability to attach,

evidence must be produced indicating that the patron was served alcohol at a

time when he or she was visibly intoxicated. Id. To meet this standard, a

plaintiff need not offer direct evidence of the patron’s visible intoxication. Id.

Instead, the plaintiff can prove dram shop liability through circumstantial

evidence that an individual was served alcohol at a time when he or she was

visibly intoxicated. Id.

      Upon our review of the trial transcripts, we agree with the trial court’s

conclusion that Mullins “had presented insufficient evidence that Shields had

been served while visibly intoxicated, and thereby presented insufficient

evidence of a violation of the Dram Shop Act with respect to her.” Trial Court

Opinion, 3/10/17, at 16. The trial court reasoned that Mullins




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      had failed to produce any evidence upon which a jury could
      properly conclude that Shields had been served while visibly
      intoxicated. The only fact witnesses presented on the issue of
      service to Shields were [Mullins] and Christopher Lewis, the last
      bartender to serve [Mullins] and Shields on [Sands’] premises.
      [Mullins] himself was unable to offer any testimony which would
      support a finding that Shields was served while visibly intoxicated,
      and Mr. Lewis likewise did not testify that he observed Shields to
      exhibit signs of visible intoxication. In addition, the videotape
      played for the jury did not show Shields to display signs of visible
      intoxication.

Id. at 16-17. Accordingly, Mullins would not obtain relief on his third-party

claim against Sands for injuries he suffered at the hands of Shields.

      We now turn to the merits of this appeal. In so doing, we first address

Mullins’ argument that the trial court erred in concluding that the “no felony

conviction recovery” rule (“felony rule”) applied sub judice. See Mullins’ Brief

at 4-13. Our standard of review following the denial of a motion to remove a

compulsory nonsuit is as follows: “This Court will reverse an order denying a

motion to remove a nonsuit only if the trial court abused its discretion or made

an error of law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa. Super. 2000)

(citation omitted), appeal denied, 771 A.2d 1276 (Pa. 2001).             “Judicial

discretion requires action in conformity with law on facts and circumstances

before the trial court after hearing and consideration. Consequently, the court

abuses its discretion if, in resolving the issue for decision, it misapplies the

law or exercises its discretion in a manner lacking reason.” Miller v. Sacred

Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 2000) (internal citations

omitted). The grant of nonsuit is proper where, having viewed all evidence in

the plaintiff’s favor, the court determines that the plaintiff has not established




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the necessary elements of his cause of action. Brinich, supra; see Pa.R.C.P.

No. 230.1.

      It is settled that the felony rule “applies to discourage courts from

assisting convicted felons in collecting damages that would not have occurred

absent the criminal conviction.” Holt v. Navarro, 932 A.2d 915, 920 (Pa.

Super. 2007) (citing Mineo v. Eureka Sec. Fire & Marine Ins. Co., 125

A.2d 612 (Pa. Super. 1956)), appeal denied, 951 A.2d 1164 (Pa. 2008). The

Holt Court explained that “[t]he common law principle that a person should

not be permitted to benefit by his own wrongdoing, particularly his own

crimes, prevents a plaintiff from recovering losses which flowed from those

criminal acts. Id.

      In Holt, the plaintiff, William Holt, was committed to a hospital for a

mental health evaluation. Holt escaped during an ambulance transfer. He

ran to a shopping center and ultimately engaged in car jacking, striking the

owner of the vehicle in the process. Id. at 918. He was convicted for robbery

and simple assault, and sentenced to seven years’ probation. Holt did not

challenge his judgment of sentence.        Holt then sued the hospital for

negligently transporting him. He asserted that the criminal conviction that

resulted from his escape caused him to suffer a reduced earning potential.

Id. A jury awarded Holt $350,000.00. On appeal, this Court reversed the

jury verdict, relying upon the felony rule. In so doing, we concluded that the

damages Holt sought resulted directly from his convictions. We noted that

Holts’ “convictions for robbery, a second degree felony, and simple assault, a

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second degree misdemeanor, are serious criminal offenses.” Id. at 923. We

determined “that, as a matter of law, [the hospital] cannot be liable for the

collateral consequences of [Holts’] criminal convictions.” Id.

      In Mineo, two restaurant owners were convicted of burning down their

restaurant. Shortly before the fire, the owners had purchased four insurance

policies on the restaurant. After their arrest, they assigned their rights under

the policies to a third party. Mineo, 125 A.2d at 614. The third party initiated

an action against the insurance companies to recover damages caused by the

owners’ arson. Following trial, a jury returned a verdict in the third party’s

favor. On appeal, this Court was asked to determine whether an assignee of

an insured can recover for damages caused by a fire that the insured was

criminally convicted of setting.    The Mineo Court concluded that “[t]he

assignee in an assignment of a fire insurance policy made subsequent to a fire

stands in the identical position of the insured and his rights cannot rise above

the insured.” Id. We explained in Mineo that to permit a person, who has

been convicted of a serious crime, to collect damages that would not have

occurred absent the criminal conviction is against public policy. We reasoned:

            The insureds have had their day in court              with the
      opportunity to produce their witnesses, to examine         and cross
      examine witnesses and to appeal from the judgment          and to be
      acquitted unless the evidence established their guilt      beyond a
      reasonable doubt.

             To now permit them to recover for the loss which they have
      been convicted of fraudulently causing would be against public
      policy. It would tend to destroy the confidence of the public in the
      efficiency of the courts; it would stir up litigation that would
      reopen tried issues; it would impress the public with the belief that
      the results of trials of the gravest nature were so uncertain that
      the innocent could not escape condemnation; and it would

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       convince the public that the courts themselves have no confidence
       in the judicial processes. We are of the opinion that when one is
       convicted of a felony and subsequently attempts to benefit from
       the commission, the record of his guilt should be a bar to his
       recovery.

Id. at 617-18.

       Instantly, based upon our review of the entire record, viewed in the light

most favorable to Mullins, and consistent with Holt and Mineo, we are

constrained to agree with the trial court’s conclusion that the felony rule bars

recovery for collateral damages Mullins allegedly suffered while incarcerated.

As the uncontradicted evidence demonstrates sub judice, Mullins pleaded

guilty to aggravated assault and, as a result, spent four years in prison.

Mullins’ claim that his incarceration caused him to suffer mental anguish, loss

of reputation, and loss of past and future earnings is not actionable because

the felony rule prevents him from recovering losses which directly flowed from

his criminal acts. Differently put, the collateral damages that Mullins allegedly

suffered resulted directly from his criminal conduct for which he pleaded

guilty.   Thus, applying the felony rule, Mullins may not benefit from his

conviction for aggravated assault. Accordingly, the trial court did not abuse

its discretion in granting nonsuit in favor of Sands.2

       Judgment affirmed.




____________________________________________


2 Based upon our disposition of this appeal, we need not address Mullins
remaining issues.

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J-A25011-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/18




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