J-A04033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREA SIRES, ADMINISTRATRIX OF               IN THE SUPERIOR COURT OF
THE ESTATE OF JAMES E. SIRES, JR.,                  PENNSYLVANIA
DECEASED

                        Appellant

                   v.

THE DRAWBAR & GRILLE, INC.

                        Appellee                   No. 953 WDA 2013


                Appeal from the Order entered May 7, 2013
              In the Court of Common Pleas of Mercer County
                     Civil Division at No: CV-2011-3698


BEFORE: BOWES, WECHT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 20, 2014

     Appellant Andrea Sires, Administratrix of the estate and mother of

deceased James E. Sires, appeals the order of the Court of Common Pleas of

Mercer County granting Appellee The Drawbar & Grille, Inc.’s preliminary

objections. Upon review, we affirm.

     The relevant factual and procedural background of the case is as

follows. On May 11, 2011, at approximately 10 p.m., James E. Sires (Sires)

and Ben Lyle Loutzenhiser (Loutzenhiser) entered The Drawback & Grille

(Drawbar) together and played pool.      Later, Loutzenhiser began to act

“erratically” upon which an employee of Appellee directed him to leave the

establishment.   Sires and Loutzenhiser left the premises and got in

Loutzenhiser’s truck.   Within two miles of the establishment, Loutzenhiser
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lost control of the truck and travelled off the right side of the roadway. Sires

died in the accident.

       Appellant filed a wrongful death and a survival action against Drawbar.

Drawbar filed preliminary objections to Appellant’s complaint, averring

Appellant failed to state a legally sufficient claim against Drawbar.

Specifically, Drawbar argued Appellant failed to plead that Drawbar served

alcohol to a visibly intoxicated Loutzenhiser.1         As such, under the

Pennsylvania Dram Shop Act, 47 P.S. § 4-497, Drawbar, a Liquor Control

Board licensee, was not liable for Appellant’s injuries.        Section 4-497

provides as follows:

       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[e] when the said customer was
       visibly intoxicated.

47 P.S. § 4-497.

       The trial court agreed with Drawbar,2 granted the preliminary

objections, but permitted Appellant to file an amended complaint.           The

____________________________________________


1
  Loutzenhiser was later added as an additional defendant. See Stipulation
of Consent to Joinder of Additional Defendant, 5/9/13, at 1.
2
  In addition, in response to Appellant’s allegation that a duty to provide
proper safeguards against unruly patrons existed independently of the Dram
Shop Act (i.e., general negligence grounds), the trial court noted Appellant
provided no authority “for the proposition that a business is somehow a
(Footnote Continued Next Page)


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amended complaint again contains two causes of actions: a wrongful death

action and a survival action, and “both actions contain Count I and II with

Counts I under each of the aforesaid actions being based upon averments of

general negligence and Count II of both above actions being based on the

Dram Shop [Act].”         Trial Court Opinion, 7/19/13, at 2 (footnote omitted).

The Appellant pled theories of liability in the alternative. Appellant pled

general negligence under Count I to each action that did not aver visible

intoxication, and at Count II to each action Appellant pled Dram Shop Act

liability based upon service of alcohol to Loutzenhiser while visibly

intoxicated.3   In his general negligence counts, Appellant, in sum, alleges

Drawbar is liable to Appellant for premises liability in that Drawbar’s

employee took no reasonable steps to prevent Sires from leaving the bar in

Loutzenhiser’s vehicle knowing of Loutzenhiser’s erratic actions and for not

having security in the bar to prevent Loutzenhiser’s criminal conduct.

Drawbar filed preliminary objections again, “particularly challenging the

general negligence counts in Count I of each of the two causes of action.”

Id.   According to Drawbar, pursuant to section 4-497, a bar owner is not

liable for injuries inflicted by a customer to patrons off the premises, unless


                       _______________________
(Footnote Continued)

guarantor of its patrons’ safety on the patrons’ way back to their homes.”
Trial Court Opinion, 1/3/13, at 4.
3
  Apparently, as noted by the trial court, Drawbar does not have insurance
coverage for Dram Shop Act liability.



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J-A04033-14



the bar owner provided alcohol to said customer while visibly intoxicated.

The trial court agreed with Drawbar, granted the preliminary objections

again, and struck with prejudice the general negligence counts (Count I of

the wrongful death action and Count I of the survival action) because “they

[were] barred by [Section 4-497].” Trial Court Order, 5/7/13, at 1.4 This

appeal followed.5

       Appellant raises the following issue for our review:

       Should an action for premises liability be dismissed at the
       [p]reliminary [o]bjection stage based upon a [L]iquor [C]ode
       exemption when the facts are not yet established as to whether
       or not the person inflicting the harm is even a “customer” and
       when there are allegations of harm occurring on the licensed
       premises?

Appellant’s Brief at 5.

       Our review of the issue is governed by the following standard:

       When reviewing the dismissal of a complaint based upon
       preliminary objections in the nature of a demurrer, we treat as
       true all well-pleaded material, factual averments and all
       inferences fairly deducible therefrom. Where the preliminary
       objections will result in the dismissal of the action, the objections
____________________________________________


4
  With regard to the Dram Shop Act counts (Count II of the wrongful death
and Count II of the survival action), the trial court struck with prejudice
paragraphs 29(b), 49(b), 29(c), and 49(c) because “plaintiff’s counsel
conceded at argument court that these paragraphs were not averred as
alternative grounds for recovery under the Dram Shop Act.” Trial Court
Order, 5/7/13, at 1.
5
  Although the order dismissing Appellant’s general negligence counts is
interlocutory, the order comes to us as a final order from the trial court
under Pa. R.A.P. 341(c).



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        may be sustained only in cases that are clear and free from
        doubt.    To be clear and free from doubt that dismissal is
        appropriate, it must appear with certainty that the law would not
        permit recovery by the plaintiff upon the facts averred. Any
        doubt should be resolved by a refusal to sustain the objections.
        Moreover, we review the trial court’s decision for an abuse of
        discretion or an error of law.

Lovelace v. Pa. Property & Cas. Ins. Guar. Ass’n, 874 A.2d 661, 664

(Pa. Super. 2005) (citation omitted).

        Appellant posits three arguments in support of the issue presented.

First, the reference in 4-497 to “damages” inflicted upon third persons off

the licensed premises must refer to “harm”, since it is only harm that can

occur    on   the   licensed   premises      that     can   lead   to   damages,    i.e.,

compensation. It is Appellant’s contention the harm that caused Sires’ death

was not the roadway accident, but rather Drawbar’s actions that occurred on

the licensed premises.         Second, Section 4-497 does not apply, since

Loutzenhiser was not a Drawbar customer. Third, even if section 4-497 is

applicable, Drawbar may still be liable under Section 344 of the Restatement

(Second) of Torts, since “damages” were inflicted upon Sires while he was

on Drawbar’s premises.         We find that we need not resolve the statutory

construction arguments over the civil immunity granted under section 4-497

to affirm the trial court granting preliminary objections to dismiss the

general negligence counts of the amended complaint.                  We arrive at this

conclusion    because   the    alternative    facts    pled   in   Appellant’s   general

negligence counts do not, in any event, state viable causes of action for




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premises liability even if the civil immunity from damages under 4-497 was

not applicable here.6

       Section 344 of the Restatement (Second) of Torts provides:

       A possessor of land who holds it open to the public for entry for
       his business purposes is subject to liability to members of the
       public while they are upon the land for such a purpose, for
       physical harm caused by the accidental, negligent or
       intentionally harmful acts of third persons and animals, and by
       the failure of the possessor to exercise reasonable care to

          (a) discover that such acts are being done or are likely to be
          done, or

          (b) give a warning adequate to enable the visitors to avoid
          the harm, or otherwise protect them against it.

Restatement (Second) of Torts § 344 (1965) (emphasis added).

       For the present purposes, we note that among the necessary criteria

for liability to attach under Section 344, are the requirements that a member

of the public be on a possessor’s land and physical harm be caused by the

acts of a third person while the member is on that land. Neither of these

elements to a cause of action under Section 344 are pled in the general

negligence claims averred by Appellant.          The averments of Appellant’s

amended complaint, which we must accept as true for the present purposes,

do not plead that Sires’ physical harm occurred while on Drawbar’s

premises. The amended complaint expressly pleads that Sires’ accidental
____________________________________________


6
  We do not hold or determine here whether any such immunity applies to
the facts of this case.



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J-A04033-14


death occurred while a passenger in Loutzenhiser’s vehicle on a public

roadway off Drawbar’s property. For this reason alone we affirm the trial

court’s order dismissing Appellant’s general negligence claims, as Appellant

cannot state a viable cause of action for negligence against Drawbar under

section 344. Accordingly, it matters not whether the civil immunity under 4-

497 applies here in affirming the trial court’s dismissal of the negligence

claims to Appellant’s amended complaint.

      Appellant nonetheless, principally argues this case is similar to

Morgan v. Bucks Associates, 428 F. Supp. 546 (E.D. Pa. 1977).

According to Appellant, in Morgan “a [d]efendant was held to be liable for

negligence and failing to exercise reasonable care to protect the [p]laintiff,

who was assaulted in the parking lot outside the [d]efendant’s premises.”

Id.   at   14.   Appellant   however,   does   not   accurately   consider   the

distinguishing facts in Morgan.   In Morgan, the plaintiff sued for injuries

she sustained when, after leaving work, she was attacked while walking to

her car parked nearby in a parking lot owned by the defendant. The issue in

Morgan was whether the defendant had taken reasonable steps to provide

adequate security in its parking lot.    It was not disputed the defendant

owned the premises where the attack occurred. Possession of the premises,

as stated above, is essential to liability under Section 344.      Here, Sires’

physical harm did not occur on Drawbar’s premises, a fact that readily




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distinguishes this case from Morgan for purposes of imposing liability under

Section 344.


      Other cases cited by Appellant similarly are distinguishable from the

present matter.   Both Rommel v. Schambacher, 11 A. 779 (Pa. 1887),

and Corcoran v. McNeal, 161 A.2d 367 (Pa. 1960), concerned suits where

the plaintiffs sued for injuries sustained when they were injured by other bar

patrons while on a defendant’s premises.     Gray Horse Tavern v. United

States Fidelity and Guarantee Company, 5 Pa. D. & C. 3d 5 (Com. Pl.

1977), while not binding on this Court, only determined that an insurer was

obligated to provide insurance defense coverage to a plaintiff who was sued

by an injured customer for both Dram Shop Act liability and for negligence.

The allegations of negligence in Gray were sufficient to trigger the insurer’s

duty to provide a defense to plaintiff.      Therefore, while the Appellant

correctly notes that the law recognizes both Dram Shop liability claims and

claims of negligence for failing to provide proper safeguards against unruly

patrons, the above cases do not assist in remedying the fatal flaws in

Appellant’s negligence claims, those being that Appellant’s physical harm by

a third person did not occur while on Drawbar’s premises.

      In light of the foregoing, we conclude the trial court did not abuse its

discretion or commit an error of law in sustaining Drawback’s preliminary

objections.

      Order affirmed. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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