J-E04005-14


                                2015 PA Super 137

FAYE M. MORANKO, ADMIN. OF THE                   IN THE SUPERIOR COURT OF
ESTATE OF RICHARD L. MORANKO,                          PENNSYLVANIA
DECEASED

                         Appellant

                    v.

DOWNS RACING, LP, D/B/A MOHEGAN
SUN AT POCONO DOWNS

                         Appellee                     No. 192 MDA 2013


                   Appeal from the Order January 4, 2013
              In the Court of Common Pleas of Luzerne County
                   Civil Division at No(s): 2011-CV-10312


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J.,
        and OTT, J.

DISSENTING OPINION BY MUNDY, J.:                       FILED JUNE 10, 2015

      I respectfully dissent.    I agree with the esteemed Majority that the

issue in this case is whether Appellee (Mohegan Sun) owed a duty of care to

Richard Moranko (Decedent).         Majority Slip Opinion at 1-2.   However, I

disagree that the trial court properly concluded, as a matter of law for the

purpose of summary judgment, that no duty was owed under the facts of

this case.   I do not believe we need to reach the issue of first impression

articulated by the Majority, i.e., what inherent duty, if any, a valet service

owes to a visibly intoxicated patron when returning that person’s vehicle.

Rather, under the particular facts of this case, construed in a light most

favorable to Appellant, Faye Moranko, the non-moving party, as our
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standard of review requires, I conclude Mohegan Sun assumed such a duty

as part of its internal organizational and operational policies.     See E.R.

Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013). I

reach my conclusion based on this Commonwealth’s adoption of Section 323

of the Restatement (Second) of Torts (1965) (recognizing the existence of a

duty to others for voluntarily assumed undertakings).

      I believe the Majority’s determination that Moranko waived her

argument relative to Mohegan Sun’s duty on the theory described in Section

323 of the Restatement is unwarranted.           In her answer and brief in

opposition to Mohegan Sun’s motion for summary judgment, Moranko raised

and argued the substance of this claim.        In her response to the motion,

Moranko stated the following.    “Given the facts and circumstances of this

case, which include but are not limited to, the Mohegan Sun Casino having

its own policies and procedures with regard to visibly intoxicated guests, a

duty exists in this matter and the same was breached.” Plaintiff’s Response

to Defendant’s Motion for Summary Judgment, 8/16/12, at 2, ¶ 10.

Furthermore, in her brief in opposition to the motion, Moranko related facts

from deposition testimony supporting the existence of a duty based on this

theory.   Brief in Support of Plaintiff’s Response to Defendant’s Motion for

Summary Judgment, 8/16/12, at 6-12. Moranko concluded, “[d]espite all of

the   aforementioned   polices   [sic]   and    procedures   regarding   visible

intoxication, the employees of the Mohegan Sun on the night in question


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failed to implement any of them ….” Brief in Support of Plaintiff’s Response

to Defendant’s Motion for Summary Judgment, 8/16/12, at 6-12.

      When advancing this argument on appeal before the prior panel of this

Court, Moranko cited, albeit mistakenly, to Section 324A of the Restatement

(Second) of Torts, which, as the Majority notes, pertains to the duty of care

owed by a principal to third persons, resulting from the principal’s voluntarily

undertaken policy or action. Majority Slip Opinion at 5-6. The substance of

Moranko’s argument, however, was clearly relevant to an application of

Section 323. See Moranko’s Brief at 15-17.

      Thus, the essence of Moranko’s argument, that Mohegan Sun owed

Decedent a duty of care based on its own internal policies, has been

consistently presented to both the trial court and this Court with full

opportunity for Mohegan Sun to respond. Our Supreme Court has held that

a mere erroneously labeled claim will not require waiver on appeal.

            However, [mistitling] does not change the fact that
            [Appellant’s] theory, under whatever name one
            might assign to it, was one it never abandoned nor
            from which it ever retreated. As a result, all parties
            were aware of the claim and had an opportunity to
            litigate it. Therefore, [Appellant] has preserved its
            right to have its claim … reviewed on appeal. To
            hold otherwise would be to elevate form over
            substance.

Thatcher's Drug Store of W. Goshen, Inc. v. Consol. Supermarkets,

Inc., 636 A.2d 156, 159 n.5 (Pa. 1994).         For these reasons, I do not

consider the argument waived and will proceed to address its merits.



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     The Majority states, “[t]his internal policy of Mohegan Sun is aimed

not at preventing their valets from withholding an automobile from a visibly

intoxicated patron, but from keeping visibly intoxicated patrons from

gambling on the casino gaming floor.” Majority Slip Opinion at 7. From this,

the Majority concludes the policies cannot create a duty on Mohegan Sun

toward Decedent. Id. I disagree that the policies at Mohegan Sun were so

circumscribed.

     During discovery, Appellant deposed Dennis Driscoll, the Director of

Security and Transportation for Mohegan Sun. Brief in Opposition to Motion

for Summary Judgment, 8/16/12, Exhibit I, N.T., 1/9/12.            Appellant

questioned Driscoll about the training provided and policies pursued by

Mohegan Sun respecting intoxicated patrons. Id. at 15-30.

                 [Attorney for Appellant].       Do  [Mohegan
           Sun security guards] receive training as to spotting
           an individual who is visibly intoxicated?

                 [Dennis Driscoll].         Yes.

                Q.    What kind of training do they receive and
           who [sic] would they receive that from?

                 A.    Well, they receive it from both, you
           know, internally with a supervisor but also they
           attend a class. It’s called a RAMP class, Responsible
           Alcohol Management Program.

                Q.    So all of your security guards attend the
           RAMP class?

                A.    To a degree. We maintained an over 50
           percent staffing level that is trained in it. I would


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            say it’s probably — it’s maintained probably about a
            70 to 80 percent.

                  Q.    And why is it important for security
            guards to have an understanding of the RAMP
            program and to spot patrons who are visibly
            intoxicated?

                   A.   The main responsibility -- the main
            reason for that is because the gaming -- gaming
            requires that w[e] deny individuals from entering or
            remaining present on the gaming floor if they are
            intoxicated. It’s one of the main responsibilities so
            we have to remove the individual from the gaming
            floor.

Id. at 15-16.

      Driscoll further testified about the procedures security personnel are to

follow upon noticing an intoxicated patron and the purpose behind those

procedures. Driscoll testified specifically as follows.

                  [Attorney for Appellant].     And what are
            they to do with a guest who is visibly intoxicated?

                  [Dennis Driscoll].      Well, the first thing
            that they do is they will contact Security dispatch --
            that’s the command center -- to report it, contact a
            supervisor and also contact surveillance.

                   And at that point the officer, we make an
            attempt to get the individual off the gaming floor,
            wait for a supervisor to arrive and he will confirm
            whether the individual appears to be intoxicated. At
            that time --

                                        …

                  And at that point we explain to the individual
            that we feel that they are intoxicated and that we
            would no longer allow them to the gaming floor and


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            actually the house policy is that we try to get
            the individual home safely.

                   Q.     So is it fair to say that it doesn’t stop at
            just telling them they can’t gamble anymore?

                   A.        Oh, no.

Id. at 17-18 (emphasis added).

      Driscoll   testified    that     security   personnel   endeavor   to   dissuade

intoxicated patrons from driving, attempt to secure alternate transportation,

and, if unsuccessful, alert police. Id. at 18, 22, 27. Driscoll testified that

most instances are handled by security personnel before a patron proceeds

to the valet service.        However, he also testified that the valet service

personnel are instructed to watch for signs of intoxication and report the

same to security. Id. at 29-30.

                    Q.    When you say stall giving them their car,
            is it fair to say that you have the -- within the valet
            system you have the power to stall because you’re
            ultimately bringing the car back; right?

                   A.        That’s correct.

                                             …

                  Q.     Now, we have been talking about signs
            of visible intoxication. What is your understanding
            both in what you’ve been instructed and what you
            personally instruct on for signs of visible
            intoxication?

                 A.     The basic signs are somebody who
            staggers in their walk or somebody who slurs in their
            speech.




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                  Q.    And is it your understanding that the
            valet runners and the hosts at the guest kiosk center
            would be instructed on that?

                  A.    They are.

                  Q.    And why is that important for them to be
            instructed on that?

                  A.     Well, simply because we don’t want
            someone to get in their car that seems to be
            intoxicated.

Id. at 23-24.

      In addition to the deposition of Driscoll, Nicholas G. Keeler, a valet

employed by Mohegan Sun, was deposed. Brief in Opposition to Motion for

Summary Judgment, 8/16/12, Exhibit J, N.T., 5/9/12.         In his testimony,

Keeler related that he was trained to identify indications of intoxication and

to report any encounters to a supervisor. Id. at 8-10.

                  Q.    At any point in time when you’re being
            trained by the valet that you’re kind of shadowing
            there, did they ever discuss with you what to do if
            you encounter a visibly intoxicated patron trying to
            get their vehicle?

                 A.     Yes. We are supposed to inform our
            supervisor via radio.

                 Q.   Does that instruction that you just told
            me, does that come from the valet who is training
            you?

                  A.    No.

                  Q.    Who does that instruction come from?

                 A.     That’s basically from Tecio [Baldoni, a
            supervisor,] himself. If you see somebody that’s

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          intoxicated or any kind of disturbances, you know, in
          your surroundings, let one of us know.

                Q.    And that’s something that would have
          been told to you in your initial meeting with Tecio?

                A.    Yes.

                Q.    After you were hired?

                A.    Yes.

                Q.    What types of things did Tecio tell you to
          look for in terms of someone who is visibly
          intoxicated?

               A.    Stumbling, slurred speech — what’s the
          word I'm looking for — disoriented, you know.

                Q.    And can that be someone who is actually
          getting their vehicle where you’re the runner and
          you’re about to give the vehicle to them and you see
          those signs?

                A.    Yeah.

               Q.     And your duty, then, is to call the
          supervisor?

                A.    First of all, we would ask them, Are you
          okay to drive? Do you want to come in for a cup of
          coffee? We can give you a ride home, call a cab.

                If they argue, there’s nothing we can do. You
          know, if it’s that bad where I – they’re visibly
          intoxicated, I would call Tecio.

                Q.    You would call Tecio?

                A.    Tecio or another supervisor on duty.

                 Q.    Would you call that supervisor before
          letting the person get into the vehicle?


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                   A.        Yes. If they were visibly intoxicated,
            yes.

Id. (italics in original).

      Based on the foregoing, I conclude that the internal policy of Mohegan

Sun was not limited to keeping intoxicated patrons from the gambling floor.

Rather, the policy was broader and encompassed its admitted goal to protect

intoxicated patrons from driving.       To that end, Mohegan Sun employees,

including but not limited to valets, were trained and instructed, inter alia, to

look for indications of intoxication among patrons, advise intoxicated patrons

that alternative transportation could be arranged, and if unsuccessful in

persuasion, notify the appropriate police department.      Thus, Mohegan Sun

voluntarily assumed to render security services designed to protect patrons

from the dangers of driving while intoxicated.

      Pennsylvania, by adopting Section 323 of the Restatement (Second) of

Torts, recognizes that a duty may be found in a party who voluntarily

assumes an undertaking.         Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super.

2011). Section 323 specifies as follows.

            § 323 Negligent Performance of Undertaking to
            Render Services

                  One who undertakes, gratuitously or for
            consideration, to render services to another which he
            should recognize as necessary for the protection of
            the other’s person or things, is subject to liability to
            the other for physical harm resulting from his failure
            to exercise reasonable care to perform his
            undertaking, if


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                     (a) his failure to exercise such care increases
              the risk of such harm, or

                    (b) the harm is suffered because of the other’s
              reliance upon the undertaking.

RESTATMENT (SECOND)      OF   TORTS (1965) § 323. A plaintiff need not satisfy both

Subsections (a) and (b). Establishing either will suffice. Feld v. Merriam,

485 A.2d 742, 746 n.4 (Pa. 1984).

                    It is made clear at the outset of [] section
              [323] that the duty to exercise care arises when ‘one
              … undertakes, gratuitously or for consideration to
              render services to another which he should recognize
              as necessary for the protection of the other’s person
              or things …’. The language of the subsections clearly
              reveals they were intended not to apply to scope of
              duty but to causal connection between the physical
              harm and defendant’s failure to exercise reasonable
              care. Subsections (a) and (b) permit that causal
              connection to be proved by evidence that
              defendant’s failure increased the risk of such harm
              as was suffered by plaintiff or by evidence that the
              harm was suffered because of reliance on the
              defendant’s undertaking.

Hamil v. Bashline, 307 A.2d 57, 61 (Pa. Super. 1973) (Bashline I).1

                     We agree with the view of the Superior Court
              majority expressed in Bashline I that the effect of
              § 323(a) is to relax the degree of certitude normally
              required of plaintiff’s evidence in order to make a
              case for the jury as to whether a defendant may be
              held liable for the plaintiff’s injuries: Once a plaintiff
              has introduced evidence that a defendant’s negligent
____________________________________________
1
  Bashline I was overruled on other grounds by this Court in a subsequent
appeal at Hamil v. Bashline, 364 A.2d 1366 (Pa. Super. 1976) (Bashline
II). Our Supreme Court in turn reversed Bashline II while approving the
analysis of the Bashline I Court relative to its interpretation of Section
323(a). Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978).


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           act or omission increased the risk of harm to a
           person in plaintiff’s position, and that the harm was
           in fact sustained, it becomes a question for the jury
           as to whether or not that increased risk was a
           substantial factor in producing the harm.

Hamil v. Bashline, 392 A.2d 1280, 1286 (Pa. 1978).

     “…Thus where it appears How an accident happened and also that the

victim Might have saved himself by taking advantage of a precaution which it

has been shown defendant negligently failed to afford, courts have generally

let a jury find whether the precaution would in fact have saved the victim.”

Id. at 1287, quoting F. Harper and F. James, The Law of Torts, Vol. 2,

§ 20.2, at 1113 (1956) (emphasis in original).

     Of specific relevance to the facts in this case, our Supreme Court has

recognized that voluntarily providing a program of security may create a

duty under Section 323. Id. at 746 (holding that a landlord who voluntarily

established a security program for an apartment complex could create a

duty of care to tenants for the proper conduct of that program under Section

323, even though the landlord was not otherwise contractually bound to do

so under the lease with tenants).

     For the foregoing reasons, I would reverse the trial court’s January 4,

2013 order granting summary judgment to Mohegan Sun.           I express no

opinion relative to the issue of first impression addressed by the Majority,

concerning the duty of valet services in general to intoxicated patrons, as I

deem the issue moot under the particular facts of this case.


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     PJE Bender and Judge Donohue join this Dissenting Opinion.




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