J-A05031-15

                             2015 PA Super 71



CHRISTOPHER JUSZCZYSZYN,                      IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        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                  No. 2252 EDA 2014


               Appeal from the Order Entered June 19, 2014
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 140401076


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

OPINION BY SHOGAN, J.:                             FILED APRIL 10, 2015

     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.
J-A05031-15


       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 Act1 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?


____________________________________________


1
    Dram Shop Act, 47 P.S. §§ 4-493, 4-497, which among other things,
prohibits liquor-selling establishments from serving alcohol to visibly
intoxicated persons.



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J-A05031-15


Appellant’s Brief at 3 (full capitalization omitted).2

       “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., 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, 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

____________________________________________


2
  We direct Appellant’s attention to Pa.R.A.P. 2116, which reads in relevant
part as follows:

       The statement of the questions involved must state concisely the
       issues to be resolved, expressed in the terms and circumstances
       of the case but without unnecessary detail. The statement will be
       deemed to include every subsidiary question fairly comprised
       therein. No question will be considered unless it is stated
       in the statement of questions involved or is fairly
       suggested thereby.

Pa.R.A.P. 2116 (emphasis added). Appellant’s general claim of trial court
error fails to identify the grounds upon which Appellant believes the trial
court erred. We could conclude that Appellant’s vague claim of error waived
his specific issues. Southcentral Employment Corp. v. Birmingham Fire
Ins. Co. of Pennsylvania, 926 A.2d 977, 983 n.5 (Pa. Super. 2007).
However, because the argument portion of Appellant’s brief narrows the
issues, we find that our review of this matter is not significantly
handicapped, and we shall address the issues as presented in the argument
portion of the brief.



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J-A05031-15


      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,

63 A.3d 313, 316 (Pa. Super. 2013) (citation omitted).         Our standard of

review of a lower court’s decision granting a demurrer is de novo. Bruno,

106 A.3d at 56 (citation omitted).

      Additionally, with respect to Appellant’s argument concerning the

ability to amend his complaint, our Court has stated:

      Even where a trial court sustains preliminary objections on their
      merits, it is generally an abuse of discretion to dismiss a
      complaint without leave to amend. There may, of course, be
      cases where it is clear that amendment is impossible and where
      to extend leave to amend would be futile .... However, the right
      to amend should not be withheld where there is some
      reasonable possibility that amendment can be accomplished
      successfully. In the event a demurrer is sustained because a
      complaint is defective in stating a cause of action, if it is evident
      that the pleading can be cured by amendment, a court may not
      enter a final judgment, but must give the pleader an opportunity
      to file an amended pleading....

In re Estate of Luongo, 823 A.2d 942, 969 (Pa. Super. 2003) (citation and

quotation marks omitted). “Nevertheless, a defective pleading that cannot

be cured by amendment is appropriately dismissed upon a demurrer.” Id.

(citation omitted).




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J-A05031-15



       Appellant first argues that the trial court erred in relying on Holpp v.

Fez, Inc., 656 A.2d 147 (Pa. Super. 1995), as support for its conclusion

that Appellant was a licensee as opposed to a business invitee. Appellant’s

Brief at 8. We disagree.

       Generally, in premises liability cases, the determination of whether an

individual is an invitee, licensee, or trespasser is a question of fact for the

jury. Palange v. City of Philadelphia, Law Dept., 640 A.2d 1305, 1307

(Pa. Super. 1994). An invitee is either a public invitee or a business visitor.

Id. (citing Restatement (Second) of Torts § 332 (1965)). A public invitee is

a person who is invited to enter or remain on land as a member of the public

for a purpose for which the land is held open to the public, and a business

visitor is a person who is invited to enter or remain on land for a purpose

directly or indirectly connected with business dealings with the possessor of

the land.      Id. (citing Restatement (Second) of Torts § 332 (1965)).

Conversely, the Restatement defines a “licensee” as “a person who is

privileged to enter or remain on land only by virtue of the possessor’s

consent.” Id. (quoting Restatement (Second) of Torts § 330 (1965)).

       In Holpp, we analyzed a police officer’s status as a licensee or invitee

in conjunction with a discussion of the police officer’s status as a first-

responder under what is termed the “fireman’s rule.”3 We noted that while

____________________________________________


3
  The fireman’s rule provides that a police officer or fire fighter who enters a
premises belonging to another in connection with his or her official duties
(Footnote Continued Next Page)


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J-A05031-15



the fireman’s rule has not been formally adopted in Pennsylvania, a police

officer who enters upon another’s land in his or her official capacity and in

response to a call for assistance is generally considered a licensee. Holpp,

656 A.2d at 149 (citing Mull v. Kerstetter, 540 A.2d 951 at 952-953).4 “In

such situations, the land owner’s duty is to warn the licensee of dangerous

hidden conditions.” Id. (citing Mull, 540 at 953). Nevertheless, “[e]ven if a

police officer enters another’s land as an invitee, … the possessor of the land

does not become an insurer of the officer’s safety.” Id. (citation omitted).

The possessor’s duty is only to use reasonable care to protect his or her

invitees from unknown or nonobvious dangers. Id. (citation omitted).

      In addressing a nearly identical factual scenario to the one at bar, this

Court in Holpp stated as follows:

      Here, Officer Holpp had been called to the appellee’s
      establishment to quell a disturbance. He agreed to return at a
      later time to provide further assistance if necessary. When he
      returned, he was acting in his official capacity, was aware
      of the potential for violence among patrons who had been
                       _______________________
(Footnote Continued)

assumes certain risks and cannot recover from the possessor of land for
subsequent injuries. Holpp, 656 A.2d at 149 (citing Mull, 540 A.2d at 952-
953).
4
  We note with approval a discussion on the fireman’s rule coming from the
Union County Court of Common Pleas nearly thirty years ago, which
acknowledged that, despite not formally adopting the fireman’s rule, “courts
almost universally recognize that neither a fireman nor a policeman can
recover when their complaint is based on the same conduct that initially
created the need for the officer’s presence in his official capacity.” Trudnak
v. Lilley, 44 Pa. D. & C.3d 493, 498, 1986 WL 20812 (C.P. Union County
1986).



                                            -6-
J-A05031-15


        consuming alcoholic beverages, and was conscious of the
        attendant risks. Under such circumstances, whether Holpp
        be considered an invitee or a licensee, the trial court
        could conclude, as a matter of law, that appellee had
        breached no duty to Officer Holpp.

Holpp, 656 A.2d at 149 (emphasis added).

        After careful review, we conclude that the rationale in Holpp forestalls

Appellant from sustaining a legally cognizable cause of action.         We are

satisfied that the decision in Holpp established that under the circumstances

presented in the instant case, Appellant, a police officer who was responding

to a call and in the performance of his duties, was a licensee, and Appellees

were required only to warn Appellant of dangerous hidden conditions.

Moreover, even if we were to accept Appellant’s argument that he was an

invitee, or could upon amendment of his complaint establish that he was an

invitee, Appellees would have been bound to only use reasonable care to

protect Appellant from unknown or nonobvious dangers.            The complaint

reveals that Appellant was responding to a disturbance call at a bar where

the perpetrator was groping female patrons, drinking other people’s drinks,

and being physically confrontational.     Complaint, 4/11/14, at ¶19.     Thus,

when Appellant arrived at Appellees’ establishment, encountering an

intoxicated and physically confrontational individual was an obvious and

known risk. No amendment to Appellant’s complaint would have altered this

fact.

        Accordingly, this matter falls under the general rule that Appellant, as

a police officer, was a licensee, and therefore, is not entitled to recover


                                      -7-
J-A05031-15



damages under the facts of this case as he cannot establish a breach of a

duty in his negligence claim. Additionally, any amendment to the complaint

on this issue would have been futile, and we discern no error of law or abuse

of discretion in the trial court’s decision to grant the preliminary objections

and deny an opportunity to amend the complaint.

       In his second issue on appeal, Appellant claims that the trial court

erred in dismissing count two of his complaint concerning Dram Shop Act

liability. Appellant’s Brief at 12. Appellant argues that the trial court erred

in concluding that he failed to plead a statute or a causal nexus between

Appellees providing alcohol and Appellant’s injuries. Id. After review of the

record, we affirm; however, we do so for a reason other than that cited by

the trial court.5

       The Pennsylvania Dram Shop Act provides in relevant part as follows:

       § 4-493 Unlawful Act relative to liquor, malt and brewed
       beverages

                                          ***

       (1) It shall be unlawful for any licensee or the board, or any
       employee, servant or agent of such licensee or of the board, or
       any other person, to sell, furnish or give any liquor or malt or
       brewed beverages to be sold, furnished or given, to any person
       visibly intoxicated ...

                                          ***

____________________________________________


5
   It is well settled that we may affirm the decision of the trial court on any
valid basis appearing of record. Louis Dreyfus Commodities Suisse SA
v. Financial Software Systems, Inc., 99 A.3d 79, 82 (Pa. Super. 2014).



                                           -8-
J-A05031-15


       § 4-497 Liability of licensee

       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 employee
       when the said customer was visibly intoxicated.

47 P.S. §§ 4-493(1), 4-497. A violation of the Dram Shop Act is deemed

negligence per se.       Johnson v. Harris, 615 A.2d 771, 775 (Pa. Super.

1992) (citation omitted).

       However, before liability may be imposed on the liquor-license holder

(“liquor licensee”),6 the petitioner must establish that he or she is part of the

protected class the statute is designed to safeguard.         See McCloud v.

McLaughlin, 837 A.2d 541, 545 (Pa. Super. 2003) (stating that before an

individual can be held negligent per se, his violation of the statute must

cause the kind of harm the statute was intended to avoid and cause that

harm to a person within the class of persons the statute was intended to

protect) (citation omitted). Here, the Dram Shop Act’s purpose is “to protect

an individual’s rights from the harm caused by the negligent service of

alcohol.” Zygmuntowicz v. Hospitality Investments, Inc., 828 F.Supp.




____________________________________________


6
  We use the term “liquor licensee” to distinguish a licensee under the Dram
Shop Act from a licensee in the premises liability context we addressed in
Appellant’s first issue.




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J-A05031-15



346, 349 (E.D. Pa. 1993).7         “Specifically, Pennsylvania purports to protect

society in general and the intoxicated persons themselves from their inability

to exercise due care.” Id. (citing Schelin v. Goldberg, 146 A.2d 648, 652

(Pa. Super. 1958), Majors v. Brodhead Hotel, 205 A.2d 873, 875 (Pa.

1965)).

       Appellees offer the following cogent argument with respect to the class

of persons the Dram Shop Act is designed to protect:

              While Pennsylvania courts do recognize that a violation of
       47 P.S. §4-497 is negligence per se, it does not appear that this
       Court or any other Court has ever recognized what class of
       persons the statu[t]e it is meant to protect. As stated by §4-
       497, the statu[t]e clearly attempts to protect third persons from
       harm caused off the [liquor] licensee’s premises by customers of
       a [liquor] licensee [who were] served while visibly intoxicated.
       See 47 P.S. §4-497.3 However, Appellees submit that a police
       officer responding to a call of an “unruly patron” [who] was
       allegedly served while visibly intoxicated is not the class of
       persons the statute seeks to protect, and, therefore, [Appellant]
       cannot make a negligence per se claim against [Appellees].4
       This is especially true when the police officer is aware of the
       potential intoxication and dangers presented by the unruly
       patron, and then knowingly confronts such an individual. To
       establish such liability would violate public policy, given the fact
       that it is accepted that restraining and subduing intoxicated
       individuals is part of a police officer’s job, and given the fact that
       businesses and citizens must often seek the assistance of the
       police, knowing that such assistance might place the police in
       harm’s way.
____________________________________________


7
  While we are not bound by decisions of the federal courts, we may rely on
them as persuasive authority. McEwing v. Lititz Mut. Ins. Co., 77 A.3d
639, 648 n.7 (Pa. Super. 2013).            We are persuaded that the
Zygmuntowicz      decision   succinctly   summarizes     the   purpose   of
Pennsylvania’s Dram Shop Act.



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J-A05031-15


            3
               It is clear that most citizens of the Commonwealth
            are a protected class. The most common “Dram
            Shop” claim typically involves an intoxicated person
            that leaves a bar and then injures a third person
            during a motor vehicle accident. In these incidents,
            the citizen is typically unaware of the person[’]s
            intoxicated state, and has not confronted or
            intentionally engaged the intoxicated person in any
            way.
            4
                Appellee understands that there may be times a
            police officer may be part of the protected class, i.e.
            if he/she is struck by an intoxicated person while in a
            patrol car. However, when the facts are presented
            for a Dram Shop claim as here, and a police officer is
            fully aware of the potential risks posed by the
            allegedly intoxicated patron, and the officer engages
            that patron in the performance of his/her duties, as a
            police officer, that police officer does not come within
            [the] statute.

             As mentioned, to now claim a right to recover for being
      injured while performing his duties as an officer could open the
      gates for a flood of claims by police officers on businesses and
      the citizens of the Commonwealth. [Appellees] needed the
      police officer’s assistance because of an unruly patron. Appellant
      voluntarily chose to preserve the public peace and “prevent and
      detect crime” as part of his official duty as a police officer. The
      citizens and businesses of the Commonwealth should not have to
      think twice about seeking the aid of its police when a need
      arises.

Appellees’ Brief at 20-21. After careful review, we agree with the rationale

posited by Appellees in support of affirmance on this issue.

      In determining whether a police officer acting in his official capacity is

within the class of individuals the Dram Shop Act was designed to protect,

we first look to the function of police officers. The Philadelphia Home Rule

Charter provides as follows:

      § 5.5-200. Functions


                                     - 11 -
J-A05031-15


              The Police Department shall have the power and its duty
        shall be to perform the following functions:

        (a) Law Enforcement. It shall preserve the public peace,
        prevent and detect crime, police the streets and highways and
        enforce traffic statutes, ordinances and regulations relating
        thereto.    The Department shall at all times aid in the
        administration and enforcement within the City of the statutes of
        the Commonwealth of Pennsylvania and the ordinances of the
        City.

351 Pa. Code § 5.5-200(a) (emphasis added).

        Therefore, it is axiomatic that a police officer, as distinguished from a

non-police officer, is duty-bound to preserve the public peace, which, inter

alia,   includes   responding   to   calls   of   disturbances   in   liquor-serving

establishments.      In the instant case, Appellant, in his capacity as a

Philadelphia Police Officer, responded to a disturbance call, and while

performing his duties, he encountered and was compelled to physically

engage an allegedly intoxicated individual. This is part of a police officer’s

duty.     Moreover, a liquor licensee should not have to first reflect on

insurance-claim exposure when requesting police assistance.              The Iowa

Supreme Court addressed a similar scenario and aptly discussed the class of

persons its Dram Shop Act is designed to protect as follows:

        While we do not wish to hold that police officers would never be
        within the class of persons our statute was designed to protect,
        we do conclude officers are not protected when the violation of
        the dram shop statute is also the act that created need for the
        officers’ presence. In those circumstances, the officers are
        functioning as part of the mechanism erected by the State to
        protect the public against the vagaries of an intoxicated person
        and, as such, are not within the purview of the statute.
        Additionally, the public policy concerns we noted earlier are just
        as valid in a dram shop action as they are in actions for ordinary
        negligence. On the other hand, if an officer was injured by an

                                       - 12 -
J-A05031-15


       intoxicated patron when he was performing a law enforcement
       activity unrelated to a violation of the statute, the public policy
       concerns we voiced would not be offended by permitting liability
       and he would be protected under the act.

Pottebaum v. Hinds, 347 N.W.2d 642, 647-648 (Iowa 1984).8,9                  We

conclude that the same is true here.

       Under the facts of our case, we conclude that Appellant was not within

the class of individuals that the Dram Shop Act was designed to protect.10

Accordingly, the trial court did not err or abuse its discretion in sustaining

the demurrer and denying Appellant the opportunity to amend his complaint

as no recovery was possible.

____________________________________________


8
    We recognize that Pottebaum is a non-binding opinion from the Iowa
Supreme Court dealing with Iowa’s decision to adopt the fireman’s rule and
Iowa’s Dram Shop Statute. However, the language cited above succinctly
illustrates the logic behind excluding police and firefighters from the class of
people the Pennsylvania Dram Shop Act is designed to protect and the
exception to that very conclusion. Accordingly, we cite Pottebaum only for
its explanation of the limitations on the scope of Iowa’s Dram Shop Statute,
as we are persuaded that it is instructive here.
9
   The purpose of Iowa’s Dram Shop Act is nearly identical to Pennsylvania’s
Dram Shop Act. See Smith v. Shagnasty's Inc., 688 N.W.2d 67, 72 (Iowa
2004) (Iowa's Dram Shop statute provides a remedy against a licensee for
injuries sustained as a result of the sale and service of alcohol to an
intoxicated person); Iowa Code § 123.92.
10
     This does not mean, however, that a police officer can never bring a
claim and recover damages under a Dram Shop Act theory of liability. As
Appellees pointed out, one such situation where an officer could be within
the class of citizens protected by the Dram Shop Act is where a police officer
is struck by an automobile driven by an intoxicated person who was served
alcohol by a liquor licensee while intoxicated.




                                          - 13 -
J-A05031-15



      For the reasons set forth above, any negligence which may have

occurred resulting from Appellees’ agents serving alcohol to an allegedly

intoxicated individual does not result in liability to Appellant on the part of

Appellees. McCloud, 837 A.2d at 545. Moreover, in light of our conclusion

that under the circumstances presented here, Appellant is not in the class of

citizens protected by the Dram Shop Act, amendment of his complaint would

be futile. Luongo, 823 A.2d 969. Therefore, we conclude that Appellant is

entitled to no relief. Accordingly, we affirm the order sustaining Appellees’

preliminary objections in the nature of a demurrer.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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