           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin Williams, Administrator of the
                                  :
Estate of Robin Taneisha Williams,:
Deceased, and Robin Williams,     :
Individually,                     :
                  Appellants      :
                                  :
      v.                          : No. 786 C.D. 2018
                                  : ARGUED: March 14, 2019
Barry M. Searfoss and Warminster :
Township and Five Ponds Golf Club :
and Bump & Run Charity Golf and :
D’Angelo Foundation and D’Angelo :
and Company and Christine Cole    :
and P.J. Hansen and Lisa Williams :
and Charles (“Tony”) Williams     :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: May 1, 2019

       Robin Williams (Plaintiff), individually and as administrator of the estate of
decedent Robin Taneisha Williams, appeals following entry of judgment in the
Bucks County Court of Common Pleas1 (trial court) on a verdict rendered in favor
of Plaintiff after trial.    This appeal involves two interlocutory pretrial orders
sustaining the preliminary objections of Defendants Warminster Township
(Township) and Five Ponds Golf Club (Golf Club) (jointly, Municipal Defendants),


       1
       The Honorable Robert O. Baldi entered the orders at issue in this appeal. The Honorable
James M. McMaster presided over the trial in this case.
and the preliminary objections of D’Angelo Foundation, D’Angelo & Company,
Christine Cole, P.J. Hansen, and Charles and Lisa Williams (collectively, Agent
Defendants). After thorough review, we affirm.
                                       I. Background
       In May 2012, the decedent was killed in a motor vehicle accident on the
Pennsylvania Turnpike. Defendant Barry M. Searfoss (Searfoss), while driving
under the influence of alcohol, ran his pickup truck into the rear of the decedent’s
automobile, which was moving slowly because of engine failure.
       Prior to the accident, Searfoss, a Pennsylvania State Trooper, was at the Golf
Club attending a charity golfing event, ironically inspired by a 1997 drunk driving
fatality. The Golf Club hosted the event. D’Angelo Foundation and D’Angelo &
Company sponsored the event. According to Plaintiff’s complaint, Christine Cole,
P.J. Hansen, and Charles and Lisa Williams were “agents” or “employees” of
Municipal Defendants, D’Angelo Foundation, and D’Angelo & Company.
Reproduced Record (R.R.) at 37a.
       Searfoss paid a fee to attend the event. While there, he consumed alcoholic
beverages to the point where he became legally intoxicated. He then drove his truck
on the Pennsylvania Turnpike and caused the fatal accident. When tested after the
accident, Searfoss’s blood alcohol level was 0.18.
       In May 2014, Plaintiff filed suit against Searfoss, Municipal Defendants, and
Agent Defendants.2 Relevant here, Plaintiff alleged Municipal Defendants and
Agent Defendants were negligent in serving alcohol at the event without monitoring
consumption, and specifically in serving Searfoss while he was visibly intoxicated.


       2
        Plaintiff also sued Bump and Run Charity Golf (B&R), an entity of uncertain legal status.
As discussed further below, B&R did not participate in the action.


                                               2
       Municipal Defendants and Agent Defendants filed preliminary objections
asserting governmental immunity, which the trial court sustained. Plaintiff filed an
appeal, which this Court quashed as interlocutory and therefore premature. The case
then proceeded against Searfoss.
       In May 2018, the trial court held a two-day trial which resulted in a total
verdict of $7,100,000 in Plaintiff’s favor against Searfoss. After judgment was
entered on the verdict, Plaintiff filed a timely appeal challenging the trial court’s
interlocutory orders that sustained the preliminary objections of Municipal
Defendants and Agent Defendants. This matter is now before us for disposition.
                                            II. Issues
       On appeal,3 Plaintiff presents several related arguments against applying
governmental immunity. She contends the statute commonly known as the Political
Subdivision Tort Claims Act4 (Tort Claims Act) does not immunize municipal golf
course liquor licensees from tort liability for serving alcoholic beverages to visibly
intoxicated persons. Further, she asserts the Liquor Code5 does not provide local
government liquor licensees with any exception from tort liability for serving
alcoholic beverages to visibly intoxicated persons. Plaintiff also argues the Tort
Claims Act does not provide immunity from liability to agents and employees of
municipal golf course licensees for intentional, wanton, and willful conduct in

       3
          On appeal from an order granting preliminary objections, our standard of review is de
novo and scope of review is plenary. Rohner v. Atkinson, 118 A.3d 486 (Pa. Cmwlth. 2015). We
accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every
inference that may be fairly deduced from those facts. Id. We will sustain the preliminary
objections when, under the facts as pleaded, it is clear the plaintiff will be unable to establish a
right to relief. Id.

       4
           42 Pa. C.S. §§ 8541-8542.

       5
           Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101–10-1001.


                                                 3
serving alcoholic beverages to visibly intoxicated persons who then cause injuries
to third persons away from the licensed premises.
      Additionally, Plaintiff insists her complaint averred material facts sufficient
to support an award of punitive damages.
                                   III. Discussion
                          A. Jurisdiction over the Appeal
      As a threshold issue, we must determine whether this appeal is properly before
us. Specifically, we must consider whether the judgment in this matter disposed of
all claims against all parties, in that Defendant Bump & Run Charity Golf (B&R)
was never formally dismissed as a party in the trial court. The record indicates
Plaintiff served B&R with the complaint, but it does not reflect disposition of
Plaintiff’s claim against B&R. To be final and appealable, an order ordinarily must
dispose of all claims and all parties. Pa. R.A.P. 341(b)(1). Therefore, this Court
directed the parties to address whether the trial court’s judgment disposed of the
claim against B&R.
      Plaintiff states that the complaint erroneously named B&R as a Defendant
when in reality it was simply the name of the event. Plaintiff suggests B&R was
“not a person, corporation or business entity capable of being sued.” Appellants’
Br. at 8 n.1. However, Plaintiff fails to point to any record support for this averment.
      The complaint identified B&R as “a corporation or other entity duly organized
and existing under the laws of the Commonwealth of Pennsylvania [or] an
organization or association of individuals or entities trading and doing business
under such fictitious name . . . .” R.R. at 36a. Moreover, although B&R never
appeared or answered the complaint, the record shows B&R was served in June 2014
at its principal place of business, the residence of Defendant Christine Cole. Plaintiff



                                           4
did not discontinue her claims against B&R or request a determination of the finality
of the trial court orders under Pa. R.A.P. 341(c).
       In order to resolve this issue, the parties have stipulated to dismissal of B&R
as a party to the action. Confirmation of that stipulation was filed in this Court on
April 3, 2019. Accordingly, the appeal is now properly before us.
                  B. Governmental Immunity of Liquor Licensees
       Under the Tort Claims Act, as a general rule, governmental agencies enjoy
immunity from tort liability; “no local agency shall be liable for any damages on
account of any injury to a person or property caused by any act of the local agency
or an employee thereof or any other person.” 42 Pa. C.S. § 8541. The exceptions to
governmental immunity are set forth in Section 8542 of the Tort Claims Act, which
permits imposition of liability for specific enumerated categories of acts, none of
which is implicated here.6 See 42 Pa. C.S. § 8542(b).
       Plaintiff argues Municipal Defendants and Agent Defendants are not entitled
to governmental immunity as local agencies. Plaintiff also relies on the provisions
of the Liquor Code as support for her argument that Municipal Defendants and Agent
Defendants are not immune from liability.
               1. Local Agency Immunity under the Tort Claims Act
       Plaintiff contends the trial court erred in extending tort immunity to Municipal
Defendants and Agent Defendants as local agency liquor licensees. Based on that
contention, Plaintiff argues the trial court further erred by sustaining the preliminary

       6
         We reject the suggestion raised at oral argument that Brewington v. City of Philadelphia,
199 A.3d 348 (Pa. 2018) has any relevance to this case. Brewington concerned the real property
exception to governmental immunity, distinguishing injuries caused by defects in real property
from those arising out of negligent supervision in the absence of such defects. There is no defect
in real property here. Even if Plaintiff could fit the averments of her complaint within the
parameters of a negligent supervision claim, such a claim is not among the exceptions to
governmental immunity. Thus, Brewington has no application here.


                                                5
objections of Agent Defendants, because Agent Defendants do not have immunity
if the Township and Golf Club do not have immunity. We discern no merit in
Plaintiff’s arguments.
      In Guinn v. Alburtis Fire Co., 614 A.2d 218 (Pa. 1992), our Supreme Court
determined that local agency immunity shielded a volunteer fire company from
liability for serving alcohol to a visibly intoxicated individual who later suffered an
injury while walking home.         The Court held a volunteer fire company’s
governmental immunity is not limited to acts within the scope of its duties; volunteer
fire companies are entitled to governmental immunity under 42 Pa. C.S. § 8541 even
when they are not engaged in firefighting activities. The Court reasoned that “[t]he
language of Section 8541 is clear and unambiguous. Section 8541 provides that a
local agency is entitled to governmental immunity; it does not say that a local agency
is entitled to governmental immunity only when acting within the scope of its
duties.” Guinn, 614 A.2d at 220.
      In Sphere Drake Insurance Co. v. Philadelphia Gas Works, 782 A.2d 510 (Pa.
2001), our Supreme Court determined the Philadelphia Facilities Management
Corporation (PFMC), a nonprofit corporation formed to manage the city-owned Gas
Works, qualified as a local agency for purposes of governmental immunity. In
making that determination, the Court noted that Section 8501 of the Judicial Code
defines a “local agency” as a government unit other than the Commonwealth
government. 42 Pa. C.S. §8501. Under Section 102 of the Judicial Code, a
“government unit” includes “any government agency.” 42 Pa. C.S. § 102. A
“government agency” is “[a]ny Commonwealth agency or any political subdivision
or municipal or other local authority, or any officer or agency of any such political
subdivision or employer.” Id. (emphasis added).



                                          6
      Plaintiff attempts to distinguish our Supreme Court’s decisions in Guinn and
Sphere Drake supporting local agency immunity. Plaintiff maintains that our
Supreme Court intended to limit its decision in Guinn to volunteer fire companies,
which are not licensed by the Pennsylvania Liquor Control Board (PLCB). Plaintiff
also asserts that Sphere Drake did not involve liability under the Liquor Code.
      Plaintiff acknowledges the trial court’s observation that vocational-technical
schools, port authorities, municipal parking authorities, county health departments,
recorders of deeds, charter schools, and police departments have all been deemed
local agencies that enjoy immunity under the Tort Claims Act. See Tr. Ct., Slip Op.,
at 14. However, Plaintiff maintains that none of these entities are Liquor Code
licensees.
      Plaintiff argues there is a distinction between entities with societal value, such
as volunteer fire companies, and municipal golf courses that sell alcoholic
beverages. A volunteer fire company provides protection for the life and property
of its citizens at a fraction of the cost of a full-time municipal fire company. In
contrast, a municipal golf club with a liquor license provides no necessary public
function and differs little from a private golf club with a liquor license.
      Contrary to Plaintiff’s arguments, we find both Guinn and Sphere Drake
applicable here.    The trial court properly determined that the Tort Claims Act
provides Agent Defendants with immunity from Plaintiff’s tort claims in this case.
The purpose of the Tort Claims Act is to limit governmental exposure to tort liability.
Sphere Drake.
      Notably, in Sphere Drake, our Supreme Court overruled this Court’s
determination in Modern Shoppers World – Mt. Airy Corp. v. Philadelphia Gas
Works, 643 A.2d 136 (Pa. Cmwlth. 1994) that PFMC was not a local agency for



                                           7
purposes of the Tort Claims Act. The Court found our conclusion in Modern
Shoppers that only “traditional units of government” were “local authorities” for
immunity purposes was “squarely at odds with the actual definition of ‘local
authority’ provided in [Section 1991 of] the Statutory Construction Act [of 19727].”
Sphere Drake, 782 A.2d at 515.
      Here, the trial court properly determined Municipal Defendants are local
agencies entitled to immunity under the Tort Claims Act. Sphere Drake; Guinn;
Eger v. Lynch, 714 A.2d 1149 (Pa. Cmwlth. 1998). Plaintiff concedes in her
complaint that Golf Club is owned and operated by the Township and that the
Township owns the liquor license issued to Golf Club. R.R. at 36a. As agents of
Municipal Defendants, Agent Defendants likewise enjoy immunity. The trial court
correctly so found.
                   2. Local Agency Immunity and the Liquor Code
      One who accepts a liquor license must be deemed to consent to all proper
conditions and restrictions imposed by the Liquor Code in the interest of public
morals and safety. Teazers, Inc. v. Pa. Liquor Control Bd., 661 A.2d 455 (Pa.
Cmwlth. 1995). Here, Municipal Defendants hold a liquor license. Golf Club is one
of 44 Pennsylvania municipal golf course liquor licensees.
      Plaintiff insists the Liquor Code does not exempt municipal golf course
licensees from its provisions. Plaintiff argues the Liquor Code and the Tort Claims
Act should be construed together because both statutes provide for immunity and
identify circumstances where liability may be found. See 1 Pa. C.S. § 1932(a)(b).
      Plaintiff argues that the specific legislative provisions of the Liquor Code
must prevail over any inconsistent general provisions in the Tort Claims Act


      7
          1 Pa. C.S. § 1991.


                                         8
arguably covering the same subject matter. Thus, Plaintiff contends the specific
provisions pertaining to the unlawful act of serving alcoholic beverages to a visibly
intoxicated person in Sections 493(1) and 497 of the Liquor Code, 47 P.S. §§ 4-493
& 4-497, control over the immunity provisions of the Tort Claims Act.
      Plaintiff asserts that the intent of the Legislature in enacting the Liquor Code
was to exercise plenary and exclusive control over the use and sale of alcoholic
beverages. See Clement & Muller, Inc. v. Tax Review Bd. of Phila., 659 A.2d 596
(Pa. Cmwlth. 1995). Plaintiff observes that the Liquor Code’s provisions are
liberally construed for the protection of the public welfare, health, peace and morals
of the people of the Commonwealth.
      Plaintiff contends Municipal Defendants were complicit in providing
unlimited alcohol at the event for consumption over an extended period of time.
Plaintiff argues Municipal Defendants, as liquor licensees, are bound by the conduct
of their agents in serving a visibly intoxicated person. As such, they must share
liability for their roles in creating the circumstances that resulted in the death of
Plaintiff’s decedent. Plaintiff further argues that extending immunity to Municipal
Defendants would permit these licensees to flaunt the tort liability provisions of the
Liquor Code while performing no necessary governmental service to the public.
      Under Section 493(1) of the Liquor Code, it is unlawful for any licensee of
the PLCB, or any employee, servant or agent of a licensee, to furnish liquor or malt
or brewed beverages to any visibly intoxicated person.          47 P.S. § 4-493(1).
However, a licensee is not liable to third persons for injuries inflicted away from the
licensed premises by a customer of the licensee, unless the licensee or his agent or
employee served liquor or malt or brewed beverages to the customer while he or she
was visibly intoxicated. 47 P.S. §4-497.



                                           9
        Selling or permitting the sale of alcoholic beverages to a visibly intoxicated
person constitutes negligence per se. Juszczyszyn v. Taiwo, 113 A.3d 853 (Pa.
Super. 2015). If such conduct proximately causes the third-party plaintiff’s injury,
the licensee may be found liable. Zygmuntowicz v. Hosp. Invs., Inc., 828 F. Supp.
346 (E.D. Pa. 1993); Detwiler v. Brumbaugh, 656 A.2d 944 (Pa. Super. 1995).
        Here, Plaintiff asserts she established that Municipal Defendants served
Searfoss while he was visibly intoxicated. Therefore, Plaintiff argues they are
subject to liability as licensees under the Liquor Code.
        We reject Plaintiff’s contention that the Liquor Code essentially preempts the
Tort Claims Act for tort claims asserted under Sections 493(1) and 497 of the Liquor
Code. By the plain terms of the Tort Claims Act, the General Assembly expressed
its clear intention that no other statute or pronouncement will modify the immunity
granted therein. The Tort Claims Act provides: “Except as otherwise provided in
this subchapter, no local agency shall be liable for any damages on account of any
injury to a person or property . . . .” 42 Pa. C.S. § 8541 (emphasis added).
        Section 8541 of the Tort Claims Act provides governmental immunity from
liability on account of any injury unless the claim falls within one of the exceptions
in Section 8542(b). None of the eight exceptions in Section 8542(b) covers a tort
claim for an off-premises injury inflicted by a third party. Consequently, even if
Plaintiff might otherwise have a tort cause of action under Section 497 of the Liquor
Code,     because that negligence claim does not fall within any exception to
governmental immunity, Municipal Defendants are entitled to immunity.             See
McCarthy v. City of Bethlehem, 962 A.2d 1276 (Pa. Cmwlth. 2008) (even though
damages would otherwise be recoverable under common law or statute, the negligent




                                          10
act must fall within one of the narrowly construed exceptions to governmental
immunity).
      Plaintiff’s alternate argument that the Liquor Code and Tort Claims Act must
be construed together pursuant to 1 Pa. C.S. § 1932 also fails. The purpose of the
Tort Claims Act is to limit government exposure to tort liability. Sphere Drake. The
preservation of the public treasury against the possibility of unusually large tort
recoveries is an important government interest. Id. Thus, the Tort Claims Act serves
a different purpose from that of the Liquor Code, which seeks to protect the public
by regulating the sales and use of alcoholic beverages. Therefore, Plaintiff’s
contention that the Liquor Code and Tort Claims Act must be construed together to
permit tort claims against local government agencies with liquor licenses lacks merit.
      For the above reasons, we hold that Municipal Defendants are entitled to
governmental immunity from Plaintiff’s claims. See Sphere Drake; Guinn; Eger.
          C. Immunity for Intentional, Wanton, and Willful Conduct
      In an alternative argument, Plaintiff asserts Agent Defendants lost their right
to claim governmental immunity by engaging in outrageous and willful misconduct
within the meaning of 42 Pa. C.S. § 8550. Plaintiff maintains Agent Defendants
intentionally served alcoholic beverages to a visibly intoxicated person who then
caused an injury to a third person off the premises.         Plaintiff alleges Agent
Defendants knew that participants, including Searfoss, drove their motor vehicles to
the event and would be driving home. Plaintiff asserts Agent Defendants acted with
an evil motive when despite this knowledge, they willfully, wantonly, maliciously,
and intentionally provided unlimited alcoholic beverages to the participants for nine
hours. Therefore, Plaintiff argues, they lost any immunity defense. Plaintiff argues




                                         11
the facts set forth in her complaint sufficiently alleged that Agent Defendants acted
with willful and malicious intent.
      Plaintiff did not raise this argument in her pleadings or memoranda of law
presented to the trial court. The trial court correctly concluded that Plaintiff waived
this issue by raising it for the first time in this appeal. Pa. R.A.P. 302(a); Schmidt v.
Boardman Co., 11 A.3d 924, 941 (Pa. 2011); Sovich v. Estate of Sovich, 55 A.3d
1161 (Pa. Super. 2012) (issues raised for the first time on appeal are waived).
      In addition, in Pennsylvania, a civil complaint must not only apprise the
defendant of the claim being asserted, but also summarize the facts essential to
support the claim. McShea v. City of Philadelphia, 995 A.2d 334, 339 (Pa. 2010).
To that end, the complaint must disclose material facts sufficient to enable the
adverse party to prepare its case. Id. Here, as discussed above, Plaintiff did not
attempt to assert a claim under 42 Pa. C.S. § 8550 until she filed her Pa. R.A.P.
1925(b) Statement. Consequently, Plaintiff’s complaint failed to apprise Agent
Defendants of the willful misconduct claim against them. McShea.
      Further, to establish intentional and willful misconduct for purposes of waiver
of governmental immunity under 42 Pa. C.S. § 8550, a plaintiff must show that the
defendant desired to bring about the result that occurred. Pettit v. Namie, 931 A.2d
790, 801 (Pa. Cmwlth. 2007). Allegations of gross and culpable negligence, or even
wanton and reckless behavior, are not the legal equivalent of pleading willful
misconduct. See Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994) (willful
misconduct under 42 Pa. C.S. § 8550 means willful misconduct aforethought).
      Here, Plaintiff’s complaint failed to allege that Agent Defendants had the
requisite intent aforethought to provide Defendant Searfoss with so much alcohol
that he would assuredly drive his truck into another vehicle. Accordingly, Plaintiff’s



                                           12
willful misconduct claim under 42 Pa. C.S. § 8550 was ineffective to overcome the
immunity of Municipal Defendants and Agent Defendants.
                               D. Punitive Damages
      A demand for punitive damages is not a separate cause of action; it depends
on the viability of the claim to which it relates. See Kirkbride v. Lisbon Contractors,
Inc., 555 A.2d 800, 802-03 (Pa. 1989) Therefore, because Municipal Defendants
and Agent Defendants are entitled to governmental immunity, Plaintiff’s demand for
punitive damages also fails. Id.
                                   IV. Conclusion
      A tort claim under Sections 493(1) and 497 of the Liquor Code does not fall
within any of the exceptions to governmental immunity in the Tort Claims Act, 42
Pa. C.S. § 8542. The trial court properly determined Municipal Defendants and
Agent Defendants are shielded by governmental immunity. Accordingly, based on
the foregoing discussion, we affirm the trial court’s orders sustaining the preliminary
objections of Municipal Defendants and Agent Defendants and dismissing
Plaintiff’s claims against them.


                                        __________________________________
                                        ELLEN CEISLER, Judge

Judges McCullough and Fizzano Cannon did not participate in the decision of this
case.




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin Williams, Administrator of the
                                  :
Estate of Robin Taneisha Williams,:
Deceased, and Robin Williams,     :
Individually,                     :
                  Appellants      :
                                  :
      v.                          : No. 786 C.D. 2018
                                  :
Barry M. Searfoss and Warminster :
Township and Five Ponds Golf Club :
and Bump & Run Charity Golf and :
D’Angelo Foundation and D’Angelo :
and Company and Christine Cole    :
and P.J. Hansen and Lisa Williams :
and Charles (“Tony”) Williams     :


                                  ORDER


      AND NOW, this 1st day of May, 2019, the judgment of the trial court is
AFFIRMED.




                                       __________________________________
                                       ELLEN CEISLER, Judge
