Klein v. Raysinger
444 A.2d 753
Pa. Super. Ct.
1982
Check Treatment

*1 KLEIN, Appellant, RAYSINGER, Corp. Neptune Inn, t/a Mr. and Mrs. Pennsylvania. Superior Court Argued Sept. 1981. 16, 1982. Filed Allowance of June Appeal for Granted Petition Curran, and John Paul Ryan Philadelphia, P. Joseph appellant. O’Rourke, Norristown, for appellees. MONTGOMERY, JJ. SPAETH, POPOVICH

Before *2 POPOVICH, Judge: action Klein, personal injury Michael filed a

Appellant, as a result and others Mark appellee, Raysinger, against in the objections Preliminary accident. of an automobile appeal This were filed and sustained. demurrer form of a We affirm. followed. as follows: are are undisputed which facts

The a motor was 8, 1978, operating appellant On or about May struck which was Turnpike Pennsylvania on the vehicle to Prior by appellee. which was driven rear a vehicle by Inn, Neptune of the a prior being patron and collision beverages and alcoholic was served beer Raysinger Mark Gilligan, by Mr. and Mrs. of appellees, the home that Mark alleged son, Appellant Gilligan. their he was served at the time was visibly Raysinger Mr. and Mrs. Michael and home. Appellees, at the com- appellant’s objections filed Gilligan, preliminary did not complaint because, according appellees, to them. The of as cause action cognizable legal a objec- their preliminary sustained and agreed trial court tions.1 evolution of that “the contends appellant

In this an intoxicat- [, combination deadly awareness of that public by dictate a revolution automobile,] an should ed driver and of tort concepts of the traditional the Courts of consumption the indiscriminate occasioned by destruction complaint appellant assert- filed a five count shows that 1. The record driver, against Raysinger, the owners ing causes Inn, Gilligan, Mrs. William Neptune and Mr. and of the objec- Gilligan Family preliminary filed the instant tions, granted, the instant and which formed the basis of were which complaint to the Gilli- appeal. Consequently, was dismissed as gans only. beverages.” at 2. We Brief for decline alcoholic to overrule law in this invitation area. appellant’s in this jurisdiction Manning case controlling 310 A.2d 75 In Manning, appel- lant, was a in an Manning, passenger Clair automobile when by driven Russell Walters an automobile accident his In that complaint, appellant alleged occurred. and Andy Frank, as J & F individually trading served at a com- Company, intoxicating liquors Rubber had while he was intoxicated. The visibly Walters pany party trial court: action was under any cause of stated theory

“held 493(1) held that of the specifically Act § IV, 12, 1951, 90, Art. 493(1), amended, P.L. as § 4—493(1), conduct, 47 P.S. which defines certain unlawful liability upon does not appellees.1 *3 1 provides: part in The section relevant board, any any the or licensee or ... be unlawful “It shall any agent licensee or other of such or the board employe, or servant sell, any any liquor give liquor permit furnish or ... or to person, any sold, given, person visibly or furnished to be ... (Footnote 76 239, A.2d at Pa. 310 v. Manning Andy, 454 original). in Court affirmed curiam. Man- Superior per

On 902, (1971). Andy, v. ning Pa.Super. granted Manning allocatur and affirmed. v. Court Supreme said opinion, In an Court Andy, supra. Supreme following: in sale of engaged licensed intoxicants

“[o]nly persons been held to be liable to civily injured parties. have 1973, 626, v. Upper Jardine No. Darby Lodge us A.2d 550 asks civil liability like who on nonlicensed furnish intoxi- persons for no remuneration. We decline to do cants so. While merit, have we feel that a deci- appellant’s proposal may of this nature is legisla- sion monumental best left to the Id. 454 ture.” Pa. at 310 A.2d at time, At the Manning is still law. Addition- good ally, compelling circumstances have arisen which warrant rejecting principle enunciated in Manning imposing on liability “nonlicensed . . . who persons furnish intoxicants for no remuneration.” Id. 454 Pa. at 310 A.2d at 76. Thus, it is clear from case, the facts of the instant appellant’s cause of action must fail.2

SPAETH, J., files concurring statement.

SPAETH, Judge, concurring: I do not reach the question whether non-licensed persons are liable for furnishing intoxicants to others without com- pensation, for even on appellant’s no cause theory, pleaded. It is not alleged that Michael knew or should have known that Mark Raysinger was going drive an automobile. purposes,

2. For edification though we note that even under the view- expressed Pomeroy’s in Justice concurring opinion, appellant’s com- plaint appear in tort would cognizable one, to be a since the com- Manning framed, filed in was not appellants, ordinary like in law but was couched in statutory language of the criminal our result unchanged. instant case remains majority Manning supra, rejected unconditionally the imposing principle persons. on nonlicensed Accord- Manning ingly, because majority, repre- commanded a four vote it Supreme the view of our sents Court.