author: ESHELMAN, W.R., ].,

text:
    Abraham Lincoln Hotel Corp. v. Metropolitan Edison

      Harold E. Kohn and Daniel B. Huyett, for plaintiffs Abraham Lincoln Hotel Corporation and Grace Charleston.

      Samiiel B. Russell, for defendant Metropolitan Edison Company.
    December 12, 1988
   ESHELMAN, W.R., ].,

This case involves an appeal from a demurrer entered on the claim of a stockholder of a corporation against a third-party defendant premised on injury caused to the corporation by negligence of defendant.

Plaintiffs’ amended complaint alleges that beginning in July 1984, plaintiffs, Abraham Lincoln Hotel Corporation and Grace Charleston, who owns substantially all of the stock of Lincoln Corporation, undertook the rehabilitation and improvement of the Abraham Lincoln Hotel; that Charleston advanced and invested personal funds and personally guaranteed certain obligations of Lincoln Corporation to accomplish said rehabilitation; that defendant Metropolitan Edison Company, supplier of electricity for Abraham Lincoln Hotel, in October 1987 undertook modifications and repairs to certain electrical lines and equipment controlled by defendant and contained in an underground vault at the hotel; that on November 11, 1987, an explosion and fire originating within the vault caused by negligence of Met Ed resulted in severe damage to the hotel and contents resulting in cessation of hotel operations and inability to operate the hotel profitably, causing financial loss to Charleston and subjecting her to future financial loss.

Plaintiffs’ amended complaint sets forth two counts: count I, negligence claim against Met Ed for damages sustained by Lincoln Corporation; and count II, negligence claim against Met Ed for financial loss individually sustained by Charleston. Met Ed filed preliminary objections in the nature of a demurrer, contending that: (a) Charleston does not have a valid claim for individual economic loss in her capacity as a stockholder and creditor of Lincoln Corporation and guarantor of corporate obligations, and (b) Charleston does not have a valid claim for individual economic loss in the absence of direct physical harm to her or her property!

On September 19, 1988, upon consideration of defendant’s preliminary objections in the nature of a demurrer to count II, the briefs of argument submitted, and oral argument heard thereon, we sustained Met Ed’s preliminary objections, allowing plaintiffs opportunity to file an amended complaint. (We did not address count I of plaintiffs’ amended complaint which was not included in Met Ed’s preliminary objections.) Plaintiffs appealed to the Superior Court of Pennsylvania from our order of September 19,1988. Hence this memorandum opinion.

Pa.R.C.P. 1017(b)(4) allows defendant to. challenge preliminarily the legal sufficiency of plaintiffs’ cause of action. A preliminary objection in the nature of a demurrer admits as true all well-pleaded material, relevant facts. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A. 2d 402 (1985). A demurrer will be sustained only when it appears with certainty that the law permits no recovery under the allegations pleaded. Daniel Adams Association Inc. v. Rimbach Publishing Inc., 287 Pa. Super. 74, 429 A. 2d 7826 (1981). Any doubts in the determination should be resolved by overruling said objections. Hoffman v. Miscericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d. 867 (1970).

Plaintiffs contend that as a direct result of Met Ed’s negligence, Charleston has and will sustain certain economic losses, specifically (1) that the value of Charleston’s investment in the shares of Lincoln Corporation has diminished; (2) that the funds personally advanced and loaned to Lincoln Corporation have not and cannot be paid to Charleston; and (3) Charleston, as guarantor for obligations of Lincoln Corporation, may be forced to make payment under her personal guarantees, thereby sustaining personal losses. Plaintiffs contend that Charleston as shareholder, creditor and guarantor has suffered and will suffer injuries separate and distinct from other shareholders and therefore may recover from defendant in her own right. We find plaintiffs’ contentions to be without merit.

Charleston as Shareholder

The rule in Pennsylvania is that a stockholder of a corporation cannot maintain an action for indirect injury done to him or her as a result of injury to the corporation, Burdon v. Erskine, 264 Pa. Super. 584, 401 A.2d 369 (1979), citing Kelly v. Thomas, 234 Pa. 419, 83 Atl. 307 (1912). However, “[a] stockholder" can maintain an action, where the act of which complaint is made is not only a wrong against the corporation, but is also in violation of duties arising from contract, or otherwise, and owing to him directly.” White v. First National Bank of Pittsburgh, 252 Pa. 205, 213, 97 Atl. 403, 405 (1916). 12B Fletcher Cyc. Corp. §5911, at 420-1 (perm, ed.) sets forth the circumstances under which a stockkholder can maintain an individual action:

“If the injury is one to the plaintiff as a stockholder and to him individually, and not to the corporation, as where the action is based on a contract to which he is a party, or on a right belonging severally to him, or on a fraud affecting him directly, it is an individual action. On the other hand, if the wrong is primarily against the corporation, the redress for it must be brought by the corporation, except where a derivative action by a stockholder is allowable, and a stockholder cannot Sue as an individual . . . The action is derivative, that is, in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual holders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets.” (footnotes omitted)

In the instant case Lincoln Corporation is the only party alleged to have been directly injured by the negligence of Met Ed. Charleston has no personal connection or relationship with Met Ed, and her alleged injury is only indirect as a stockholder. She cannot maintain an individual action because it is not based on a contract, to which she is a party, or a right belonging severally to her, or on a fraud affecting her directly.

Allthough Charleston alleges diminution in the value of her shares of stock in Lincoln Corporation as a result of Met Ed’s negligence, this is an indirect harm to her and she has no right to sue. Kauffman v. Dreyfus Fund Inc., 434 F.2d 727 (3d Cir. 1970).

Charleston’s allegation that she owns substantially all of the stock of Lincoln Corporation does not give her standing for an individual action against Met Ed. White v. First National Bank of Pittsburgh, supra.

“The fact that a stockholder owns all, or practically all, or a majority of the stock, does not of itself authorize him to sue as an individual. This is because the sole shareholder is regarded, as having taken advantage of the opportunity to operate his business as a corporate entity, with all of the advantages that business device confers. Regardless of the identity of financial interests between corporation and shareholder, he cannot employ the corporate form to his advantage in the business world and then choose to ignore its separate entity when he gets to the courthouse . . . -

“The reason underlying the general rule requiring the action to be brought by the corporation, even when the stockholder dominates the corporation, is not only that such a single action will avoid a possible multiplicity of actions by various stockholders and will not act as a bar to a subsequent action by the corporation, but also that the damages so recovered may be available for the payment of the corporation’s creditor as well as for distribution to the stockholder or stockholders.” 12B Fletcher Cyc. Corp.; §5910, at 418 (perm, ed.) (footnotes omitted)

The Supreme Court reasoned in Beeber v. Wilson, 285 Pa. 312, 316, 131 Atl. 854, 855 (1926): “When plaintiff became a stockholder he knew, for he was bound to know, that his rights, as such, would have to be worked out through the corporation, and not in his individual name.” (citiations omitted)

Plaintiff contends that there are two exceptions to the general rule that a stockholder cannot bring an individual action for injury to the corporation, namely (1) where there is a special duty, such as contractual duty, between the wrongdoer and shareholder, and (2) where the shareholder suffered an injury separate and distinct from that suffered by the other shareholders, and that Charleston as a guarantor of loans to Lincoln Corporation and a creditor of Lincoln Corporation comes within the second exception. However, plaintiffs are unable to cite any cases on point from Pennsylvania or other courts supporting this contention.

Stockholder Charleston as a Guarantor

Although plaintiff cites Davis v. United States Gypsum Company, 451 F.2d 659 (3d Cir. 1971), in support of Charleston’s claim as guarantor, it is not applicable. In Davis plaintiff was a minority stockholder of Cardinal American Inc., and a guarantor on certain notes given by Cardinal American Inc. Plaintiff Davis alleged, inter alia, that defendant corporations and certain officers of one of the corporations had conspired to defraud Dávis and Cardinal American Inc., causing losses to Davis who was induced to leave his job and was forced to pay off the notes when Cardinal American Inc. became bankrupt. The court held that Davis’ personal claims were maintainable because of the alleged tortious conspiracy to defraud him individually as well as to defaud the corporation.

In the instant case Met Ed’s wrongful conduct was not directed at Charleston individually for the purpose of defrauding or injuring her but Charleston’s claim is premised on negligence of Met Ed causing direct damages to the Lincoln Corporation property.

Plaintiff also cites Buschmann v. Professional Men’s Association, 405 F.2d 659 (7th Cir. 1969), and Sachs v. American Fletcher National Bank and Trust Company, 258 Ind. 189, 279 N.E.2d 807 (1972), neither of which are applicable. In Buschmann the suit involved a contract entered into by the plaintiff with defendant who agreed to operate and manage the business of a new corporation for which the plaintiff shareholder guaranteed some loans, and plaintiffs suit was premised on breach of contract by defendant for mismangement and diverting assets of the corporation. In Sachs the corporation obtained financing from defendant bank which allegedly assured the plaintiff shareholder that defendant would provide continual financing for the corporation venture, and plaintiff guaranteed the loan made to the corporation. Defendant failed to renew the loan or extend additional credit and foreclosed. Plaintiff alleged mismangement by defendant. The court ordered remand to allow plaintiff opportunity to state a claim in that the plaintiff “may have a personal cause of action,” stating that “[a] personal cause of action arises when there is a breach of a duty owed specially to the stockholder separate and distinct from the duty owed to the corporation.” 279 N.E.2d at 812, 811. In the instant case Charleston did not have any contractual or any other personal relationship with defendant Met Ed nor was there any breach of duty owed specially to Charleston by Met Ed..

There are cases from jurisdictions other than Pennsylvania which hold that a stockholder who is also a guarantor does not entitle such person to maintain an individual action. In Mullins v. First National Exchange Bank of Virginia, 275 F.Supp. 712 (W.D. Vir. 1967) a corporation executed a loan agreement with defendants which was separately, guaranteed by plaintiff shareholders who when confronted with liability sued defendants for wrongful administration of the loan agreement. The court stated at 275 F.Supp. 722:

“The fact that plaintiffs were guarantors on the note executed by the corporation will not suffice to create a personal right of action independent of the harm suffered by the corporation.”

The court arrived at this result even though the stockholder-guarantor was suing on the basis of wrongful administration by the defendant of the very loan that was guaranteed. In contrast, in the instant case, defendant Met Ed did not receive any guarantee from Charleston. Similarly, in Sherman v. British Leyland Motors Ltd., 601 F.2d 429 (9th Cir. 1979), a stockholder who guaranteed corporate obligations was not permitted to maintain individual actions against alleged tort-feasors to whom no guarantees were made and wherein the wrongdoing did not relate to the guarantee.

Stockholder Charleston as a Creditor

In support of Charleston’s contention that she has the right to bring an individual action as a creditor of the corporation she cites Sedco International S.A. v. Cory, 522 F.Supp. 254 (S.D. Iowa 1981), aff'd., 683 F.2d 1201 (8th Cir.), cert, denied, 459 U.S. 1017 (1982), and Dustin v. Randall Faichney Corp., 263 Mass. 99, 160 N.E. 528 (1928). As relates to the instant case, both cases cited are inapposite. In Sedeo the counterclaimant Carver was induced by fraudulent misrepresentations of Sedeo International to form a venture corporation and to make personal loans to the corporation. Due to the misrepresentations, Carver’s corporation sustained severe losses as did stockholder Carver in the capacity of creditor of the corporation, and Carver was able to recover damages from Sedeo International. In Dustin a stockholder who was also a creditor of the corporation was allowed to enforce the statutory liability of the directors and officers of said corporation for issuing stock in violation of the statutes and for false representation. The court allowed plaintiff Dustin to recover damages under the statute which afforded a remedy for creditors of a corporation regardless of any stockholder status. The instant case does not involve any misrepresentations by Met Ed made to Charleston nor is there any statute which enables Charleston as a creditor to recover from Met Ed.

Attempts by stockholders to pursue an individual cause of action for damage to the corporation based only on a creditor relationship have been rejected by various courts. In Howell Steel Co. Inc. v. Trademark National Bank, 666 F.Supp. 930 (S.D. Miss. 1987) the court stated at 932:

“The court is of the opinion that the Cokers’ [one of whom was the sole shareholder] lending funds to the [Howell Steel] corporation, and mortgaging their home in order to do so, was a voluntary act on their behalf and represents no more than an investment in the corporation, thus placing them in no better position than any other creditor of Howell Steel [Corporation].” Also see, New Castle Siding Co. Inc. v. Wolfson, 63 N.Y.2d 782, 481 N.Y.S. 2d 70, 470 N.E.2d 868 (1984); Sherman v. British Leyland Motors Ltd., 601 F.2d 429 (9th Cir. 1979).

Economic Loss to Shareholder Charleston

Although Charleston alleges economic loss premised on negligent interference with her contractual relationship with the Lincoln Corporation as a stockholder/guarantor/creditor, she does not allege any physical harm to her person or her property.

In Aikens v. Baltimore and Ohio Railroad Company, 848 Pa. Super. 17, 501 A.2d 277 (1985) plaintiff employees of Motor Coils Manufacturing Company Inc. sought damages for lost wages alleging that defendant’s negligence caused a train derailment which damaged the Motor Coils plant resulting in curtailment of production and loss of wages and work. Plaintiffs did not suffer any personal injury or property damage. The court denied plaintiffs’ right to recover, citing Restatement (Second) of Torts §766C, and stated:

“Thus, recovery for purely economic loss occasioned by tortious interference , with contract or economic advantage is not available under a negligence theory. A cause of action exists in this situation only if the tortious interference was intentional or involved parties in a special relationship to one another.
“The roots of this well-established rule reach back to the U.S. Supreme Court decision of Robins Dry Dock and Repair Company v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L.Ed. 290 (1927). Writing for the court, Mr. Justice Holmes stated: ‘[A]s a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong. The law does not spread its protection so far.’ 275 U.S. at 309, 48 S.Ct. at 135, 72 L.Ed. at 292.”

Also see, Moore v. Pavex Inc., 356 Pa. Super. 50, 514 A.2d 137,(1986).

Physical damage to corporation property does not* constitute physical injury to the person of a stockholder of the corporation. In Barium Steel Corp. v. Wiley, 379 Pa. 38, 47, 108 A.2d 336, 341 (1954), the court stated:

“It is well established that a corporation is a distinct and separate entity irrespective of the persons who own all its stock. The fact that one person owns all of the stock does not make him and the corporation one and the same person, nor does he thereby become the owner of all the property of the corporation. The shares of stock of a corporation are essentially distinct from the corporate property. . . ” (citations omitted)

It should also be noted that although plaintiffs have not specifically argued that paragraphs 22, 23 and 24 of their amended complaint contain allegations of Met Ed’s intent to harm both Lincoln Corporation and Charleston by failing to make a good-faith offer of settlement of plaintiffs’ claim and thereby forcing litigation and injuring Lincoln Corporation and Charleston, we conclude that said allegations do not constitute a tort or other recognized wrongful conduct.

“The test to determine whether there is liability in an action of tort is in the answer to the question whéther the defendant by an act or omission injured another by disregarding a duty imposed by law in respect to that other.” Ebbert v. Philadelphia Electric Company, 330 Pa. 257, 269, 198 Atl. 323, 329 (1938). We know of no duty imposed on a defendant in a contested negligence suit for unliquidated damages, as in the instant case, to make an offer of settlement.

In Martin v. Martin, 118 Ga. App. 192, 163 S.E.2d 254, 256 (1968), the court relied on the following statement from 86. C.J.S. Torts §45:

“[Tjhere is no cause of action where no existing right has been violated, and thus merely compelling ánother to avail himself of his legal remedy by undertaking or carrying on litigation is not such conduct as constitutes a tort.”

Also, in Terry v. Zachry, 272 S.W.2d 157 (Tex. Civ. App. 1954) the court stated at page 159:

“An arbitrary refusal to pay an unliquidated and disputed claim is not the basis for a suit for malicious defense of a suit. Especially is this true when the debtor is solvent.”

For all of the above reasons we sustained Met Ed’s demurrer to count II of plaintiffs’ complaint for failure to state a cause of action.


source: Caselaw Access Project

author: EBY, J.,

license: Public Domain

text:
    Commonwealth v. Louden

      Bradford H. Charles, assistant district attorney, for the commonwealth.

      Robert B. Keys Jr., for defendants.
    September 8, 1989
   EBY, J.,

This case comes before the court on defendants’ post-verdict motions in arrest of judgment or, in the alternative, for a new trial. They shall receive a new triad.

Defendants are Larry E. Louden Sr. and Helen Louden, husband and wife. They were convicted on separate counts of endangering the welfare of a child (18 Pa.C.S. §4304) on May 9, 1988 following a jury trial.

The cumulative trial testimony elicted the following facts surrounding the charges brought against defendants. In July 1986 defendant Helen Louden applied for and received state certification to operate a day-care center in her home. The home was one-half of a double home, housing two separate families and divided by a common wall. In the other half of the house lived Margaret and Eli Kulovich, defendant Larry Louden’s mother and step-father.

This day-care center remained in operation from July 1986 through July 20, 1987. Beginning in July 1986, Carol Wolfe, defendant Larry Louden’s sister, began to hear yelling and other noises through the wall in the Kulovich’s home adjoining the Louden household. She heard these noises on her visits to the Kulovich’s, which occurred at least on a daily basis. Mrs. Wolfe thus became extremely concerned about the events occurring in the Louden home, knowing they operated a day-care center. She heard adults using obscene language, arguing over explicit sexual issues, directing obscenities at particular children, threats and smacking noises followed by children crying and screaming. Mrs. Kulovich heard identical noises.

Meanwhile, several parents who took their children to the Louden’s day care became concerned as well. Their children had begun resisting going to the Loudens’. The children had also begun to misbehave, act violently, become clingy and withdrawn, have nightmares and became extremely wary of adult males. In fact, some of these parents took steps to remove their children from the Louderis care even prior to the defendants’ arrest.

Ultimately, Mrs. Wolfe’s concern escalated to such a degree she contacted the appropriate authorities about the daily events in the Louden home. As a result of the information she supplied, along with independent police observation, the Loudens were arrested and each charged with endangering the welfare of a child.

Defendants were arrested on July 20, 1987. A pretrial hearing was held on April 26, 1988. At the conclusion of the pretrial hearing, over objections by defendants’ attorney, the court determined pursuant to 42 Pa.C.S. §5985, which permits testimony via closed-circuit television, the commonwealth’s child witnesses would be permitted to testify either on videotape or by closed-circuit television.

After jury selection but before opening statements, the videotaped testimony of each of the three child witnesses was taken. The witnesses were between ths ages of seven and nine years old at the time they testified. The testimony of each witness was taken in a room at the Children and Youth Services offices with the following individuals present: the child witness, one parent, the court clerk, the court stenographer, defense counsel, the district attorney and the trial judge. Defendants were not present; however, they were seated in a room next door. While the child witness was completely separated from and unable to view defendants, defendants could view the events in their entirety on closed-circuit television. They were able to communicate with defense counsel at all times. The children’s testimony was videotaped by Detective Wahman (also present during the testimony) and the tapes were shown to the jury during the course of the trial.

In addition, many other witnesses testified at trial in open court, on behalf of both the commonwealth and defendants, including defendants’ sons, Larry Jr. and Scott, ages 10 and seven years respectively. No extraordinary precautions were taken prior to the testimony of either of these children. At the close of trial, a guilty verdict was returned by the jury against each defendant.

While defendants address several errors which they assert were made by the court, in support of their motion for a new trial, no assertions have been presented alleging the verdict was not sufiiciently supported by the evidence. Because defendants have failed to articulate any arguments in support of their motion in arrest of judgment, we will focus our consideration only upon whether a new trial shall be granted. A new trial will be awarded when the trial court has committed a clear abuse of discretion, or an error of law. Commonwealth v. Jones, 455 Pa. 488, 317 A.2d 233 (1974).

Defendants have raised three issues for our determination. First, they claim the trial court erred by allowing the three commonwealth child witnesses to testify via closed-circuit television and on videotape. Next, defendants allege the court erred in refusing to declare a mistrial upon the occurrence of two separate trial events: first, during Margaret Kulovich’s testimony and second, during the prosecution’s closing argument. Because our basis for awarding defendants a new trial rests upon their initial contention, we need not go on to consider any remaining issues.

The question of the constitutionality of permitting young witnesses to testify outside the courtroom either on' videotape or by closed-circuit television has recently been :an arena for much debate. Indeed, the issue has successfully perplexed many courts in this commonwealth and throughout the United States. In 1986, two Pennsylvania statutes were enacted by the legislature which permitted use of videotape or closed-circuit television for good cause:

“§5984. Videotaped depositions
“(a) Depositions — In any prosecution involving a child victim or child material witness, the court may, for good cause shown, order the taking of a videotaped depostion of the victim or material witness on motion of the child through his parent or guardian, or where applicable, the child’s advocate or the attorney for the commonwealth. Such videotaped depositions, if taken for use at the preliminary hearing, may be used only at the preliminary hearing in lieu of the testimony of the child. If such videotaped deposition is taken for use at trial, it may be used only at the trial in lieu of the testimony of the child. The depositions shall be taken before the court in chambers or in a special facility designed for taking the depositions of children. Only the attorneys for the defendant and for the commonwealth, persons necessary to operate the equipment, a qualified shorthand reporter and any person whose presence would contribute to the welfare and well-being of the child, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his deposition. The court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant. Examination and cross-examination of the child shall proceed in the same manner permitted at trial. The court shall make certain that the defendant and defense counsel have adequate opportunity to Communicate for the purposes of providing an éffective defense.”
“§5985. Testimony by closed-circuit television
“(a) Closed-circuit television — The child victim or material witness, through his parent or guardian, or, where applicable, the child’s advocate or the attorney for the commonwealth may move, for good cause shown, that the testimony of a child be taken in a room other than the courtroom and televised by closed-circuit equipment to be viewed by the court and the finder of fact in the proceeding. Only the attorneys for the defendant and for the commonwealth, the court reporter, the judge, the persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child, including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child in person but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross-examination of the child shall proceed in the same manner as permitted at trial.” 42 Pa.C.S. §5984, §5985, enacted February 21, 1986, effective in 60 days.

This is the statute upon which the decision was made in the present case to permit the child witnesses to testify on videotape. The court found good cause had been shown by the commonwealth and so allowed the testimony as statutorily provided. We certainly do not dispute that, according to this standard, good cause was demonstrated.

At the portion of the pretrial hearing devoted to resolving this issue, testimony was. heard of one parent for each of the three children who ultimately testified. A child therapist who had counseled one of the children also testified. The therapist testified one of the children had suffered mild trauma as a result of his experiences in the Louden home. Each of the parents stated that requiring the children to testify in open court could ihtimidate and frighten their children due to the many spectators and the presence of both defendants.

To the contrary, defendant Helen Louden testified that she and her husband had been in the proximity of the children after the arrest at various scouting events and no indicia of fear had been exhibited by these children. At the conclusion of testimony on this issue, the court entered the following order:

“After hearing and in consideration of all testimony adduced and argument of legal counsel, the court is satisfied good cause has been shown by the commonwealth in support of its petition for permission to use audio equipment at trial to merit the taking of testimony of [Z.U., T.U., J.E., and T.S.] in a room other than the courtroom and televised by closed-circuit equipment or videotape, to be viewed by the court and jury during trial.”

Under the Pennsylvania statute, all that is required to allow the witnesses to testify outside of the presence of the defendant is a showing of “good cause.” Unfortunately • that term is not defined. Therefore, fear, intimidation and mild trauma could certainly be considered to qualify as good cause under this law. The testimony, as believed by the court, was sufficient to meet the standard here, so broadly worded by its authors. Therefore, our inquiry must revolve upon whether “good cause” as set forth in the statute sufficiently meets a scrutiny of constitutionality under recent case law.

We begin our review with the 1987 case of Commonwealth v. Ludwig, 366 Pa. Super. 361, 531 A. 2d 459 (1987), allocatur granted 541 A.2d 744 (1988) which set the precedent in Pennsylvania for use of closed-circuit television in cases of child sexual abuse. There, the defendant was charged with the sexual abuse of his six-year-old daughter. At the preliminary hearing, the little girl froze and could not testify. Thus, leave wás granted for her to testify via closed-circuit television. Similarly, she was permitted to testify by closed-circuit television at the trial itself. The defendant was found guilty on all charges.

On appeal, the Superior Court affirmed the lower court’s decision allowing the victim to testify by closed-circuit television. They found the right of confrontation under the Sixth Amendment as well as the Pennsylvania Constitution, while preferable, is not an absolute right. In situations such as this, there is “a difference between confrontation and intimidation,” so that the right of confrontation may occasionally be required to give way to consideration of compelling interest. At the same time, any infringement must be as minimally intrusive as possible.

The court further went on to add: “The reliability of an abused child’s testimony does not depend upon his or her ability to withstand the psychological trauma of testifying in a courtroom under the unwavering gaze of a parent who, although a possible abuser, has also been provider, protector and parent. The reliability of the child’s testimony can be assured in such cases by requiring the child to submit to cross-examination while the jury and the accused observe the demeanor of the witness as he or she responds to questions.” Ludwig, 366 Pa. Super, at 370, 531 A.2d at 463. Where good cause is shown, the appellate court held the trial court properly acted within its discretion by allowing testimony by closed-circuit television.

Shortly thereafter, Ludwig was statutorily solidified when the legislature enacted 42 Pa.C.S. §5984, §5985. Since the law was codified, several legal developments have emerged upon this subject.

In Commonwealth v. Lohman, 370 Pa. Super. 404, 536 A.2d 809 (1988), allocatur granted 546 A. 2d 621, the defendant was charged with the rape and assault of his 14-year-old stepdaughter. She was permitted to testify at trial via closed-circuit television and the defendant was ultimately found guilty of both charges. On appeal, the court cited Ludwig and held since the victim was reluctant to testify against her father, his confrontation rights were not violated. The court went on to note, however, the issue was soon to be considered by the U.S. Supreme Court and impliedly recognized their obligation to defer to the ultimate decision of the high court.

In fact, a decision was reached in Coy v. Iowa, - U.S. -, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) by the U.S. Supreme Court on June 29, 1988. Their decision clarified the issue of the constitutionality of the practice of a child witness being shielded from the defendant in a criminal case. The court held a screen between the witness and defendant at trial violated the Sixth Amendment right of face-to-face confrontation.

The appellant in Coy was convicted of two counts of lascivious acts with a child after a jury trial in which a screen was placed between defendant and the two 13-year-old witnesses. An Iowa statute permitted child witnesses to testify either by closed-circuit television or behind a screen. During their testimony appellant was able to perceive the witnesses dimly but the witnesses could not see appellant at all.

In the majority opinion, Justice Scalia writing on behalf of himself and Justices Brennan, White, Marshall, Stevens, arid O’Connor thoroughly explained the ancient origins of the confrontation clause of the Sixth Amendment. The opinion distinguished the two types of protection provided by the confrontation clause; the right to physically face accusers and the right to conduct cross-examinátion.

The court ruled since the screen was specifically designed so that the witnesses could avoid viewing the appellant, it was “difficult to image a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.” Coy, 101 L.Ed. 2d at 866. They specifically rejected the state’s argument the confrontation interest was outweighed by the necessity of protecting abuse victims. Although the court noted there may in fact be an exception to the confrontation right, they declined to find any and stressed such an exception would be permitted only when necessary to further an important public policy. A generalized finding of trauma to the witness is insufficient. Instead, there must be an individualized finding the particular witness needs special protection to find any conceivable exception to the confrontation clause.

Justice O’Connor concurred in the majority opinion, and wrote separately for herself and Justice White. Although the concurrence found the rights under the confrontation clause are not absolute, but only preferential, it agreed with the opinion of Justice Scalia that a case-specific finding of necessity and a compelling state interest of protecting child witnesses must be found.

Since that decision, no opportunity has arisen for courts in this commonwealth to review the existing statutes in light of the U.S. Supreme Court’s determination of this issue. Indeed,, the only subsequent case which has ventured near the perimeter of this specific issue applying the confrontation clause to child witnesses was Commonwealth v. Groff, 378 Pa. Super. 353, 548 A.2d 1237 (1988), decided September 20, 1988.

There, a seven-year-old witness testified in the open courtroom in the defendant’s presence. Defense counsel moved to a location prior to cross-examining the witness so that he was not seated next to the defendant. The girl was told she could look at defense counsel and did not have to look anywhere, she did not want to look, implying she was not required to fix her eyes upon the defendant. The Superior Court affirmed this particular arrangement on appeal. They additionaüy interpreted the Coy decision in the course of their opinion:

“In Coy v. Iowa, - U.S. -, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), the United States Supreme Court recently emphasized that under this [the confrontation] clause, the defendant has the right to face his accusers.

“The court ruled that the federal constitution did not permit the use of a physical barrier to shield witnesses from the defendant’s gaze — at least in the absence of an individualized finding that the particular juveniles who testified required special protection. See _ U.S. at _, 108 S.Ct. at 2803 (majority opinion) and _ U.S. at _, 108 S.Ct. at 2804-5 (O’Connor, J., concurring).

“On the other hand, the court in Coy cautioned that: ‘The confrontation clause does not, of course, compel the witness to fix his eyes on the defendant; he may studiously look elsewhere but the trier of fact will draw its own conclusions.’ _ U.S. at _, 108 S.Ct. at 2802.” Groff, 378 Pa. Super, at 377, 548 A. 2d at 1249.

The Sixth Amendment to the Constitution of the United States provides that “[i]n all criminal prosecutions, the accused shall enjoy the right. . , to be confronted with the witnesses against him. ...” Similarly, the Pennsylvania Constitution, Article 1, section 9 states: “In all criminal prosecutions the accused hath a right... to meet the witnesses face to face.

The confrontation right in Pennsylvania is even broader than the Sixth Amendment right found in our federal Constitution since there is hot only a general right to confrontation but also a more specific right to meet witnesses “face to face.” “The confrontation clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.” Coy, 101 L.Ed.2d at 864, quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 94 L.Ed.2d 40, 53, 107 S.Ct. 989 (1987). Confrontation and cross-examination are also recognized as two specific individual rights in the Pennsylvania Constitution. Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974). Pennsylvania courts have consistently held the right of confrontation encompasses more than the right of cross-examination. Ludwig, supra (Cirillo, J., dissenting).

The purpose behind the confrontation right rests upon the theory that it is always more difficult to lie about a person when facing him and easier to lie “behind his back.” Coy, 101 L.Ed.2d at 864. The trauma of testifying in front of the defendant can hardly be diminished or dismissed as unimportant, since it is that very trauma which is relied upon to justify the extraordinary precautions taken for child witnesses. Coy, su-pra. “That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token, it may confound and undo the false accusér, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.” Coy, 101 L.Ed.2d át 866.

“A trial is akin to a purifying process whereby the ultimate product is truth. The right to face one’s accuser is part of this process as are the solemn trappings of a courtroom and the right of cross-examination. These safeguards are the purifiers' through which an accuser’s testimony must pass before it can be deemed believable. Each of them tests that accuser’s veracity. To a large extent, they provide that test by making the act of giving testimony as stressful as possible. It is thought that stress helps to produce the truth by making it difficult to lie. The right of confrontation itself grew out of the psychological precept that it is more difficult to lie about a person in his presence. Sheltering a child witness from an important part of this system in order to protect her from stress is at odds with our constitutional protections. It allows her to testify free of the pressure which is essential to the truth-seeking process. Therefore; such testimony is inherently unreliable because it has not been ‘purified.’ Who is to sáy'whether a child who refuses to testify in front of her alleged áttacker has forgotten her testimony, emotionally froze, or is just unable to lie in the person’s physical presence.” Ludwig, 366 Pa. Super, at 395, 531 A.2d at 476 (Cirillo, J., dissenting).

Considering the purpose and fundamental importance of the confrontation clause, we must carefully scrutinize the Pennsylvania statutory law to confirm that it does in fact conform to the constitutional standards enunciated in Coy. The Pennsylvania statutes require “good cause” be demonstrated to permit a child to testify outside the presence of the defendant. In Coy, supra, however, the U.S. Supreme Court determined a generalized finding of good cause was insufficient to withstand constitutional scrutiny and bypass the defendant’s right of confrontation. Instead, a particularized finding that a witness needs special protection is required. A legislatively imposed presumption of trauma will not suffice.

Although at the time of our earlier decision on. this issue we were without the benefit of subsequent interpretations by higher' courts, we must recognize the law and constitutional protections have not been broadened or modified in any manner. We were then simply lacking the wisdom of this interpretation as weU as a determination on the constitutionality of the Pennsylvania statutes. Having since become apprised of the Supreme. Court’s decision on this issue, we are forced to reconsider.

At the pretrial hearing, the judge fully complied with the Pennsylvania statute, yet we are constrained to- find that statute unconstitutional. It provides for no individualized findings of specific harm to a witness prior to allowing a child to testify outside of the courtroom. Since it thus abridges the fundamental right to confront an accuser as determined by the U.S. Supreme Court, we cannot abide by the statute. “Our cases suggest, however, that even as to exceptions from the normal implications of the confrontation clause, as opposed to its most literal application, something more than the type of generalized finding underlying such a statute is needed when the exception is riot ‘firmly . . . rooted in our jurisprudence.’. . . Since there have been no individualized findings that these particular witnesses needed special protection the judgment here could not be sustained by any conceivable exception.” Coy, 101 L.Ed.2d at 867. (citations omitted)

The prosecution in this instance argues the holding of Coy v. Iowa does not apply to this case because there were-individualized findings of harm found by the court. In the alternative, the commonwealth argues that even if there were no individualized findings of harm, the facts in this particular case provide a valid exception due to an important public policy such as the type alluded to in Coy, supra. We must reject both of these arguments.

The first assertion by the commonwealth is that contrary to the situation in Coy, supra, the court here did in fact make individualized, findings of harm. Such findings permit the method of videotaped testimony to stand, having complied with the Supreme Court’s mandate in Coy, supra and.essentially going beyond the Pennsylvania statutes’ requirements.

Prior to trial, a hearing was held during which one of the disputed issues was the manner in which the child witnesses for the commonwealth would testify. At that hearing, however, all testimony as well as the judge’s findings were general. The testimony presented was the children would be frightened by the spectators and intimidated by defendants’ presence. This was ultimately accepted by the judge as sufficient indicia of “good cause.” However, this determination is not satisfactory under the Coy decision.

Instead, the testimony would have had to show some degree of harm more extreme than the stress which ordinarily occurs to most witnesses in a trial situation. Surely there are few who particularly savor the experience of relating difficult events in detail to strangers or who enjoy being faced with the person responsible for injury. Testifying in court is an inherently stressful situation which doubtless causes fright and anxiety. No additional explanation to this effect need be provided on the issue since the court required merely common sense to discern these factors. '

Witness anxiety is part of the protection given the accused in our justice system. Fear does not permit one to be sheltered from the courtroom, abridging the accused’s vital rights.

“A child’s'stress at testifying can be overcome; in all but the most extraordinary case, that child will eventually put the experience behind her. She may suffer and she may be terrified while testifying, but any emotional scars caused by the experience are unlikely to be permanent, especially when compared with the traumatic character of the events themselves. However, a defendant who is wrongfully convicted of a heinous crime will never overcome his conviction.” Ludwig, 366 Pa. Super, at 398, 531 A.2d at 477 (Cirillo, J., dissenting).

We thus hold fears,, anxiety and mild trauma are not sufficient findings of particularizéd harm to justify removing a witness from the courtroom during his/her testimony. A more unique situation causing more severe harm than that suffered by the average person or- child must be found for each individual who would be protected from the courtroom situation. The general findings here by the judge did not meet this criteria.

Further, we note the commonwealth’s reliance on the case of State v. Eastham, 39 Ohio St. 3d 307, 530 N.E.2d 409 (1988) in support of its position. While not precedent in Pennsylvania, we have, examined the case and find the prosecution’s assertion it supports the commonwealth position erroneous. There, the child victim testified outside the courtroom by closed-circuit television. The procedure utilized was adopted in order to prevent the child from further traumatization. Examining this method of testifying in light of Coy, supra, the Ohio Supreme Court held the procedure violated defendant’s confrontation rights. The court reasoned that even worse than in Coy, the child here was completely cloistered from the defendant. She was not even present in the same room with him while testifying, violating defendant’s right to.face his accuser and rendering the trial defective.

Specifically, the court reasoned:

“In the case at bar, the trial court noted that the many judicial and psychological hearings had affected the child and that it instituted the procedure ‘to prevent any further . . . traumatization of the child.’
“However, the record fails to reveal any specific facts upon which the trial court based its finding. No particularized finding concerning the emotional well-being of this child and the necessity for this procedure exists. While attempts to comfort the child are laudable, we must bear in mind that the procedure employed by the trial court severely violated appellant’s constitutional right to confrontation. The Coy holding makes that clear.” Eastham, 530 N.E.2d at 412.

Finally, the commonwealth contends even if no individualized findings were made by the judge to support his findings, we should hold the ..situation here to be an exception to the confrontation clause under both the federal and Pennsylvania constitulions. The basis for this request is the small gap for exceptions the Supreme Court left in the Coy opinion: “We leave for another day, however, the question whether any -exception exists. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.” Coy, 101 L.Ed.2d at 867.

Before delving into the specific points raised by this assertion we note the prosecution’s reliance on Buckley v. State, 758 S.W. 2d 339 (Tex. App. 1988) is misplaced. Without unnecessarily dwelling upon the particular facts and reasoning there, let it suffice to say that that case dealt with the admissibility of hearsay where the witness was a child. Thus, the separate right of cross-examination was considered. Such a case may be helpful were we dealing with that issue, as provided for under 42 Pa.C.S. §5986.. However, that issue must be left for another day when a question of hearsay is raised. For the present, we shall consider only whether this situation with which we are faced constitutes a valid exception to the right of confrontation when individualized findings of harm are lacking.

Citing the possibility of an exception to the Coy holding, the commonwealth contends the current situation presents just such an exception. The assertion is based upon the important public policy of protecting child witnesses, evidenced by the statutory enactment by the legislature of 42 Pa.C. S. § 5984 and §5985 providing child witnesses with alternate means of testifying. We certainly do not dispute the importance of protecting child witnesses who will be harmed if required to testify in court.

“Thus I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. The protection of child Witnesses is, in my view and in. the view of a substantial majority of the states, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes, our cases suggest that the strictures of the confrontation clause may give way to the compelling state interest of protecting child witness.” Coy, 101 L.Ed.2d at 870 (O’Connor, J., concurring), (citations omitted; emphasis supplied)

We cannot apply any exception under the necessity prong in this case because, no matter how important the policy of protecting child witnesses may be, no necessity was found by the court which required protecting these particular children from these particular defendants.

Our review of the circumstances reveals no necessity was demonstrated requiring these children to be shielded from the open courtroom. The only testimony concerning any potential harm consisted of the following: Mrs. U. testified she felt her children would be intimidated by all the people since they were very quiet in front of strangers and did not want to see defendants again; Mr. E. testified he felt his son would be afraid to testify in front of a lot of people or in front of defendants; Mrs. S. testified she felt her daughter would be calmer and more open on videotape and testifying in court would make her afraid of possible punishment. The child therapist testified the children might be withdrawn and anxious.

While each witness testified as to their opinions concerning effects on the children, the children themselves were never interviewed or even observed by the court. The decision to allow video: taped testimony was made without the judge ever meeting or speaking with the children to objectively confirm or deny the validity of the parent’s opinions. At the time of trial, the children were seven, eight and nine years old. None were found to be slow, mentally or psychologically unbalanced or in any ■way more vulnerable to the courtroom situation than average children.

A review of the children’s videotaped testimony further shows none had problems testifying. Each child was coherent, was easily understood, was capable of answering in complete sentences. They exhibited little or no hesitancy answering questions, even on cross-examination. They knew why they were there and what they wanted to say. None testified to an extraordinary fear of defendants. In fact, there was sqme testimony that at least one of the children had been in contact with defendants subsequent to their arrest and had exhibited no fear of them.

We acknowledge in an open courtroom the situation may have been relatively more difficult for these children. We fully sympathize with the ordeal through which they have suffered. However, other measures may have been utilized to assuage their apprehension at the same time protecting defendants’ confrontation rights. Admission to the courtroom could have been restricted during their testimony. Other than defendants, and specified third parties, this procedure would have allowed only members of the jury to have been present in addition to those who were present during the videotaping. The children could have been instructed, as was the child witness in Groff, supra, they need not look at defendants while testifying.

Whatever the alternatives, we do not believe the method used . adequately protected defendants’ rights since no particularized findings of necessity were made prior to permitting the videotaped testimony. The general finding of “good cause” by the court, although in compliance with the Pennsylvania •statute, was not sufficient to permit the abridgment of defendants’ right of confrontation pursuant to the interpretation adopted by Coy v. Iowa, supra. No individualized findings of particular harm were demonstrated. Therefore, defendants are entitled to a new trial..

ORDER OF COURT

And now, September 8, 1989, for the reasons set forth in the accompanying opinion, defendant’s motion in arrest of judgment is denied. Defendant’s motion for a new trial is hereby granted.

      . Although there was some pretrial discussion about a fourth child testifying, this did not occur.

      . See Pa.C.S. §5988

      . See Lohman, supra, footnote 6, which states in pertinent part: “The U.S. Supreme Court this term will consider whether screens and closed-circuit television are constitutional ways to reduce the emotional trauma that child abuse victims experience when testifying. State v. Coy, 397 N.W.2d 730 (Iowa 1986), prob. juris, noted, - U.S. 107 S.Ct. 3260, 97 L.Ed.2d 760 (1987).”

      . 42 Pa.C.S. §5986 allows for hearsay testimony, which would otherwise be inadmissible, in a dependency proceeding where indecent contact has been made or attempted upon a child.

      . See Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976).


author: OTT, J.,

text:
    Mid-Island Properties Inc. v. Manis

      Vernon R. Byrd, for plaintiffs.

      Michael E. Gamer, for defendants.
    July 19, 1989
   OTT, J.,

In this landlord-tenant action, defendant has appealed to Superior Court from an order granting plaintiff partial summary judgment on count I of its two-count complaint and as to one count of a three-count counterclaim.

FACTS

Plaintiff, a real estate partnership trading as the Wyncote House, owns and operates a residential apartment complex situated at Washington Lane and Township Line Road in Wyncote, Montgomery County. Defendant has been a tenant of plaintiff pursuant to a series of one-year leases since September 1, 1984. The lease effective September 1, 1987, provided for termination by either party at the end of the one-year term upon 90 days’ written notice. On May 18, 1988, plaintiff notified defendant that the lease would not be renewed and thus would terminate on August 31, 1988. When defendant refused t0 vacate plaintiff sought an order of eviction from the local district justice. Defendant appealed an adverse ruling from that tribunal and ruled plaintiff to file a complaint in this court.

On October 19, 1988, plaintiff filed a two-count complaint seeking ejectment and rental damages. Defendant answered the complaint and further responded with a three-count counterclaim. Counts I and III thereof sought compensatory and punitive damages for the intentional infliction of emotional distress. The second count sought an order directing plaintiff to renew defendant’s lease. In this regard, defendant alleged that plaintiffs non-renewal of the instant lease was barred by the Landlord and Tenant Act because the non-renewal had been motivated by defendant’s participation in a tenant’s organization or association.

Plaintiff filed a motion for summary judgment as to the complaint and counterclaims. Following briefing and argument, we entered an order granting summary judgment as to count I of plaintiffs complaint which sought ejectment and to count II of defendant’s counterclaim which sought an order directing plaintiff to extend the lease. Summary judgment was denied as to plaintiffs count for damages and defendant’s counts relating to the alleged intentional infliction of emotional distress because factual questions existed with respect to these claims. Defendant appealed this order to Superior Court and in conjunction therewith, sought a stay from this court as to the order of ejectment pending the appeal. Following oral argument, we denied and dismissed the application for stay by order dated June 23, 1989.

ISSUES

This appeal presents two issues. (1) Was the order granting partial summary judgment interlocutory or final and appealable? (2) Does section 205 of the Landlord Tenant Act preclude non-renewal of defendant’s lease?

DISCUSSION

Appealability of Order

Motions for summary judgment are governed by the provisions of Pennsylvania Rule of Civil Procedure 1035. The last sentence of subparagraph (b) provides:

“A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.”

The order appealed from, on its face, appears to be interlocutory in accordance with this rule. Judgment was granted as to liability (ejectment) while the issue of damages was reserved. Nevertheless, the interlocutory or final nature of a partial summary judgment is seldom clear under the prevailing law of this commonwealth. In a footnote to a recent opinion, Commonwealth Court acknowledged “that the subject of finality and appealability has pre- • sented difficult issues for Pennsylvania appeflate courts, often resulting in uncertainty for litigants deciding whether to take an appeal.” Bollinger by Carraghan v. Obrecht, 122 Pa. Commw. 562, 565, 552 A.2d 359, 360 (1989).

In deteraiining the appealability of orders, Pennsylvania adheres to the final judgment rule which holds that an appeal is permitted only from a final order unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Bollinger by Carraghan v. Obrecht, supra; Pa.R.A.P. 341(a). An order is final if it: “(1) ends the litigation or disposes of the entire case; (2) effectively puts the litigant ‘out of court’; or (3) precludes a party from presenting the merits of his or her claim to the trial court.” Nigro v. Nigro, 371 Pa. Super. 625, 629, 538 A.2d 910, 912-3 (1988).

The Superior Court in Nigro further indicated it would look beyond the technical effect of the order and consider its practical ramifications. Arguably, the issue ,we determined by our order granting partial summary judgment, i.e. the applicability of section 205 of the Landlord Tenant Act, is. the equivalent of striking an affirmative defense. Absent the protection of this section, the lease is terminable at will. This analogy brings us back to the conflict created in the Grota and Bruno decisions which appear to be irreconcilable. We believe the instant case is closest on its facts to those presented in Zarnecki v. Shepegi, supra. There, the .Superior Court determined that a trial court’s striking of an affirmative defense in a mortgage foreclosure action pursuant to the doctrine of collateral estoppel was final and appealable because it precluded defendant from proving facts at trial which if determined in her favor would have afforded a defense to the action. As this opinion will address the merits of defendant’s appeal, we defer a determination of our order’s “finality” to the wisdom of the Superior Court.

Landlord Tenant Act

Plaintiffs motion for summary judgment required this court to interpret section 205 of the Landlord Tenant Act and determine its applicability to the undisputed facts of this case. Our research has revealed no common pleas or appellate authority in this area thus making this a case of first impression. That section provides:

“No individual unit lease on residential property shall be terminated or non-renewed on the basis of participation of any tenant or member of the tenant’s family in a tenants’ organization or association.”

Inasmuch as the lease between plaintiff and defendant was terminable by either party at will upon proper notice and defendant having acknowledged receipt of such notice, this provision of the Landlord Tenant Act is defendant’s only possible defense to the action in ejectment.

We begin our analysis mindful fhat the burden rests upon the plaintiff to demonstrate clearly that there is no genuine issue of material fact. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 464 A.2d 1313 (1983), and in determining the existence of disputed facts, we must view the evidence most favorable to the defendant and give him the benefit of all favorable inferences that may reasonably be drawn therefrom. Graf v. State Farm Insurance Company, 352 Pa. Super. 127, 507 A.2d 414 (1986). The applicability of section 205 will turn on whether it may be reasonably determined that defendant has participated in a tenant’s organization or association. The act defines a tenant’s organization or association as “a group of tenants organized for any purpose directly related to their rights or duties as tenants.” 68 P.S. §250.102(5). The express language of section 205 and the aforementioned definition clearly establishes the need of the tenants to be organized.. Webster’s Ninth New Collegiate Dictionary defines organize as follows:

“(1) to cause to develop an organic structure;
“(2) to arrange or form in to a coherent unity or functioning whole;
“(3)(a) to set up an administrative structure for; (b) to persuade to associate in an organization;
(4) to arrange by systematic planning and united effort.”

The common theme of these usages is the existence of an administrative structure to carry out a common purpose.

The uncontradicted facts of record established by the pleadings and the deposition of defendant, viewed in a light most favorable to his position, are insufficient as a matter of law to constitute participation in a tenants’ organization or association. Although defendant has engaged in numerous solo skirmishes with the management of plaintiff during the years of his tenancy, the only activity involving other tenants was a letter on his personal stationary dated February. 16, 1988, addressed to “Dear fellow - neighbor - lower - garage - patron - etc., etc. ” This letter solicited other tenants in the complex to affix their signatures on an enclosed letter/ petition addressed to management, tó show the tenants’ support for defendant’s concerns. The letter to defendant’s neighbors made no reference to a tenants’ organization or association. There was a vague reference in the letter to fortnightly parties for tenants but no indication that their purpose would be other than social. Indeed, defendant testified at his deposition that no formal association ever existed for the purpose of presenting these particular grievances to management. He further acknowledged that no meeting of tenants was ever held in this regard. He also admitted that there existed among the tenants an organization with which he had never been involved. In short, defendant’s efforts focused on an attempt to obtain some leverage for his own concerns through the support of other tenants. Such a singular crusade is quite different from participation in a structured organization to pursue á common purpose.

CONCLUSION

A significant issue exists as to the finality of the order appealed from which should be clarified by appellate decision. If the order is. final, it is justified because section 205 of the Landlord Tenant Act is inapplicable to the facts of this case and partial summary judgment as to the action in ejectment was appropriate. The appeal should be dismissed.

      . Act of April 6, 1951, P.L. 69, Article 1, §101 et. seq., 68 P.S. §250.101 et seq., as amended.

      . Defendant subsequendy pursued an application for stay in Superior Court which was denied by order dated July 10, 1989.

      . Footnote 2 of Commonwealth Court’s opinion cited apparently inconsistent rulings in Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967) and Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987) as well as several recent decisions which articulated the need for clarification and reform in this area. Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988); Zarnecki v. Shepegi, 367 Pa. Super. 230, 532 A.2d 873 (1987); National Recovery Systems v. Perlman, 367 Pa. Super. 546, 533 A.2d 152 (1987).

      . There are several exceptions to the general rule that only final orders are appealable, however, none is applicable here. Pa.R.A.P. 311 allows appeals as of right from certain interlocutory orders. Defendant’s case does not fall under any of the enumerated categories provided. In addition, defendant has not sought permission for an interlocutory appeal under Pa.R.A.P. 1311. Finally, the collateral order doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), does not apply as the instant order does not determine an issue collateral to the main cause of action. Indeed, the right of the defendant to remain at plaintiff’s apartment or be ejected therefrom, is the central issue in the case.

      . 68 P.S. §250.205.


author: SCHAFFNER, J.,

text:
    Landis v. Harristown Development Corporation

      Patrick F. Lauer Jr. and Lee C. Swartz, for plaintiffs.

      John A. Statler, for defendant Harristown Development Corporation.

      Jonathan M. Grist, for defendant H.B. Alexander.
    September 15, 1989
   SCHAFFNER, J.,

Plaintiffs, through a complaint and an amended complaint, state a claim against defendants based on negligence. Defendants each have filed preliminary objections and one of the objections is a demurrer.

The case is based on the tragic murder of plaintiffs’ decedent, Anne S. Landis, on May 18, 1988 in a construction site on Market Street, in the City of Harrisburg. The land Where the criminal act occurred was under the control of Harristown Development Corporation, and defendant H.B. Alexander & Son Inc. was the entity retained by Harristown to make the improvements on the subject site. The pleadings state that the homicide occurred within the construction site, behind a fo.ur-foot-high barricade, the gates to which were not secured, and further, it is alleged that the crime was committed with a two-by-four piece of lumber that was obtained on the construction site.

Plaintiffs allege basically, through many paragraphs, that defendants were negligent in not providing a secure construction site, in not having it patrolled by security officers, by not having it sufficiently lighted, and by not having an eight-foot wall around it, as mandated, plaintiffs allege, by a Harrisburg City ordinance. Plaintiffs allege that defendants were fully aware that the site was a dangerous one, that the criminal element was in the area, that crimes had occurred in this area and that defendants had created an attractive nuisance and an induced environment for criminal activity to occur.

Defendants simply allege that no duty existed on the part of defendants to protect a person from the criminal acts of another.

The matter was briefed and presented at argument to the court in accordance with our local rules.

Preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom. Conclusions of law and unjustified inferences are not admitted by the pleadings. Starting from this point of reference, the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. Where a complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Greenspan v. United Services Automobile Association, 324 Pa. Super. 315, 471 A.2d 856 (1984).

There are four basic requirements which must coexist for a defendant to become liable to another when the legal theory of the plaintiff is negligence:

(1) A duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others, against unreasonable risks.

(2) The failure on the actor’s part to conform to the standard required.

(3) A reasonably close causal connection between the conduct and the resulting injury.

(4) Actual loss or damage resulting to the interests of another.

Counsel have submitted much to us, for our consideration, relative to the duty owed by defendants, and the failure of defendants to adequately perform that duty. Little has been submitted by anyone on the issue of causation. That, to us, is the appropriate beginning point and, after consideration, the ending point to this case.

If we concede, for purposes of argument, that defendants were negligent and did fail to conform to a standard of care owed plaintiffs’ decedent on any of the bases plaintiffs suggest, we are left with the question as to whether, under Pennsylvania law, a jury could find such conduct a substantial factor in bringing about a man’s act of bludgeoning another to death in the middle of the night. The answer can only be “no.” That answer is both an intuitive one and also the one we reach after study.

The first question is whether a jury must be allowed, in any event, to consider the “cause” issue. While the “legal cause” issue is normally a jury matter, it is not always so. When the facts of a case áre not disputed, and we are assuming plaintiffs will prove the underlying factual basis of this case, and the remoteness of injury from negligence is clear, the court should make the decision that legal causátion does not exist. Liney v. Chestnut Motors Inc., 421 Pa. 26, 218 A.2d 336 (1966).

The test usually enunciated by courts for determining when the court, not the jury, should decide the causation issue is: When reasonable minds could not differ as to the result, then the issue is not for the jury, but for the court. Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987); Askew by Askew v. Celler, 361 Pa. Super. 35, 521 A.2d 459 (1987).

This is probably an ingenuous rationale because the test is not really whether reasonable jurors could or could not agree, but whether a judge trying the case or appellate judges reviewing it feel so clearly that an act may not be a “legal cause” under then current negligence law that they would not give the case to a jury to consider. That is an appropriate method of resolving the matter because “proximate cause” is not a fact concept, but a legal determination of when an actor should be considered for a penalty because of injury resulting from what he did. Thus, an actor can “cause” a result, a cause in fact, and have the “cause” not be a “proximate” or “a substantial factor in bringing about victim’s harm.” Restatement (Second) of Torts §431; Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). As the Superior Court stated in Alumni Association v. Sullivan, supra:

“Even where harm to a particular plaintiff may be reasonably forseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiffs harm, the law makes a determination that, at some point along the casual chain, liability will be limited. The term ‘proximate cause,’ or ‘legal cause’ is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point as no longer a ‘proximate’ or ‘legal’ consequence naturally flowing from the wrongdoer’s misconduct.”

The whole issue of legal causation is a complex one that has been developing in United States jurisprudence for a long time. See Justice Cardozo’s ppinipn in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). Whether or not an act or acts are legal causes of an incident are conceptual questions based on public considerations, and are certainly not measurable, calcuable, standards. Because of the difficulty, our courts, across the nation, have gone through many labors in an effort to develop a yardstick for everyday courtroom use and éasy application and the law has labored mightily and fretfully because it is difficult to create a finite tool to measure an infinite concept. A 12-inch ruler, thus, can no more measure'sound than the two words “proximate cause” can, of themselves, determine when the changing conscience of our nation urges one party to pay another for an injury received. Thus, “proximate cause” has been discarded, “forseeability” seem to have been rejected, and “the but for test” also has limitations.

Our question, therefore, is whether any appellate decisions of Pennsylvania, which direct us, have determined, in a fact situation parallel to the present one, that a jury may impose responsibility for a murder on a property manager. Plaintiffs cite to us Anderson v. Bushong Pontiac Co. Inc., 404 Pa. 382, 171 A.2d 771 (1961); Ford v. Jeffries, supra; and Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).

In Anderson, a young person stole the keys from one of the cars situate on defendant’s car lot. The car lot was frequented by youth and the proprietors knew that the keys had been stolen, reported the theft, but did not do anything further. The car was not removed from the lot nor was it locked. Shortly after the theft the car was taken by a young person, driven off the lot, and the plaintiff in the resulting accident was severely injured. The court determined that the issues of forseeability and proximate cause were for the jury and that the lower court’s act in sustaining the demurrer was error. This case, wherein the ultimate injury could not have occurred had the defendant not been negligent, does not instruct us that a jury should be allowed to consider a property owner responsible for a homicide.

In Ford v. Jefferies, supra, the trial court granted a compulsory nonsuit in a claim for damages alleging the defendant’s negligent maintenance of his house. The defendant landowner did not maintain the home, it was vacant, rodents and dogs infested it, and one fire had broken out in the house, threatening the plaintiffs home but five or six feet away. A second fire in the defendant’s home, without the defendant having done any necessary maintenance or taking any precautionary measures despite being advised and requested to do so, destroyed the plaintiffs home. Ultimately the Supreme Court held that the nonsuit was improperly granted and that the issues were for the jury. Again, this case provides no instruction to us as to when a legal connection between a property owner’s lack of maintenance and a wanton murder should be found to exist. In Ford, as in Anderson, the victim’s ultimate injury would not have occurred had the defendant’s negligent conduct not set in being the causation. In the present case, we cannot say that defendants’ negligence started the causation stream which ended in the murder. That causative stream started, we must assume, when plaintiffs’ decedent and the murderer met and was generated from interaction between those people.

Finally, in Mascaro, a juvenile escaped from a youth study center and committed a burglary and vicious rapes. It was alleged that the detention facility was „ negligently maintained and that this negligence permitted the criminal to escape. Further, the criminal had escaped from other institutions and had committed other rapes. Once again, the victim would have suffered no harm in the Mascaro case if the defendant had not been negligent. It was the negligence in the maintenance of the facility when the facility housed a vicious criminal whose propensities wére knowmthat resulted in the ultimate injuries. This case, as the others, does not indicate to us that in the present case we should permit a jury even to consider that, under present Pennsylvania law, the present defendants could be found to have caused the murder.

Of the cases cited to us by defendants, Chapman v. City of Philadelphia, 290 Pa. Super. 281, 434 A.2d 753 (1981); Vann v. Board of Education of the School District of Philadelphia, 76 Pa. Commw. 604, 464 A. 2d 684 (1983); Feld v. Merriam, 506 Pa. 383, 485 A. 2d 742 (1984); Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606'(1985); and Glick v. Old Town Lancaster Inc., 369 Pa. Super. 419, 535 A.2d 621 (1987); and Glick v. Martin and Mohler Inc., 369 Pa. Super. 428, 535 A.2d 626 (1987), deal with criminal attacks upon the plaintiffs and negligence claims then brought against others. In Chapman, the plaintiff was attacked on the platform of a railroad station, in Vann the plaintiff was attacked while walking on the sidewalk adjacent to a school, and in Feld, Mr. and Mrs. Feld were accosted in the parking lot of their apartment complex by criminal defendants and taken away. In Casey, the plaintiff was criminally attacked in a borough park and in the Glick cases, similar in factual context to the present one, the plaintiff was abducted by a criminal defendant, taken into an abandoned budding and attacked.

In all of these cases the reviewing court found that the plaintiff had not stated a cause of action against the named defendant. In these cases the focus of the court was on the issue of whether or not there was a duty owed by the defendant to the injured plaintiff, not whether or not the jury should have been permitted to find a “legal” cause between the acts of the defendant and the plaintiffs harm. Nonetheless, the cases point out the disapproval of the appellate cdtirts that decided these cases on the concept on linking, in negligence, a named defendant to a criminal third party.

We are satisfied that the demurrer of defendants should be sustained.

Accordingly, we.enter the following

ORDER

And now, September 15, 1989, the demurrer of defendants is sustained and plaintiffs’ complaint is dismissed with prejudice.

      . Prosser & Keaton on the Law of Torts (5th ed. 1984).

      . Rodgers v. Yellow Cab Co., 395 Pa. 412, 147 A.2d 611 (1959).

      . Restatement (Second) of Torts §435.

      . Prosser & Keaton on Torts, supra, at 265-8.


author: O’MALLEY, J.,

text:
    Cassaro v. Zodiac Tour and Travel Inc.

      Robert A. Mazzoni, for Cassaro plaintiffs.

      Henry C. McGrath, for plaintiff Robinson.

      Charles F. Wilson, for Davis plaintiffs.

      John R, Lenahan Jr., for defendants Zodiac Tour and Travel Inc., Stephen Came and Mary Hayslett.
    October 10, 1989
   O’MALLEY, J.,

This matter concerns a tragic accident which occurred on October 25, 1986. It is alleged in the complaint for wrongful death and survival filed by Patrick A. Cassaro Jr. and Rose Ann Cassaro, in their capacity as parents and as administrators of the estate of Patrick A. Cassaro III, deceased, that on that date one Richard P. Gillott (the administrator of whose estate, Robert F. Gillott Sr., is a defendant, along with others herein) and other persons from the Carbondale area attended a football game at the Meadowlands, East Rutherford, New Jersey; that Gillott, and/or other members of the group, arranged with defendant Zodiac Tóur and Travel Inc. to provide transportation to and from the game; that defendant Mary Hayslett was an employee and/or office holder of Zodiac and defendant Stephen Came was an employee of Zodiac and the driver of the bus .which was the means of transportation; that all the passengers on the bus were minors and that they brought with them, onto the bus owned by Zodiac, beer and/or other , alcoholic beverages which were consumed by them on the trip to and from the game; and that the alcoholic beverages were consumed in full view and with the knowledge of the driver, Came.

Apparently, the bus returned to Carbondale safely and discharged its passengers intact. However, Richard Gillott, after leaving the bus, then took a drive in his Toyota car and picked up plaintiffs decedent and three other boys. It is averred that on the above date plaintiffs decedent was riding in the car with four other minors, one of which was Richard P. Gillott, who was the driver; that the car veered off the road, hit a tree, burst into flames and all the occupants were fatally injured; and that as the result of Richard Gillott’s consumption of alcoholic beverages on the said bus, his ability to drive a motor vehicle was significantly impaired and compromised.

The negligence of Zodiac, and Came and Hayslett individually and as agents of Zodiac, it is alleged, was the failure to stop, discover and prevent the intoxicants from being brought on and consumed in the bus, or warn the minor passengers of a prohibition against alcohol and having no policy concerning same; “[providing and encouraging an atmosphere or environment for the consumption of beer and/or alcoholic beverages by the minor occupants, and this conduct was a substantial factor in bringing about the intoxication of Richard P. Gillott, and this conduct was a substantial factor in causing the accident and subsequent fatalities;” “[ajiding and abetting the minor occupants/passengers in the consumption of beer and/or alcoholic beverages by providing an environment in which said consumption was allowed, and/or encouraged, and that this assistance was a substantial factor in bringing about the intoxication of Richard P. Gillott, as well as the subsequent accident and subsequent fatality;” and failure to provide adult supervision.

Defendants Zodiac, Stephen Came individually and as agent for Zodiac, and Mary Hayslett, individually and as agent for Zodiac, have filed a motion for judgment on the pleadings. It is their contention that there can be no cause of action against them with regard to any possible alcohol consumption by the decedent/driver since they did not serve or furnish alcoholic beverages to him; that they were not a social host, on the.occasion of the accident, under Pennsylvania law; that even if they were a social host they are not liable because the three-prong test enunciated in Jefferis v. Commonwealth of Pennsylvania, 371 Pa. Super. 12, 537 A.2d 355 (1988) has not been met; that they had no duty to plaintiffs decedent because the decedent was not a foreseeable plaintiff; and that plaintiffs decedent’s death was not proximately caused by the moving defendants’ conduct. Because we do not believe a summary judgment pertaining to these particular defendants is proper, in the case before us, their motion will be denied.

A motion for judgment on the pleadings may only be granted in cases where no material facts are at issue and the law is so clear that a trial would be fruitless. Sippos by Sippos v. Richards, 116 Pa. Commw. 124, 541 A.2d 413 (1988). All of the well pleaded allegations of the party opposing the motion must be accepted as true. Wade v. Heisey, 243 Pa. Super. 8, 64 A.2d 423 (1976).

It does not brook argument that actual serving of an intoxicating beverage to a minor is not necessary in order for liability to be present. Jefferis v. Commonwealth of Pennsylvania, supra; Meyers v. Roman, 36 D.&C. 3d 229 (1984).

The pernicious and pervasive problem of underage drinking in our society has been judicially remarked upon. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983); Fasett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986). In Pennsylvania, as elsewhere, statutes have been enacted to constrain this practice. 18 Pa.C.S. §6308. Nevertheless, these defendants argue that, in allowing the minors to board Zodiac’s bus (which Zodiac and its agents controlled) with intoxicants; in furnishing .them with a habitat to consume the beverages without objection or prevention and in providing the means for a rolling party which no passenger could leave without being stranded, defendants were not acting as a social host. We do not agree. In ascertaining the meaning of the “social host” and in the context of the law’s concern with underage drinking, a fair definition would be a defendant who knowingly and intentionally allows premises over which he has control to be used for the purpose of consumption of alcohol by minors. Macleary v. Hines, 817 F.2d 1081 (3d Cir. 1987). With this definition, we believe defendants’ second argument has been met..

The three criteria set forth in Jefferis v. Commonwealth of Pennsylvania, supra, which constitute the test to be used to determine the extent of liability in a social host situation involving an intoxicated minor are as follows:

“(1) the defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor, and
“(2) the defendant must have acted in a way which did furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and
“(3) the defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.”

The question to be answered is whether these defendants intentionally rendered substantial assistance to the decedent Gillott in his consumption of alcohol. Jefferis, supra. From the averments plaintiffs have made in their complaint, we cannot say, with regard to the above test, defendants have so escaped its application as to make a trial in this matter fruitless.

Duty /Foreseeability

Moving defendants argue that they did not have a duty to plaintiffs decedent because he was not a foreseeable plaintiff. We do not agree.

In the context of a negligence action, it is fundamental that the plaintiff establish the duty owed by the defendant, the breach of which might give rise to injuries alleged to be suffered by the plaintiff. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). In determining the existence of a duty of care, the time-honored test formulated by Judge Cardozo is that “[t]he risk reasonably to be perceived defines the duty to be obeyed. ...” Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928), rearg’t denied 249 N.Y. 511, 164 N.E. 564; Migyanko v. Thistlethwaite, 275 Pa. Super. 500, 419 A.2d 12. (1980). It has been commented that Palsgraf stated the issue of foreseeability in terms of duty and involved what may be called, instead of unforeseeable consequences, the unforeseeable plaintiff. Prosser and Keeton on Torts at 284 (5th ed. 1984).

Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time. Where, as here, the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. Zanine v. Gallagher, 345 Pa. 119, 497 A.2d 1332 (1985). Our Superior Court has pointed out that the conclusion reached by our Supreme Court in Congini was that intoxicated minors are likely to operate motor vehicles while under the influence, creating a foreseeable risk of harm to life and property. Alumni Ass’n. v. Sullivan, supra, 396 Pa. Super. 596, 535 A.2d 1095 (1987). .

We think that this conclusion disposes of the matter of duty/foreseeability. At this stage, we cannot say plaintiffs decedent was, to these defendants, an unforeseeable victim, whether as a passenger or. pedestrian, of an allegedly intoxicated minor motorist who fell into that state in a habitat furnished and controlled by Zodiac and its agents. Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970).

Proximate Cause

Defendants argue that the facts of the present case clearly show that any of their actions, even assuming Gillott and others drank intoxicants on the bus, were too remote from the harm arising to plaintiffs decedent, i.e. that any of their actions could not be a proximate cause of the fatal injuries. We do not agree.

Proximate causation, or legal causation, with respect to negligent conduct is a term familiar in tort law, as to which a considerable body of law tías developed. It generally denotes more than mere causation-in-fact, and serves as a means by which courts are able to place practical limits on liability as a matter of policy. Wisniewski v. Great Atlantic and Pacific Tea Co., 226 Pa. Super. 574, 323 A.2d 744 (1974). Proximate cause is a term of art and may be established by evidence that a defendant’s negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Denardo v. Carneval, 297 Pa. Super. 484, 444 A.2d 135 (1982); Klages v. General Ordinance Equipment Corp., 240 Pa. Super. 356, 367 A.2d 304 (1976). The determination of whether the conduct of the defendant was a substantial cause of the plaintiffs harm should not Be taken from the jury if the jury may reasonably differ as to whether the conduct of the defendant was a substantial cause: Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); Hoover v. Sackett, 221 Pa. Super. 447, 292 A.2d 461 (1972).

Here, defendants say, even if Gillott and others were negligently állowed to consume alcoholic beverages on Zodiac’s bus, he was safely deposited in Carbondale and defendants’ actions or failure to act could not be a proximate cause since they were not a substantial factor in bringing about the harm inflicted. To skew a metaphor, could defendant, Came, allow a bomb to be fashioned on the bus and then, after letting the ticking bomb alight from the vehicle, close the door and drive away so as to insulate himself and the other moving defendants from the consequences? We cannot answer yes, either as a matter of law or upon the facts as they presently appear, that plaintiffs decedent was an unforeseeable victim when the door was closed.

ORDER

Now, October 10, 1989, for the reasons set forth . in the accompanying opinion, the motions for judgment on the pleadings filed by defendants Zodiac Tour and Travel Inc., Mary Hayslett individually and as agent for Zodiac Tour and Travel Inc., and Stephen Came individually and as agent for Zodiac Tout and Travel Inc., are denied.

       “The propensities of alcohol consumption to create aggressive, combative and often reckless behavior in adults is legendary; surely, it cannot be averred that such behavior is any less likely to result from the consumption of alcohol by those deemed legally incompetent as a class to handle its effects.” Alumni Ass’n. v. Sullivan, 396 Pa. Super. 596, 535 A.2d 1095 (1987).