author: ASHWORTH, J.,

text:
    Rivero v. Timblin

      Sháwn P. McLaughlin, for plantiff Rivero.

      Charles Jay Schleifer, for plaintiff Latoni.

      NealJ. Rovner, for plaintiff Banks.

      John A. Statler, for defendant Sarah Timblin.

      Steven D. Snyder, for defendant Brickyard Sports.

      W. Darren Powell, for defendant Keares Inc.

      Stephen L. Banko Jr., for defendants Wayne and Linda Timblin.
    March 16, 2010
   ASHWORTH, J.,

Before the court are the preliminary objections of defendants Keares Inc., individually and d/b/a Keares Restaurant Group, Doc Holliday’s Steakhouse Inc., individually and d/b/a Doc Holliday’s Steakhouse & Saloon (collectively referred to as Doc Holliday’s). For the reasons set forth below, these objections will be overruled.

I. BACKGROUND

This case is a wrongful death/survival action as a result of a motor vehicle collision that occurred on March 11, 2008. At approximately 2:45 a.m. of that date, defendant Sara Timblin, while intoxicated and driving without a license due to a suspension as a result of a prior DUI charge, proceeded in the wrong direction on Route 30 and collided head-on with a vehicle in which plaintiffs’ three decedents (Inocente Sanchez, Luis Yanez Sanchez and Marlin D. Banks Sr.) were riding. Plaintiffs’ decedents were pronounced dead at the scene.

On May 27,2009, plaintiffs filed a complaint alleging negligence against two bars at which Sara Timblin was drinking before the collision, Doc Holliday’s and The Brickyard Restaurant & Sports Bar, as well as Sara Timblin’s parents, Wayne and Linda Timblin, who allegedly were aware of their daughter’s history with alcohol abuse, her prior DUI conviction, and her failure to possess a valid driver’s license, prior to providing their vehicle to her for use on the night of the accident. The complaint alleges, inter alia, negligence per se against Doc Holliday’s for the sale of alcoholic beverages to Sara Timblin when she was visibly intoxicated in violation of that portion of the Pennsylvania Liquor Code known as the Dram Shop Act,47 P.S. §§4-493,4-497. (See complaint att39.)

In addition, plaintiffs’ complaint asserts liability against Doc Holliday’s for common-law negligence based, inter alia, upon defendant allowing Timblin to leave the bar while visibly intoxicated, failing to prevent her from unsafely operating a motor vehicle given the known risk that she might engage in such conduct, failing to establish and administer procedures designed to address visibly intoxicated patrons, and failing to protect the general public from the foreseeable risk of danger that occurred. Specifically, the allegations of negligence per se, reckless indifference, outrageous conduct and common-law negligence against Doc Holiday’s are set forth in paragraphs 39(a)-(c) and 41(a)-(m).

On September 14, 2009, Doc Holliday’s filed preliminary objections to plaintiffs’ complaint seeking, first, to dismiss the punitive damages claim and to strike the allegations of “recklessness,” “carelessness,” “willful,” “wanton,” “reckless,” and “outrageous conduct” and, second, to strike the allegations of common-law negligence. On September 25, 2009, plaintiffs filed a joint answer to the preliminary objections along with a supportive brief. Reply briefs and a supplemental brief were subsequently filed by the parties. Oral argument having been heard, this matter is ripe for disposition.

II. DISCUSSION

A. Punitive Damages

The first preliminary objection of Doc Holliday’s is a demurrer to plaintiffs’ claim for punitive damages. I note that a demurrer admits as true all material facts set forth in the complaint as well as all inferences reasonably de.ducible therefrom. Toney v. Chester County Hospital, 961 A.2d 192, 197 (Pa. Super. 2008). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recoveiy is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Id. (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (1996)).

To justify an award of punitive damages, the wrongful conduct of the defendant must be “outrageous.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) (adopting section 908(2) of the Restatement (Second) of Torts). Conduct is considered to be outrageous if it is intentional, willful or wanton, Slappo v. J’s Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002), malicious or oppressive, Jahanshahi v. Centura Development Inc., 816 A.2d 1179, 1188 (Pa. Super. 2003), or “done with a bad motive or with a reckless indifference to the interests of others.” Judge Technical Services Inc. v. Clancy, 813 A.2d 879, 889 (Pa. Super. 2002). Willful or wanton conduct requires a state of mind in which the tort-feasor realizes the danger and disregards it to such a degree as to evince “a conscious indifference to the perpetration of the wrong.” Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988) (quoting Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943)).

“Reckless indifference” refers to an intentional act “of an unreasonable character, in disregard to a risk known to [the tort-feasor] or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” McClellan v. HMO of Pennsylvania, 413 Pa. Super. 128, 145, 604 A.2d 1053, 1061 (1992). Thus, for conduct to be considered reckless “[i]t must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Hall v. Jackson, 788 A.2d 390, 403 (Pa. Super. 2001).

The determination of whether a defendant’s actions constitute outrageous or reckless conduct lies within the sound discretion of the fact-finder. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991); Trotman v. Mecchella, 421 Pa. Super. 620, 625, 618 A.2d 982, 985 (1992). For that reason, the court should decide the viability of a punitive damages claim “only when no reasonable inference from the facts alleged supports a punitive award.” Eagle Traffic Control v. Addco, 889 F. Supp. 200, 201 (E.D. Pa. 1995) (citing Trotman, 421 Pa. Super. at 625, 618 A.2d at 985).

With those principles in mind, plaintiffs certainly have pled facts which, if proven, could justify an award of punitive damages against Doc Holliday’s. A jury could certainly discern a reckless indifference to the safety of others in serving alcohol to a visibly intoxicated patron. In Tuski v. Ivyland Café Ltd., 2004 WL 4962363 (First Judicial District 2004), aff’d, 888 A.2d 19 (Pa. Super. 2005), alloc. denied, 586 Pa. 773, 895 A.2d 1263 (2006), an award of punitive damages against the bar which served a visibly intoxicated person was upheld on appeal. In addressing a challenge to the punitive damages award against the visibly intoxicated person who left the Ivyland Café and proceeded to drive his vehicle into a flagman directing traffic at a construction site, the Tuski court noted:

“On the specific issue of punitive damages in cases involving driving while intoxicated, the Supreme Court has held ‘[I]n certain factual circumstances, the risks presented by a drunken driver may be so obvious and the probability that harm will follow so great that outrageous misconduct may be established without reference to motive or intent.’ Focht v. Rabada, 217 Pa. Super. 35, 41, 268 A.2d 157, 161 (1970). When discussing the reason for this holding, the Focht court stated:
“Automobiles represent the most lethal and deadly weapons today entrusted to our citizenry. When automobiles are driven by intoxicated drivers, the possibility of death and serious injury increases substantially. Every licensed driver is aware that driving while under the influence of intoxicating liquor presents a significant and very real danger to others in the area.
“Focht v. Rabada, 217 Pa. Super. 35, 41, 268 A.2d 157, 161 (1970).” Tuski, supra at *21.

Likewise, this court cannot say that a jury might not find, under the facts of this case, that the risks presented by serving a visibly intoxicated person with the knowledge that he or she will enter a vehicle and that harm will probably follow are so great that outrageous conduct may be established without reference to motive or intent.

After discovery is completed in this case, if, as claimed by defendant Doc Holliday’s, plaintiffs are unable to prove any facts to support that “Doc Holliday’s employees knew or had reason to know, because of some facts, that there was a high degree of risk that defendant Timblin would, after being served while visibly intoxicated, then operate a motor vehicle, and permitted the same, such that Doc Holliday’s employees’ actions approached what would be dubbed an intentional act” (reply brief of Doc Holliday’s at 5-6), then this court will entertain a motion for summary judgment. Until then, this court is loath to decide the viability of plaintiffs’ punitive damages claim as it cannot say that no reasonable inference from the facts alleged supports a punitive award.

Therefore, defendant Doc Holliday’s demurrer to plaintiffs’ claim for punitive damages will be overruled and dismissed at this time, without prejudice.

B. Common-law Negligence Claims

Next, Doc Holliday’s contends that plaintiffs’ claims and allegations of common-law negligence should be stricken. Specifically, defendant claims that there is no common-law liability of a tavern owner arising from the selling of alcohol to a visibly intoxicated person and that “the only cause of action permitted under the immunity exception of section 4-497 [of the Dram Shop Act] is limited to showing that a patron was served alcoholic beverages by a licensee while visibly intoxicated and that the violation of the statute proximately caused plaintiffs’ injuries.” (See defendant’s brief at 7.) Accordingly, the question before this court is whether the Dram Shop Act provides the exclusive remedy against a licensee arising out of the furnishing of alcoholic beverages to a visibly intoxicated person, such that all other common-law theories of negligence are preempted.

Initially, at common law a tavern owner had no liability for serving alcohol to an intoxicated person who later injured himself or others. The rationale for this rule of non-liability was two-fold. First, courts viewed the act of drinking the alcohol, as opposed to the act of selling the alcohol, as the sole proximate cause of the patron’s intoxication and later injuiy to a third party. An able-bodied person was responsible for his or her own actions. Second, even if the sale was the proximate cause of the intoxication, injury to a third person was an unforeseeable result of the patron’s intoxication.

As the public’s awareness about the potential for harm created by the selling of alcohol to irresponsible persons increased, states began to depart from the strict common-law rule of non-liability through judicial abrogation of the common-law rule, or the legislative adoption of dram shop statutes, which, under certain circumstances, provide a party injured by an intoxicated person with a cause of action against the person selling or furnishing the alcohol which caused the intoxication. The Commonwealth of Pennsylvania responded first with legislation.

By the Act of May 8,1854, P.L. 663, the Pennsylvania Legislature enacted a liquor control law, the title of which was “To protect certain domestic and private rights and prevent abuses in the sale and use of intoxicating drinks.” The first section of the Act made it a misdemeanor, punishable by fine and imprisonment, to furnish intoxicating beverages to “any person of known intemperate habits, to a minor, or to an insane person ... [or] to any person when drunk or intoxicated.” The third section of the Act subjected the offender to civil liability for any injury to person or property in consequence of the unlawful furnishing of intoxicating beverages to any person in violation of any existing law at the time the wrong or injury happens. Fink v. Gorman, 40 Pa. 95, *7 (1861); Bower v. Fredericks, 46 Pa. Super. 540, *2 (1911). Thus, dram shop liability was imposed in Pennsylvania as early as 1854.

Approximately 100 years later, the Act of 1854 was repealed and replaced with our modem Liquor Code, 47 P.S. §§1-101 — 9-902 (1951). This statute incorporated the misdemeanor provision of section 1 of the former Act at 47 P.S. §4-493(1): “It shall be unlawful... [f]or any licensee... to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” Section 3 of the Act of 1854 — -the dram shop provision imposing civil liability on the licensee for injuries resulting from a violation of the first provision — was not incorporated into the new Liquor Code of 1951. The elimination of a civil liability statute did not, however, eliminate civil liability for licensees who furnished alcoholic beverages in violation of the law.

The matter of Schelin v. Goldberg, 188 Pa. Super. 341, 146 A.2d 648 (1958), was the first case seeking to impose civil liability on a licensee following the repeal of the dram shop provision in section 3 of the Act of 1854. In Schelin, a visibly intoxicated bar patron became an annoyance to the other customers. He eventually got into an argument with one and was struck from behind by that patron and sustained injuries. The plaintiff based his theory of liability on the fact that the bartender had violated 47 P.S. §4-493(1) by serving him alcoholic beverages after he was “visibly intoxicated.”

Even though the civil liability provision of the 1854 Liquor Control Act had been repealed, the Superior Court held that “[w]hen an Act embodying in expressed terms a principle of law is repealed by the legislature, then the principle of law as it existed at common law is still in force.” 188 Pa. Super. at 346, 146 A.2d at 651. The appellate court in Schelin agreed with the lower court that it was negligent for the defendant to have served intoxicating beverages to the plaintiff when he was already intoxicated. Thus, applying the Restatement of Torts, §286, the court allowed recovery under a common-law theory of negligence, established by the violation of section 4-493(1). Since the jury found that negligence was the proximate cause of the plaintiff’s injury, liability was imposed on the defendant licensee.

The Superior Court also quoted from the 1861 Supreme Court decision .in Fink v. Garman, 40 Pa. 95 (1861), wherein Mr. Justice Woodward noted: “It would probably be found, if it were worthwhile to go into an examination of all prior legislation, that it never was lawful, but always unlawful negligence in Pennsylvania to furnish liquors to men actually drunk at the time, or known to be habitually intemperate.” From this, the Schelin court concluded that the dram shop provision in •section 3 of the 1854 legislation was not the real basis of the licensee’s liability. 188 Pa. Super. at 349, 146 A.2d at 652.

Six years later, the Supreme Court relied upon the Superior Court’s analysis in Schelin when it held that tavern owners owed a common-law duty, independent of statute, to conduct themselves with reasonable care and prudence when dispensing alcohol and to protect others from visibly intoxicated persons. In Jardine v. Upper Darby Lodge No. 1973 Inc., 413 Pa. 626, 198 A.2d 550 (1964), a pedestrian was seriously injured when struck by an allegedly intoxicated driver. The pedestrian brought suit against the Upper Darby Lodge, charging that it was negligent by serving alcoholic beverages to the driver after he was already visibly intoxicated. Ajuiy returned a verdict in favor of the pedestrian and the lodge appealed arguing that the serving of alcohol to the driver was not the proximate cause of the pedestrian’s injuries.

The Pennsylvania Supreme Court held that the serving of alcohol to an intoxicated person could be the proximate cause of the injuries inflicted on the pedestrian and that the lodge had a duty, apart from statute, not to serve the driver:

“The repeal of the Dram Shop Act [of 1854] did not wipe out the remedy which that Act afforded victims of intoxicated persons. The Superior Court said in Schelin v. Goldberg, 188 Pa. Super. 341, [146 A.2d 648,] ‘When an Act embodying in expressed terms a principle of law is repealed by the legislature, then the principle as it existed at common law is still in force.’
“Since an intoxicated person is and can be an instrument of danger to others, especially if he is operating a motor vehicle, the legislature of Pennsylvania declared by the [Liquor Code]... that it shall be unlawful for any person to sell liquor to one already intoxicated. The first prime requisite to de-intoxicate one who has, because of alcohol, lost control over his reflexes, judgment and sense of responsibility to others, is to stop pouring alcohol into him. This is a duty which everyone owes to society and to law entirely apart from any statute. The person who would put into the. hands of an obviously demented individual a firearm with which he shot an innocent third person would be amenable in damages to that third person for unlawful negligence. An intoxicated person behind the wheel of an automobile can be as dangerous as an insane person with a firearm. He is as much a hazard to the safety of the community as a stick of dynamite that must be de-fused in order to be rendered harmless. To serve an intoxicated person more liquor is to light the fuse.” Id. at 631-32, 198 A.2d at 553. (emphasis added)

With this case, our Supreme Court recognized the need to allow a common-law cause of action against licensees who serve intoxicated patrons. The court thereby abrogated the common-law rule of non-liability for a liquor vendor, where a third person is injured by the acts of an intoxicated patron, by finding, first, that the negligent serving of alcohol to a visibly intoxicated patron could be the proximate cause of injury to a third person and, second, that such injury to a third person was an eminently foreseeable result of serving an intoxicated customer more liquor.

Having determined that the sale of liquor may be the proximate cause of injuries sustained by a third person, it is clear that under Pennsylvania law the licensee is under a duty not to sell liquor where the sale creates a risk of harm to the customer or to others. This conclusion flows from general principles of negligence law — every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others. See Restatement (Second) of Torts, §315. In selling liquor to an intoxicated patron, where there is evidence that the customer may injure himself or others as a result of the intoxication, a vendor is not acting as a reasonable person would. I echo the words of the Supreme Court: “The first prime requisite to de-intoxicate one who has, because of alcohol, lost control over his reflexes, judgment and sense of responsibility to others, is to stop pouring alcohol into him. This is a duty which everyone owes to society and to law entirely apart from any statute.” Jardine, supra at 631, 198 A.2d at 553. Our Supreme Court clearly recognized that the continued existence of the rule of non-liability for liquor vendors was both bad law and bad social policy.

This Jardine decision has been cited by at least 18 jurisdictions around the countiy as recognizing a common-law cause of action against a licensee for injuries caused by an intoxicated customer. See for example, Shannon v. Wilson, 329 Ark. 143, 154-55, 947 S.W.2d 349, 354-55 (1997); Ellis v. N.G.N. of Tampa Inc., 586 So.2d 1042, 1045-46 (Fla. 1991); Samson v. Smith, 560 A.2d 1024, 1026 (Del.Supr. 1989); Grayson Fraternal Order of Eagles, Aerie No. 3738 Inc. v. Claywell, 736 S.W.2d 328, 331 (Ky. 1987); El Chico Corp. v. Poole, 732 S.W.2d 306, 310 n.1 (Tex. 1987); Largo Corp. v. Crespin, 727 P.2d 1098, 1101 (Colo. 1986); Ling v. Jan’s Liquors, 237 Kan. 629, 641, 703 P.2d 731, 741 (1985); Sutter v. Hutchings, 254 Ga. 194, 196, 327 S.E.2d 716, 718 (1985); Sorensen by Kerscher v. Jarvis, 119 Wis.2d 627, 649, 350 N.W.2d 108, 119 (1984); Haafke v. Mitchell, 347 N.W.2d 381, 388 (Iowa 1984); Ontiveros v. Borak, 136 Ariz. 500, 507, 667 P.2d 200, 207 (1983); Nazareno v. Urie, 638 P.2d 671, 674 (Alaska 1981); Marchiondo v. Roper, 90 N.M. 367, 369 n.2, 563 P.2d 1160, 1162 n.2 (1977); Holmes v. Circo, 196 Neb. 496, 502, 244 N.W.2d 65, 69 (1976); Trail v. Christian, 298 Minn. 101, 110 n.10, 213 N.W.2d 618, 623 n.10 (1973); Vesely v. Sager, 95 Cal.Rptr. 623, 629, 5 Cal.3d 153, 161, 486 P.2d 151, 157 (1971); Adamian v. Three Sons Inc., 353 Mass. 498, 501 n. 10, 233 N.E.2d 18, 20 n. 10 (1968); Lee v. Peerless Ins. Co., 248 La. 982, 991 n.8, 183 So.2d 328, 331 n.8 (1966).

Thus, in 1964, the Pennsylvania Supreme Court adopted a dram shop doctrine as a matter of common-law negligence, namely, a licensee may be liable for injury caused by the sale of liquor to a visibly intoxicated patron. In abrogating the common-law rule of non-liability for a liquor vendor, the court recognized that “[wjhen a common-law rule, in effect, would pervert justice and contravene legislative and societal needs, and it is not in the best interests of justice or public policy, a change by the court is mandated.” Commonwealth v. Hooks, 921 A.2d 1199, 1208 (Pa. Super. 2007). See also, Schaaf v. Kaufman, 850 A.2d 655, 661 (Pa. Super. 2004) (“[I]t is inherent in the common-law model that judges be able to adapt, change, or even discard old rules as needed to fit changed circumstances....”). It is clear that, following the 1951 repeal of the dram shop provision in the Act of 1854, Pennsylvania courts construed provisions of the Pennsylvania Liquor Code and common-law negligence principles as imposing civil liability on those who serve visibly intoxicated patrons if the unlawful action results in injury to another. See Smith v. Evans, 421 Pa. 247, 219 A.2d 310 (1966); Jardine, supra; Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); Corcoran v. McNeal, 400 Pa. 14, 161 A.2d 367 (1960); Couts v. Ghion, 281 Pa. Super. 135, 421 A.2d 1184 (1980); Connelly v. Ziegler, 251 Pa. Super. 521, 380 A.2d 902 (1977); Schelin, supra. See also, Bradshaw v. Rawlings, 612 F.2d 135, 141 (3d Cir. 1979) (noting that in Pennsylvania the liability of licensees to injured parties derives from the common law as well as from a violation of Pennsylvania’s Dram Shop statute, 47 P.S. §4-493(1)); Gerhart v. Hummel, 18 D.&C.3d 63, 66 (Lancaster Cty. 1981) (noting that “Pennsylvania courts . . . have construed provisions of the Pennsylvania Liquor Code and common-law negligence principles as imposing civil liability on those who serve minors and visibly intoxicated patrons if the unlawful action results in injury to another: Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963).”). (footnote omitted)

For these reasons, I must reject defendant’s basic assertions that “[tjhere is no common-law liability arising from the [sic] furnishing alcohol” and “[t]he current Dram Shop Act provides for a cause of action that did not exist at common law.” (See defendant’s brief at 6; defendant’s reply brief at 8.) As explained above, the Supreme Court has recognized a common-law cause of action in negligence against a licensee for injuries resulting from the furnishing of alcohol to a visibly intoxicated customer in violation of the Commonwealth’s Liquor Code.

Moreover, the case law is clear that the Dram Shop Act does not give rise to a statutory civil cause of action but rather it “imposes a duty upon the defendant-licensees, the violation of which is negligence per se and gives rise to an action in tort.” Alfred M. Lutheran Distributors Inc. v. A.P. Weilersbacher Inc., 437 Pa. Super. 391, 407, 650 A.2d 83, 91 (1994) (citing Matthews v. Konieczny, 515 Pa. 106, 113, 527 A.2d 508, 512 (1987); Majors v. Brodhead Hotel, 416 Pa. 265, 268, 205 A.2d 873, 875 (1965); Jardine, supra at 632, 198 A.2d at 553; Thomas v. Duquesne Light Co., 376 Pa. Super. 1, 10, 545 A.2d 289,293 (1988), aff’d, 528 Pa. 113, 595 A.2d 56 (1991), and Connelly, supra at 524, 380 A.2d at 903). The Superior Court in Lutheran Distributors observed that in these cited decisions the Supreme Court acknowledged “the differences between a cause of action created by statute and a common-law tort action pursuant to which a statutorily imposed duty may be enforced.” Id. at 410, 650 A.2d at 92. The court continued:

“[T]he justices’ explanations make it clear that the Liquor Code does not create a private statutory cause of action. Rather, the Supreme Court has long deemed the Liquor Code to be a penal statute which contains a legislative standard of conduct for which civil liability may be imposed, by way of a common-law tort action, upon a defendant who violates it.” Id. (citing Matthews, supra; Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973); Majors, supra and Jardine, supra), (emphasis added) See also, Detwiler v. Brumbaugh, 441 Pa. Super. 110, 114-15, 656 A.2d 944, 946-47 (1995) (section 4-497 of the Liquor Code does not create a cause of action). Thus, defendant’s contention that “[t]he current Dram Shop Act provides for a cause of action that did not exist at common law” must be rejected. The Liquor Code does not create the cause of action; the ordinary principles of negligence do that.

Defendant also claims that section 4-497 of the Dram Shop Act “provides licensees with immunity from all claims other than those of service to a visibly intoxicated customer of legal age,” citing Matthews v. Konieczny, supra, and Hiles v. Brandywine Club, 443 Pa. Super. 462, 662 A.2d 16 (1995). (See defendant’s brief at 7.) One year after the 1964 Supreme Court decision in Jardine, the Pennsylvania Legislature amended the Liquor Code by enacting the following dram shop provision:

“Section 4-497. Liability of licensees — No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed-beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.” 47 P.S. §4-497.

Hiles made it clear that, with the enactment of this provision in 1965 (re-enacted in 1987), “[vjisible intoxication must be proven under section 4-497 as a prerequisite to imposing any liability upon a licensee.” Hiles, supra at 470, 662 A.2d at 20. (emphasis added) Contrary to defendant’s position, I would suggest that the use of the word “prerequisite” by the Superior Court supports plaintiffs’ position that once the threshold level of negligence has been established, i.e., serving a visibly intoxicated patron, other common-law claims of negligence can be asserted.

Similarly, one could argue that the Supreme Court’s identification of the dram shop provision as “statutory immunity” in Matthews further supports plaintiffs’ position. In Matthews, the court was faced with the issue of whether a commercial licensee of alcoholic beverages can be liable to a person injured as a result of service of alcohol to a minor. The Matthews court “conclude[d] that as a matter of common law a commercial licensee of alcoholic beverages can be held liable to a third person for damages proximately caused by the service of alcohol to a minor.” Id. at 113, 527 A.2d at 512. (footnote omitted) The vendors argued that regardless of whether such a common-law cause of action existed “the General Assembly ha[d] granted them an immunity from third party suits in all cases where the party served was not visibly intoxicated.” Id. at 114, 527 A.2d at 512. While this argument was accepted by the Superior Court, it was soundly rejected by the Supreme Court, which held that the existence of the common-law cause of action is not limited by section 4-497 of the Liquor Code to instances in which the minor was “visibly intoxicated” at the time of the sale because the Crimes Code prohibits minors purchasing or consuming alcohol. Id. at 117, 527 A.2d at 514.

Again, this case suggests that there is a prerequisite or threshold that a plaintiff must meet before an action against a commercial liquor vendor may proceed, i.e., sale of intoxicating liquor to a visibly intoxicated adult. Otherwise, the licensee is immune from suit.

Similarly, in Detwiler, supra, the Superior Court recognized that “section 4-497 is clearly a limiting provision designed to specifically shield licensees from liability to third parties except in those instances where the patron served was visibly intoxicated.” Supra at 114, 656 A.2d at 946. The court held that this section does not create liability against a licensee but rather limits the extent of a licensee’s liability to third parties for damages caused off-premises by a customer to those customers who were visibly intoxicated when served alcoholic beverages. “It is clear that section 4-497 acts as a shield restricting liability instead of a provision defining where it is to apply.” Id. Thus, I cannot conclude that Matthews; Hiles; and Detwiler establish, as defendant claims, that section 4-497 “provides licensees with immunity from all claims other than those of service to a visibly intoxicated customer of legal age.” (See defendant’s brief at 7. (emphasis added))

No Pennsylvania appellate court has addressed this precise issue of whether section 4-497 of the Dram Shop Act provides the exclusive remedy for injuries resulting from a licensee’s violation of that Act, such that all other common-law theories of negligence are preempted. Moreover, there has been no consensus among those courts of common pleas around the Commonwealth that have written on the subject.

In Cipriani v. Szopo, no. 10006 of 2003, slip op. (Beaver Cty. March 20,2003), the plaintiff brought suit seeking to recover damages for injuries suffered from a head-on motor vehicle collision. The other driver was highly intoxicated at that time with a blood alcohol level of .262. The plaintiff alleged various theories of liability to support his claim of negligence against each of the four defendant bars, including one based on section 4-497 of the Liquor Code for serving alcoholic beverages to the defendant driver “while visibly intoxicated.” The plaintiff further alleged that the licensees were negligent in that they “knew or should have known Richards would be operating his vehicle,” “caused [the driver] to become intoxicated,” “employed servants who were incompetently trained,” “failed to train their employees regarding the amount of liquor to serve to a customer,” “failed to train employees to recognize the signs of visible intoxication,” “had policies in force which promoted drinking to excess,” “failed to protect patrons and the public from harmful effects of alcohol,” and “served a person of known intemperate habits.” Slip op. at 2-3.

The four licensees each filed preliminary objections asserting that the only basis of their liability under the Dram Shop Act is service of alcohol to a person who is visibly intoxicated and that all of the other allegations of negligence must be dismissed or stricken because they assert legal duties which are not recognized by law. The Honorable Deborah A. Kunselman rejected these assertions and held that the plaintiff stated a claim for relief under the various theories of negligence. Slip op. at 4.

This court’s research also uncovered many cases from other jurisdictions around the Commonwealth that have proceeded with claims for common-law negligence as well as violations of the Dram Shop Act. See for example, Schaub v. Trainer’s Inn Inc., no. 06-2257, slip op., Nanovic, PJ. (Carbon Cty. Feb. 19, 2009) (motion for summary judgment addressed in an action alleging negligence generally, negligence per se for being served alcohol while visibly intoxicated and underage, and negligent supervision by defendant licensee’s employees); Yeager v. Younker, no. 2004-1822, slip op., Lunsford, J. (Centre Cty. August 2006) (motion for summary judgment addressed in an action asserting common-law negligence and violation of section 4-493(1) of the Dram Shop Act); Currie v. Phillips, no. 2003 Civil 378, slip op., Minora, J. (Lackawanna Cty. August 15, 2003) (preliminary objections addressed in an action asserting claims for common-law negligence and violations of the Dram Shop Act).

There have been, however, other common pleas courts that have sustained the preliminary objections of defendant licensees seeking to strike allegations of negligence outside the narrow confines of the Dram Shop Act. In Kortum v. 1K Second Street Associates, 123 Dauphin Rep. 463 (Dauphin Cty. Jan. 3, 2008), the Honorable Joseph H. Kleinfelter held that the case of Hiles, supra, “makes it clear that the Liquor Code provides not only a basis for liability; viz., sales to visibly intoxicated persons; but that it also restricts liability to those exact circumstances.” Id. at 465. The court further paraphrased Justice Cirillo’s language in Hiles, supra, when it stated that “the enactment of section 4-497 provides the exclusive prerequisite for imposing civil liability on a licensee.” Id. at 465 (citing Hiles, supra at 470, 662 A.2d at 20). From this language, our sister court concluded that the defendant bar was entitled to have stricken from the plaintiff’s complaint those paragraphs that sought to impose liability on theories of negligence other than the one set forth at section 4-497, which pertains to the serving of alcohol to visibly intoxicated persons.

A similar result was reached in Armstrong County in 2003. In Clark v. Thompson, no. 2002-0260-Civil, the Honorable Joseph A. Nickleach held that a defendant driver could not assert both Dram Shop Act and common-law tort claims against the defendant bar because the Act provides the sole means of establishing liability upon a tavern owner for serving alcohol to a patron who later injures a third party. The Armstrong County court also relied upon the decision in Hiles, as well as the appellate decision in Detwiler, wherein the Superior Court recognized that “section 4-497 is clearly a limited provision designed to specifically shield licensees from liability to third parties except in those instances where the patron served was visibly intoxicated.” Slip op. at 9 (quoting Detwiler, supra at 114, 656 A.2d at 946).

The court in Clark further supported its interpretation of the Dram Shop Act by analogy to other statutory acts which have, in other areas of law, defined and limited liability, thereby preempting previously controlling common-law standards of negligence; for example, the Workers’ Compensation Act. Slip op. at 10. Thus, the Armstrong County court held that section 4-497 provided the exclusive remedy under the facts presented and, therefore, granted the defendant bar’s preliminary objections to the common-law theories of negligence.

This lack of consensus among the common pleas courts suggests that there is no bright line rule relative to the preemption of common-law negligence claims by the Dram Shop Act. Moreover, I must respectfully take issue with the Clark court’s conclusion that such a position is supported by analogy to the Workers’ Compensation Act. It is correct that, under Pennsylvania law, “[wjhere an employee’s injury is compensable under the [Workers’ Compensation] Act, the compensation provided by the statute is the employee’s exclusive remedy against his or her employer” and the injured employee cannot maintain a tort action against his or her employer. Hykes v. Hughes, 835 A.2d 382, 384 (Pa. Super. 2003) (citing 77 P.S. §481(a)). (emphasis added) However, there is no similar exclusivity provision in the Pennsylvania Dram Shop Act that precludes a common-law tort action against a licensee. “The legislature must affirmatively repeal existing law or specifically preempt accepted common-law for prior law to be disregarded.” Metropolitan Property & Liability Insurance Co. v. Insurance Commissioner of Pennsylvania, 525 Pa. 306, 310, 580 A.2d 300, 302 (1990). (emphasis added) Having specifically preempted accepted common law in other areas, and not in the Liquor Code, it is fair to argue that the legislature did not intend such a result.

Absent such an exclusivity provision and after a thorough review and analysis of the statutory and appellate case law, it is not clear that section 4-497 of the Liquor Code subsumes all common-law negligence claims against a licensee for injuries resulting from the furnishing of intoxicating beverages to an already intoxicated customer. Accordingly, I respectfully decline to follow cases of other common pleas courts which have reached the opposite result. Unless and until our appellate courts establish a bright line rule, I am compelled by the above-stated analysis and by the standards that govern review of preliminary objections to overrule defendant’s preliminary objections.

III. CONCLUSION

For the reasons set forth above, the preliminary objections of Doc Holliday’s will be overruled.

According, I enter the following:

ORDER

And now, March 16,2010, upon consideration of the preliminary objections of defendants’ Keares Inc., individually. and d/b/a Keares Restaurant Group, Doc Holliday’s Steakhouse Inc., individually and d/b/a Doc Holliday’s Steakhouse & Saloon, plaintiffs’ response thereto, the briefs filed by the parties, and after oral argument of counsel, it is hereby ordered that said preliminary objections are overruled. Defendants shall have 20 days from the date of this order to file answers to plaintiffs’ complaint.

      . The factual background is ascertained from plaintiffs’ complaint as the court, in considering preliminary objections in the nature of a demurrer, must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, as true. Toney v. Chester County Hospital, 961 A.2d 192, 197 (Pa. Super. 2008).

      . “Dram shop” is a term of art in the United States, referring to a bar, tavern or other establishment where alcoholic beverages are sold. The term “dram” refers to a unit of liquid measure used during the colonial period.
      A dram shop act is a statute “allowing a plaintiff to recover damages from a commercial seller of alcoholic beverages for the plaintiff’s injuries caused by a customer’s intoxication.” Black’s Law Dictionary 509 (7th ed.1999).

      . The court in Painter v. Reifsnyder, 20 D.&C.3d 615 (Lancaster Cty. 1981), found that plaintiffs had a valid cause of action for punitive damages where decedents were killed in a car accident by a patron of a bar who had been served while visibly intoxicated. The decedent’s personal representatives brought a wrongful death action and a survival action based on negligence against the owners of the bar. The court found that the plaintiffs did not have to allege intentional conduct to recover punitive damages; to hold otherwise would be in direct opposition to the purposes of deterring tavern owners from serving visibly intoxicated persons. Id. at 620.

      . “Section 286. Violations creating civil liability. The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if:
      “(a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and (b) the interest invaded is one which the enactment is intended to protect; and (c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interests results from that hazard; and, (d) the violation is a legal cause of the invasion, and the other has not so conducted himself as to disable himself from maintaining an action.” Restatement of Torts, §286.

      . The Superior Court further held that, under section 483 of the Restatement of Torts, the defense of contributory negligence was not available where the statute protected the injured person because of his inability to exercise self-protective care. Section 483 provided: “If the defendant’s negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovering for bodily harm caused by the violation of such statute.” Supra at 348, 146 A.2d at 652.

      . Over 150 years ago, the Supreme Court recognized the risk of selling alcohol to an intoxicated person and the duty to refrain from such conduct in Fink v. Garman, supra. “There, Jacob Finir, an innkeeper, served Jacob Garman, a man generally known for his intemperate habits and at the time already drunk, with an additional quantity of intoxicating liquor. Garman thereby became so inebriated that when he mounted his horse he fell to the ground and was killed beneath the wheels of a wagon. His widow brought suit against the innkeeper under the Act of 1854 and recovered a verdict. The innkeeper appealed. Th[e Supreme] Court affirmed the judgment, saying: ‘No standard of social duty, or of obedience to law, can be applied to Fink’s act which will not prove it to have been in a very eminent sense unlawful negligence.’” Manning v. Yokas, 389 Pa. 136, 140-41, 132 A.2d 198, 200 (1957).

      . I would add that the purpose of the Liquor Code is to restrain the sale of alcohol and to protect the public welfare, health, peace, and morals of the citizens of Pennsylvania. Malt Beverages Distributors Association v. Pennsylvania Liquor Control Board, 601 Pa. 449, 463, 974 A.2d 1144, 1153 (2009) (citing 47 P.S. §1-104(a)). In Schelin, supra, the Superior Court found that section 4-493 was enacted not only to protect society generally, but also “to protect specifically intoxicated persons from their inability to exercise self-protective care.” 188 Pa. Super. at 348, 146 A.2d at 652. (emphasis in original) Moreover, the Supreme Court of Pennsylvania, in Commonwealth v. Koczwara, 397 Pa. 575, 584, 155 A.2d 825, 829-30 (1959), concluded that, in enacting the Liquor Code, legislative intent was “to place a very high degree of legal responsibility upon the holder of a liquor license to make certain that neither he nor anyone in his employ commit any of the prohibited acts upon the licensed premises. Such a burden of care is imposed upon the licensee in order to protect the public from the potentially noxious effects of an inherently dangerous business.”

      . As noted by the Supreme Court of Texas in 1987, Pennsylvania was not in the minority in recognizing such a common-law action:
      “In recent years, modern analyses have discarded the absolute rule of no liability in favor of an approach incorporating current legal understanding as dictated by conditions and circumstances of modern society. An intoxicated person is by definition not an able-bodied nor able-minded person. Of 50 American jurisdictions (including the District of Columbia and excluding Texas), 29 recognize a common-law cause of action against an alcoholic beverage purveyor for injuries caused by an intoxicated customer.... Additionally, 19 state legislatures have enacted civil dram shop liability,... seven of which also have recognized a complementary and supplemental common-law cause of action____In total, a civil cause of action exists in 41 jurisdictions with a substantial majority basing the cause of action upon the common-law principles of negligence, negligence per se, or both. Focusing on the carnage inflicted upon innocent victims by drunk drivers, courts have rejected the rationale supporting no liability as outdated and unrealistic and thus invalid. Injury to a third person is no longer unforeseeable in an age when death and destruction occasioned by drunk driving is so tragically frequent.” El Chico Corp. v. Poole, supra at 310. (footnotes omitted)

      . There have been numerous decisions where the Supreme Court has not hesitated to reconsider the common law in light of current social conditions and public policy: Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981) (abolishing the defense of interspousal immunity as a bar to tort actions); Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979) (abandoning common-law rule that actual possession is prerequisite to an action in ejectment); Estate of Grossman, 486 Pa. 460, 406 A.2d 726 (1979) (abandoning per se rule disqualifying testimony of the spouse of a surviving interested party to a transaction with a decedent); Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974) (abrogating common-law rule permitting husband but not wife to recover for consortium); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974) (eliminating presumption that father has primary burden to support minor children); Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971) (abrogating parental immunity); Griffith v. United Air Lines Inc., 416 Pa. 1, 203 A.2d 796 (1964) (rejecting lex loci conflicts of law rule); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975) (abolishing common-law presumption that husband is the exclusive owner of household goods).

      .This section states in relevant part:
      “The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employes ... or anyone otherwise entitled to damages in any action at law or otherwise on . account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.” 77 P.S. §481(a).

      . See also, the Post Conviction Relief Act, 42 Pa. C.S. §§9541-9546 (PCRA), which provides in relevant part: “The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis....” 42 Pa. C.S. §9542.

      . It is noteworthy that some state dram shop statutes specifically state that the act provides the exclusive remedy for such causes of action. See for example, the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-l-7, which provides in section 4: “This Act shall be the exclusive civil remedy for personal injuries or property damages resulting from the negligent service of alcoholic beverages,” and Verni v. Harry M. Stevens Inc., 387 N.J. Super. 160, 187 (App. Div.), certif. denied, 189 N.J. 429 (2007) (“Common-law claims arising out of the negligent service of alcoholic beverages are thus barred by the exclusivity provisions of the Beverage Server Act.”); the Michigan Liquor Control Code, MCL 436.1801(10), which provides that it is the “exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor” and Jackson v. PKM Corp., 430 Mich. 262, 422 N.W.2d 657 (1988) (the exclusive remedy provision precludes a person from bringing a common-law action for gross negligence, willful and wanton, or intentional misconduct against a liquor licensee); and the Texas Alcoholic Beverage Code, Tex. Aleo. Bev. Code §2.03, which states: “The liability of providers under this chapter for the actions of their customers, members, or guests who are or become intoxicated is in lieu of common law or other statutory law warranties and duties of providers of alcoholic beverages. . . . This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.”

      . “The question presented by the demurrer is whether, on facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Toney v. Chester County Hospital, 961 A.2d at 197 (quoting Price, 545 Pa. at 221, 680 A.2d at 1151 (emphasis added)).


source: Caselaw Access Project

author: TERESHKO, J.,

license: Public Domain

text:
    Ritter v. Garlock Inc.

      Lee B. Balefsky, for plaintiffs.

      David A. Damico, for defendant Garlock Inc.

      Edward T. Finch, for defendant General Electric.

      Robert R Coleman, for defendant Viad Inc.
    April 15, 2010
   TERESHKO, J.,

Plaintiffs Gerard A. Ritter and Susan R. Norek co-executors of the estate of Gerard H. Ritter, and Alice K. Ritter, in her own right (collectively plaintiffs), appeal this court’s orders precluding the use of Mr. Ritter’s deposition testimony and granting summaiy judgment in favor of defendants Gar-lock Inc., General Electric Co., and Viad Inc. (collectively defendants) and dismissing all claims against defendants.

I. BACKGROUND

Mr. Gerard H. Ritter worked for the Delaware Lackawanna and Western Railroad, the Erie Lackawanna Railroad, and the Consolidated Rail Corporation from 1941 until 1981 at various locations in northeast Pennsylvania, northern New Jersey, and upstate New York. (Complaint, ¶¶4-5.) While working on the railroads, Mr. Ritter recalled being exposed to asbestos block, asbestos brake linings, asbestos cement, asbestos cloth, asbestos gaskets, asbestos packing, asbestos steam generator pads, and asbestos pipe covering. (See plaintiff’s answer to interrogatories, exhibit A.)

Mr. Ritter was diagnosed with mesothelioma on or about March 8, 2005.

Plaintiffs commenced this asbestos mass tort action on June 21, 2005, alleging that Mr. Ritter’s mesothelioma was as a result of his occupational exposure to asbestos products while working for the railroads. Plaintiffs named several defendants, including General Motors, Consolidated Rail Corporation, Erie-Lackawanna Incorporation, Westinghouse Airbrake, The Manville Fund, Garlock, GE, and later Viad.

On May 12,2006, the parties arranged for Mr. Ritter’s videotaped deposition to be taken. The parties agreed that plaintiffs’ attorneys would conduct a videotaped direct examination, which would be followed by a discovery deposition by each of defendant’s counsel, and then a videotaped cross-examination of Mr. Ritter. (Videotape deposition of Gerard H. Ritter, p. 6.) Defendants Garlock and GE attended the deposition with the intention of fully participating. Defendant Viad, however, was not added until June 12,2006, one month later. (Docket, Ritter v. Viad Corp., June term 2006, no. 0906.) At the May 12 deposition, plaintiffs’ attorneys conducted their direct examination of Mr. Ritter. At that time, attorneys for other defendants then completed their discovery depositions. None of the moving defendants completed their discovery depositions or began their trial depositions. Attorneys for defendant GE began to depose Mr. Ritter, but were stopped by plaintiffs’ attorneys, who terminated the deposition due to Mr. Ritter’s fatigue. (Videotape deposition of Gerard H. Ritter, pp. 80-81.) The parties agreed to reschedule the deposition and continue as planned. (Id.) Unfortunately, Mr. Ritter passed away two months later on July 20,2006, before he could be deposed further. As a result, none of the moving defendants had an opportunity to conduct either a full discovery deposition or cross-examination of Mr. Ritter.

On April 7,2007, defendant Garlock filed a motion in limine seeking to preclude plaintiffs from utilizing Mr. Ritter’s video and discovery depositions at trial. In its motion, Garlock argued that because it had no opportunity to cross-examine Mr. Ritter, use of the videotaped deposition would be highly prejudicial. (Garlock’s motion in limine, ¶¶11-12.) Anticipating a counterargument from plaintiffs, Garlock also maintained that the deposition was not admissible as a dying declaration because Mr. Ritter remained alive for more than two months after the deposition was halted due to his fatigue. (Id., ¶¶15-17.)

In response, plaintiffs argued that exclusion of Ritter’s testimony would unfairly prejudice the plaintiffs and that, alternatively, the deposition was admissible as a dying declaration. (Plaintiffs’ response to defendant Garlock’s motion in limine, pp. 4-6.) Further, plaintiffs argued that because Garlock had consented to the deposition schedule, and failed to object during the direct examination, it had effectively waived its rights to object to the deposition’s later use at trial. (Id., p. 5.)

On August 28, 2007, Garlock filed a sur-reply and plaintiffs filed a response to the sur-reply. On September 1, defendant GE filed a separate motion to exclude Mr. Ritter’s deposition testimony. Defendant GE incorporated Garlock’s arguments, and argued further that the deposition must be precluded because of the defendants’ lack of an opportunity to cross-examine Mr. Ritter. (Defendant GE’s motion in limine, p. 2.) On September 26, 2007, this court granted both Garlock and GE’s motions in limine and precluded plaintiffs from using Mr. Ritter’s videotape testimony and discovery depositions at trial.

On October 14, 2008, Garlock, GE, and Viad each filed separate motions for summary judgment. Viad supplemented its motion on October 28,2008. Plaintiffs filed responses on November 7, 2008, which were followed by replies from GE and Garlock on November 12, and from Viad on November 17, 2008.

On December 4, 2008, after consideration of defendants’ motions, plaintiffs’ responses, and defendants’ replies, this court granted Garlock, GE and Viad’s motions and dismissed plaintiffs’ claims.

Claims as to defendants Consolidated Rail Corporation and Westinghouse Airbrake were also dismissed on December 4, 2008. Plaintiffs have not appealed the dismissal of Consolidated Rail Corporation or Westinghouse Airbake. Claims as to the remaining defendants were settled or referred to arbitration on December 4, 2008.

On December 19,2008, plaintiffs timely filed this appeal. On February 16, 2009, in response to this court’s order, plaintiffs filed a concise statement of errors pursuant to Pa.R.A.P. 1925(b) raising the following issues:

“(1) Whether this court properly held that Mr. Ritter’s videotape and deposition testimony constituted inadmissible hearsay and did not fall under an exception to the hearsay rule as either a dying declaration or as prior testimony; and
“(2) Whether this court committed an error of law and/ or abused its discretion in granting defendants’ motions for summary judgment where plaintiffs’ evidence failed to establish that Gerard H. Ritter was regularly and frequently exposed to asbestos from products manufactured ' and/or supplied by defendants.”

II. LEGAL DISCUSSION

Plaintiffs’ claims center around two separate issues, which will be discussed below. First, as to all moving defendants, plaintiffs claim that Mr. Ritter’s deposition testimony was improperly precluded. Second, as to defendants Garlock, GE and Viad individually, plaintiffs claim that there is sufficient evidence to overcome the standards, set forth in the prevailing case law, for product identification and regularity and frequency of exposure to asbestos.

A. Preclusion of Mr. Ritter’s Deposition Testimony

Plaintiffs claim that this court erred in precluding Mr. Ritter’s videotape and deposition testimony as hearsay. “The hearsay rule provides that evidence of a declarant’s out-of-court statements is generally inadmissible because such evidence lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence.” Commonwealth v. Vining, 744 A.2d 310, 317 (Pa. Super. 1999) (quoting Commonwealth v. Chamberlain, 557 Pa. 34, 39, 731 A.2d 593, 595 (1999). “Exceptions to the hearsay rule are premised on circumstances surrounding the utterance which enhance the reliability of the contents of the utterance, and render unnecessary the normal judicial assurances of cross-examination and oath.” Id. Plaintiffs advance three separate theories which they believe make Mr. Ritter’s testimony admissible.

1. Prior Testimony

Plaintiffs first argue that Mr. Ritter’s testimony is admissible as prior testimony. Pennsylvania Rule of Civil Procedure 4020 provides that, when the declarant is dead, prior testimony, such as Mr. Ritter’s deposition, may be used at trial “so far as admissible under the rules of evidence.” Pa.R.C.P. 4020. Pennsylvania Rule of Evidence 804(b)(1) provides an exception for former testimony:

“(b) Hearsay exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Pa. R.E. 804(b)(1).

Although “[t]he principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired,” some opportunity to cross-examine must be afforded the party against whom the evidence is being offered. Garner v. PUC, 177 Pa. Super. 439, 446, 110 A.2d 907, 911 (1955); but see also, Beaumont v. ETL Services Inc., 761 A.2d 166, 173 (Pa. Super. 2000) (testimony nevertheless admissible when co-defendant’s cross-examination amounted to “constructive representation” and assured that defendant’s interests were protected even when defendant did not actually cross-examine deponent).

In this case, none of the moving defendants had an opportunity to cross-examine Mr. Ritter. Although the parties had agreed that each defendant would be allowed to take both a discovery deposition and conduct a cross-examination, only defendant GE was able to ask any questions of Mr. Ritter, and even then was only able to begin its discovery deposition before plaintiffs’ counsel halted the deposition due to Ritter’s fatigue. As a result, none of the defendants were able to cross-examine Mr. Ritter despite their obvious intent and desire to do so. Further, due to the unique product identification issues that arise in asbestos litigation, no other defendant could have properly safeguarded the rights of these defendants. Because the moving defendants lacked the opportunity to cross-examine Mr. Ritter, Pennsylvania Rule of Evidence 804(b)(1) precludes the admission of the videotape or deposition testimony as prior testimony.

2. Dying Declaration

Plaintiffs next assert that Mr. Ritter’s videotape and deposition testimony should be admissible as a dying declaration. (Plaintiff’s response to Garlock’s motion in limine, p. 6.) Pa.R.E. 804(b)(4) defines a dying declaration as “[a] statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” Pa.R.E. 804(b)(2). “The reliability of a dying declaration is provided not by an oath, nor [sic] by cross-examination; rather, its admissibility is based on the premise that no one ‘who is immediately going into the presence of his Maker will do so with a lie upon his lips.’” Commonwealth v. Smith, 454 Pa. 515, 517-18, 314 A.2d 224, 225 (1973) (quoting Lush, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881)).

To be admissible as a dying declaration, a statement must be made under the belief of impending death. See Smith, supra, 454 Pa. at 518, 314 A.2d at 225 (“the evidence must, inter alia, justify the conclusion that at the time the statements were made, the declarant believed he was in fact dying, and also that death was imminent. In other words the admissibility of such evidence depends primarily upon the state of the declarant’s mind.”). Circumstances can provide indicia of the state of the declarant’s mind. For example, in Commonwealth v. Cooley, 465 Pa. 35, 43, the fact that the declarant was bleeding from a recently-inflicted bullet wound provided circumstantial evidence that the declarant was aware that he was about to die. 465 Pa. 35, 43, 348 A.2d 103, 107 (1975); see also, Barkman v. Erie Indemnity Co., 198 Pa. Super. 379, 181 A.2d 874 (1962) (noting closeness in time requirement of so-called “res gestae” hearsay exceptions); Sadowski v. Eazor Express Inc., 213 Pa. Super. 471, 474, 249 A.2d 842, 843-44 (1968) (accident victim’s statement was trustworthy and not meant to be self-serving when it was made as he lay crushed in cab of pickup truck); Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 483, 7 A.2d 302, 318 (1939) (statements “not made under the solemnity of the consciousness of impending death” inadmissible as dying declarations); Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975) (finding death imminent where victim had knife in his back and died within the hour). State of mind may also be inferred from the nature of the declarant’s words. Commonwealth v. Gause, 459, Pa. 595, 598, 330 A.2d 856, 858 (1975) (dying declaration where declarant specifically indicated in the statement that he believed he was dying).

The question of whether Mr. Ritter’s videotape and deposition are admissible as dying declarations, therefore, turns on whether Mr. Ritter’s death was imminent at the time he made the statements. It is clear that it was not, and that Mr. Ritter did not believe it to be so. Mr. Ritter did not die until more than two months after the aborted deposition. Further, Mr. Ritter’s subjective understanding of his condition seems to be that he was not in imminent danger of death at the time he gave the deposition. During the deposition, plaintiffs’ counsel asked Mr. Ritter about his hobbies which included woodcarving. He replied:

“Q: What are your plans now?
“A: Hmm?
“Q: What are your plans for the future?
“A: You know what I’d like to make, you know that Budweiser beer wagon that comes out with all them horses on the top and all the beer kegs on and the guy sitting on, I would like to make that. But, it will be — once I can get the lung back in shape and keep sawdust away from it, I’m going to do that.” Video deposition of Gerard H. Ritter, p. 90.

Mr. Ritter’s testimony indicates that he was not conscious of imminent death at the time he gave the deposition. His testimony shows a man determined to survive, not one who was resigned to death in the immediate future. Furthermore, plaintiffs’ counsel suggested that the deposition would be rescheduled to “next week”. As a result, both Ritter’s own testimony, and plaintiffs’ counsel’s conduct dehors plaintiffs’ claim that the deposition was made under belief of imminent death, and as such is not admissible under the dying declaration hearsay exception.

3. Undue Prejudice

Plaintiffs argue that preclusion of Mr. Ritter’s videotape and deposition testimony will result in unfair prejudice. In support of their assertion, plaintiffs suggest that this court should adopt the reasoning of Derewecki v. Penn. R.R., 353 F.2d 436 (3d Cir. 1965). In Derewecki, the Third Circuit allowed the plaintiff to introduce deposition testimony of the victim where the victim’s first deposition had been halted after the victim had a heart attack, was subsequently rescheduled, and, after providing a fuller explanation of the events in the subsequent deposition, again suffered a heart attack and died. Id. at 438-39. After examining the facts already developed during the victim’s deposition, the court reached the conclusion that although the defendant might have preferred more extensive deposition testimony to develop the precise location of the accident, the facts had already been copiously developed, and “[the defendant] ‘offers nothing persuasive as to the content or the substance of the further examination of which it may have been deprived.’” Id. (citation omitted)

Factually, Derewecki is entirely distinguishable from oür case in the most critical and sensitive part of any asbestos case, that is, product identification. In Derewecki, the Third Circuit placed great emphasis on the fact that the defendant railroad stood to gain no additional information of value from cross-examination of the victim. Here, the ability to identify through cross-examination the facts which would either support or defeat plaintiff’s product identification is the heart of the case and that was denied to defendants by plaintiffs’ decision to abruptly terminate the examination of Mr. Ritter. The defendants in this case clearly desired to develop the testimony of Mr. Ritter on cross-examination in the hopes of exculpating their clients under the prevailing factors that Pennsylvania courts look to in determining whether a plaintiff has proven a valid asbestos claim. These defendants were unable to do so, making this case distinguishable from the Third Circuit’s reasoning in Derewecki.

Plaintiffs’ interpretation of Derewecki as creating a suggestion of a lower standard where the only evidence a plaintiff can muster is deposition testimony that has not been subject to cross-examination is not accurate. Derewecki was decided under the Federal Rules of Evidence; this case is being conducted under the Pennsylvania Rules of Evidence. The Pennsylvania Rules of Evidence do not contain the residual exception of the Federal Rules. Compare Pa.R.E. 804 with Fed.R.E. 804-807. Also, the prejudice to the plaintiffs in being unable to prosecute their case against these defendants is clearly outweighed by the prejudice to the defendants of having to defend a fact-sensitive case where the victim’s testimony of the foundational events was not subjected to their discovery inquiries, let alone cross-examination.

In light of the foregoing, Pennsylvania law requires the preclusion of Mr. Ritter’s videotape and deposition testimony, and the order precluding the same should be affirmed.

B. Summary Judgment

Assuming, for the purposes of this discussion, that the unexamined testimony of Mr. Ritter could be considered, it would not satisfy the proof requirements for surviving defendants’ motion for summary judgment under the prevailing standards for proximity, regularity, and frequency of exposure to asbestos. See Eckenrod v. GAF Corp., 375, Pa. Super. 187, 190, 544 A.2d 50, 52 (1988). “In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Products Co., 861 A.2d 275, 276 (Pa. Super. 2004). In reviewing a grant of summary judgment, an appellate court’s scope of review is plenary and will reverse only upon finding that the trial court abused its discretion or erred as a matter of law. Harahan v. AC & S Inc., 816 A.2d 296, 297-98 (Pa. Super. 2003). Our Superior Court has determined that:

“there is an inherent three-step process involved in determining whether... to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any.discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.” Dudley v. USX Corp., 414 Pa. Super. 160, 168-69, 606 A.2d 916, 920 (1992).

To set forth aprima facie asbestos case, “plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.” Eckenrod, 375 Pa. Super. at 191, 544 A.2d at 52. The mere presence of an asbestos product in the workplace is not enough; plaintiff must show that he inhaled asbestos fibers from defendant’s specific product. Id. at 191, 544 A.2d at 53. Additionally, plaintiff’s “evidence... must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact with it was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.” Andaloro v. Armstrong World Industries, 799 A.2d 71, 86 (Pa. Super. 2002); see also, Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa. Super. 2007).

In addition, our Supreme Court has determined that:

“[I]t is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.” Gregg v. V-J Auto Parts Company, 596 Pa. 274, 292, 943 A.2d 216, 227 (2007).

Mere speculation that plaintiff inhaled asbestos from defendant’s product is insufficient, as “Eckenrod makes clear that [the court] cannot enter such a guessing game.” Samarin v. GAF Corp., 391 Pa. Super. 340, 359-60, 571 A.2d 398, 408 (1989). “Summary judgment is proper when the plaintiff has failed to establish that the defendants’ [asbestos] products were the cause of plaintiff’s injury.” Eckenrod, 375 Pa. Super. at 191, 544 A.2d at 52. Under these standards, summary judgment is appropriate as to each moving defendant.

Garlock

Defendant Garlock moves for summary judgment on the grounds that plaintiffs failed to produce sufficient evidence that would allow this court to assess whether plaintiffs had carried their burden of proving a prima facie case. Although Garlock strongly maintains that Mr. Ritter’s deposition is inadmissible, as discussed supra, it argues that summary judgment would nevertheless be appropriate even if the deposition were admissible.

Mr. Ritter mentioned Garlock numerous times throughout his deposition. (See plaintiff’s response to Garlock’s motion for summary judgment, pp. 8-9.) Ritter first mentioned Garlock in conjunction with steam locomotives:

“Q: Any other asbestos exposure that you would have had in the roundhouse? ...
“A: Well, only asbestos compound of brake shoes. I don’t recall any other — well, the Garlock packing tool around the pistons , and the — they had a regular packing box all around the pistons.” (Videotape deposition of Gerard H. Ritter, p. 31.)

Later, he described his use of Garlock packing:

“Q: Now, you mentioned something called — you called Garlock packing?
“A: Garlock packing. Yeah.
“Q: What was that?
“A: It was a rope-type of packing, came on a spool and you would wrap that around the piston. And then there was a sleeve that went up against that with two bolts — two nuts on, you’d tighten that tight on the piston, so — yeah, that was Garlock packing. It was used, oh, for ages on the railroad, Garlock packing.
“Q: How often did you use that Garlock packing?
“A: Oh, almost every day that came into being. Yeah, either tightening up or renewing it. Sometimes, it was to a point where it was down so tight you had to take that apart and get the old packing out and put the new packing in and tighten it down.
“Q: What would happen when you took the old packing out, anything that would happen in the air? ...
“A: Well, you couldn’t help but knock pieces. You take it out piece by piece because it was dried out to a powder . . . .” (Videotape deposition of Gerard H. Ritter,” pp. 35-36.)

While Mr. Ritter’s testimony would establish that he worked with Garlock packing “almost every day that came into being” it does not establish whether dust was created simply by tightening bolts around the packing. Though Mr. Ritter testified that dust would sometimes be created by removing packing from the engines, no evidence was offered as to how frequently this would occur, or what percentage of Ritter’s time was devoted to this task.

Mr. Ritter’s testimony about his use of Garlock packing at his later Jersey City worksite is similarly vague as to the frequency and regularity of his exposure to asbestos dust for which Garlock is responsible. Ritter testified to using Garlock packing between 1964 and 1967:

“Q: Do you know what products you were using when you were working on steam generators?
“A: Well, it was, again, the coil pads and everything. The coil pads that was laying over the top of the coils. And the Garlock packing that went into the sides where the pipes used to go in. And there was — ’’(Videotape deposition of Gerard H. Ritter, p. 59.)

Notably, Mr. Ritter only testified to being exposed to Garlock products during five years of his 40-year work history. Without evidence that addresses the frequency in which Ritter came in contact with asbestos in its dust form, this court lacks sufficient evidence to make the determination that Ritter meets the proximity, frequency, and regularity requirements of Pennsylvania law, and, as such, that plaintiffs have established their prima facie case. As a result, summary judgment is appropriate to defendant Gar-lock.

General Electric

Defendant General Electric argues that it is entitled to summary judgment on either of two alternate product' identification grounds. First, GE argues that it is entitled to summary judgment solely on the inadmissibility of Mr. Ritter’s deposition. Without that deposition, GE argues, plaintiffs have introduced no other evidence to carry their burden of proving a prima facie case. Additionally,GE argues that even if the deposition were admissible, its contents do not enable plaintiffs to meet the regularity, frequency, and proximity standards under the prevailing case law.

Plaintiffs have no credible argument that, without admission of Mr. Ritter’s deposition, they should survive summary judgment. Even if Mr. Ritter’s deposition were admitted, the testimony it contains fails to satisfy the regularity, frequency, and proximity requirements. Mr. Ritter stated that he worked with steam locomotives from 1948-1950, and that GE had manufactured at least 48 percent of the steam locomotives that he worked on. (Videotape deposition of Gerard H. Ritter, p. 26.) Ritter pointed to asbestos exposure on these steam locomotives through both boiler insulation and brake inspection. (Id., pp. 26, 32-33.) Plaintiffs fail to address, however, significant problems with Mr. Ritter’s testimony. Although plaintiffs latch on to the inference that since 48 percent of the locomotives were made by GE, 48 percent of Mr. Ritter’s asbestos exposure must be likewise traceable to GE, this logic is without merit. In the aborted discovery deposition of GE, Mr. Ritter was asked about the age of the steam locomotives that he worked on:

“Q: What I’m getting at, were all of the steam locomotives that you can remember, say 10 years old or older when you got there?
“A: Yeah. Mostly all were. Yeah.” (Videotape deposition of Gerard H. Ritter, p. 76.)

And, as Mr. Ritter also noted, the asbestos that insulated the boilers was replaced often:

“Q: This lagging on the exterior of the boilers, how often did that have to be replaced?
“A: Ordinarily, two years. They figured two years was about the life of it. It would come in every two years, it would be laid up for maybe three weeks or so, that they would strip it down and rebuild it.” (Videotape deposition of Gerard H. Ritter, p. 76.)

Further, Mr. Ritter could not identify the manufacturer of the asbestos-containing lagging that would be used with the GE locomotives:

“Q: You talked about steam locomotives back when you first began with the railroad and you were an apprentice machinist. And you talked about some insulation being used on the exterior of the boilers for the steam locomotives.
“A: Right.
“Q: Do you have any knowledge today as to who provided that to the railroad, who was the manufacturer of that insulation?
“A: No. No. Again, Fd say they brought all that from the main storehouse on a truck and no boxes around it or anything, just the lagging laying in strips on top of it. So I have no idea who manufactured it or where it came from.” (Videotape deposition of Gerard H. Ritter, pp. 74-75.)

Plaintiffs next maintain that there is credible evidence of exposure to asbestos while at the diesel electric shop. Ritter testified that only GE and General Motors locomotives were present in that shop. (Videotape deposition of Gerard H. Ritter, p. 43.) This exposure to asbestos, according to Ritter, came from use of exhaust stack gaskets which sat between sections of the locomotive’s exhaust stack. To identify these products as coming from GE and General Motors exclusively, Mr. Ritter testified that those companies were the exclusive manufacturer of this component for their diesel electric locomotives. (Id, p. 43.) However, Mr. Ritter’s testimony fails to detail how frequently these gaskets needed to be changed, and how often Mr. Ritter performed the task. Without this information, this court lacks sufficient information to evaluate whether plaintiffs have met the frequency component of the applicable legal standard.

Lastly, plaintiffs claim that Mr. Ritter’s deposition establishes exposure to asbestos contained in GE products while working at the Homell facility in upstate New York. While Mr. Ritter testified that he worked on GE locomotives, the only asbestos he could confirm being exposed to was contained in brake shoes:

“Q: Do you know whether or not you were exposed to any asbestos-containing products while you were working in Homell as an air brake mechanic?...
“A: Only thing was with the brake shoes.” (Videotape deposition of Gerard H. Ritter, pp. 53-54.)

However, Mr. Ritter could not identify the manufacturer of those brake shoes:

“Q: Do you know the manufacturer or trade name of any suppliers of compound brake shoes for the steam locomotives?
“A: No, I don’t.” (Videotape deposition of Gerard H. Ritter, p. 47.)

In light of the foregoing, plaintiffs have failed to meet the regularity, proximity, and frequency requirements of a prima facie case, and, consequently, summary judgment as to defendant GE is proper. Defendant Viad raises similar claims in its motion for summary judgment.

Viad

Defendant Viad argues that plaintiffs have not presented sufficient evidence to establish a prima facie case as to Viad. They argue that regardless of whether Mr. Ritter’s deposition is admissible, plaintiffs have failed to make out a sufficient case to establish Viad’s liability.

First, Viad argues that there is no credible rationale for the deposition testimony of Mr. Ritter to be admissible against Viad for not only those reasons discussed supra, but also because Viad was not added as a defendant until June 9, 2006. As a result, not only did Viad not participate in the Ritter deposition, it was not, nor should it have been, even on notice that it would be haled to court to defend this suit. This amplifies the inadmissibility of the deposition, without which, plaintiffs’ claims against Viad must fail.

Notably, despite the fact that Viad’s predecessor in interest, Baldwin Steam Locomotives, was a prominent manufacturer of steam locomotives on the east coast during the early 20th Centry, Baldwin is mentioned just once:

“Q: Could you tell us where the steam locomotives came from, do you know, who made them?
“A: Well, the steam locomotives, American Locomotive Company made an awful lot of our locomotives. And, General Electric, at that time, also made locomotives up in Schenectady, New York. And I did mention Baldwin before. Baldwin, down in Philadelphia. They made some of our small — we call them mules. They were a small locomotive that used to couple to dead engines and move them about, to place them where they had to be.” (Videotape deposition of Gerard H. Ritter, p. 26.)

This sole mention of Baldwin is patently insufficient evidence to allow the plaintiffs to maintain any claim against Viad. The fact that Mr. Ritter mentioned Baldwin in the deposition is, without more, insufficient to assess the frequency, proximity, and regularity of Mr. Ritter’s exposure to asbestos for which Viad was responsible. Furthermore, as this court held in Miletto v. CBS Corp., 2008 Phila. C.C.P. Lexis 920 (Phila. C.C.P. 2008), apiece of machinery is considered a separate and distinct thing from its insulation. The mere presence of Baldwin locomotives, therefore, does not equal the presence of Baldwin asbestos-containing materials. Moreover, Mr. Ritter never testified to working on Baldwin locomotives, only to their presence. Linder the prevailing case law, plaintiffs are required to establish that Mr. Ritter regularly and frequently worked in close proximity to asbestos containing materials for which the defendant is responsible. As to defendant Viad, they have established exactly none of these elements. Therefore, in light of the foregoing, summary judgment as to defendant Viad is proper.

III. CONCLUSION

In light of both the inadmissibility of Mr. Ritter’s deposition, and the lack of evidence as to defendants Garlock, GE and Viad, summary judgment as to these defendants is appropriate and this court respectfully requests that it be affirmed.

      . Mr. Ritter worked for a non-railroad, non-asbestos employer from 1967-1970.

      . Mr. Ritter’s deposition contains an inconsistent statement about his employment history that is likely the result of a transcription error by the court reporter at his deposition. Ritter stated that from 1948-1950 he worked at the Scranton roundhouse with Garlock packing. Then, Mr. Ritter testified that from 1950-1961, he worked at the diesel electric shop and made no mention of Garlock products. Then, he testified that from 1961-1963, he worked at the Hornell facility. His employment testimony then states that he worked from 1946 to 1967 in Jersey City when he was unable to get work in Scranton. Importantly, he mentions working with Garlock packing during this time period. It seems likely, however, that this is a transcription error on the part of the court reporter, and that the correct time should be 1964. Mr. Ritter’s subsequent employment, at McKinney Hinges from 1967-1970 and Consolidated Rail Corporation from 1970-1980 do not reference any exposure to Garlock products.

      . Viad is the successor in interest to Baldwin Steam Locomotives, a prominent manufacturer of steam locomotives at the time Mr. Ritter began working.


author: VICAN, P.J.,

text:
    Sofia v. Cicala

      Thomas J. Foley III, for plaintiffs.

      John R. Nealon, for defendant.

      March 17, 2010
   VICAN, P.J.,

This case arises out of an automobile accident that occurred on April 22,2006 at the intersection of State Routes 196 and 611 in Monroe County, Pennsylvania. Michael J. Sofia and Kathleen Sofia (plaintiffs) commenced this action by a complaint dated January 9, 2008 alleging personal injuries as a result of the accident. Christopher M. Cicala (defendant) filed an answer on March 26, 2008. The parties filed numerous motions during discovery, not all of which will be discussed here. Most recently, oral argument was held on February 1,2010. The following issues are now before the court: (1) Should plaintiffs be compelled to answer any outstanding written discovery?; and (2) May this court compel defendant’s insurer, Geico, to comply with a subpoena served on it by plaintiffs?

SHOULD PLAINTIFFS BE COMPELLED TO ANSWER OUTSTANDING DISCOVERY?

On July 13,2009, defendant filed a second request for production of documents seeking the following information from plaintiffs:

(1) Produce a copy of your resume or curriculum vitae.

(2) Produce copies of any certifications that you have obtained since April 22, 2006.

(3) Produce your application and any employment records in your possession from JLN and Monroe County/the Monroe County Correctional Facility.

(4) Please produce any and all documents that substantiate the wage loss claim in this matter.

(5) Please produce any and all documents that substantiate your claim for out-of-pocket expenses for health insurance costs.

(6) Produce a copy of your termination letter from the Monroe County Correctional Facility.

(7) Produce any documents in your possession with reference to your claim for family medical leave.

(8) Produce copies of your pay stubs for the seven years before the accident and every year since.

(9) Produce your tax returns, including W-2s and associated documents, for the seven years before the accident and every year since.

(10) Produce copies of your credit card bills for seven years before the accident and every year since.

(11) Produce any and all documents supporting your claim that your bankruptcy was caused by the accident in question including the non-privileged portions of your bankruptcy attorney’s file.

(12) Produce any and all medical liens that have been asserted against you including but not limited to those asserted by Blue Cross as well as the bills that underline those liens, if at all.

(13) Produce any paperwork in your possession generated as a result of your claim for unemployment compensation.

(14) Produce a copy of your policy with AFLAC, including a dec page.

(15) Produce any documents submitted to or received from AFLAC on your behalf since April 22, 2006.

Plaintiffs objected to defendant’s second request for documents on August 17, 2009. On October 28, 2009, defendant filed a motion to compel plaintiffs’ answers to the second request. Plaintiffs answered defendant’s motion to compel on November 23,2009. In the same motion, plaintiff filed a cross-motion to compel discovery by defendant, alleging that defendant’s responses to interrogatories were not in compliance with Pennsylvania Rules of Civil Procedure. Defendant filed an answer to plaintiffs’ cross-motion to compel discovery on December 23, 2009.

First, we find that defendant responded to plaintiffs’ interrogatories and request for production of documents under a letter dated April 3,2008. Accordingly, plaintiffs’ cross-motion to compel discovery is denied.

Next, plaintiffs claim that they have already provided discovery for requests 1, 2, 3,4, 5, 6, 7, 8, 9,12, 13, 14, 15 in response to defendant’s first request for production. (P.s’ brief, 1/29/10, pp. 7-8.) Defendant claims that as of December 23, 2009, the defense has not received the requested information. After review, we find that a number of defendant’s requests have already been provided by plaintiffs. To the extent that additional information relating to defendant’s requests becomes available, plaintiffs shall provide defendant with the information if it alters plaintiffs’ original responses. Pa.R.C.P. 4007.4(2) (“A party or an expert witness is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which he or she knows (i) the response was incorrect when made, or (ii) the response though correct when made is no longer true.”).

With regards to the bankruptcy documents contained in request 11, this information is a matter of public record filed with the Bankruptcy Court and is available through the Federal Court’s PACER system or Westlaw. Id at 8.

The only outstanding request is 10, which asks for plaintiffs’ credit card bills for seven years prior to the accident and each year since. Pennsylvania Rules of Civil Procedure provide the following guidance on proper issues for discovery:

“(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.” Pa.R.C.P. 4003.1(a). (emphasis added)

Defendant contends that the credit card statements are relevant to this proceeding “to substantiate plaintiffs’ wage loss claim.” (D.’s brief, 12/23/09, p. 3.) We find defendant’s contention valid and plaintiffs shall produce as many of the credit card statements as they possess. To the extent that plaintiffs are not in possession of the statements, plaintiffs are excused from production as it is impossible for them to produce something that they do not have. See Pa.R.C.P. 4009.12(b)(5) (A party answering a discovery request shall “state that after reasonable investigation, it has been determined that there are no documents responsive to the request.”).

MAY THIS COURT COMPEL GEICO TO COMPLY WITH A SUBPOENA SERVED ON IT BY PLAINTIFFS?

On or about January 18, 2008, plaintiffs served on defendant a notice of intent to serve subpoena pursuant to Pa.R.C.P. 4009.21. Said subpoena required defendant’s insurer, Geico, to produce the following:

“(1) all documents or records (including activity log) relating to the 4-4-06 motor vehicle accident involving the parties hereto, this lawsuit and/or Geico claim number: 009064320-0101-101, including but not limited to, any investigation, liability, property damage or first-party benefit file; and
“(2) any and all policies of insurance which are, and/ or may be applicable of this claim and case.
“(The document request shall not be deemed required disclosure of:
“(1) the insurer’s mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactic; or
“(2) attorney-client privilege materials).”

On February 4, 2008, defendant filed objections to plaintiffs’ subpoena directed to Geico on the basis that Geico’s claim office is located in Fredericksburg, Virginia and alleging that the Monroe County Court of Common Pleas has no subpoena power outside the Commonwealth of Pennsylvania. In response, plaintiffs filed a motion to overrule defendant’s objections. We find that this court has subpoena power over Geico on the basis that it is a corporation doing business in the Commonwealth, giving this court personal jurisdiction over Geico.

Pennsylvania has statutorily defined the basis for personal jurisdiction over an out-of-state corporation as the following:

“[T]he following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
“(2) Corporations—
“(üi) The carrying on of a continuous and systemic part of its general business within this Commonwealth.” 42 PaG.S §5301(a)(2)(iii).

Geico unquestionably carries on a continuous and systemic part of its business in Pennsylvania. The company’s website lists two Geico sales offices and agents in eastern Pennsylvania, one in Scranton and another in Allentown. (P.s’ motion, 11/23/09, exhibit F.) Geico holds three insurance carrier licenses in the Commonwealth. (P.s’ motion, 11/23/09, exhibit K.) The company-placed an advertisement in the Lackawanna Bar Association journal seeking applications for local “in-house” litigation counsel. (P.s’ motion, 11/23/09, exhibit L.) Finally, consumer information listed on the website for the Insurance Department of Pennsylvania indicates that in 2008, Geico collected $186,091,179 in premiums on Pennsylvania policies. (P.s’ motion, 11/23/09, exhibit K.)

Thus, this court has personal jurisdiction over Geico and the resulting authority to require that the company comply with the subpoena served on it by plaintiff. As such, defendant’s objections to the Geico subpoena are overruled.

ORDER

And now, March 17,2010, based on the foregoing, the discovery motions are decided as follows:

(1) Plaintiffs’ cross-motion to compel discovery is denied.

(2) With respect to defendant’s motion to compel discovery of plaintiffs’ credit card statements, plaintiffs shall produce as many of the credit card statements as they possess. To the extent that plaintiffs are not in possession of the statements, plaintiffs are excused from production as it is impossible for them to produce something that they do not have.

(3) Defendant’s objections to the Geico subpoena are denied.

      . Plaintiffs’ brief in support of their position on discovery motions scheduled for argument on February 1,2010 will be cited to as follows: (P.s’ brief, 1/29/10, p._.)

      . Defendant’s brief in support of motion to compel answers to defendant’s second request for documents will be cited to as follows: (D.’s brief, 12/23/09, p._.)

      . While the subpoena states that the accident occurred on April 4, 2006, the incident took place on April 22,2006.

      . Plaintiffs’ motion to overrule defendant’s objections to the Geico subpoenas will be cited to as follows: (P.s’ motion, 11/23/09, exhibit _•)