The opinion
J-A34033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEREK BADE IN THE SUPERIOR
COURT OF
PENNSYLVANIA
Appellant
v.
ROBERTO PICONE I/T/A LA DOLCE CASA T/A
DIMAGGIO'S; CESARE PICONE I/T/A LA DOLCE
CASA T/A DIMAGGIO'S; MATTHEW W. JONES
I/T/A LA DOLCE CASA T/A DIMAGGIO'S;
ALFONSO PICONE I/T/A LA DOLCE CASA T/A
DIMAGGIO'S; SALVATORE PICONE I/T/A LA
DOLCE CASA T/A DIMAGGIO'S; MARIA PICONE
I/T/A LA DOLCE CASA T/A DIMAGGIO'S;
JOSEPHINE PICONE I/T/A LA DOLCE CASA T/A
DIMAGGIO'S; ELEONORA PICONE I/T/A LA
DOLCE CASA T/A DIMAGGIO'S; JOSH MOYER;
ALFONSO DIFIORE (D/B: 6/21/87) A/K/A
LITTLE ALFIE; ALFONSO DIFIORE (D/B
7/23/66); PATRICIA DIFIORE; AND
DIMAGGIO'S PIZZA, INC. C/O CESARE PICONE,
PRESIDENT
V.
CHANITA GUERRERO
------------------------------------------------------
DEREK BADE
APPELLANT
V.
CHANITA GUERRERO
Appellee No. 511 MDA 2015
Appeal from the Order Entered February 24, 2015
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-129-2010
S-3277-2009
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 05, 2016
J-A34033-15
Appellant Derek Bade appeals from the order entered in the Schuylkill
County Court of Common Pleas, which granted summary judgment in favor
of Appellees,1 dismissed Appellant’s claims against Appellees, granted
Appellees’ motion to preclude testimony of Appellant’s proposed expert, and
denied and dismissed Appellant’s motion for partial summary judgment. We
affirm.
The trial court set forth the relevant facts and procedural history of
this appeal as follows:
Motions for summary [j]udgment have been filed by the
following Defendants: Eleonora Picone; Roberto and Giusi
Picone; Alfonso DiFiore, Little Alfie (hereinafter “Little
Alfie”); Alfonso DiFiore and Patricia DiFiore; Salvatore
Picone; Alfonso Picone; Cesare and Maria Picone; Josh
Moyer (hereinafter “Moyer”) and Matthew W. Jones
(hereinafter “Jones”). All Defendants, with the exception of
[] Moyer, Little Alfie and Additional Defendant Chanita
Guerrero (hereinafter “Guerrero”), are listed in the caption
of this case as having a connection to La Dolce Casa, the
restaurant which is the central establishment involved in
this litigation. They are listed as i/t/a La Dolce Casa t/a
DiMaggio’s, and there is a listed Defendant of DiMaggio’s
Pizza, Inc. c/o Cesare Picone, President.
____________________________________________
1
Appellees include: Roberto Picone, individually and trading as (“i/t/a”) La
Doce Casa t/a DiMaggio’s; Cesare Picone i/t/a La Doce Casa t/a DiMaggio’s;
Matthew W. Jones i/t/a La Doce Casa t/a DiMaggio’s; Alfonso Picone i/t/a La
Doce Casa t/a DiMaggio’s; Salvatore Picone i/t/a La Doce Casa t/a
DiMaggio’s; Maria Picone i/t/a La Doce Casa t/a DiMaggio’s; Josephine
Picone i/t/a La Doce Casa t/a DiMaggio’s; Eleonara Picone i/t/a La Doce Casa
t/a DiMaggio’s; Josh Moyer; Alfonso DiFiore (d.o.b. 6/21/87) a/k/a Little
Alfie; Alfonso DiFiore (d.o.b. 7/23/66); Patricia DiFiore; and DiMaggio’s
Pizza, Inc. c/o Cesare Picone, President. The only remaining defendant in
this action, Chanita Guerrero (“Guerrero”), the driver of the vehicle that
injured Appellant, is not an appellee.
-2-
J-A34033-15
[]
There has also been filed by Defendants a Motion to
Preclude Testimony and opinions of [Appellant’s] Proposed
Expert Report of Elizabeth A. Trendowski.
[]
There has been filed by [Appellant], a Motion to Preclude
Any Reference, Testimony, Evidence, or Argument as to
Chanita Guerrero’s Allegedly Acquiring and/or Taking
Xanax or Its Generic Formulation. Briefs have been filed in
support of all the motions, and responses to and briefs in
opposition to the motions, where applicable, have also
been filed.[2]
This case involves [Appellant’s] allegations that he was
injured when struck by an automobile driven by Chanita
Guerrero.[3] [Appellant] alleges Guerrero consumed alcohol
at an “after hours” drinking party or similar activity at La
Dolce Casa located at 16 W. Broad Street, Tamaqua, PA,
(where she had been employed) and was furnished alcohol
by social hosts at a private party at 403 Gay Street in
Tamaqua. Guerrero testified by deposition that she did not
drink any alcohol when she was at work at La Dolce Casa
or after hours on the premises of La Dolce Casa on January
21, 2008.
[]
There is no evidence, testimonial or otherwise, that she
drank alcohol while at work or after hours on the premises
of La Dolce Casa. The evidence does establish that she left
La Dolce Casa, went home, changed her clothes, and went
to meet her friend, Elizabeth Comensky (hereinafter
“Comensky”), but did not go into Comensky’s residence.
There is no evidence of record, testimonial or otherwise,
that she drank any alcohol during this period of time. She
and Comensky left that place and went to a fast food
establishment where Guerrero had a non-alcoholic drink.
____________________________________________
2
On January 16, 2015, the trial court conducted oral argument on all eleven
motions.
3
On November 17, 2009, [Appellant] commenced this action by filing a writ
of summons against Guerrero. On January 19, 2010, [Appellant] filed a writ
of summons against Appellees.
-3-
J-A34033-15
There is no evidence from any witness or any other source
that she drank alcohol during this period of time. The two
then went to a friend’s house. The friend’s name was
Nikki. There is evidence of record that, while together,
Comensky and Guerrero smoked marijuana and each took
a Xanax pill they received from Nikki. They smoked the
marijuana in Guerrero’s car. Guerrero then drove
Comensky from Nikki’s back to Comensky’s home and then
went to 403 Gay Street in Tamaqua. Present at 403 Gay
Street were the occupants, Little Alfie and [] Moyer.
[]
There is evidence that Guerrero drank some vodka at Gay
Street that came from a bottle of “Absolut vodka” which
was in a gift basket in the house. There is evidence that
the gift basket had been given to the parents of little Alfie,
Pietro and Fifita Difiore, at some time.[4] These DiFiore’s
are not named as defendants in this suit. Little Alfie lived
at 403 Gay Street and paid rent to the owners of that
premises who were his aunt and uncle. There is no
evidence that the aunt and uncle were social hosts of the
residence at the time Guerrero drank the vodka. There is
evidence that the vodka was given to Guerrero by Little
Alfie. She testified that he made the drink from the bottle
of vodka and gave it to her. She testified that [] Moyer did
not give her anything to drink at 403 Gay Street. It is
undisputed that Little Alfie was a juvenile at the time and
so was Guerrero. There is no evidence that Little Alfie was
a licensee of La Dolce Casa, or that he served Guerrero
alcohol at La Dolce Casa. Little Alfie testified that both
Guerrero and Moyer made their own drinks and drank
them. The drinks were made with vodka that came from
the clear bottle of “Absolut[.”] Moyer testified that he did
not see any vodka at the premises of 403 Gay Street. The
source of the vodka was described as a clear bottle of
vodka with the name “Absolut” on it in blue letters. There
is no evidence, direct or circumstantial, that this bottle of
vodka came from, or was connected to, La Dolce Casa.
[]
____________________________________________
4
There is also some evidence that the vodka did not come from a gift
basket.
-4-
J-A34033-15
[Appellant] has pointed to the fact that a bottle of vodka
was purchased by this restaurant in December 2007 [from
a liquor store]. There was testimony that this bottle of
vodka was a disco styled bottle of vodka sold by the
restaurant to one Samuel Brog who kept it at his house.
[Appellant] also points to evidence that the disco style
bottle of vodka was shown not to be available in
Pennsylvania until October 2008, after the accident in this
case. Most of the Defendants contest that the evidence
does establish this point.
[]
[Appellant] further points to the expert report of Elizabeth
A. Trendowski where she opines that, based on the
foregoing, the vodka purchased by La Dolce Casa in 2007
probably was or might have been the same bottle from
which Guerrero drank at Gay Street. Jones, an employee
at La Dolce Casa, testified that he did not work there on
January 21, 2008, that he was not at any after-hours
drinking party there, and that he has no connection with
the restaurant in this case other than being an employee.
There is no testimony or other evidence linking him with
supplying any alcohol to Guerrero.
Trial Court Opinion, filed February 2, 2015, at 2-6.
On February 2, 2015, the trial court granted Appellees’ 9 motions for
summary judgment and their motion to exclude the expert testimony of
Trendowski. The court denied Appellant’s motion to preclude evidence of
Guerrera consuming Xanax. On February 24, 2015, the court issued an
express determination of finality pursuant to Pa.R.A.P. 341(c), which made
final its order docketed February 2, 2015. On March 17, 2015, Appellant
appealed.
The court did not order, and Appellant did not file, a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March
-5-
J-A34033-15
20, 2015, the trial court adopted its written opinion of February 2, 2015 as
its Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
1. DID THE TRIAL COURT ERR AS A MATTER OF LAW
AND/OR ABUSE ITS DISCRETION BY GRANTING EACH OF
NINE (9) MOTIONS FOR SUMMARY JUDGMENT IN FAVOR
OF APPELLEES AND AGAINST APPELLANT?
2. DID THE TRIAL COURT ERR AS A MATTER OF LAW
AND/OR ABUSE ITS DISCRETION BY GRANTING A MOTION
IN LIMINE TO PRECLUDE EXPERT TESTIMONY AND THE
REPORTS OF [APPELLANT’S] DRAM SHOP/LIQUOR
LIABILITY EXPERT, ELIZABETH A. TRENDOWSKI?
3. DID THE TRIAL COURT ERR AS A MATTER OF LAW
AND/OR ABUSE ITS DISCRETION BY DENYING
[APPELLANT’S] OWN MOTION FOR PARTIAL SUMMARY
JUDGMENT TO PRECLUDE THE DEFENSE OF EVIDENCE OF
XANAX® USAGE BY DEFENDANT [] GUERRERO?
Appellant’s Brief at 8.
In his first issue, Appellant argues the court erred by granting
summary judgment in favor of Appellees because Appellant has presented
issues of material fact that should go to a jury, specifically where Guerrero
got her alcohol before she became intoxicated and crashed into and injured
Appellant and whether Moyer put his hand on Guerrero’s thigh while
Guerrero was operating her vehicle immediately before the accident.
Appellant claims the trial court improperly weighed the evidence and chose
to believe Little Alfie’s testimony over the testimony of his father that the
bottle of Absolut vodka that intoxicated Guerrero came from a gift basket.
He avers the trial court erred by failing to cite relevant law in making its
-6-
J-A34033-15
determination and that the court violated the Nanty-Glo5 rule. He claims
he has established a prima facie case for Dram Shop Act liability, negligence,
negligence per se, premises liability and motor vehicle liability causes of
action. We disagree.
Our standard of review of an order granting or denying a summary
judgment motion is well established:
We view the record in the light most favorable to the
nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no genuine issue as to
any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered. Our scope of review of a trial
court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial
court’s order will be reversed only where it is established
that the court committed an error of law or abused its
discretion.
Kozel v. Kozel, 97 A.3d 767, 772 (Pa.Super.2014) (quoting Daley v. A.W.
Chesterton, Inc., 37 A.3d 1175, 1179 (Pa.2012)).
The relevant rule regarding summary judgment provides:
Rule 1035.2. Motion
After the relevant pleadings are closed, but within such
time as not to unreasonably delay trial, any party may
move for summary judgment in whole or in part as a
matter of law
____________________________________________
5
Borough of Nanty–Glo v. Am. Sur. Co. of New York, 163 A. 523
(Pa.1932) (oral testimony alone, of the moving party or his witnesses, i.e.,
affidavits or depositions, even if uncontradicted, is generally insufficient to
establish the absence of a genuine issue of material fact).
-7-
J-A34033-15
(1) whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action or
defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Pa.R.C.P. No. 1035.2.
Further, we observe:
The record for purposes of deciding a motion for summary
judgment includes the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, Pa.R.C.P.
1035.1(1), (2), but oral testimony alone, of the moving
party or his witnesses, i.e., affidavits or depositions, even
if uncontradicted, is generally insufficient to establish the
absence of a genuine issue of material fact, see [Karoly
v. Mancuso, 65 A.3d 301, 308–09 (Pa.2013)], 1035.2
note (citing Penn Center House, Inc. v. Hoffman, 553
A.2d 900 ([Pa.]1989); Borough of Nanty–Glo[,
supra.]). Moreover, “[t]he questions of whether there are
material facts in issue and whether the moving party is
entitled to summary judgment are matters of law.”
Alderwoods (Pennsylvania), Inc. v. Duquesne Light
Co., 106 A.3d 27, 34 n. 5 ([Pa.]2014) (citations omitted).
Bailets v. Pennsylvania Tpk. Comm'n, 123 A.3d 300, 304 (Pa.2015).
First, Appellant claims he is entitled to relief under the Dram Shop Act,
which provides, in relevant part:
§ 4-493. Unlawful acts relative to liquor, malt and
brewed beverages and licensees
-8-
J-A34033-15
The term “licensee,” when used in this section, shall mean
those persons licensed under the provisions of Article IV,
unless the context clearly indicates otherwise.
It shall be unlawful--
(1) Furnishing liquor or malt or brewed beverages to
certain persons. For any licensee or the board, or any
employe, servant or agent of such licensee or of the board,
or any other person, to sell, furnish or give any liquor or
malt or brewed beverages, or to permit any liquor or malt
or brewed beverages to be sold, furnished or given, to any
person visibly intoxicated, or to any minor: Provided
further, That notwithstanding any other provision of law,
no cause of action will exist against a licensee or the board
or any employe, servant or agent of such licensee or the
board for selling, furnishing or giving any liquor or malt or
brewed beverages or permitting any liquor or malt or
brewed beverages to be sold, furnished or given to any
insane person, any habitual drunkard or person of known
intemperate habits unless the person sold, furnished or
given alcohol is visibly intoxicated or is a minor.
47 Pa.C.S. § 4-493.
A violation of the Dram Shop Act is deemed negligence per
se. Johnson v. Harris, 615 A.2d 771, 775
([Pa.Super.]1992) (citation omitted).
However, before liability may be imposed on the liquor-
license holder (“liquor licensee”), the petitioner must
establish that he or she is part of the protected class the
statute is designed to safeguard. See McCloud v.
McLaughlin, 837 A.2d 541, 545 (Pa.Super.2003) (stating
that before an individual can be held negligent per se, his
violation of the statute must cause the kind of harm the
statute was intended to avoid and cause that harm to a
person within the class of persons the statute was
intended to protect) (citation omitted). Here, the Dram
Shop Act’s purpose is “to protect an individual’s rights from
the harm caused by the negligent service of alcohol.”
Zygmuntowicz v. Hospitality Investments, Inc., 828
F.Supp. 346, 349 (E.D.Pa.1993). “Specifically,
Pennsylvania purports to protect society in general and the
-9-
J-A34033-15
intoxicated persons themselves from their inability to
exercise due care.” Id. (citing Schelin v. Goldberg, 146
A.2d 648, 652 ([Pa.Super.]1958), Majors v. Brodhead
Hotel, 205 A.2d 873, 875 ([Pa.]1965))….
[The Dram Shop Act] attempts to protect third persons
from harm caused off the [liquor] licensee’s premises by
customers of a liquor licensee who were served while
visibly intoxicated [or a minor]….
It is clear that most citizens of the Commonwealth are a
protected class. The most common “Dram Shop” claim
typically involves an intoxicated person that leaves a bar
and then injures a third person during a motor vehicle
accident. In these incidents, the citizen is typically
unaware of the person’s intoxicated state, and has not
confronted or intentionally engaged the intoxicated person
in any way.
Juszczyszyn v. Taiwo, 113 A.3d 853, 858-59 (Pa.Super.2015).
Here, after numerous depositions and hearings, Appellant has failed to
produce any evidence that the drink Guerrero consumed came from the
restaurant. At a status conference on November 27, 2013, the court told
Appellant he must establish some connection between what Guerrero drank
and the Appellees by March 1, 2014. As of February 2015, Appellant had
failed to do so. Appellant objects to the trial court’s ruling that there was
some evidence that the bottle of Absolut came from a gift basket. We find
this objection inconsequential. Whether the bottle of Absolut in question
came from a gift basket is not a question of material fact. Even if it did not
come from the gift basket, Appellant has produced no evidence connecting
the bottle to the restaurant.
- 10 -
J-A34033-15
Appellant is correct that many Appellees had a duty, in their capacity
as licensees under the Dram Shop Act, to protect citizens from under-aged
drunk driving accidents, and Appellant was a member of that protected
class. Appellant, however, presents no evidence that Appellees breached
that duty. Appellant cannot connect the bottle of Absolut to the Appellees.
His contention that the bottle of Absolut that Appellees bought at the liquor
store in December of 2007 is the only one in the record and it therefore
must be the bottle in question is absurd. The bottle could just as easily have
come from any other restaurant or any other individual who had purchased a
bottle of Absolut.6
Because Appellant failed to present evidence showing the existence of
the facts essential to his cause of action, the court properly granted
summary judgment on the Dram Shop Liability claims. See Pa.R.C.P. No.
1035.2, note.
Appellant’s social host claims also fail. Although there is some
evidence that Little Alfie served Guerrero liquor in his home, he was a minor
at the time, and under current law, a minor is not liable for serving another
minor as a social host. See Kapres v. Heller, 640 A.2d 888, 891 (Pa.1994)
(“it is more logical and consistent with the prevailing view on social host
liability in this Commonwealth to find that one minor does not owe a duty to
____________________________________________
6
As per Appellees’ request, we take judicial notice that there is more than
one bottle of Absolut in this Commonwealth.
- 11 -
J-A34033-15
another minor regarding the furnishing or consumption of alcohol.”). Thus,
Appellant sets forth no cause of action and there are no issues of material
fact for a jury to resolve.
Whether Moyer put his hand on Guerrero’s thigh could have been an
issue of material fact had Appellant alleged this fact in his complaint with an
accompanying cause of action. He did not, however, and we decline to
address this issue. See Foster v. UPMC South Side HILsz, 2 A.3d 655,
666 (Pa.Super.2010). (“Pennsylvania is a fact pleading state… Complaints
must be pled with the factual specificity to not only give the defendant
notice of what the plaintiff’s claim is and the grounds upon which it rests,
but… also [to] formulate the issues by summarizing those facts essential to
support the claim.”).
Appellant’s Nanty-Glo claims lack merit. Appellant is correct that oral
testimony alone, of the moving party or his witnesses, i.e., affidavits or
depositions, even if uncontradicted, is generally insufficient to establish the
absence of a genuine issue of material fact. Appellant, however, has failed
to establish that an issue of material fact exists in the first place under the
Dram Shop Act or social host precepts. Thus, summary judgment was
proper.
In his second issue, Appellant claims the trial court erred by granting
Appellees’ motion in limine to preclude the report and opinions of expert
Elizabeth A. Trendowski, as an expert in the field of liquor liability. He
- 12 -
J-A34033-15
claims Trendowski had knowledge beyond that possessed by a layperson,
that she should have been admitted as an expert, and that her testimony
would have established Appellees’ negligence and helped the jury assess
punitive damages. We disagree.
The Pennsylvania Rules of Evidence provide, in pertinent part:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form
of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
Our standard of review in cases involving the admission of
expert testimony is broad: “Generally speaking, the
admission of expert testimony is a matter left largely to
the discretion of the trial court, and its rulings thereon will
not be reversed absent an abuse of discretion.”
Commonwealth v. Brown, 596 A.2d 840, 842
([Pa.Super.1991), appeal denied, 532 Pa. 660, 616 A.2d
982 (1992) (quoting Palmer v. Lapp, 572 A.2d 12, 15–16
(Pa.Super.1990)). An expert’s testimony is admissible
when it is based on facts of record and will not cause
confusion or prejudice. Brown, supra.
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa.Super.2008).
- 13 -
J-A34033-15
Expert opinion testimony is only proper where “formation of an opinion
on a subject requires knowledge, information, or skill beyond what is
possessed by the ordinary juror.” Ovitsky v. Capital City Econ. Dev.
Corp., 846 A.2d 124, 126 (Pa.Super.2004) (quoting Commonwealth v.
Carter, 589 A.2d 1133, 1134 (Pa.Super.1991). “The admission of opinion
evidence by experts, however, has never been held to take away from the
jury its power and duty to determine the evidentiary facts.” Brueckner v.
City of Pittsburgh, 84 A.2d 197, 199 (Pa.1951). See also Ryan v. Furey,
298, 303 A.2d 221, 224 (Pa.Super.1973).
Here, Appellant wanted to include expert Trendowski’s report which
stated:
Unless information becomes available to state that the
bottle claimed to be bought by Sam Brog on his American
Express at La Dolce Casa was in fact in December 2007,
then a probable conclusion to make may be that Chamita
Guerrero was furnished or provided Absolut from La Dolce
Casa’s inventory on January 22, 2008.
Trendowski’s Expert Report.
The trial court acted within its discretion in excluding this expert
report. The question of whether the bottle of Absolut came from La Dolce
Casa is a straightforward question of fact for which expert testimony is
unnecessary. Further, there is no need for an expert to assess damages
because Appellant has failed to establish liability.
In his third issue, Appellant argues the court abused its discretion in
denying his motion to preclude evidence of Guerrero’s ingestion of Xanax.
- 14 -
J-A34033-15
Appellant insists that vodka alone was in Guerrero’s system, as indicated by
the toxicologist’s report. The toxicologist’s report, however, was testing
Guerrero’s blood for alcohol, not Xanax, and therefore does not eliminate the
possibility that the drug was in Guerrero’s system. Further, there is
testimonial evidence of Guerrero’s ingestion of Xanax. Regardless, Appellant
fails to articulate any reason why evidence of Guerrero’s Xanax use is not
admissible evidence.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
- 15 -