Lomuscio, F. v. Cole, S. ( 2022 )

J-A17036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRANK LOMUSCIO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SONYA COLE, AS EXECUTRIX OF THE : No. 566 EDA 2022
ESTATE OF HORACE COLE, SONYA :
COLE, ELY-OR THACKER, AHMED :
MOUSTAFA, SHERWIN JENNINGS, :
ANDREW TORREGROSSA AND :
ANDREW GLEASON :
Appeal from the Order Entered January 26, 2022
In the Court of Common Pleas of Monroe County Civil Division at No(s):
004719-CV-2016
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 6, 2022
Appellant, Frank Lomuscio (Plaintiff), appeals from the grant of
summary judgment in favor of five defendants in a personal injury negligence
action that he brought for injuries suffered as a result of a violent assault
committed by third parties. For the reasons set forth below, we affirm the
trial court's orders granting summary judgment in favor of three of the
defendants, but reverse the summary judgments in favor of the other two
defendants on the ground that the record showed genuine disputes of material
fact with respect to their liability to Plaintiff.
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* Retired Senior Judge assigned to the Superior Court.
J-A17036-22
On July 6, 2014, Plaintiff was attacked and severely beaten at a party
at a rented residence at 59 Prospect Street, East Stroudsburg, Pennsylvania
(the Property). On July 5, 2016, Plaintiff brought this action in the Court of
Common Pleas of Monroe County (trial court) against Horace S. Cole1 and
Sonya K. Cole (the Coles), who were the owners of the Property, and five
other individuals, Ely-Or Thacker, Ahmed Moustafa, Sherwin Jennings, Andrew
Torregrossa, and Andrew Gleason. Plaintiff averred in his complaint that the
Coles leased the Property to Thacker, Moustafa, and Jennings and that
Torregrossa and Gleason also resided at the Property. Complaint ¶¶2, 9-10.
Plaintiff averred that on July 6, 2014, he attended a party at the Property
hosted by Thacker, Moustafa, Jennings, Torregrossa, and Gleason at which
those defendants served alcohol without checking the age of the guests. Id.
¶¶12-16. Plaintiff averred that while he was attending the party, he was
punched, kicked, stomped and struck in the head by a group of individuals at
the party who are not defendants in this action. Id. ¶¶17-21. Plaintiff
asserted negligence claims seeking damages for the severe brain injuries that
he suffered in the attack based on contentions that the Coles breached a duty
to him as owners and landlords of the Property and that Thacker, Moustafa,
Jennings, Torregrossa, and Gleason breached a duty to him as hosts of the
party and possessors of the Property. Id. ¶¶32-42. In March 2018, Thacker
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1Horace S. Cole died in 2021, prior to this appeal, and Sonya K. Cole, as
Executrix for Horace S. Cole, was substituted for him as a defendant.
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joined another tenant of the Property, Christopher Simon, as an additional
defendant.
Following discovery, the Coles, Thacker, Moustafa, Torregrossa, and
Gleason filed motions for summary judgment supported by deposition
testimony and documents. Plaintiff opposed the summary judgment motions
and submitted deposition testimony, documents, and expert reports on
liability and damages. The depositions and documents submitted by the
parties in support of and in opposition to the summary judgment motions,
viewed in the light most favorable to Plaintiff, show the following facts.
The Coles owned the Property and leased it to Thacker and Moustafa,
for the one-year period from October 2013 to October 2014 under a residential
lease that prohibited operating any business on the Property. Lease; Thacker
Dep. 16, 26, 54-55; H. Cole Dep. 10-11, 14-16, 53. Jennings was originally
on the lease, but Simon was later substituted as a tenant. Lease; H. Cole
Dep. 15-16, 60-61. In July 2014, Thacker, who was a college student at East
Stroudsburg University, was living at the Property as a lessee, Gleason was
living at the Property, and Torregrossa often stayed at the Property overnight.
Thacker Dep. 16, 26, 54-55; Gleason Dep. 12; Munch Dep. 7-10 & Palmer Ex.
1 at 10; Torregrossa Dep. 18, 38. The occupants of the Property frequently
held parties at the Property. Gleason Dep. 45, 53; Torregrossa Dep. 50, 65.
On the night of July 5, 2014 to July 6, 2014, a party was held at the
Property at which a $5 entry fee was charged to partygoers and, in exchange
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for this payment, partygoers received a red cup for alcohol and were admitted
into the party. Miller Dep. 10-14, 24-26, 61, 64. Thacker, Torregrossa, and
Gleason were all present at the Property and participated in hosting or
assisting with the party. Thacker Dep. 16-21, 28; Torregrossa Dep. 13-16;
Gleason Dep. 8-10, 16-17, 26-27, 40-43, 64. The partygoers were provided
with “a tub of jungle juice,” which a witness described as “a bunch of alcohol
mixed together,” and a keg of beer, and Thacker, Torregrossa, and Gleason
did not check whether partygoers were old enough to drink alcohol. Miller
Dep. 22-25, 37; Gleason Dep. 47-48; Torregrossa Dep. 27-28, 87-88.
The party began at around 9:00 p.m. on July 5, 2014. Gleason Dep.
17; Torregrossa Dep. 13-14. The partygoers learned about the party by word
of mouth from people they knew. Gleason Dep. 74; Torregrossa Dep. 13-14;
Plaintiff Dep. 42-43, 46; Miller Dep. 10-11, 38, 46. Some of the partygoers
did not know Thacker or anyone else who was hosting the party. Miller Dep.
11, 25, 30-31, 38-39; Gleason Dep. 8-9. Plaintiff, who was over the age of
21, arrived at the party with friends of his around 10:00 or 10:30 p.m. Plaintiff
Dep. 15; Miller Dep. 10-12, 15. There were as many as 20-30 people at the
party and noise from the party could be heard outside. Miller Dep. 42-43.
At around 2:00 a.m. on July 6, 2014, a group of 10 or more individuals
arrived at the Property, saying that there was a party and that they wanted
to come in. Thacker Dep. 16-21, 34, 39; Miller Dep. 27-28, 39; Gleason Dep.
20-22, 26, 64; Torregrossa Dep. 14, 23-25. The people at the door who were
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collecting the entry charge told the group that they had to pay to get in and
the group argued that they were not drinking and that they were not going to
pay. Miller Dep. 13, 19, 21, 25-26. The group, however, came into the party
and subsequently began beating up the hosts and other partygoers, including
Plaintiff. Thacker Dep. 17-21, 34-38, 45, 50-51, 61-62; Torregrossa Dep. 14-
16, 34; Gleason Dep. 9, 22-25, 37-42; Miller Dep. 26-28, 48-49. Plaintiff
suffered brain injuries from the attack and does not remember the attack.
Plaintiff Dep. 12, 19, 60, 63, 70.
On July 24, 2019, the trial court granted the motions for summary
judgment. Trial Court Orders, 7/24/19. The trial court held that the Coles
could not be liable to Plaintiff because they were landlords out of possession
and Plaintiff’s claims did not fall within any exception to the general rule that
landlords out of possession are not liable for injuries to non-tenants and
because Plaintiff proffered no evidence of any agreement or undertaking by
the Coles to provide security. Trial Court Opinion, 9/30/19, at 4-7; Trial Court
Opinion, 6/2/20, at 9-11. The trial court held that Thacker, Moustafa,
Torregrossa, and Gleason could not be liable to Plaintiff because Plaintiff was
a licensee and possessors of land do not owe licensees a duty to protect them
from crimes committed by third parties and because there was no evidence
that any serving of alcohol to minors caused the assault. Trial Court Opinion,
9/30/19, at 2-4; Trial Court Opinion, 6/2/20, at 6-8. The trial court also held
that Moustafa, Torregrossa, and Gleason could not be liable to Plaintiff on the
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grounds that Torregrossa and Gleason were only occasional overnight visitors
who did not reside at the Property and that there was no evidence that
Moustafa resided at the Property or was paying rent for it in 2014. Trial Court
Opinion, 6/2/20, at 5-6.
Plaintiff appealed the summary judgments in favor of these six
defendants on August 19, 2019, but this Court quashed that appeal on October
25, 2019 as interlocutory because “[c]laims have not been adjudicated as to
all parties.” 2503 EDA 2019 Order. On February 11, 2020, the trial court
entered an order discontinuing the action as to defendant Jennings, Trial Court
Order, 2/11/20, and Plaintiff again appealed on March 11, 2020. On October
30, 2020, this Court quashed this second appeal as interlocutory on the
grounds there was still no final order because the claims against additional
defendant Simon remained unresolved and the trial court had not validly
certified its summary judgment orders as final under Pa.R.A.P. 341(c).
Lomuscio v. Cole, No. 950 EDA 2020, at 10-15 (Pa. Super. filed Oct. 30,
2020) (unpublished memorandum). On January 26, 2022, the trial court
entered an opinion and order certifying the summary judgments as a final
order under Pa.R.A.P. 341(c) and ruling that the only clams that could exist
against additional defendant Simon were for contribution or indemnity to
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defendants if they were liable to Plaintiff. Trial Court Opinion and Order,
1/26/22. Plaintiff timely appealed on February 17, 2022.2
In this appeal, Plaintiff challenges both the trial court’s orders granting
summary judgment in favor of Thacker, Torregrossa, and Gleason and its
summary judgment in favor of the Coles.3 Our standard of review of the trial
court’s grant of summary judgment is de novo and our scope of review is
plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011);
American Southern Insurance Co. v. Halbert, 203 A.3d 223, 226 (Pa.
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2 An application for a Rule 341(c) determination of finality must be made
within 30 days of entry of the order that it makes final and cannot be granted
more than 30 days after the application is filed. Pa.R.A.P. 341(c)(1), (2).
Because the January 26, 2022 order was issued more than two years after the
July 24, 2019 summary judgment orders, its Rule 341(c) determination of
finality therefore cannot make those summary judgment orders final and
appealable. This appeal, however, is properly before us because the January
26, 2022 order made the summary judgment orders final by its ruling that
any direct claim by Plaintiff against additional defendant Simon was barred by
the statute of limitations and that the only claims against him were claims of
defendants for contribution or indemnity if they were held liable to Plaintiff.
Trial Court Opinion and Order, 1/26/22, at 3 (holding that “Plaintiff has no
direct cause of action against Additional Defendant Simon as a result of the
bar imposed by the two year period limitation in this tort action” and that
“[t]hus, there can be no trial in the absence of the original defendants”).
Where a claim against an additional defendant is limited to contribution or
indemnity if defendants are held liable to the plaintiff and the court has
determined that none of the defendants are liable to the plaintiff, the claims
against the additional defendant are moot and do not prevent the dismissal of
all other claims from being a final order. Oliver v. Ball, 136 A.3d 162, 166
n.2 (Pa. Super. 2016).
3Plaintiff does not challenge the summary judgment in favor of Moustafa, who
apparently settled with Plaintiff and received a joint tortfeasor release from
Plaintiff in 2020. Moustafa No-Interest Letter.
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Super. 2019). Summary judgment is properly granted in favor of a defendant
only where the material facts are undisputed and that defendant is entitled to
judgment as a matter of law on those undisputed facts or where, after
discovery, the plaintiff has failed to produce evidence of facts essential to his
cause of action against that defendant. Pa.R.C.P. 1035.2; Kibler v. Blue
Knob Recreation, Inc., 184 A.3d 974, 978–79 (Pa. Super. 2018); Criswell
v. Atlantic Richfield Co., 115 A.3d 906, 909 (Pa. Super. 2015). In
determining whether there is a genuine dispute of material fact that precludes
summary judgment or whether the plaintiff has produced sufficient evidence
to support a cause of action, we must view the record in the light most
favorable to the non-movant plaintiff and all doubts as to the existence of a
genuine issue of material fact must be resolved against the defendant movant.
Criswell, 115 A.3d at 908-09; Petrina v. Allied Glove Corp., 46 A.3d 795,
798 (Pa. Super. 2012). Although summary judgment cannot be granted
against a plaintiff based on the credibility of oral testimony other than the
plaintiff’s admissions, oral testimony of witnesses other than the plaintiff may
be considered in determining whether the plaintiff has produced sufficient
evidence of the essential elements of his cause of action. Winwood v.
Bregman, 788 A.2d 983, 985 (Pa. Super. 2001)
All of Plaintiff’s claims in this action were negligence claims. Plaintiff
was therefore required to prove as to each defendant that the defendant owed
him a duty, that the defendant breached that duty, that there was a causal
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relationship between that breach of duty and his injury, and that he suffered
actual loss. Koziar v. Rayner, 200 A.3d 513, 518-19 (Pa. Super. 2018);
Collins v. Philadelphia Suburban Development Corp., 179 A.3d 69, 73
(Pa. Super. 2018). Whether the defendant owes the plaintiff a duty is a
question of law. Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214,
221-22 (Pa. 2018); Baumbach v. Lafayette College, 272 A.3d 83, 89 (Pa.
Super. 2022). We first address whether the trial court erred in granting
summary judgment in favor of the occupants and alleged occupants of the
Property, Thacker, Gleason, and Torregrossa, and then address Plaintiff’s
claims against the landlords, the Coles.
The Occupant Defendants
Plaintiff argues that the Thacker, Gleason, and Torregrossa were in
possession of the Property and owed him a duty to protect against harm from
third parties because he was an invitee, not a licensee. We agree that, viewing
the evidence in the summary judgment record in the light most favorable to
Plaintiff, the trial court erred in holding that defendants Thacker and Gleason
did not owe Plaintiff a duty to protect against or warn him of the danger of
criminal acts by third parties, but conclude that the evidence in the summary
judgment record was insufficient to permit a finding that defendant
Torregrossa owed Plaintiff such a duty.
The evidence submitted on the motions for summary judgment was
sufficient to support a finding that both Thacker and Gleason were possessors
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of the Property at the time of the July 2014 party and hosted the party. The
was no dispute that Thacker was a lessee of the Property, was living there at
the time of the party as lessee, and that he organized and hosted the party.
Thacker Dep. 6, 26, 28, 46-47, 54-55; Torregrossa Dep. 13, 17; Gleason Dep.
16-17; Lease; H. Cole Dep. 14-16. Although Gleason did not sign the lease
and testified that he did not live at the Property and only sometimes stayed
there overnight, Lease; Gleason Dep. 9-10, both Torregrossa and Thacker
testified that Gleason was living at the Property at the time of the party.
Torregrossa Dep. 18, 38; Thacker Dep. 54-55. In addition, Gleason gave a
statement to police on July 6, 2014, admissible against him under Pa.R.E.
803(25), in which he said that “he lives at 59 Prospect Street with Ely-Or
Thacker, Jonathan Saunders and Chris Simon” and that he “has been renting
59 Prospect Street for about 1 year.” Munch Dep. 7-10 & Palmer Ex. 1 at 10.
There were therefore genuine issues of material fact as to whether Gleason
lived at and was paying rent for the Property that precluded granting summary
judgment in Gleason’s favor on the ground that he did not live at the Property.
The trial court also erred in holding that Thacker and Gleason owed
Plaintiff no duty because Plaintiff was on the Property as a licensee, not as an
invitee. The duty of a possessor of land to a person injured on his premises
depends on whether the injured person is there as an invitee, a licensee, or a
trespasser. Hackett v. Indian King Residents Association, 195 A.3d 248,
251 (Pa. Super. 2018); Cresswell v. End, 831 A.2d 673, 675 (Pa. Super.
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2003). A possessor of land who holds it open to the public for his business
purposes owes a duty to his invitees to take security precautions to prevent
harm from other persons if he knows or has reason to know of a likelihood
that conduct of other persons will endanger his invitees. Reason v.
Kathryn’s Korner Thrift Shop, 169 A.3d 96, 102-03 (Pa. Super. 2017);
Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007); Rabutino v.
Freedom State Realty Co., 809 A.2d 933, 939 (Pa. Super. 2002). A
possessor of land does not owe licensees a duty to protect them from harm
from other persons. T.A. v. Allen, 669 A.2d 360, 362–64 (Pa. Super. 1995)
(en banc).
A person is an invitee if he is invited to enter or remain on the premises
as a member of the public for a purpose for which the land is held open to the
public or if he is invited to enter or remain on premises for a purpose directly
or indirectly connected with business dealings with the possessor of the
premises. Hackett, 195 A.3d at 252; Reason, 169 A.3d at 102; Cresswell,
831 A.2d at 675-76. A person who is privileged to enter or remain on the
premises only by virtue of the possessor’s consent is a licensee. Hackett,
195 A.3d at 251; Cresswell, 831 A.2d at 676; T.A., 669 A.2d at 363. Social
guests of occupants, although they are invited to the premises by the
occupants, are licensees of the occupants, not invitees. Davis v. McDowell
National Bank, 180 A.2d 21, 24 (Pa. 1962); Hackett, 195 A.3d at 251-52.
In contrast, guests at a party held at a hotel or motel are invitees of the hotel
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or motel. Paliometros, 932 A.2d at 133=34; Rabutino, 809 A.2d at 939. A
guest at a party to which the general public is invited and for which an
admission fee is charged is also an invitee of the party organizers and the
possessor of the premises where the party is held. Castellano v. Local 302
International Association of Firefighters, 70 Pa. D.&C.4th 415, 420-25
(C.P. Lehigh Co. 2004) (partygoer who paid $7 admission fee to attend a party
open to the general public was invitee).
Here, the record showed that Plaintiff and the other partygoers were
charged an admission fee to attend the party and there is evidence from which
a jury could find that the party was not limited to specific invited guests of the
hosts, but was open to anyone who paid the fee, regardless of whether they
knew the hosts. Miller Dep. 10-14, 24-26, 30-31, 38-39, 61, 64. Under those
circumstances, a jury could find that Plaintiff was not a mere social guest that
Thacker and Gleason had invited to their house, but was a member of the
public to whom they held the Property open in exchange for a fee and that
Thacker and Gleason sought and received a sufficient financial benefit from
charging a fee to make partygoers like Plaintiff, who paid the fee, their
invitees.
We recognize that this Court held in Klar v. Dairy Farmers of
America, Inc., 268 A.3d 1115 (Pa. Super. 2021), appeal granted, 281 A.3d
299 (Pa. 2022), that the charging of a fee at a social event to defray costs of
the event did not change the defendant’s status as a social host. 268 A.3d at
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1127-29. The issues there, however, were the very different questions of
whether the fee made the defendant subject to the obligations of the Liquor
Code or made the defendant liable at common law to third parties for injuries
caused by its adult guests’ consumption of alcohol, not whether the guests
were invitees of the defendant or whether the guests were on the premises
for the defendant’s business purposes. Id. at 1119, 1122-29. Moreover, the
event in Klar was restricted to the defendant’s employees and was not open
to the general public. Id. at 1117-18. Klar is therefore distinguishable and
does not require us to disregard the charging of a fee in determining whether
Plaintiff was an invitee or a licensee when he attended the party.
In addition, there is evidence from which a jury could find that
defendants Thacker and Gleason had reason to know of a likelihood that the
party would attract persons who would commit crimes against the partygoers.
There was evidence from the statements that Thacker and Gleason made to
the police, which are admissible against them under Pa.R.E. 803(25), that
individuals that they believed to be gang members had come to a party or
parties at the Property before the July 2014 party and committed crimes.
Munch Dep. 7-10, 21, 73-74; Palmer Dep. 10, 12-13, 19; Palmer Ex. 1 at 9-
12. Gleason told police that he suspected that the people who attacked guests
at the July 2014 party were gang members and that some of them had
“barged their way into” a party at the Property two to three weeks earlier and
committed a theft. Munch Dep. 7-10; Palmer Ex. 1 at 10. Thacker told the
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police that the attackers were gang members, that some of them had been to
his parties on several past occasions and stolen from him, and that on the first
of those prior occasions, in December 2013, one of the gang members had
punched Torregrossa in the face “for no reason.” Munch Dep. 7-8, 21, 73-74;
Palmer Dep. 10-13, 19; Palmer Ex. 1 at 9, 11-12. Because a jury could find
from these statements that Thacker and Gleason knew before the July 2014
party that their parties had been invaded by people that they believed to be
dangerous, there was sufficient evidence that they had reason to know of a
danger to support a duty to protect their partygoers from harm from such
third parties by providing security, by calling the police earlier, or by warning
the partygoers of that danger.
The record with respect to defendant Torregrossa, however, is
significantly different. Not only was Torregrossa not a lessee of the Property,
Lease; H. Cole Dep. 59-61, but there was not sufficient evidence to support a
finding that Torregrossa lived at the Property at the time of the July 2014
party or was responsible for the Property at that time. Torregrossa testified
that he only stayed over at the Property frequently and did not live there or
pay rent. Torregrossa Dep. 17-18. Unlike the record with respect to
defendant Gleason, there is no evidence to the contrary. Thacker testified
that Torrogrossa did not live at the Property and Gleason testified that
Torregrossa sometimes stayed there overnight, but did not have a room there.
Thacker Dep. 92; Gleason Dep. 46, 73-74. Although Moustafa testified that
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he thought that Torregrossa lived at the Property, he admitted that he,
Moustafa, had not lived at the Property after October or November 2013, that
he did not know whether or when Torregrossa lived at the Property, and that
his only reason to believe that Torregrossa lived there was that Torregrossa
had been there on the isolated occasions that Moustafa visited the Property
after he moved out. Moustafa Dep. 10-11, 14-16, 20-24. The only other
evidence that Plaintiff contends showed that Torregrossa lived at the Property
is a police report from September 25, 2014, more than two months after the
July 2014 party, which only shows that a police officer called to the Property
for a disturbance on that date referred to Torregrossa as the person that he
thought rented the Property. 9/25/14 Police Incident Report. There was no
testimony from the officer who authored that report as to what this conclusion
was based on or whether it was based on any statement by Torregrossa that
he lived at or was renting the Property.
There was also no evidence that Torregrossa organized the party.
Torregrossa testified that he was not at the Property when the party was
planned and came over to the Property from the house where he was living
after the party was underway because Thacker had invited him to the party.
Torregrossa Dep. 13-14, 27. Plaintiff does not point to any evidence that
contradicted this testimony or supported an inference that Torregrossa
organized or planned the party. At most the record supports an inference that
Torregrossa, after he arrived at the party, assisted in collecting the entrance
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fees and letting guests into the party. Thacker Dep. 18-20, 34-35; Miller Dep.
19-21; Torregrossa Dep. 14-16. That is insufficient to impose a duty on a
non-occupant to protect persons on the premises from harm by third parties.
See Castellano, 70 Pa. D.&C.4th at 426 (defendant whose “only involvement
was to assist the party organizers on the night of the party by checking the
identification of attendees and guarding the rear entrance” of the premises at
which an alcohol party was held did not owe partygoers a duty to protect them
from violent acts of third parties).
Moreover, there was no evidence admissible against Torregrossa that
supports an inference that he had reason to know that there was a danger to
partygoers from third parties. No witness testified that there had been
violence or gang members at any prior party at the Property at which he or
she had been present. The only evidence concerning problems with prior
parties, other than Thacker’s and Gleason’s statements to the police, was that
there had been noise complaints, not that there had been any crimes or
incidents of violence. Torregrossa Dep. 64, 72-73; Gleason Dep. 52-53;
Thacker Dep. 14-15, 58-59; H. Cole Dep. 34, 45-46; 3/26/14 Police Incident
Report. Thacker’s and Gleason’s statements to the police are not admissible
to prove Torregrossa’s liability, because they are hearsay admissible only
against the declarants, Thacker and Gleason, as statements of a party
opponent. Pa.R.E. 803(25).
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Plaintiff also argues that regardless of whether they owed him a duty as
occupants of the Property, Thacker, Gleason, and Torregrossa can be liable to
him on the ground that they served alcohol to persons who were under the
age of 21. In addition to the duties that a party host owes as a possessor of
land, an adult host who knowingly serves alcohol to persons under age 21 is
liable for injuries caused by the underage drinkers’ intoxication. Orner v.
Mallick, 527 A.2d 521, 523-24 (Pa. 1987); Congini v. Portersville Valve
Co., 470 A.2d 515, 518 (Pa. 1983). This claim fails, however, because, as
the trial court correctly held, there was no evidence that the attack on Plaintiff
or his injuries were caused by any underage consumption of alcohol.
Contrary to Plaintiff’s characterizations of the party as an underage
drinking event, there was very little evidence of underage drinking. Plaintiff
was over the age of 21 and Thacker, Gleason, Torregrossa, and most of the
other identified partygoers were 21 or older. Plaintiff Dep. 15; 7/6/14 Police
Incident Report at 2-3, 7-9. While there was evidence that two invited
partygoers were under the age of 21, Thacker Dep. 46; 7/6/14 Police Incident
Report at 4, those partygoers’ consumption of alcohol and intoxication had no
causal connection to Plaintiff’s injury, as there was no claim or evidence that
either was involved in the attack on Plaintiff or did anything that provoked it.
Plaintiff points to no evidence that any other partygoer was less than 21 years
old.
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There was evidence that several of the attackers were underage,
including the two who were alleged to have attacked Plaintiff. 7/6/14 Police
Incident Report at 5-7. There was no evidence, however, that any of the
attackers consumed alcohol. Munch Dep. 57, 82; Thacker Dep. 52; Gleason
Dep. 48; Torregrossa Dep. 26; Miller Dep. 64. Not only was there testimony
that the attackers said that they did not want to pay because they were not
going to drink, but no witness testified that they saw any of them with a red
drinking cup or saw any of them drink alcohol at the party. Miller Dep. 13,
64; Thacker Dep. 52; Gleason Dep. 48; Torregrossa Dep. 26.
The Landlord Defendants
The evidence was undisputed that the Coles were landlords out of
possession of the Property. Generally, landlords out of possession do not owe
any duty to non-tenants and are therefore not liable for injuries suffered by
non-tenants on the leased premises. Brown v. End Zone, Inc., 259 A.3d
473, 491 (Pa. Super. 2021); Jones v. Levin, 940 A.2d 451, 454 (Pa. Super.
2007); Dorsey v. Continental Associates, 591 A.2d 716, 718 (Pa. Super.
1991).
Exceptions to this rule exist 1) where the injury is caused by a physical
defect in the premises and certain additional facts are shown; 2) where the
landlord leases the property for a purpose involving the admission of the public
and neglects to inspect for or repair dangerous conditions existing on the
property before possession is transferred to the lessee; and 3) where the
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injury was caused by activities of the lessee or others on the premises and the
landlord a) at the time of the lease consented to those activities or knew that
they would be carried on and also b) knew or had reason to know that the
activities would unavoidably involve an unreasonable risk or that special
precautions necessary to safety would not be taken. Brown, 259 A.3d at
491-92; Dorsey, 591 A.2d at 718-19.
None of these exceptions applies here. While there was evidence that
some parts of the Property were damaged or in poor condition, Torregrossa
Dep. 62-63; Gleason Dep. 54; Thacker Dep. 64-66, there was no causal
relationship between any of these defects and Plaintiff’s injuries. Rather,
Plaintiff’s injuries were caused by a violent assault and the attackers entered
the Property through a door that was not broken or damaged. Thacker Dep.
93; Gleason Dep. 75-76; Torregrossa Dep. 14, 88; Miller Dep. 51.
There was also no evidence to support a duty to Plaintiff based on the
purpose for which the Property was leased or the Coles’ knowledge of the
activities to be carried out on the Property when they leased the Property.
The Coles leased the Property under a residential lease that specifically
provided that “[o]peration of any business from the property is not permitted.”
Lease at 2. There was no evidence that the Coles had knowledge or any notice
at the time that they leased the Property that Thacker or other tenants
intended to use the Property to host alcohol parties open to the public or for
which admission was charged or at which underage drinking occurred. The
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evidence concerning the Coles’ knowledge was that after the lease was
entered into and Thacker and others had moved in, there were noise
violations in connection with parties held by the tenants and that Horace Cole
heard rumors more than six months after the lease was entered into that there
were parties at the Property where alcohol was served and an admission fee
was charged. Gleason Dep. 52-53; Thacker Dep. 14-15, 58-59; Torregrossa
Dep. 49, 64, 72, 85-86; H. Cole Dep. 34, 36-37, 45-46, 69-70; 3/26/14 Police
Incident Report.
Plaintiff argues that notwithstanding the fact that the lease was a
residential lease and there was no evidence that the Coles had any knowledge
at the time that the lease was entered that would create a duty to their
tenants’ guests, the Coles can be liable for his injuries because they were
allegedly aware before the July 2014 party occurred that the tenants were
charging an admission fee for alcohol parties that they hosted and were
serving alcohol to minors and because the Coles violated East Stroudsburg
ordinances limiting occupancy and requiring owners to manage their property
to prevent public disturbances.4 We do not agree that the evidence here
concerning the Coles’ post-lease knowledge rises to a level that is sufficient to
____________________________________________
4 Although Plaintiff’s expert also offered opinions that the Coles owed Plaintiff
various alleged duties in his report, those opinions cannot create a genuine
issue of material fact or constitute a basis for holding that the Coles owed
Plaintiff a duty because, as noted above, the issue of duty is a question of law
for the court to decide, not an issue of fact. Walters, 187 A.3d at 221-22;
Baumbach v. Lafayette College, 272 A.3d at 89.
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make an out-of-possession landlord who leases a house for residential
purposes liable for harm to his tenants’ guests caused by violent acts of third
parties.
Contrary to Plaintiff’s assertions in his brief, there was no evidence that
the Coles had knowledge of underage drinking at parties on the Property. The
theoretical possibility that they could foresee that some alcohol consumption
by minors might occur cannot provide a basis for imposing a duty on them.
Liability for alcohol consumption by minors is limited to persons involved in
planning the event where alcohol is served and those who serve or supply the
alcohol or purchase alcohol for minors to drink; ownership of the property
where the underage drinking occurs is not sufficient to support liability.
Alumni Association v. Sullivan, 572 A.2d 1209, 1213 (Pa. 1990);
Bartolomeo v. Marshall, 69 A.3d 610, 618 (Pa. Super. 2013); Winwood,
788 A.2d at 984-85; Kapres v. Heller, 612 A.2d 987, 992 (Pa. Super. 1992),
aff’d, 640 A.2d 888 (Pa. 1994).
There was also no evidence that the Coles had any knowledge of any
incident of violence or any security problem at the Property or at any party at
the Property before the attack on Plaintiff. H. Cole Dep. 52-53. Gleason and
Thacker did not report the crimes and presence of gang members at prior
parties to the police until after the attack on Plaintiff. Munch Dep. 43-44. The
only police report concerning an incident at the Property prior to July 5, 2014
that is in the record concerned “a report of a loud party” and the only police
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action was an instruction to the occupants “to turn the music d[o]wn.”
3/26/14 Police Incident Report at 2.
The only evidence concerning the Coles’ knowledge that alcohol parties
were being held at the Property at which an admission fee was charged
consisted of Horace Cole’s testimony that he heard “rumors to that effect”
sometime in the summer of 2014 from a person who lived near the Property
and that as a result of hearing this information, he told the tenants of the
Property before the July 2014 party not to have such parties. H. Cole Dep.
36-37, 69-70, 72-73. The mere charging of a fee to attend an event that
serves alcohol, while relevant to the status of the individuals who pay the fee,
does not show any particular likelihood of violence or danger to the persons
attending the event. Indeed, Plaintiff was fully aware that he was paying a
fee to attend the party.
Plaintiff’s claims against the Coles are therefore entirely different from
the facts in those cases where property owners have been held to owe a duty
to protect persons on their premises from third-party violence or a duty to
persons other than their tenants. While Paliometros and Rabutino involved
liability for injuries at parties where alcohol was served, the defendants in
those cases were in possession of the premises where the plaintiff was injured,
not landlords out of possession. Paliometros, 932 A.2d at 130-34 (defendant
was a motel that allowed its rooms to be used for fraternity alcohol party that
involved underage drinking); Rabutino, 809 A.2d at 935, 938-40 (defendant
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was a hotel that allowed its rooms to be used for rowdy underage New Year’s
Eve alcohol party).
In the other cases holding that persons other than establishments that
serve alcohol could be liable for injuries caused by third parties at a premises
serving alcohol, the defendants had leased their property to a business that
served alcohol or made their property available for the specific purpose of a
public event at which alcohol would be served and were not landlords who
leased their property to individuals for solely residential purposes. In Brown,
the landlord rented the premises to an adult-entertainment club that served
alcohol and the incident in which the plaintiffs were injured was a fight
involving patrons and an exotic dancer who worked at the club. 259 A.3d at
479 & n.4, 492. In Castellano, the defendant possessors of the premises
were an entity that temporarily rented its premises to groups for public events
at which alcohol was served and the organizers of such an event that rented
it for that purpose. 70 Pa. D.&C.4th at 417-18, 421-25.
In addition, unlike the Coles, the defendants in both of those cases had
notice of significant instances of violence before the plaintiffs were assaulted.
In Brown, the landlord was an affiliate of the tenant club and had actual
knowledge before the incident of alcohol serving violations, security problems,
and 24 instances of violence, including shootings, fights, assaults, and visibly
intoxicated patrons. 259 A.3d at 480, 492-93. In Castellano, the defendant
that rented out its premises for the party knew before the party in question
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that “rowdiness, fights and underage drinking” and “two prior shootings” had
occurred at such events and two of its representatives were present at the
party where the attack occurred. 70 Pa. D.&C.4th at 425-26.
In contrast, this Court has held that a landlord renting to college
students for residential purposes is not liable for injuries that resulted from
an alcohol party held on the rented premises, even though it is foreseeable
that such parties will occur. Kapres, 612 A.2d at 992. In Kapres, this Court
held, in words equally applicable here:
There is no Pennsylvania law which makes it incumbent upon
landlords to police the activities, legal or otherwise, of their
tenants. … The fact the parties appellant allegedly attended were
held on property owned by the adult appellees is of no
consequence considering their obvious detachment from the
events leading to appellant’s tragic accident.
Id.The remaining cases relied on by Plaintiff that involve liability of a
landlord are not to the contrary, as they involve essential facts that are
completely absent here. In Palermo v. Nails, 483 A.2d 871 (Pa. Super.
1984), the property owner had not given up control of the premises because
she was allowing the occupant, a relative, to live on the premises rent-free
without a lease. Id. at 473. In addition, the property owner had actual
knowledge of the danger of injury, as she knew before the victim was attacked
by the occupant’s dog both that the occupant kept a vicious dog on the
premises and that the dog had previously attacked someone. Id. at 473-74.
Portee v. Kroznelk, 166 A.2d 328 (Pa. Super. 1960), involved an injury
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caused by a physical defect in a portion of the premises that the landlord did
not lease and over which it retained possession and control, not an injury
caused by an attack by third parties. Id. at 330.
Plaintiff’s claims that the Coles violated ordinances limiting occupancy
and requiring owners to manage their property to prevent public disturbances
likewise cannot support liability. Violation of an ordinance or statute can
create a duty to the plaintiff only where the purpose of the ordinance or statute
is to protect a particular class of persons, rather than the general public, and
the plaintiff is within the class of persons that it is designed to protect.
Congini, 470 A.2d at 517-18; Wagner v. Anzon, Inc., 684 A.2d 570, 574
(Pa. Super. 1996). To the extent that ordinances concerning public
disturbances are designed to protect a particular class of persons rather than
the general public, they are designed to protect neighbors in the area where
noisy or disruptive parties are held, not to protect partygoers such as Plaintiff.
Allowing more individuals to reside at the Property than permitted by
ordinance had no possible causal connection to Plaintiff’s injuries, as he was
attacked by persons who were not occupants of the Property.
Conclusion
For the foregoing reasons, we conclude that Plaintiff was at the Property
as an invitee of defendant Thacker and the other occupants of the Property
and that there were genuine issues of fact as to whether defendant Gleason
lived at the Property and whether defendants Thacker and Gleason had reason
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to know before the July 2014 party of a likelihood that conduct of other
persons would endanger their invitees. The trial court, however, did not err
in holding that there was insufficient evidence to support Plaintiff’s claims
against defendants Torregrossa and the Coles. Accordingly, we reverse the
trial court’s orders granting summary judgment in favor of defendants Thacker
and Gleason and affirm its orders granting summary judgment in favor of
defendants Torregrossa and the Coles.
Orders of July 24, 2019 granting summary judgment in favor of Ely-Or
Thacker and Andrew Gleason reversed. Orders of July 24, 2019 granting
summary judgment in favor of Andrew Torregrossa, Horace S. Cole, and
Sonya K. Cole affirmed. Jurisdiction relinquished.
President Judge Panella joins this memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2022
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