Thomas v. Duquesne Light Co. , 376 Pa. Super. 1 ( 1988 )

WIEAND, Judge:

Charles Scott Thomas, age 15, consumed beer, became intoxicated, climbed an electrical transmission tower, came into contact with a high voltage line, was burned, and fell one hundred feet to the ground. In an action brought by the minor plaintiffs parents to recover damages, a default judgment was entered against Kenny Watson, the adult who had purchased the beer; and the trial court entered a compulsory nonsuit against the beer distributor which had sold the beer. The claims against Duquesne Light Company, which owned the tower, the Pittsburgh, Chartiers & Youghiogheny Railway Co., which owned the land on which the tower had been erected, and Norman Cousins, who had given the minor plaintiff and his friends a ride to the site of the tower, were submitted to the jury. The jury found that the causal negligence of the minor plaintiff had been more than fifty (50%) percent, and verdicts were entered in favor of Duquesne Light Co., the Pittsburgh, Chartiers & Youghiogheny Railway Co., and Norman Cousins. In the claim against Watson, the defaulting defendant, the jury found that the parents of the minor plaintiff had incurred medical expenses in the amount of $61,562.63 and assessed the minor plaintiffs damages at $375,000.00. As between Watson and the minor plaintiff, however, the jury determined that Watson’s causal negligence was only thirty (30%) percent and the minor plaintiff’s negligence was seventy (70%) percent. Post-trial motions were denied, and judgments were entered on the verdict. The parents of the minor plaintiff appealed.

I. The verdict in favor of Duquesne Light Company and the Pittsburgh, Chartiers & Youghiogheny Railway Co.

In support of their request that a new trial be granted with respect to the claims against Duquesne Light Co. and the Pittsburgh, Chartiers & Youghiogheny Railway Co., appellants argue generally that the trial court erred in refusing their requested points for charge.¹ However, if a requested point for charge is sufficiently and adequately covered in the trial court’s jury instructions, it is not error to deny the requested point even though it may contain a correct statement of the law. Olson v. Dietz, 347 Pa.Super. 1, 6, 500 A.2d 125, 127-128 (1985). In evaluating the adequacy and correctness of the trial court’s jury instructions, “[w]e look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985). See: Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977).

In the instant case, the trial court’s instructions to the jury have not been transcribed. For this reason the trial court found it impossible to address the errors alleged by appellants. For the same reason this Court, on appeal, is unable to review the trial court’s jury instructions to determine whether error occurred. Ward v. Babbit, Inc., 270 Pa. 370, 113 A. 558 (1921). See also: Wolfe v. Scott, 275 Pa. 343, 119 A. 468 (1923); Duff v. Hamlin, 272 Pa. 245, 115 A. 829 (1922). It was the appellants who shouldered the burden of producing a record sufficient to enable an appellate court to conduct meaningful review. See: Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). Without a transcript of the trial court’s instructions to the jury, we are unable to find therein any basis for awarding a new trial against Duquesne Light and the Pittsburgh, Chartiers & Youghiogheny Railway Co. Appellants have advanced no reason for awarding a new trial in the claim against Norman Cousins.

II. The Compulsory Nonsuit entered in favor of the beer distributor

There are two aspects to our review of the compulsory nonsuit entered by the trial court in favor of the beer distributor. The first requires that we review the trial court’s refusal to allow an amendment of the complaint at trial to name the correct owner of the beer distributorship.

The complaint, when filed on October 7, 1983, had named Mae Lunardi as the proprietor of the distributing business. Lunardi’s answer had contained a denial that she was the owner of the distributorship and had alleged that she was president of Dario’s Beer Distributors, a corporation, which owned the business. Despite this answer, appellants did nothing to amend their complaint until September 29, 1986, after they had presented their entire case at trial. At the close of their case-in-chief, appellants orally requested leave of court to amend their complaint to name Dario’s Beer Distributor, a Pennsylvania corporation, as a party defendant instead of Mae Lunardi, d/b/a Dario’s Distributors a/k/a Dario’s Beer Distributors.² On June 25, 1982, when the beer had been sold, the owner of the distributorship was in fact the corporation, the business having been incorporated sometime in 1981. The trial court refused to allow the amendment, stating that to allow it would entail the joinder of a new party after the statute of limitations had expired.³

The applicable rule of law was stated in Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), as follows:

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.

Id., 232 Pa. at 2, 81 A. at 63. See also: Hoare v. Bell Telephone Co. of Pa., 509 Pa. 57, 500 A.2d 1112 (1985); Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947).

In Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), the plaintiff had named as a defendant “Bart Bertocci, Inc.” and had alleged that this defendant controlled the work site at which plaintiff had been injured. The answer contained an averment that there was no such corporation but that there was a partnership known as “Bertocci Construction Company” which had been doing construction work at the site of the accident. Plaintiff did not move to amend the complaint to name the correct defendant until one year and seven months after the answer had been filed and more than three years after the statute of limitations had run. The trial court disallowed the amendment. The Supreme Court reversed. The Supreme Court said that “[sjince from the record it is clear that the same Bertocci business enterprise was involved throughout, there is here no substitution of parties, but the correction of the designation under which the right party was originally sued. The amendment should have been allowed.” Id, 442 Pa. at 441, 275 A.2d at 321. A similar result was attained in Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). There, the plaintiff had sued “Ellis Sutliff and Leo E. Sutliff, individually and as partners t/d/b/a Sutliff Chevrolet Company.” After the statute of limitations had expired, the plaintiff sought to substitute Sutliff Chevrolet, a corporation, as a party defendant. The trial court refused the amendment, and the Supreme Court reversed. It said: “[T]he proposed amendment merely seeks to correct the designation of that business entity, in this case from a partnership to a corporation. Since the assets subject to liability will not be enlarged, the court below erred in not permitting the amendment.” Id, 410 Pa. at 438-439, 189 A.2d at 865 (footnote omitted). See also: Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952) (proposed amendment changing defendant from Steelton Taxicab Company, a corporation, to Anthony Kosir, t/a Steelton Taxicab Company permitted after statute of limitations had run); Gozdonovic v. Pleasant Hills Realty Co., supra.

These decisions are controlling of the right to amend the complaint in this case. Here, it seems clear that the plaintiffs sued the proper party but that the party defendant was erroneously designated in the complaint. Thus, plaintiffs’ complaint was served upon Dario’s Beer Distributors by handing a copy of the complaint to the corporate treasurer, Ronald Lunardi. The answer to the complaint, moreover, was signed and verified by Mae Lunardi individually and in her capacity as president of the corporation. Other pleadings and record documents filed in the case appeared to be on behalf of the corporation and were signed by counsel for the corporation. Finally, the beer distributor’s answers to interrogatories identified the defendant as “Dario’s Beer Distributors, a Pennsylvania corporation.”

These answers were verified by Ronald Lunardi, the treasurer of the corporation. From the outset, therefore, and throughout the pendency of this action, it is clear that plaintiffs were attempting to impose liability upon the business entity known as Dario’s Beer Distributors. Thus, the amendment to correct the designation of the defendant beer distributor would not have added a new party. Dario’s Beer Distributors was the party served, and it cannot escape accountability merely because it was initially designated as a sole proprietorship instead of a corporation. As the Supreme Court observed in Waugh v. Steelton Taxicab Co., supra, 371 Pa. at 438, 89 A.2d at 528:

It would be strange indeed if the law would permit a person actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him named him Richard Roe instead of John Doe.

Although we cannot and do not condone the delay plaintiffs exhibited in failing to move promptly to amend their complaint, this delay is not alone dispositive of the issue before us. See: Paulish v. Bakaitis, supra, 442 Pa. at 439 n. 4, 275 A.2d at 320 n. 4. Because the plaintiff sued the proper party, but incorrectly designated that party as a sole proprietorship, the trial court should have allowed an amendment to correct the designation of the defendant as a corporation.

The second aspect of our review of the compulsory non-suit requires that we determine whether there was sufficient evidence from which a jury could have imposed liability on the beer distributorship.

The rules regarding a compulsory nonsuit are well established. A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will [sic] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).

However, it is also well settled that a jury can not be permitted to reach its verdict on the basis of speculation or conjecture, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Schofield v. King, 388 Pa. 132, 130 A.2d 93 (1957). See Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966); Goater v. Klotz, 279 Pa. 392, 124 A. 83 (1924). In addition, it is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden. Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961).

Morena v. South Hills Health System, 501 Pa. 634, 638-639, 462 A.2d 680, 682-683 (1983). The evidence in the instant case, when viewed in the light most favorable to the plaintiffs, discloses the following facts.

On June 25, 1982, the minor plaintiff had asked his adult neighbor, Kenny Watson, to get some beer for him and his friends. Watson consented and drove the minor plaintiff and two of his juvenile friends in Watson’s car to Dario’s Beer Distributors in McKees Rocks. When a clerk approached and looked in the window, Thomas was in the front passenger’s seat and was holding in his lap a mug containing twenty-three dollars. Watson ordered two cases of Iron City beer. No one else in the car spoke to the clerk. The clerk placed the two cases of beer on the back seat between the two boys who were seated in the rear. Watson looked at Thomas for the money with which to pay for the beer. Thomas removed the money from the mug, counted out enough to pay for the beer, and handed it to Watson, who gave it to the clerk. When the clerk returned to the car and said that he needed more money, Thomas dumped the contents of the mug and counted out the correct change, which he then handed to Watson who, in turn, paid the clerk. Watson then took Thomas and his friends to a popular teen-age drinking spot known as “Beer Cans.”

The law is well settled that it is negligence per se for a licensee to serve alcoholic beverages to a minor in violation of section 493(1) of the Liquor Code of April 12, 1951, P.L. 90, 47 P.S. § 4-493(1). Smith v. Clark, 411 Pa. 142, 144, 190 A.2d 441, 442 (1963). See also: Matthews v. Konieczny, 515 Pa. 106, 113, 527 A.2d 508, 512 (1987). A commercial licensee who violates this section of the statute will be held liable for injuries sustained by the minor or by third persons if such injuries are proximately caused by the furnishing of alcohol to the minor. Matthews v. Konieczny, supra, 515 Pa. at 113, 527 A.2d at 512; Smith v. Clark, supra, 411 Pa. at 144, 190 A.2d at 442. The issue in this appeal, however, is whether liability will be imposed upon a licensee who sells alcoholic beverages to an adult under circumstances in which the licensee knew or should have known that the adult was purchasing the beverages for use by minors. This issue has not previously been presented directly to the appellate courts of this Commonwealth. Nevertheless, we are not wholly without guidance.

In Reber v. Commonwealth of Pa., Liquor Control Bd., 101 Pa.Commw. 397, 516 A.2d 440 (1986), the plaintiff, a seventeen-year-old minor, had requested a friend, also a minor, to purchase a fifth of liquor for him from a state store and had given the friend money with which to make the purchase. The friend’s age was not questioned at the time of the purchase, and the contents of the bottle which he purchased were consumed by plaintiff and his friend. While operating a motorcycle thereafter, the minor plaintiff lost consciousness and was injured when the motorcycle crashed. He commenced an action against the Liquor Control Board in which he contended that its clerk had negligently sold liquor to his minor friend. The trial court entered summary judgment in favor of the Board, but the Commonwealth Court reversed. Writing for a three judge panel, the Honorable David Craig wrote that the Board had “violated section 493(1) [of the Liquor Code] by selling liquor under circumstances in which it was likely that the liquor would reach the hands of other minors” and, therefore, had “breached a duty owed to [the minor plaintiff] not to furnish liquor to minors either directly or through likely intermediaries.” Id. at 406, 516 A.2d at 444. The Commonwealth Court observed that “the prospect of [a minor] sharing his illegally purchased liquor with another minor, and the injury resulting, is [not] so unforeseeable that [the minor plaintiff] cannot assert that the LCB breached the duty owed to him.” Id. at 406, 516 A.2d at 444.

Several decisions of this Court must also be considered in determining whether appellants’ evidence pertaining to the manner in which the sale occurred should have been left to the jury. In In the Matter of J-J Bar, Inc., 210 Pa.Super. 349, 233 A.2d 625 (1967), this Court held that there had been a violation of section 493(1) of the Liquor Code where a bartender had served two drinks to an adult patron who had been seated at the bar with a minor and where the bartender had not asked the minor for his age, had not requested identification from the minor, and had not required him to leave the licensed premises. The Court also found a violation of the Code in Salvia’s Bar, Inc. v. Pennsylvania Liquor Control Bd., 211 Pa.Super. 275, 236 A.2d 839 (1967), where three minors had entered a bar and were seated with an adult who purchased six draft beers and placed them on the table in front of the several minors. The Court said: “[I]t was [the bartender’s] duty to refuse to permit the adult to furnish beer to the minor.” Id. at 276, 236 A.2d at 839. The Commonwealth Court, in interpreting the Liquor Code, has interpreted section 493(1) in a similar way. Thus, in Pennsylvania Liquor Control Bd. v. Grand Marcus One, Inc., 69 Pa.Commw. 483, 451 A.2d 810 (1982), where three minors had been sitting at a table and drinking beer with adults in the licensee’s premises, the Court held that “[t]he bartender was under a duty to see to it that the adults did not furnish liquor to the minors.” Id. at 485, 451 A.2d at 811. And in The Matter of Revocation of Restaurant Liquor License No R-12122, 78 Pa.Commw. 159, 164, 467 A.2d 85, 88 (1983), the Court said: “[T]he purchase of alcoholic beverages by an adult for a minor’s consumption does not free the licensee of his duty to prevent the liquor ... from being furnished to the minor.” All of these cases involved alleged violations of section 493(1) of the Liquor Code and are not negligence cases. However, they are helpful in determining whether there was a breach of duty owed to the minor plaintiff in Watson’s car when beer was sold at the request of the adult driver but paid for with moneys supplied by the minor plaintiff.

The beer distributor was required by law to refrain from selling alcoholic beverages to minors. This duty would have been breached by a sale of alcohol made directly to minors. It could also be breached by an indirect sale to minors through an intermediary if it were known or should have been known that the alcohol was being purchased for use by minors. If Watson had told the distributor that he wanted to buy two cases of beer for consumption by the children seated in his car, no one would seriously question the existence of a duty owed by the distributor to the children. If, because of the circumstances, the distributor knew or should have known that Watson was purchasing beer for consumption by the minor passengers in his vehicle, the distributor would also have owed a duty to refrain from selling beer for consumption by minors. Whether the distributor knew or should have known that the beer was being purchased for consumption by minors was, in view of plaintiffs’ evidence, an issue of fact for the jury to decide. See: Bradshaw v. Rawlings, 612 F.2d 135,143 (3d Cir.1979) (licensee who sold beer to minors not immune from liability merely because delivery signed for by adult).

If the jury had found that the distributor breached a duty owed to the minor plaintiff, then the jury would also have been required to determine whether the breach was a substantial factor in causing the minor plaintiff’s injuries. The issue of legal causation could not properly be taken from the jury so long as reasonable persons might differ as to whether the distributor’s conduct was a significant or insignificant factor in causing appellant’s injuries. Ford v. Jeffries, 474 Pa. 588, 595, 379 A.2d 111, 114 (1977). See also: Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 246-247, 465 A.2d 1231, 1233-1234 (1983).

We conclude, therefore, that it was error to enter a compulsory nonsuit in the claim made by plaintiffs against the beer distributor.

III. The default judgment against Kenny Watson

The default judgment which had been entered prior to trial against Watson was conclusive of his liability to the plaintiffs. There remained to be determined only the amount of the damages to be assessed against him. The trial court, reading literally the Comparative Negligence Law,⁴ held that the plaintiffs’ damages recoverable against Watson were to be reduced to the same extent to which the minor plaintiff’s negligence contributed to the happening of the accident. Responding to the trial court’s instructions, the jury found that the minor plaintiff’s causal negligence had been seventy (70%) percent and Watson’s only thirty (30%) percent. We are constrained to hold that the trial court’s instructions were erroneous.

As a result of his default, Watson’s liability had been determined finally by the judgment entered against him. As to him, therefore, the issues were limited to the amount of the plaintiffs’ damages. See: Std.Pa.Prac.2d § 68.16. Defenses which go to the right of recovery are not available to a defaulting defendant. The doctrine of comparative negligence, even though it goes in part to the assessment of damages, is primarily a substantive defense going to a plaintiffs’ right to recover and, therefore, is not available as a defense to a defendant against whom a default judgment has been entered. See: Whitby v. Maloy, 150 Ga.App. 575, 258 S.E.2d 181 (1979); Passino v. Cascade Steel Fabricators, Inc., 105 N.M. 457, 734 P.2d 235 (1986); Adkisson v. Huffman, 225 Tenn. 362, 469 S.W.2d 368 (1971). Cf. Harless v. Kuhn, 403 So.2d 423 (Fla.1981). Any other result would weaken the efficacy of default judgments. Passino v. Cascade Steel Fabricators, Inc., supra. With respect to the plaintiffs’ recovery against Watson, therefore, there could be no reduction because of the minor plaintiff’s negligence. The trial court erred when it instructed the jury otherwise.

IV. The new trial

The erroneous entry of the nonsuit in favor of the beer distributor makes a new trial necessary. The new trial must be as to all defendants. Although the jury refused to impose liability upon Duquesne Light, the Pittsburgh, Char-tiers & Youghiogheny Railway Co., and Norman Cousins, it did not find that they were not negligent. Consistently with the trial court’s instructions, the jury found only that the minor plaintiff’s causal negligence exceeded that of these three defendants.⁵ Upon retrial, the jury should be required to determine the causal negligence, if any, of all defendants, as well as that of the minor plaintiff, and then apportion the same among the parties. This will now include the negligence, if any, of the beer distributor. It will also include, for purposes of apportioning causal negligence, the negligence of Kenny Watson. Although the default judgment entered against him has rendered him liable to the plaintiffs to the full extent of their actual damages, the extent to which his negligence in fact contributed to the minor plaintiff’s injuries must be determined in order to apportion fault among the remaining parties to this litigation. Recovery by the plaintiffs against all defendants other than Watson will be precluded only if the minor plaintiff’s negligence exceeds the combined negligence of all defendants. Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986).

Reversed and remanded for a new trial.

POPOVICH, J., files a dissenting opinion.

1 . Appellants have not alleged any error pertaining specifically to the verdict in favor of Norman Cousins.

2 . After the jury verdict had been returned, appellants also filed a written motion for leave of court to amend the caption of their complaint. The record does not disclose that action was ever taken on this written motion.

3 . The statute of limitations had run on June 25, 1984, two years after the juvenile had been injured. See: 42 Pa.C.S. § 5524(2).

4 . 42 Pa.C.S. § 7102.

5 . It was after this finding had been reported to the trial court that the jury was instructed to apportion the negligence of Kenny Watson and the minor plaintiff.