Mullins, N. v. Sands Bethlehem Gaming ( 2018 )

J-A25011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICHOLAS MULLINS IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
SANDS BETHLEHEM GAMING, LLC D/B/A
SANDS CASINO RESORT BETHLEHEM
Appellee No. 1075 EDA 2017
Appeal from the Order Entered March 20, 2017
In the Court of Common Pleas of Northampton County
Civil Division at No.: c48cv2014-000242
BEFORE: OTT, STABILE, JJ, and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED APRIL 12, 2018
Appellant/plaintiff Nicholas Mullins (“Mullins”) appeals from the March
20, 2017 judgment entered in the Court of Common Pleas of Northampton
County (“trial court”), following the grant of Appellee/defendant Sands
Bethlehem Gaming, LLC d/b/a Sands Casino Resort Bethlehem’s (“Sands”)
motion for compulsory nonsuit in this civil action.1 Upon review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant attempts to appeal from the March 10, 2017 order denying his
post-trial motion to remove nonsuit. It is settled that in a case where nonsuit
is entered, the appeal properly lies from the judgment entered after the denial
of a motion to remove nonsuit. See Billig v. Skvarla, 853 A.2d 1042, 1048
(Pa. Super. 2004) (“[I]n a case where nonsuit was entered, the appeal
properly lies from the judgment entered after denial of a motion to remove
nonsuit.”). Accordingly, the appeal here lies from the judgment entered on
March 20, 2017.
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The facts and procedural history of this case are undisputed. On or
about January 22, 2012, Mullins and his then-fiancée, Caitlin Shields
(“Shields”), visited the Sands Casino in Bethlehem, Pennsylvania, where both
were served alcoholic beverages. Three hours after receiving their last
alcoholic beverage, an altercation occurred between Mullins and Shields in
their hotel room. As a result of the altercation, Shields suffered serious head
trauma and Mullins was injured in the groin and face. Mullins, thereafter, was
arrested and charged with various crimes, including attempted homicide.
Mullins ultimately pleaded guilty to aggravated assault, for which he served
four years in a state correctional institute.
On January 13, 2014, Mullins initiated the instant action by filing a
complaint against Sands, asserting violations of the Dram Shop Act (“Act”),
47 P.S. § 4-493. Mullins asserted that Sands served him and Shields alcoholic
beverages while they were visibly intoxicated. Mullins claimed relief for two
types of damages. First, he alleged that Shields inflicted physical injuries upon
him during the altercation. Second, he alleged that he suffered damages as
result of his incarceration. Specifically, Mullins claimed that his incarceration
caused him to suffer mental anguish, loss of reputation, and loss of past and
future earnings.
The case proceeded to trial, at which Sands moved for compulsory
nonsuit following Mullins’ case in chief. The trial court granted nonsuit. Mullins
filed post-trial motions, seeking to remove nonsuit. On March 10, 2017, the
trial court denied Mullins’ post-trial motions. On March 20, 2017, Mullins filed
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a praecipe for entry of judgment and timely appealed to this Court. The trial
court directed Mullins to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Mullins complied. In response, the trial court issued
a Pa.R.A.P. 1925(a) opinion.
On appeal, Mullins presents the following issues for review, reproduced
here verbatim:
1. Whether the Court appropriately entered nonsuit against
plaintiff due to its conclusion that plaintiff’s “criminal actions . . .
were so remote and extraordinary the defendant cannot be held”
legally?
2. Whether the Court, in so doing, erroneously focused on the
“criminal actions” of plaintiff in its analysis, rather the arguably
“reasonably foreseeable” mutual fight by the two drunk casino
patrons in the hotel room they had rented?
2. Whether the nonsuit against plaintiff must be overturned:
a. Due the trial court’s misunderstanding and misstatement of the
law concerning the foreseeability of and responsibility for resulting
“criminal actions” under our Dram Shop Act, as well as the viability
of “first-party” actions under that Act?, and/or
b. Due to the Court’s appearance of “bias and prejudice” against
plaintiff’s case?
Mullins’ Brief at iv (sic).
At the outset, we observe that, in a largely indiscernible brief that
struggles to comply with the briefing requirements detailed in our Rules of
Appellate Procedure, see Pa.R.A.P. 2111-2140, Mullins fails to challenge the
trial court’s conclusion that he presented insufficient evidence to establish that
Sands served alcohol to Shields while Shields was visibly intoxicated. See
Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006)
(stating that any issue not set forth in or suggested by an appellate brief’s
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statement of questions involved is deemed waived under Pa.R.A.P. 2116(a)).
In fact, in his reply brief, Mullins confirms that he “never made an attempt to
prove to the jury that [Shields] was visibly intoxicated while she was served.
. . . [Mullins] never raised this issue as part of his Rule 1925([b]) statement.”
Mullins’ Reply Brief at 1. Even if Mullins had raised the issue of Shields’ visible
intoxication, we still would hold that he is not entitled to relief.
To establish liability under the Act, it is not sufficient for a plaintiff to
establish merely that alcoholic beverages were served to a patron, or that the
patron was intoxicated at the time he or she caused injury to another.
Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 527 (Pa. Super. 1998), appeal
denied, 735 A.2d 1269 (Pa. 1999). Rather, for dram shop liability to attach,
evidence must be produced indicating that the patron was served alcohol at a
time when he or she was visibly intoxicated. Id. To meet this standard, a
plaintiff need not offer direct evidence of the patron’s visible intoxication. Id.
Instead, the plaintiff can prove dram shop liability through circumstantial
evidence that an individual was served alcohol at a time when he or she was
visibly intoxicated. Id.
Upon our review of the trial transcripts, we agree with the trial court’s
conclusion that Mullins “had presented insufficient evidence that Shields had
been served while visibly intoxicated, and thereby presented insufficient
evidence of a violation of the Dram Shop Act with respect to her.” Trial Court
Opinion, 3/10/17, at 16. The trial court reasoned that Mullins
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had failed to produce any evidence upon which a jury could
properly conclude that Shields had been served while visibly
intoxicated. The only fact witnesses presented on the issue of
service to Shields were [Mullins] and Christopher Lewis, the last
bartender to serve [Mullins] and Shields on [Sands’] premises.
[Mullins] himself was unable to offer any testimony which would
support a finding that Shields was served while visibly intoxicated,
and Mr. Lewis likewise did not testify that he observed Shields to
exhibit signs of visible intoxication. In addition, the videotape
played for the jury did not show Shields to display signs of visible
intoxication.
Id. at 16-17. Accordingly, Mullins would not obtain relief on his third-party
claim against Sands for injuries he suffered at the hands of Shields.
We now turn to the merits of this appeal. In so doing, we first address
Mullins’ argument that the trial court erred in concluding that the “no felony
conviction recovery” rule (“felony rule”) applied sub judice. See Mullins’ Brief
at 4-13. Our standard of review following the denial of a motion to remove a
compulsory nonsuit is as follows: “This Court will reverse an order denying a
motion to remove a nonsuit only if the trial court abused its discretion or made
an error of law.” Brinich v. Jencka, 757 A.2d 388, 402 (Pa. Super. 2000)
(citation omitted), appeal denied, 771 A.2d 1276 (Pa. 2001). “Judicial
discretion requires action in conformity with law on facts and circumstances
before the trial court after hearing and consideration. Consequently, the court
abuses its discretion if, in resolving the issue for decision, it misapplies the
law or exercises its discretion in a manner lacking reason.” Miller v. Sacred
Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 2000) (internal citations
omitted). The grant of nonsuit is proper where, having viewed all evidence in
the plaintiff’s favor, the court determines that the plaintiff has not established
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the necessary elements of his cause of action. Brinich, supra; see Pa.R.C.P.
No. 230.1.
It is settled that the felony rule “applies to discourage courts from
assisting convicted felons in collecting damages that would not have occurred
absent the criminal conviction.” Holt v. Navarro, 932 A.2d 915, 920 (Pa.
Super. 2007) (citing Mineo v. Eureka Sec. Fire & Marine Ins. Co., 125
A.2d 612 (Pa. Super. 1956)), appeal denied, 951 A.2d 1164 (Pa. 2008). The
Holt Court explained that “[t]he common law principle that a person should
not be permitted to benefit by his own wrongdoing, particularly his own
crimes, prevents a plaintiff from recovering losses which flowed from those
criminal acts. Id.
In Holt, the plaintiff, William Holt, was committed to a hospital for a
mental health evaluation. Holt escaped during an ambulance transfer. He
ran to a shopping center and ultimately engaged in car jacking, striking the
owner of the vehicle in the process. Id. at 918. He was convicted for robbery
and simple assault, and sentenced to seven years’ probation. Holt did not
challenge his judgment of sentence. Holt then sued the hospital for
negligently transporting him. He asserted that the criminal conviction that
resulted from his escape caused him to suffer a reduced earning potential.
Id. A jury awarded Holt $350,000.00. On appeal, this Court reversed the
jury verdict, relying upon the felony rule. In so doing, we concluded that the
damages Holt sought resulted directly from his convictions. We noted that
Holts’ “convictions for robbery, a second degree felony, and simple assault, a
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second degree misdemeanor, are serious criminal offenses.” Id. at 923. We
determined “that, as a matter of law, [the hospital] cannot be liable for the
collateral consequences of [Holts’] criminal convictions.” Id.
In Mineo, two restaurant owners were convicted of burning down their
restaurant. Shortly before the fire, the owners had purchased four insurance
policies on the restaurant. After their arrest, they assigned their rights under
the policies to a third party. Mineo, 125 A.2d at 614. The third party initiated
an action against the insurance companies to recover damages caused by the
owners’ arson. Following trial, a jury returned a verdict in the third party’s
favor. On appeal, this Court was asked to determine whether an assignee of
an insured can recover for damages caused by a fire that the insured was
criminally convicted of setting. The Mineo Court concluded that “[t]he
assignee in an assignment of a fire insurance policy made subsequent to a fire
stands in the identical position of the insured and his rights cannot rise above
the insured.” Id. We explained in Mineo that to permit a person, who has
been convicted of a serious crime, to collect damages that would not have
occurred absent the criminal conviction is against public policy. We reasoned:
The insureds have had their day in court with the
opportunity to produce their witnesses, to examine and cross
examine witnesses and to appeal from the judgment and to be
acquitted unless the evidence established their guilt beyond a
reasonable doubt.
To now permit them to recover for the loss which they have
been convicted of fraudulently causing would be against public
policy. It would tend to destroy the confidence of the public in the
efficiency of the courts; it would stir up litigation that would
reopen tried issues; it would impress the public with the belief that
the results of trials of the gravest nature were so uncertain that
the innocent could not escape condemnation; and it would
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convince the public that the courts themselves have no confidence
in the judicial processes. We are of the opinion that when one is
convicted of a felony and subsequently attempts to benefit from
the commission, the record of his guilt should be a bar to his
recovery.
Id. at 617-18.
Instantly, based upon our review of the entire record, viewed in the light
most favorable to Mullins, and consistent with Holt and Mineo, we are
constrained to agree with the trial court’s conclusion that the felony rule bars
recovery for collateral damages Mullins allegedly suffered while incarcerated.
As the uncontradicted evidence demonstrates sub judice, Mullins pleaded
guilty to aggravated assault and, as a result, spent four years in prison.
Mullins’ claim that his incarceration caused him to suffer mental anguish, loss
of reputation, and loss of past and future earnings is not actionable because
the felony rule prevents him from recovering losses which directly flowed from
his criminal acts. Differently put, the collateral damages that Mullins allegedly
suffered resulted directly from his criminal conduct for which he pleaded
guilty. Thus, applying the felony rule, Mullins may not benefit from his
conviction for aggravated assault. Accordingly, the trial court did not abuse
its discretion in granting nonsuit in favor of Sands.2
Judgment affirmed.
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2 Based upon our disposition of this appeal, we need not address Mullins
remaining issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/18
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