Case Summaries

Medical Malpractice

Baby death caused by failure to monitor (Allegheny County)

A full-term baby was born with Apgar scores of 7 and 8 but within six hours developed respiratory distress. He was diagnosed with a spontaneous pneumothorax and was transferred to the neonatal intensive care unit (NICU). He required 100 percent oxygen. He was weaned to room air after approximately 24 hours. After being removed from the oxygen, he began to get fussy, most likely because he was hungry. Approximately 12 hours later, he was found with a very low heart rate. He was blue and not breathing. No alarms had gone off. Attempts were made to resuscitate him but the breathing tube was placed in his stomach instead of his airway. They were unable to resuscitate him, and he died. No monitors were on, and the baby became distressed and suffocated without the nurses knowing. When the baby was discovered, it was too late to revive him.

Baby death after removal of only kidney (Allegheny County)

A pregnant woman had a prenatal ultrasound that showed her baby had a multicystic right kidney and no left kidney. On two subsequent ultrasounds there was a “probable” left kidney. Two subsequent ultrasounds did not visualize a left kidney but still stated probable left kidney.

After birth, the baby was diagnosed with an esophageal fistula and an abdominal obstruction. He was producing urine, and his kidney blood tests were normal. An abdominal ultrasound was ordered but not done. At the time of surgery to repair the fistula and abdominal obstruction, the surgeon observed the multicystic kidney and asked a nephrologist to assess the status of the kidney. The nephrologist told the surgeon that the kidney was not functioning and the surgeon removed the kidney.

Postoperatively, the baby became unstable and an ultrasound revealed that he had no left kidney. The surgeon had surgically removed his only functioning kidney; since dialysis was not an option, he died several days later.

Baby injury in neonatal intensive care unit (Allegheny County)

Twin girls were born prematurely at 30 weeks of gestation. After being resuscitated, they were transferred to the neonatal intensive care unit (NICU). Approximately four hours after birth, Twin A was found to have an injury to her left index finger. This had not been present at birth. The injury developed into a large scar and after discharge from the hospital, the injured baby went to her pediatrician who ordered an X-ray. The X-ray showed a fractured proximal interphalangeal joint on her left index finger. In spite of surgery to repair the joint, the finger is permanently shorter than the other fingers and has no motion in the PIP joint. This injury occurred when the baby was in the complete control of the hospital personnel.

Failure to repair abdominal aortic aneurysm (Allegheny County)

A 65-year-old man was experiencing abdominal and flank pain and went to the emergency room. A CT scan showed a 10 cm abdominal aortic aneurysm (AAA). He was life-flighted to a tertiary care center for vascular surgery. On arrival, another CT scan confirmed the AAA. Despite the man having no risk factors for coronary artery disease, the vascular surgeon ordered an expedited cardiac consultation. The consultation did not take place until 12 hours later and the cardiologist recommended an adenosine SPECT stress test that could not be done for two days. The following day the aneurysm ruptured requiring emergency surgery. Because the surgery was done emergently, he developed ischemic bowel resulting in short gut syndrome, acute tubular necrosis, pneumonia, sacral decubitus ulcer, abdominal wound infection and sepsis, and he also suffered an anoxic brain injury. He died several weeks later.

Failure to inform and treat after abnormal kidney function studies resulting in a kidney transplant (Allegheny County)

A 46-year-old man went to the hospital for a breathing problem. During his hospitalization, blood work was done that showed that his kidney function levels were very high indicating poor kidney function. The attending doctor did not notify him of these results or follow up on them.

Six months later he was to undergo a CT scan with contrast, and blood tests were done prior to the CT scan. These tests revealed that his kidney function levels were even higher than they had been six months prior. Despite treatment, the kidney damage was so severe that he ultimately required and received a kidney transplant.

Failure to diagnose and treat chickenpox pneumonia with antiviral medication resulting in a leg amputation. Antibiotics not effective. (Mercer County)

A 20-year-old man went to the emergency room with complaints of chest pain, breathing difficulties and a rash. He had been exposed to a niece with chickenpox. An X-ray revealed pneumonia. An arterial blood gas showed that he was compensating for his poor breathing. The emergency room physician diagnosed him with chickenpox and pneumonia. He was given antibiotics and sent home.

The following day he returned to the emergency room with complaints of getting worse. His breathing rate and heart rate were even higher than the day before but no further testing was done, and he was sent home.

The following day his breathing became worse and his left leg became cool and pale. Upon returning to the ER, his oxygen level was very low and his left leg had no pulses below the knee. The patient was diagnosed with chickenpox pneumonia and an arterial clot in his leg. He was taken for emergency surgery to remove the clot in the artery in his leg. This was unsuccessful, and he was transferred to a tertiary care center. The physicians tried to save his leg but he ultimately required an above the knee amputation of his left leg and partial amputation of his right foot. Given that chickenpox is a virus, the antibiotic he was given for his pneumonia was useless. Antibiotics are only effective for bacterial infections. He should have been given an antiviral medication, acyclovir, not antibiotics. Because he was not given the appropriate treatment for his chickenpox, he suffered a complication of the untreated chickenpox that resulted in his losing his leg.

Failure to properly treat hyponatremia (low sodium) and hypokalemia (low potassium) resulting in central pontine myelinolysis (CPM). (Monongalia County West Virginia)

A 52-year-old man had a near fainting episode in the bathroom and was life-flighted to a University Hospital. In the emergency room he was found to have very low sodium (hyponatremia) and low potassium (hypokalemia) levels. He was also in acute renal failure. He was admitted to the hospital and treated for his low sodium and low potassium. However, his sodium was raised too quickly. He was discharged five days later. Two days after discharge he was having mental confusion, inaudible speech and tremors. He was first taken to a local hospital and then transferred back to the University hospital. He was ultimately diagnosed with central pontine myelinolysis (CPM). CPM is brain damage that is caused by a too rapid correction of sodium. Upon transfer to a rehabilitation facility, he was nonambulatory and nonverbal, and he had no ability to take care of any of his daily needs. He was on a feeding tube. He was discharged from the rehabilitation center after a month of rehabilitation. He has long-term cognitive deficits and is on Social Security Disability.

Antibiotic therapy resulting in anaphylactic reaction and shock with brain damage (Forest County, Pennsylvania)

A 20-year-old woman was prescribed an antibiotic and, shortly after taking it, she began to develop severe breathing difficulties. She returned home and her companion called 911 and began driving her to the hospital. On the way to the hospital an ambulance met them, and she was not breathing. CPR was initiated, and she was brought to the hospital. She was diagnosed with a severe anaphylactic reaction and was resuscitated at the hospital. However, she suffered a severe anoxic brain injury and is in a “locked in” state and requires 24-hour care.

The patient was historically atopic (allergic to other stimuli). The antibiotic had been found to have a higher risk of severe reaction than other antibiotics but (MANUFACTURER) failed to warn of risk.

Fall resulting from failure to properly support postoperative patient (Allegheny County)

An 80-year-old woman had surgery to repair a torn Achilles tendon. Five days after surgery, while being assisted to the bathroom, the nurse’s aide failed to properly support the patient, and she fell to the floor opening up the surgical wound. She required emergency surgery to reclose the wound. She also needed to have leeches applied to the wound in order for it to properly heal. She required months of physical therapy and home nursing care.

Failure to diagnose and perform additional testing in breast cancer, prostate cancer and lung cancer

A 49-year-old woman with a family history of breast cancer had a mammogram that showed a mass. The breast cancer was not diagnosed until 18 months later because the physician did not follow up on the suspicious mass. (Mercer County)

A 62-year-old woman with a family history of breast cancer obtained yearly mammograms. She was diagnosed with breast cancer in 2008. However, in looking back at the 2006 and 2007 mammograms, they showed the beginnings of the cancer but the radiologist did not identify them. She had a two-year delay in breast cancer diagnosis resulting in a mastectomy and radiation treatments. (Crawford County)

A 65-year-old man saw a urologist on a yearly basis. PSA levels were done and digital rectal examinations were done. For the first seven years there were no abnormalities in the digital rectal examination. However in 2000, a nodule was detected on the prostate but the urologist did no further testing. This nodule was present for the next three years. A biopsy was finally ordered, and it revealed a Gleason 9 prostate cancer. Gleason 9 is cancer with a poor prognosis. The patient underwent a prostatectomy and a clinical trial of chemotherapy. (Allegheny County)

A 54-year-old man had a CT scan of the chest for symptoms of pain and a productive cough. The CT scan showed a lung mass. A biopsy revealed lung cancer. The patient underwent radiation treatments and subsequent removal of the lung mass. The surgeon recommended to the patients PCP to have him be seen by an oncologist for follow-up radiation treatments. However, the surgeon did not advise the patient of this nor did he refer him to an oncologist. A year later a CT scan showed another lung mass. This was biopsied three months later, and the biopsy revealed a recurrence of his lung cancer. He required additional radiation treatments. (Allegheny County)

Brain damage due to cardiac arrest from bleeding as a result of laceration of the aorta during surgery (Armstrong County)

A 38-year-old man underwent a laparoscopic Nissen fundoplication to treat his severe gastroesophageal reflux. During the surgery, an arterial branch of the aorta began to bleed profusely. The surgeon decided to convert to an open procedure and called another surgeon to help him with the bleeding vessel. Upon opening the patient’s abdomen, there were 10 ounces of blood and clots of blood. After clearing the blood and clots, the bleeding stopped. The surgeons did not ligate or clip the vessel that had been bleeding. They only applied pressure and put on Avitene, a surgical type of collagen. A drain was also placed at the site. He was given several blood transfusions.

Early the following morning, the patient complained of severe spasms in his abdomen. The drain had a lot of blood in it and his heart rate was very high, and he was unresponsive. He was taken back to the operating room and the site that had bled during the first operation was bleeding again. During the surgery to repair this bleeding site, the patient went into cardiac arrest. He was resuscitated but he suffered permanent brain damage as a result of the massive blood loss and cardiac arrest.

Although laceration of the aorta is a known complication of the fundoplication procedure, the surgeons did not properly repair the laceration, and this resulted in permanent brain damage.

Social Security Disability

After a car accident destroyed his career, our 52-year-old client applied for Social Security Disability benefits. He was denied on the basis that his back and shoulder problems and resulting depression were not disabling. The claimant turned to the law firm of Caroselli, Beachler & Coleman, L.L.C., for help. Our Social Security Disability attorney recognized that the claimant’s injuries, including a hip replacement, left shoulder surgery and numbness in the claimant’s fingers, as well as the depression resulting from his inability to perform the work that he had done for years, certainly met the requirements for disability under the rules. By advocating for the client, we were able to have the case awarded after a hearing before an administrative law judge. The claimant not only won his case, but also was able to repay the public assistance office for benefits he had received during that time.

A 61-year-old laborer for a manufacturing firm was injured on the job and turned to the law firm of Caroselli, Beachler & Coleman, L.L.C., for help. The law firm won the claimant worker’s compensation benefits and also won a Social Security Disability claim without the necessity of a hearing only three months after the claimant applied. The claimant was unable to continue working as a laborer due to the injuries to his lower back he sustained at work, which resulted in numbness in his legs and several back surgeries. After quickly gathering the evidence, the claimant’s file was placed before the administrative law judge with a strong legal argument for a pre-hearing review, which resulted in a quick award for the claimant.

A 42-year-old computer-aided drafting and designer from Pittsburgh suffered from significant heart problems, which resulted in fluid retention and muscle wasting. The Social Security Administration denied benefits to the client at the initial level. The client sought representation from the law firm of Caroselli, Beachler & Coleman, L.L.C. Our Social Security lawyers quickly evaluated the claim, collected the medical evidence necessary and addressed the legal issues to put the claim in a winning position. By aggressively representing the claimant at the hearing and going toe to toe with the vocational expert, we were able to successfully obtain benefits on behalf of the claimant.

A 38-year-old home health aide was unable to continue her work due to the symptoms of chronic emphysema and bronchitis. The claimant had difficulty breathing when she moved around, and when she was exposed to fumes, dust, gases and poor ventilation. The claimant was awarded benefits based on the hard work and forward thinking legal analysis of the law firm of Caroselli, Beachler & Coleman, L.L.C. The claimant, a widow, was also able to receive benefits based on her late husband’s Social Security number. The claimant resides in Charleroi and collects two Social Security checks as a result of the efforts of the law firm.

A 56-year-old individual, who suffered a traumatic brain injury resulting in problems in memory loss, confusion and dizziness, lost a claim for Social Security benefits when trying to get the benefits without representation. However, once he contacted the law firm of Caroselli, Beachler & Coleman, L.L.C., medical evidence was collected which established the severity of the claimant’s illness according to the regulations. The claimant was ultimately awarded Social Security Disability benefits after a video teleconferencing hearing with a judge from Baltimore, Maryland. The claimant was in danger of losing his house when he sought the representation of Caroselli, Beachler & Coleman, L.L.C. Due to the efforts of his lawyers, the claimant never lost his home and continues to collect benefits.

Diabetes and diabetic neuropathy ended the working days of a 46-year-old claimant from Johnstown, Pennsylvania, as a restaurant cashier and host. During the course of litigation, the claimant also suffered from a heart attack and required heart catheterization with a placement of stents. Because of these conditions, the claimant suffered from significant problems controlling his blood sugar, problems with neuropathy of his feet and hands and problems with his vision. The claimant also had trouble with walking and other types of exertion. After being denied by the Social Security Administration, the claimant sought representation from the law firm of Caroselli, Beachler & Coleman, L.L.C. Our Social Security team collected the medical evidence and attended the hearing with the claimant. After aggressively defending the claimant’s position before the administrative law judge, our lawyers were able to establish that there was no work the claimant could do ensuring that he was found disabled. Because of our efforts, he was paid Social Security Disability benefits.

A 31-year-old massage therapist alleged disability as a result of arthrodesis of the left foot and hip. She had difficulty with walking and standing and also suffered through a series of surgical procedures in an attempt to correct her problem. She was ultimately awarded after a hearing with an administrative law judge due to the astute representation of the law firm of Caroselli, Beachler & Coleman, L.L.C. The claimant, from New Castle, Pennsylvania, continues to receive a monthly benefit check because of the firm’s efforts.

The law firm of Caroselli, Beachler & Coleman, L.L.C., represents minor children in Social Security cases. Our client, a 2-year-old child from Glassport, Pennsylvania, suffers from cystic fibrosis. The complications from this illness cause daily mucus buildups requiring home treatments from her mother including percussion therapy. These treatments required her mother to quit her job in order to care for this child on a full-time basis. The family, unable to keep their home on one income, was forced to leave the Pittsburgh area. Not only did the law firm of Caroselli, Beachler & Coleman, L.L.C., represent this child and provide her with ongoing benefits and health care coverage, but also they assisted the mother in receiving a stipend as the sole caregiver for the child. This allowed the family to purchase a new home and improve the child’s chances of survival. The law firm of Caroselli, Beachler & Coleman, L.L.C., made a huge difference in the life of this child and her family.

Workers’ Compensation

Alpini v. WCAB, 2MAP 2022 (Pa. May 16, 2023)

The Supreme Court held that claimant’s dramshop act claims arose out of the maintenance or use of a motor vehicle.  Therefore, Section 1720 of the Motor Vehicle Financial Responsibility Law precludes employer from subrogating against claimant’s third-party settlement.

Claimant, a police officer, sustained work-related injuries on April 17, 2011, when a drunk driver struck claimant’s patrol car with his vehicle.  Employer issued a TNCP, accepting liability for claimant’s injuries.  Employer paid him Heart and Lung Act benefits, and he signed over his workers’ compensation wage loss benefits to employer.

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Kristina Steets v. Celebration Fireworks, Inc., 512 C.D. 2022 (Pa. Cmwlth. May 8, 2023)

In a reported en banc Opinion, the Commonwealth Court held that a previous award for specific loss benefits is not payable following an injured worker’s death resulting from a work injury, at least where the injured worker had no dependents.

The claimant suffered catastrophic injuries at work on June 30, 2017, when a fireworks display exploded.  Employer accepted the claim and started paying TTD benefits.  The claimant then filed a Claim and Review Petitions to define the injuries and claimant’s specific-loss benefits separate and apart from the other injuries.  The WCJ granted the petitions and amended the claimant’s injuries to consist of “multiple body part amputations”, including loss of use of both arms, along with a host of other serious impairments.  The WCJ ordered that once the claimant’s total disability benefits ceased, the claimant would be eligible for specific-loss payments for the loss of her appendages in the amount of 840 weeks of compensation. The employer appealed, and the Board affirmed.  

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T.L. Fegley, as executrix of the State of P. Sheets v. Firestone Tire and Rubber
E. Appel v. GWC Warranty Corporation
Pa. Cmwlth. Ct.- March 27, 2023

In a momentous decision, the Pennsylvania Workers’ Compensation Landscape changed on
March 24, 2023, when the Pennsylvania Commonwealth Court held that when a Workers’
Compensation Judge finds the use of medical marijuana causally related to a work injury, the
employer is required to reimburse the claimant for out-of-pocket expenses for the medical
marijuana. The Court held that a workers’ compensation carrier may be required to reimburse
an injured claimant for medical marijuana treatment costs despite a provision in the Medical
Marijuana Act stating that nothing in the Medical Marijuana Act should be construed to require
an insurer or health plan to provide coverage for medical marijuana.

In these separate cases, injured employees began using medical marijuana to treat the pain
associated with work related injuries. The Commonwealth Court analyzed §2102 of the Medical
Marijuana Act-which provides that nothing in the Medical Marijuana Act shall be construed to
require an insurer or health plan to provide coverage for medical marijuana-and found that the
word coverage referred to an insurer paying a provider directly for the medical service.

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Keim v. PMC Pinnacle Hospitals – Cmwlth. Ct. of Pa. – December 12, 2022

Issue: Whether the WCJ erroneously concluded that the payment of medical expenses under
a Medical Only NCP does not toll the statute of limitations under §315 and §413(a) of the WC
Act.

Background: The claimant was injured on April 4, 2017, while in the course and scope of her
employment. The employer issued a medical only Notice of Temporary Compensation
Payable. This means that the employer was accepting responsibility for medical but was not
agreeing that the claimant was disabled.

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JJ White, Inc. v. Kader Yahawi (WCAB) – Cmwlth. Ct. of PA – December 2, 2022

Issues: Whether the Board improperly concluded that claimant provided adequate and timely
notice under the Act and whether the claimant voluntarily retired.

Background: Claimant was injured while lifting a bucket out of a hole, immediately feeling
pain in his lower left side and back. The claimant stopped working and reported the injury to
his union shop steward the same day. Claimant filed a petition alleging that he sustained a
work injury. Employer argued that claimant did not satisfy the notice requirements of §313 of
the Act as he only reported his injury to the shop steward who never reported the alleged work
injury to employer.

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Wayne Deloatch v. WCAB (City of Philadelphia). – No. 1684 C.D. 2018 – January 3, 2020

Claimant worked as a firefighter for the defendant from December 12, 1988 until November 1, 2008. He was diagnosed with lung cancer in 2011. In December 2012 he filed a claim alleging he suffered from non–sma11 cell lung cancer resulting from direct exposure to International Agency for Research on Cancer Group 1 Carcinogens.

During his career he worked at three fire stations, none of which had diesel-fuel-emission capture systems. During each shift the trucks in the station were run for 20 minutes at the beginning and end of each shift. Ceilings and walls were covered with soot and grime. Also, during his tenure he was involved in fighting 200-300 fires of all types. He sometimes used aself-contained breathing apparatus, but not always. After each fire his body would be covered in soot, and he would find soot in his nasal passages up to a week later after a fire. He did have a 30-35 year smoking history.

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Pittsburgh Steelers Sports, Inc. v. WCAB (Trucks). – No. 1257 C.D. 2018 – January 3, 2020

A player injured in the NFL urged the Commonwealth Court of Pennsylvania to re-visit a precedent holding that professional football players are seasonal employees under a Workers’ Compensation law, arguing off-season obligations made his contract year round for purposes of determining how his Workers’ Compensation payments should be calculated.

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Burrell v. Streamlight, Inc. – 2019 Pa. Superior 335 – Filed November 7, 2019

Plaintiff was injured on the premises of Streamlight, Inc. when he fell during his work shift while disposing of trash in the trash compactor at defendant’s facility. Plaintiff was a temporary worker hired by Aerotek, Inc., a recruiting agency, and was placed by Aerotek to work for defendant as a temporary worker at Defendant’s facility. Plaintiff’s injury occurred in the course and scope of his employment and he received workers’ compensation benefits.

Plaintiff filed a negligence action against defendant alleging that his injuries were caused by a dangerous condition at defendant’s facility.

Defendant in its answer to the complaint pleaded an affirmative defense that it was immune from suit under the Workers’ Compensation Act because plaintiff was working as defendant’s employee or borrowed servant at the time of the accident.

Summary Judgment was granted to the defendant’s.

The test for whether a company is the workers’ employer under the borrowed employee doctrine is well established:

The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it. The entity possessing the right to control the manner of the performance of the servant’s work is the employer, irrespective of whether the control is actually exercised.

The plaintiff in this matter was hired by Aerotek but he worked under the control and supervision of the defendant. Defendant trained plaintiff, set his schedule and responded to questions regarding the performance of his duties. By contrast, Aerotek only handled payroll functions.

Plaintiff argued that he was not hired to perform trash duties. Therefore he was not a borrowed servant for that purpose. That argument was rejected because plaintiff was either asked to do it or volunteered to do it. He had done it on numerous occasions.

Since the plaintiff qualified as a borrowed servant, the defendant was immune from liability for negligence because he had already received benefits under the Workers’ Compensation Act.

Motor Vehicle Accidents

City worker catapulted from bucket truck — settlement of $1.65 million

Pedestrian, respiratory therapist struck in crosswalk — settlement of $750,000

Recent Actions:

Edenfield v. ECM Energy Services, Inc., and AdTrak 360, LLC, et al

2023 Pa Super 144

August 1, 2023

In this minority shareholder action, a panel of the Superior Court held that documents of a foreign corporation which are stored outside of Commonwealth are outside the jurisdiction of the courts to compel their discovery.

In October 2020, Appellant filed a formal demand for Appellees to produce their corporate records pursuant to 15 Pa.C.S. 1508 (permitting shareholder inspection of a business/corps records and books), as an alleged minority shareholder. Appellant claimed Appellees failed to sufficiently respond to his informal demand and filed a petition to compel their production in the Court of Common Pleas of Lycoming County.

After a hearing was held, the trial court found that Appellant was not a shareholder of Appellant ECM and as such denied the petition as to ECM, however, the court granted the petition as to AdTrak.

In response, AdTrak, which had ceased business operation in Pennsylvania in 2018 permanently closing its Pennsylvania office, produced documents form a cloud-based-service. Appellant contended that the document production was incomplete, and the trial court ordered discovery limited to the location and type of records being sought. It was determined that records were stored in a cloud without an established physical location. The trial court held that it lacked jurisdiction to compel the production or inspection of documents not stored in the Commonwealth.

Appellant appealed on several grounds, however, as to the jurisdictional reach of electronically stored documents in a cloud-based-service, a panel of the Superior Court affirmed the trial court’s finding.

In so holding, the panel looked to the trial court’s reasoning that “electronic records of a corporation doing business in Pennsylvania cannot be compelled for production under 15 Pa.C.S. 1508 if [the hard copies] are not also located in the Commonwealth.” Agreeing, the panel underscored the lack of ties AdTrak maintained with Pennsylvania as insufficient to compel the foreign business to produce the records: AdTrak was not incorporated in Pennsylvania, did not keep a principal place of business in Pennsylvania and was not registered to conduct business in Pennsylvania. Importantly, the panel concluded: “We highlight that the [trial court] did not conclude that the records were inherently out of reach to [Appellant] because they were stored virtually, but rather, the cloud-based records were not subject to inspection in Pennsylvania because the business lacked a sufficient link to Pennsylvania.”

Klar v. Dairy Farmers of America (DFA)

29 WAP 2022

August 22, 2023

In this Dram Shop case, the Pennsylvania Supreme Court upheld the holdings of the Superior Court and the trial court that the DFA could not be held liable for injuries caused by an intoxicated guest of one of their social events.

In August 2014, the DFA sponsored a golf outing for its employees. As a condition of attendance, DFA required employees to provide a monetary contribution to offset costs associated with the event including alcohol. On of its employees made the contribution and at the event drank beyond the point of visible intoxication. After the event, the employee collided with Appellant, causing Appellant serious injuries.

Appellant sued both the employee and DFA, maintaining negligence per se in violation of the Dram Shop Act and common law negligence causes of action against DFA. DFA subsequently filed for judgment on the pleadings, which the trial court granted. In dismissing the causes of action against DFA, the trial court held that DFA was not a licensee and therefore not liable under the Dram Shop Act, pursuant to the Supreme Court’s holding in Manning v. Andy, 310 A.2d 75 (Pa. 1973)(only licensed persons engage in the sale of intoxicants have been held civilly liable to injured parties) and that DFA was not subject to common-law liability for the actions of their guests under the Pennsylvania Supreme Court’s opinion in Klein v. Raysinger, 470 A.2d 507, 510 (Pa. 1983)(“in the case of an ordinary able bodied man it is the consumption of the alcohol, which is the proximate cause of any subsequent occurrence).

Appellant appealed to the Superior Court, a panel of which affirmed the trial court, and the Pennsylvania Supreme Court granted allocator as to whether the DFA was subject to liability under the Dram Shop Act and whether DFA breached a duty under a common law negligence analysis.

In upholding the Superior Court’s decision, our Supreme Court surveyed the Dram Shop Act and its case law progeny, concluding with its controlling decision in Manning. Though Appellant argued that the Dram Shop Act’s statutory language included a category of “any other person” furnishing alcohol to a visibly intoxicated person, which could include the DFA, the justices were not persuaded. Their review of the act concluded that the statute does not apply to anyone or everyone, but imposes obligations on any licensee or the board, or any employee servant or agent of the licensee. Additionally, the Supreme Court noted that in the 50 plus years the act has been in place, the legislature has never expanded its reach. Therefore, a negligence per se cause of action cannot be maintained against DFA under this theory.

In responding to Appellant’s attempt to hold DFA liable under a theory of common law negligence, the Supreme Court surveyed the history of common law negligence as it pertains to liability of “social hosts” in Pennsylvania and the country. Identifying jurisdictions that maintain liability against social hosts for the negligence of their intoxicated guests, the justices again were not persuaded. In affirming, the court looked to its Klein decision that “shut the door to social host liability” in Pennsylvania, focusing on the negligence element of proximate cause: In that, the proximate cause of injuries such as the one Appellant suffered are the result of the employee’s actions, not the employer’s. Further, utilizing the Althaus factors in establishing common law duties, the Court concluded that expanding civil liability to all social hosts in the Commonwealth would be significant, widespread, and unpredictable.