J-A05031-15

2015 PA Super 71

CHRISTOPHER JUSZCZYSZYN, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

OBAFEMI SIMEON TAIWO, 

INDIVIDUALLY AND D/B/A LID’S 

LOUNGE A/K/A LID’S BAR AND LOUNGE 

A/K/A LID’S BAR N LOUNGE AND 

LOUNGE 62 AND CST ENTERTAINMENT, 

INC., INDIVIDUALLY AND D/B/A LID’S 

LOUNGE A/K/A LID’S BAR AND LOUNGE 

A/K/A LID’S BAR N LOUNGE AND 

LOUNGE 62,

Appellees No. 2252 EDA 2014

Appeal from the Order Entered June 19, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 140401076

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

OPINION BY SHOGAN, J.: FILED APRIL 10, 2015

Appellant, Christopher Juszczyszyn, appeals from the order entered on 

June 19, 2014, that sustained the preliminary objections in the nature of a 

demurrer filed by Obafemi Simeon Taiwo, individually and doing business as 

Lid’s Lounge, also known as Lid’s Bar and Lounge, also known as Lid’s Bar N 

Lounge and Lounge 62, and CST Entertainment, Inc., individually and doing 

business as Lid’s Lounge, also known as Lid’s Bar and Lounge, also known as 

Lid’s Bar N Lounge and Lounge 62 (collectively “Appellees”), and dismissed 

Appellant’s complaint with prejudice. We affirm.
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The facts underlying the instant case are straightforward. On April 20, 

2012, Appellant, in his capacity as a Philadelphia Police Officer, responded to 

a disturbance call regarding an unruly patron inside Lid’s Lounge. 

Complaint, 4/11/14, at ¶¶ 1, 20. While attempting to intervene in the 

disturbance at the bar, Appellant encountered an intoxicated patron who was 

groping female patrons, drinking other people’s drinks, and being physically 

confrontational. Id., at ¶ 20. This patron allegedly assaulted Appellant 

causing Appellant to suffer injuries. Id., at ¶ 24. As a result of sustaining 

these injuries on Appellees’ premises, Appellant filed a complaint against 

Appellees in which he alleged negligence and Dram Shop Act1liability. Id., 

at Count I and Count II. In response, Appellees filed preliminary objections 

in the nature of a demurrer. On June 19, 2014, the trial court sustained 

Appellees’ preliminary objections and dismissed Appellant’s complaint with 

prejudice. This timely appeal followed. 

On appeal, Appellant raises the following issue for this Court’s 

consideration:

Whether [the] trial court erred in sustaining Appellee’s 

preliminary objections to the complaint and dismissing the 

complaint with prejudice without any opportunity for leave to 

amend?

____________________________________________

1

 Dram Shop Act, 47 P.S. §§ 4-493, 4-497, which among other things, 

prohibits liquor-selling establishments from serving alcohol to visibly 

intoxicated persons.
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Appellant’s Brief at 3 (full capitalization omitted).2

“The question presented in a demurrer is whether, on the facts 

averred, ‘the law says with certainty that no recovery is possible.’” Bruno 

v. Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014) (quoting MacElree v. 

Philadelphia Newspapers, Inc., 674 A.2d 1050, 1054 (Pa. 1996)). “If 

doubt exists concerning whether the demurrer should be sustained, then 

‘this doubt should be resolved in favor of overruling it.’” Id. (quoting Bilt–

Rite Contractors v. Architectural Studio, 866 A.2d 270, 274 (Pa. 2005)).

A demurrer by a defendant admits all relevant facts sufficiently 

pleaded in the complaint and all inferences fairly deducible 

therefrom, but not conclusions of law or unjustified inferences. 

In ruling on a demurrer, the court may consider only such 

____________________________________________

2

 We direct Appellant’s attention to Pa.R.A.P. 2116, which reads in relevant 

part as follows:

The statement of the questions involved must state concisely the 

issues to be resolved, expressed in the terms and circumstances 

of the case but without unnecessary detail. The statement will be 

deemed to include every subsidiary question fairly comprised 

therein. No question will be considered unless it is stated 

in the statement of questions involved or is fairly 

suggested thereby. 

Pa.R.A.P. 2116 (emphasis added). Appellant’s general claim of trial court 

error fails to identify the grounds upon which Appellant believes the trial 

court erred. We could conclude that Appellant’s vague claim of error waived 

his specific issues. Southcentral Employment Corp. v. Birmingham Fire 

Ins. Co. of Pennsylvania, 926 A.2d 977, 983 n.5 (Pa. Super. 2007). 

However, because the argument portion of Appellant’s brief narrows the 

issues, we find that our review of this matter is not significantly 

handicapped, and we shall address the issues as presented in the argument 

portion of the brief. 
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matters as arise out of the complaint itself; it cannot supply a 

fact missing in the complaint.

Consequently, preliminary objections should be sustained only if, 

assuming the averments of the complaint to be true, the plaintiff 

has failed to assert a legally cognizable cause of action. Where 

the complaint fails to set forth a valid cause of action, a 

preliminary objection in the nature of a demurrer is properly 

sustained.

Mikhail v. Pennsylvania Organization for Women in Early Recovery, 

63 A.3d 313, 316 (Pa. Super. 2013) (citation omitted). Our standard of 

review of a lower court’s decision granting a demurrer is de novo. Bruno, 

106 A.3d at 56 (citation omitted).

Additionally, with respect to Appellant’s argument concerning the 

ability to amend his complaint, our Court has stated:

Even where a trial court sustains preliminary objections on their 

merits, it is generally an abuse of discretion to dismiss a 

complaint without leave to amend. There may, of course, be 

cases where it is clear that amendment is impossible and where 

to extend leave to amend would be futile .... However, the right 

to amend should not be withheld where there is some 

reasonable possibility that amendment can be accomplished 

successfully. In the event a demurrer is sustained because a 

complaint is defective in stating a cause of action, if it is evident 

that the pleading can be cured by amendment, a court may not 

enter a final judgment, but must give the pleader an opportunity 

to file an amended pleading....

In re Estate of Luongo, 823 A.2d 942, 969 (Pa. Super. 2003) (citation and 

quotation marks omitted). “Nevertheless, a defective pleading that cannot 

be cured by amendment is appropriately dismissed upon a demurrer.” Id. 

(citation omitted).
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Appellant first argues that the trial court erred in relying on Holpp v. 

Fez, Inc., 656 A.2d 147 (Pa. Super. 1995), as support for its conclusion 

that Appellant was a licensee as opposed to a business invitee. Appellant’s 

Brief at 8. We disagree.

Generally, in premises liability cases, the determination of whether an 

individual is an invitee, licensee, or trespasser is a question of fact for the 

jury. Palange v. City of Philadelphia, Law Dept., 640 A.2d 1305, 1307 

(Pa. Super. 1994). An invitee is either a public invitee or a business visitor. 

Id. (citing Restatement (Second) of Torts § 332 (1965)). A public invitee is 

a person who is invited to enter or remain on land as a member of the public 

for a purpose for which the land is held open to the public, and a business 

visitor is a person who is invited to enter or remain on land for a purpose 

directly or indirectly connected with business dealings with the possessor of 

the land. Id. (citing Restatement (Second) of Torts § 332 (1965)). 

Conversely, the Restatement defines a “licensee” as “a person who is 

privileged to enter or remain on land only by virtue of the possessor’s 

consent.” Id. (quoting Restatement (Second) of Torts § 330 (1965)). 

In Holpp, we analyzed a police officer’s status as a licensee or invitee 

in conjunction with a discussion of the police officer’s status as a firstresponder under what is termed the “fireman’s rule.”3

 We noted that while 

____________________________________________

3

 The fireman’s rule provides that a police officer or fire fighter who enters a 

premises belonging to another in connection with his or her official duties 

(Footnote Continued Next Page)
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the fireman’s rule has not been formally adopted in Pennsylvania, a police 

officer who enters upon another’s land in his or her official capacity and in 

response to a call for assistance is generally considered a licensee. Holpp, 

656 A.2d at 149 (citing Mull v. Kerstetter, 540 A.2d 951 at 952-953).4 “In 

such situations, the land owner’s duty is to warn the licensee of dangerous 

hidden conditions.” Id. (citing Mull, 540 at 953). Nevertheless, “[e]ven if a 

police officer enters another’s land as an invitee, ... the possessor of the land 

does not become an insurer of the officer’s safety.” Id. (citation omitted). 

The possessor’s duty is only to use reasonable care to protect his or her 

invitees from unknown or nonobvious dangers. Id. (citation omitted). 

In addressing a nearly identical factual scenario to the one at bar, this 

Court in Holpp stated as follows: 

Here, Officer Holpp had been called to the appellee’s 

establishment to quell a disturbance. He agreed to return at a 

later time to provide further assistance if necessary. When he 

returned, he was acting in his official capacity, was aware 

of the potential for violence among patrons who had been 

(Footnote Continued) _______________________

assumes certain risks and cannot recover from the possessor of land for 

subsequent injuries. Holpp, 656 A.2d at 149 (citing Mull, 540 A.2d at 952-

953).

 

4

 We note with approval a discussion on the fireman’s rule coming from the 

Union County Court of Common Pleas nearly thirty years ago, which 

acknowledged that, despite not formally adopting the fireman’s rule, “courts 

almost universally recognize that neither a fireman nor a policeman can 

recover when their complaint is based on the same conduct that initially 

created the need for the officer’s presence in his official capacity.” Trudnak 

v. Lilley, 44 Pa. D. & C.3d 493, 498, 1986 WL 20812 (C.P. Union County 

1986).
J-A05031-15

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consuming alcoholic beverages, and was conscious of the 

attendant risks. Under such circumstances, whether Holpp 

be considered an invitee or a licensee, the trial court 

could conclude, as a matter of law, that appellee had 

breached no duty to Officer Holpp.

Holpp, 656 A.2d at 149 (emphasis added).

After careful review, we conclude that the rationale in Holpp forestalls 

Appellant from sustaining a legally cognizable cause of action. We are 

satisfied that the decision in Holpp established that under the circumstances 

presented in the instant case, Appellant, a police officer who was responding 

to a call and in the performance of his duties, was a licensee, and Appellees 

were required only to warn Appellant of dangerous hidden conditions. 

Moreover, even if we were to accept Appellant’s argument that he was an 

invitee, or could upon amendment of his complaint establish that he was an 

invitee, Appellees would have been bound to only use reasonable care to 

protect Appellant from unknown or nonobvious dangers. The complaint 

reveals that Appellant was responding to a disturbance call at a bar where 

the perpetrator was groping female patrons, drinking other people’s drinks, 

and being physically confrontational. Complaint, 4/11/14, at ¶19. Thus, 

when Appellant arrived at Appellees’ establishment, encountering an 

intoxicated and physically confrontational individual was an obvious and 

known risk. No amendment to Appellant’s complaint would have altered this 

fact. 

Accordingly, this matter falls under the general rule that Appellant, as 

a police officer, was a licensee, and therefore, is not entitled to recover 
J-A05031-15

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damages under the facts of this case as he cannot establish a breach of a 

duty in his negligence claim. Additionally, any amendment to the complaint 

on this issue would have been futile, and we discern no error of law or abuse 

of discretion in the trial court’s decision to grant the preliminary objections 

and deny an opportunity to amend the complaint. 

In his second issue on appeal, Appellant claims that the trial court 

erred in dismissing count two of his complaint concerning Dram Shop Act 

liability. Appellant’s Brief at 12. Appellant argues that the trial court erred

in concluding that he failed to plead a statute or a causal nexus between 

Appellees providing alcohol and Appellant’s injuries. Id. After review of the 

record, we affirm; however, we do so for a reason other than that cited by 

the trial court.5

The Pennsylvania Dram Shop Act provides in relevant part as follows:

§ 4-493 Unlawful Act relative to liquor, malt and brewed 

beverages

* * *

(1) It shall be unlawful for any licensee or the board, or any 

employee, servant or agent of such licensee or of the board, or 

any other person, to sell, furnish or give any liquor or malt or 

brewed beverages to be sold, furnished or given, to any person 

visibly intoxicated ...

* * *

____________________________________________

5

 It is well settled that we may affirm the decision of the trial court on any 

valid basis appearing of record. Louis Dreyfus Commodities Suisse SA 

v. Financial Software Systems, Inc., 99 A.3d 79, 82 (Pa. Super. 2014).
J-A05031-15

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§ 4-497 Liability of licensee

No licensee shall be liable to third persons on account of 

damages inflicted upon them off of the licensed premises by 

customers of the licensee unless the customer who inflicts the 

damages was sold, furnished or given liquor or malt or brewed 

beverages by the said licensee or his agent, servant or employee 

when the said customer was visibly intoxicated.

47 P.S. §§ 4-493(1), 4-497. A violation of the Dram Shop Act is deemed 

negligence per se. Johnson v. Harris, 615 A.2d 771, 775 (Pa. Super. 

1992) (citation omitted).

However, before liability may be imposed on the liquor-license holder 

(“liquor licensee”),6the petitioner must establish that he or she is part of the 

protected class the statute is designed to safeguard. See McCloud v. 

McLaughlin, 837 A.2d 541, 545 (Pa. Super. 2003) (stating that before an 

individual can be held negligent per se, his violation of the statute must 

cause the kind of harm the statute was intended to avoid and cause that 

harm to a person within the class of persons the statute was intended to 

protect) (citation omitted). Here, the Dram Shop Act’s purpose is “to protect 

an individual’s rights from the harm caused by the negligent service of 

alcohol.” Zygmuntowicz v. Hospitality Investments, Inc., 828 F.Supp. 

____________________________________________

6

 We use the term “liquor licensee” to distinguish a licensee under the Dram 

Shop Act from a licensee in the premises liability context we addressed in 

Appellant’s first issue.
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346, 349 (E.D. Pa. 1993).7 “Specifically, Pennsylvania purports to protect 

society in general and the intoxicated persons themselves from their inability 

to exercise due care.” Id. (citing Schelin v. Goldberg, 146 A.2d 648, 652 

(Pa. Super. 1958), Majors v. Brodhead Hotel, 205 A.2d 873, 875 (Pa. 

1965)). 

Appellees offer the following cogent argument with respect to the class 

of persons the Dram Shop Act is designed to protect:

While Pennsylvania courts do recognize that a violation of 

47 P.S. §4-497 is negligence per se, it does not appear that this 

Court or any other Court has ever recognized what class of 

persons the statu[t]e it is meant to protect. As stated by §4-

497, the statu[t]e clearly attempts to protect third persons from 

harm caused off the [liquor] licensee’s premises by customers of 

a [liquor] licensee [who were] served while visibly intoxicated. 

See 47 P.S. §4-497.3 However, Appellees submit that a police 

officer responding to a call of an “unruly patron” [who] was 

allegedly served while visibly intoxicated is not the class of 

persons the statute seeks to protect, and, therefore, [Appellant] 

cannot make a negligence per se claim against [Appellees].4 

This is especially true when the police officer is aware of the 

potential intoxication and dangers presented by the unruly 

patron, and then knowingly confronts such an individual. To 

establish such liability would violate public policy, given the fact 

that it is accepted that restraining and subduing intoxicated 

individuals is part of a police officer’s job, and given the fact that 

businesses and citizens must often seek the assistance of the 

police, knowing that such assistance might place the police in 

harm’s way.

____________________________________________

7

 While we are not bound by decisions of the federal courts, we may rely on 

them as persuasive authority. McEwing v. Lititz Mut. Ins. Co., 77 A.3d 

639, 648 n.7 (Pa. Super. 2013). We are persuaded that the 

Zygmuntowicz decision succinctly summarizes the purpose of 

Pennsylvania’s Dram Shop Act.
J-A05031-15

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3

 It is clear that most citizens of the Commonwealth 

are a protected class. The most common “Dram 

Shop” claim typically involves an intoxicated person 

that leaves a bar and then injures a third person 

during a motor vehicle accident. In these incidents, 

the citizen is typically unaware of the person[’]s 

intoxicated state, and has not confronted or 

intentionally engaged the intoxicated person in any 

way.

4

 Appellee understands that there may be times a 

police officer may be part of the protected class, i.e.

if he/she is struck by an intoxicated person while in a 

patrol car. However, when the facts are presented 

for a Dram Shop claim as here, and a police officer is 

fully aware of the potential risks posed by the 

allegedly intoxicated patron, and the officer engages 

that patron in the performance of his/her duties, as a 

police officer, that police officer does not come within 

[the] statute.

As mentioned, to now claim a right to recover for being 

injured while performing his duties as an officer could open the 

gates for a flood of claims by police officers on businesses and 

the citizens of the Commonwealth. [Appellees] needed the 

police officer’s assistance because of an unruly patron. Appellant 

voluntarily chose to preserve the public peace and “prevent and 

detect crime” as part of his official duty as a police officer. The 

citizens and businesses of the Commonwealth should not have to 

think twice about seeking the aid of its police when a need 

arises.

Appellees’ Brief at 20-21. After careful review, we agree with the rationale 

posited by Appellees in support of affirmance on this issue. 

In determining whether a police officer acting in his official capacity is 

within the class of individuals the Dram Shop Act was designed to protect, 

we first look to the function of police officers. The Philadelphia Home Rule 

Charter provides as follows:

§ 5.5-200. Functions
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The Police Department shall have the power and its duty 

shall be to perform the following functions:

(a) Law Enforcement. It shall preserve the public peace, 

prevent and detect crime, police the streets and highways and 

enforce traffic statutes, ordinances and regulations relating 

thereto. The Department shall at all times aid in the 

administration and enforcement within the City of the statutes of 

the Commonwealth of Pennsylvania and the ordinances of the 

City.

351 Pa. Code § 5.5-200(a) (emphasis added).

Therefore, it is axiomatic that a police officer, as distinguished from a 

non-police officer, is duty-bound to preserve the public peace, which, inter

alia, includes responding to calls of disturbances in liquor-serving 

establishments. In the instant case, Appellant, in his capacity as a 

Philadelphia Police Officer, responded to a disturbance call, and while 

performing his duties, he encountered and was compelled to physically 

engage an allegedly intoxicated individual. This is part of a police officer’s 

duty. Moreover, a liquor licensee should not have to first reflect on 

insurance-claim exposure when requesting police assistance. The Iowa 

Supreme Court addressed a similar scenario and aptly discussed the class of 

persons its Dram Shop Act is designed to protect as follows:

While we do not wish to hold that police officers would never be 

within the class of persons our statute was designed to protect, 

we do conclude officers are not protected when the violation of 

the dram shop statute is also the act that created need for the 

officers’ presence. In those circumstances, the officers are 

functioning as part of the mechanism erected by the State to 

protect the public against the vagaries of an intoxicated person 

and, as such, are not within the purview of the statute. 

Additionally, the public policy concerns we noted earlier are just 

as valid in a dram shop action as they are in actions for ordinary 

negligence. On the other hand, if an officer was injured by an 
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intoxicated patron when he was performing a law enforcement 

activity unrelated to a violation of the statute, the public policy 

concerns we voiced would not be offended by permitting liability 

and he would be protected under the act.

Pottebaum v. Hinds, 347 N.W.2d 642, 647-648 (Iowa 1984).8,9 We 

conclude that the same is true here.

Under the facts of our case, we conclude that Appellant was not within 

the class of individuals that the Dram Shop Act was designed to protect.10 

Accordingly, the trial court did not err or abuse its discretion in sustaining 

the demurrer and denying Appellant the opportunity to amend his complaint 

as no recovery was possible.

____________________________________________

8

 We recognize that Pottebaum is a non-binding opinion from the Iowa 

Supreme Court dealing with Iowa’s decision to adopt the fireman’s rule and 

Iowa’s Dram Shop Statute. However, the language cited above succinctly 

illustrates the logic behind excluding police and firefighters from the class of 

people the Pennsylvania Dram Shop Act is designed to protect and the 

exception to that very conclusion. Accordingly, we cite Pottebaum only for 

its explanation of the limitations on the scope of Iowa’s Dram Shop Statute, 

as we are persuaded that it is instructive here. 

 

9

 The purpose of Iowa’s Dram Shop Act is nearly identical to Pennsylvania’s 

Dram Shop Act. See Smith v. Shagnasty's Inc., 688 N.W.2d 67, 72 (Iowa 

2004) (Iowa's Dram Shop statute provides a remedy against a licensee for 

injuries sustained as a result of the sale and service of alcohol to an 

intoxicated person); Iowa Code § 123.92.

10

 This does not mean, however, that a police officer can never bring a 

claim and recover damages under a Dram Shop Act theory of liability. As 

Appellees pointed out, one such situation where an officer could be within 

the class of citizens protected by the Dram Shop Act is where a police officer 

is struck by an automobile driven by an intoxicated person who was served 

alcohol by a liquor licensee while intoxicated.
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For the reasons set forth above, any negligence which may have 

occurred resulting from Appellees’ agents serving alcohol to an allegedly 

intoxicated individual does not result in liability to Appellant on the part of 

Appellees. McCloud, 837 A.2d at 545. Moreover, in light of our conclusion 

that under the circumstances presented here, Appellant is not in the class of 

citizens protected by the Dram Shop Act, amendment of his complaint would 

be futile. Luongo, 823 A.2d 969. Therefore, we conclude that Appellant is 

entitled to no relief. Accordingly, we affirm the order sustaining Appellees’ 

preliminary objections in the nature of a demurrer.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015