J-A17036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANK LOMUSCIO 

Appellant

v.

SONYA COLE, AS EXECUTRIX OF THE 

ESTATE OF HORACE COLE, SONYA 

COLE, ELY-OR THACKER, AHMED 

MOUSTAFA, SHERWIN JENNINGS, 

ANDREW TORREGROSSA AND 

ANDREW GLEASON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 566 EDA 2022

Appeal from the Order Entered January 26, 2022

In the Court of Common Pleas of Monroe County Civil Division at No(s): 

004719-CV-2016

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 6, 2022

Appellant, Frank Lomuscio (Plaintiff), appeals from the grant of 

summary judgment in favor of five defendants in a personal injury negligence 

action that he brought for injuries suffered as a result of a violent assault 

committed by third parties. For the reasons set forth below, we affirm the 

trial court's orders granting summary judgment in favor of three of the 

defendants, but reverse the summary judgments in favor of the other two 

defendants on the ground that the record showed genuine disputes of material 

fact with respect to their liability to Plaintiff.

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* Retired Senior Judge assigned to the Superior Court.
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On July 6, 2014, Plaintiff was attacked and severely beaten at a party 

at a rented residence at 59 Prospect Street, East Stroudsburg, Pennsylvania 

(the Property). On July 5, 2016, Plaintiff brought this action in the Court of 

Common Pleas of Monroe County (trial court) against Horace S. Cole1 and 

Sonya K. Cole (the Coles), who were the owners of the Property, and five 

other individuals, Ely-Or Thacker, Ahmed Moustafa, Sherwin Jennings, Andrew 

Torregrossa, and Andrew Gleason. Plaintiff averred in his complaint that the 

Coles leased the Property to Thacker, Moustafa, and Jennings and that 

Torregrossa and Gleason also resided at the Property. Complaint ¶¶2, 9-10. 

Plaintiff averred that on July 6, 2014, he attended a party at the Property 

hosted by Thacker, Moustafa, Jennings, Torregrossa, and Gleason at which 

those defendants served alcohol without checking the age of the guests. Id.

¶¶12-16. Plaintiff averred that while he was attending the party, he was 

punched, kicked, stomped and struck in the head by a group of individuals at 

the party who are not defendants in this action. Id. ¶¶17-21. Plaintiff 

asserted negligence claims seeking damages for the severe brain injuries that 

he suffered in the attack based on contentions that the Coles breached a duty 

to him as owners and landlords of the Property and that Thacker, Moustafa, 

Jennings, Torregrossa, and Gleason breached a duty to him as hosts of the 

party and possessors of the Property. Id. ¶¶32-42. In March 2018, Thacker 

____________________________________________

1 Horace S. Cole died in 2021, prior to this appeal, and Sonya K. Cole, as 

Executrix for Horace S. Cole, was substituted for him as a defendant.
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joined another tenant of the Property, Christopher Simon, as an additional 

defendant.

Following discovery, the Coles, Thacker, Moustafa, Torregrossa, and 

Gleason filed motions for summary judgment supported by deposition 

testimony and documents. Plaintiff opposed the summary judgment motions 

and submitted deposition testimony, documents, and expert reports on 

liability and damages. The depositions and documents submitted by the 

parties in support of and in opposition to the summary judgment motions,

viewed in the light most favorable to Plaintiff, show the following facts. 

The Coles owned the Property and leased it to Thacker and Moustafa, 

for the one-year period from October 2013 to October 2014 under a residential 

lease that prohibited operating any business on the Property. Lease; Thacker 

Dep. 16, 26, 54-55; H. Cole Dep. 10-11, 14-16, 53. Jennings was originally 

on the lease, but Simon was later substituted as a tenant. Lease; H. Cole 

Dep. 15-16, 60-61. In July 2014, Thacker, who was a college student at East 

Stroudsburg University, was living at the Property as a lessee, Gleason was 

living at the Property, and Torregrossa often stayed at the Property overnight. 

Thacker Dep. 16, 26, 54-55; Gleason Dep. 12; Munch Dep. 7-10 & Palmer Ex. 

1 at 10; Torregrossa Dep. 18, 38. The occupants of the Property frequently 

held parties at the Property. Gleason Dep. 45, 53; Torregrossa Dep. 50, 65. 

On the night of July 5, 2014 to July 6, 2014, a party was held at the 

Property at which a $5 entry fee was charged to partygoers and, in exchange 
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for this payment, partygoers received a red cup for alcohol and were admitted

into the party. Miller Dep. 10-14, 24-26, 61, 64. Thacker, Torregrossa, and 

Gleason were all present at the Property and participated in hosting or 

assisting with the party. Thacker Dep. 16-21, 28; Torregrossa Dep. 13-16; 

Gleason Dep. 8-10, 16-17, 26-27, 40-43, 64. The partygoers were provided 

with “a tub of jungle juice,” which a witness described as “a bunch of alcohol 

mixed together,” and a keg of beer, and Thacker, Torregrossa, and Gleason 

did not check whether partygoers were old enough to drink alcohol. Miller 

Dep. 22-25, 37; Gleason Dep. 47-48; Torregrossa Dep. 27-28, 87-88. 

The party began at around 9:00 p.m. on July 5, 2014. Gleason Dep. 

17; Torregrossa Dep. 13-14. The partygoers learned about the party by word 

of mouth from people they knew. Gleason Dep. 74; Torregrossa Dep. 13-14; 

Plaintiff Dep. 42-43, 46; Miller Dep. 10-11, 38, 46. Some of the partygoers

did not know Thacker or anyone else who was hosting the party. Miller Dep. 

11, 25, 30-31, 38-39; Gleason Dep. 8-9. Plaintiff, who was over the age of 

21, arrived at the party with friends of his around 10:00 or 10:30 p.m. Plaintiff 

Dep. 15; Miller Dep. 10-12, 15. There were as many as 20-30 people at the 

party and noise from the party could be heard outside. Miller Dep. 42-43.

At around 2:00 a.m. on July 6, 2014, a group of 10 or more individuals 

arrived at the Property, saying that there was a party and that they wanted 

to come in. Thacker Dep. 16-21, 34, 39; Miller Dep. 27-28, 39; Gleason Dep. 

20-22, 26, 64; Torregrossa Dep. 14, 23-25. The people at the door who were 
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collecting the entry charge told the group that they had to pay to get in and 

the group argued that they were not drinking and that they were not going to 

pay. Miller Dep. 13, 19, 21, 25-26. The group, however, came into the party

and subsequently began beating up the hosts and other partygoers, including 

Plaintiff. Thacker Dep. 17-21, 34-38, 45, 50-51, 61-62; Torregrossa Dep. 14-

16, 34; Gleason Dep. 9, 22-25, 37-42; Miller Dep. 26-28, 48-49. Plaintiff 

suffered brain injuries from the attack and does not remember the attack. 

Plaintiff Dep. 12, 19, 60, 63, 70.

On July 24, 2019, the trial court granted the motions for summary 

judgment. Trial Court Orders, 7/24/19. The trial court held that the Coles 

could not be liable to Plaintiff because they were landlords out of possession 

and Plaintiff’s claims did not fall within any exception to the general rule that 

landlords out of possession are not liable for injuries to non-tenants and 

because Plaintiff proffered no evidence of any agreement or undertaking by 

the Coles to provide security. Trial Court Opinion, 9/30/19, at 4-7; Trial Court 

Opinion, 6/2/20, at 9-11. The trial court held that Thacker, Moustafa, 

Torregrossa, and Gleason could not be liable to Plaintiff because Plaintiff was 

a licensee and possessors of land do not owe licensees a duty to protect them 

from crimes committed by third parties and because there was no evidence 

that any serving of alcohol to minors caused the assault. Trial Court Opinion, 

9/30/19, at 2-4; Trial Court Opinion, 6/2/20, at 6-8. The trial court also held 

that Moustafa, Torregrossa, and Gleason could not be liable to Plaintiff on the 
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grounds that Torregrossa and Gleason were only occasional overnight visitors 

who did not reside at the Property and that there was no evidence that 

Moustafa resided at the Property or was paying rent for it in 2014. Trial Court 

Opinion, 6/2/20, at 5-6. 

Plaintiff appealed the summary judgments in favor of these six 

defendants on August 19, 2019, but this Court quashed that appeal on October 

25, 2019 as interlocutory because “[c]laims have not been adjudicated as to 

all parties.” 2503 EDA 2019 Order. On February 11, 2020, the trial court 

entered an order discontinuing the action as to defendant Jennings, Trial Court 

Order, 2/11/20, and Plaintiff again appealed on March 11, 2020. On October 

30, 2020, this Court quashed this second appeal as interlocutory on the 

grounds there was still no final order because the claims against additional 

defendant Simon remained unresolved and the trial court had not validly 

certified its summary judgment orders as final under Pa.R.A.P. 341(c). 

Lomuscio v. Cole, No. 950 EDA 2020, at 10-15 (Pa. Super. filed Oct. 30, 

2020) (unpublished memorandum). On January 26, 2022, the trial court 

entered an opinion and order certifying the summary judgments as a final 

order under Pa.R.A.P. 341(c) and ruling that the only clams that could exist 

against additional defendant Simon were for contribution or indemnity to 
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defendants if they were liable to Plaintiff. Trial Court Opinion and Order, 

1/26/22. Plaintiff timely appealed on February 17, 2022.2

In this appeal, Plaintiff challenges both the trial court’s orders granting 

summary judgment in favor of Thacker, Torregrossa, and Gleason and its 

summary judgment in favor of the Coles.

3 Our standard of review of the trial 

court’s grant of summary judgment is de novo and our scope of review is 

plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011); 

American Southern Insurance Co. v. Halbert, 203 A.3d 223, 226 (Pa. 

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2 An application for a Rule 341(c) determination of finality must be made 

within 30 days of entry of the order that it makes final and cannot be granted 

more than 30 days after the application is filed. Pa.R.A.P. 341(c)(1), (2).

Because the January 26, 2022 order was issued more than two years after the 

July 24, 2019 summary judgment orders, its Rule 341(c) determination of 

finality therefore cannot make those summary judgment orders final and 

appealable. This appeal, however, is properly before us because the January 

26, 2022 order made the summary judgment orders final by its ruling that 

any direct claim by Plaintiff against additional defendant Simon was barred by 

the statute of limitations and that the only claims against him were claims of 

defendants for contribution or indemnity if they were held liable to Plaintiff. 

Trial Court Opinion and Order, 1/26/22, at 3 (holding that “Plaintiff has no 

direct cause of action against Additional Defendant Simon as a result of the 

bar imposed by the two year period limitation in this tort action” and that 

“[t]hus, there can be no trial in the absence of the original defendants”). 

Where a claim against an additional defendant is limited to contribution or 

indemnity if defendants are held liable to the plaintiff and the court has 

determined that none of the defendants are liable to the plaintiff, the claims

against the additional defendant are moot and do not prevent the dismissal of 

all other claims from being a final order. Oliver v. Ball, 136 A.3d 162, 166 

n.2 (Pa. Super. 2016). 

3 Plaintiff does not challenge the summary judgment in favor of Moustafa, who 

apparently settled with Plaintiff and received a joint tortfeasor release from 

Plaintiff in 2020. Moustafa No-Interest Letter.
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Super. 2019). Summary judgment is properly granted in favor of a defendant 

only where the material facts are undisputed and that defendant is entitled to 

judgment as a matter of law on those undisputed facts or where, after 

discovery, the plaintiff has failed to produce evidence of facts essential to his

cause of action against that defendant. Pa.R.C.P. 1035.2; Kibler v. Blue 

Knob Recreation, Inc., 184 A.3d 974, 978–79 (Pa. Super. 2018); Criswell 

v. Atlantic Richfield Co., 115 A.3d 906, 909 (Pa. Super. 2015). In 

determining whether there is a genuine dispute of material fact that precludes 

summary judgment or whether the plaintiff has produced sufficient evidence 

to support a cause of action, we must view the record in the light most 

favorable to the non-movant plaintiff and all doubts as to the existence of a 

genuine issue of material fact must be resolved against the defendant movant. 

Criswell, 115 A.3d at 908-09; Petrina v. Allied Glove Corp., 46 A.3d 795, 

798 (Pa. Super. 2012). Although summary judgment cannot be granted 

against a plaintiff based on the credibility of oral testimony other than the 

plaintiff’s admissions, oral testimony of witnesses other than the plaintiff may 

be considered in determining whether the plaintiff has produced sufficient 

evidence of the essential elements of his cause of action. Winwood v. 

Bregman, 788 A.2d 983, 985 (Pa. Super. 2001)

All of Plaintiff’s claims in this action were negligence claims. Plaintiff 

was therefore required to prove as to each defendant that the defendant owed 

him a duty, that the defendant breached that duty, that there was a causal 
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relationship between that breach of duty and his injury, and that he suffered 

actual loss. Koziar v. Rayner, 200 A.3d 513, 518-19 (Pa. Super. 2018); 

Collins v. Philadelphia Suburban Development Corp., 179 A.3d 69, 73 

(Pa. Super. 2018). Whether the defendant owes the plaintiff a duty is a 

question of law. Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 

221-22 (Pa. 2018); Baumbach v. Lafayette College, 272 A.3d 83, 89 (Pa. 

Super. 2022). We first address whether the trial court erred in granting 

summary judgment in favor of the occupants and alleged occupants of the 

Property, Thacker, Gleason, and Torregrossa, and then address Plaintiff’s

claims against the landlords, the Coles.

The Occupant Defendants

Plaintiff argues that the Thacker, Gleason, and Torregrossa were in 

possession of the Property and owed him a duty to protect against harm from 

third parties because he was an invitee, not a licensee. We agree that, viewing 

the evidence in the summary judgment record in the light most favorable to 

Plaintiff, the trial court erred in holding that defendants Thacker and Gleason 

did not owe Plaintiff a duty to protect against or warn him of the danger of 

criminal acts by third parties, but conclude that the evidence in the summary 

judgment record was insufficient to permit a finding that defendant 

Torregrossa owed Plaintiff such a duty. 

The evidence submitted on the motions for summary judgment was 

sufficient to support a finding that both Thacker and Gleason were possessors
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of the Property at the time of the July 2014 party and hosted the party. The 

was no dispute that Thacker was a lessee of the Property, was living there at 

the time of the party as lessee, and that he organized and hosted the party. 

Thacker Dep. 6, 26, 28, 46-47, 54-55; Torregrossa Dep. 13, 17; Gleason Dep. 

16-17; Lease; H. Cole Dep. 14-16. Although Gleason did not sign the lease 

and testified that he did not live at the Property and only sometimes stayed

there overnight, Lease; Gleason Dep. 9-10, both Torregrossa and Thacker 

testified that Gleason was living at the Property at the time of the party. 

Torregrossa Dep. 18, 38; Thacker Dep. 54-55. In addition, Gleason gave a 

statement to police on July 6, 2014, admissible against him under Pa.R.E. 

803(25), in which he said that “he lives at 59 Prospect Street with Ely-Or 

Thacker, Jonathan Saunders and Chris Simon” and that he “has been renting 

59 Prospect Street for about 1 year.” Munch Dep. 7-10 & Palmer Ex. 1 at 10. 

There were therefore genuine issues of material fact as to whether Gleason 

lived at and was paying rent for the Property that precluded granting summary 

judgment in Gleason’s favor on the ground that he did not live at the Property. 

The trial court also erred in holding that Thacker and Gleason owed 

Plaintiff no duty because Plaintiff was on the Property as a licensee, not as an 

invitee. The duty of a possessor of land to a person injured on his premises 

depends on whether the injured person is there as an invitee, a licensee, or a 

trespasser. Hackett v. Indian King Residents Association, 195 A.3d 248, 

251 (Pa. Super. 2018); Cresswell v. End, 831 A.2d 673, 675 (Pa. Super. 
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2003). A possessor of land who holds it open to the public for his business 

purposes owes a duty to his invitees to take security precautions to prevent 

harm from other persons if he knows or has reason to know of a likelihood 

that conduct of other persons will endanger his invitees. Reason v. 

Kathryn’s Korner Thrift Shop, 169 A.3d 96, 102-03 (Pa. Super. 2017); 

Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007); Rabutino v. 

Freedom State Realty Co., 809 A.2d 933, 939 (Pa. Super. 2002). A 

possessor of land does not owe licensees a duty to protect them from harm 

from other persons. T.A. v. Allen, 669 A.2d 360, 362–64 (Pa. Super. 1995)

(en banc).

A person is an invitee if he is invited to enter or remain on the premises 

as a member of the public for a purpose for which the land is held open to the 

public or if he is invited to enter or remain on premises for a purpose directly 

or indirectly connected with business dealings with the possessor of the 

premises. Hackett, 195 A.3d at 252; Reason, 169 A.3d at 102; Cresswell, 

831 A.2d at 675-76. A person who is privileged to enter or remain on the 

premises only by virtue of the possessor’s consent is a licensee. Hackett, 

195 A.3d at 251; Cresswell, 831 A.2d at 676; T.A., 669 A.2d at 363. Social 

guests of occupants, although they are invited to the premises by the 

occupants, are licensees of the occupants, not invitees. Davis v. McDowell 

National Bank, 180 A.2d 21, 24 (Pa. 1962); Hackett, 195 A.3d at 251-52. 

In contrast, guests at a party held at a hotel or motel are invitees of the hotel 
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or motel. Paliometros, 932 A.2d at 133=34; Rabutino, 809 A.2d at 939. A 

guest at a party to which the general public is invited and for which an 

admission fee is charged is also an invitee of the party organizers and the 

possessor of the premises where the party is held. Castellano v. Local 302 

International Association of Firefighters, 70 Pa. D.&C.4th 415, 420-25

(C.P. Lehigh Co. 2004) (partygoer who paid $7 admission fee to attend a party 

open to the general public was invitee).

Here, the record showed that Plaintiff and the other partygoers were 

charged an admission fee to attend the party and there is evidence from which 

a jury could find that the party was not limited to specific invited guests of the 

hosts, but was open to anyone who paid the fee, regardless of whether they 

knew the hosts. Miller Dep. 10-14, 24-26, 30-31, 38-39, 61, 64. Under those 

circumstances, a jury could find that Plaintiff was not a mere social guest that 

Thacker and Gleason had invited to their house, but was a member of the 

public to whom they held the Property open in exchange for a fee and that 

Thacker and Gleason sought and received a sufficient financial benefit from 

charging a fee to make partygoers like Plaintiff, who paid the fee, their 

invitees.

We recognize that this Court held in Klar v. Dairy Farmers of 

America, Inc., 268 A.3d 1115 (Pa. Super. 2021), appeal granted, 281 A.3d 

299 (Pa. 2022), that the charging of a fee at a social event to defray costs of 

the event did not change the defendant’s status as a social host. 268 A.3d at 
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1127-29. The issues there, however, were the very different questions of 

whether the fee made the defendant subject to the obligations of the Liquor 

Code or made the defendant liable at common law to third parties for injuries 

caused by its adult guests’ consumption of alcohol, not whether the guests 

were invitees of the defendant or whether the guests were on the premises 

for the defendant’s business purposes. Id. at 1119, 1122-29. Moreover, the 

event in Klar was restricted to the defendant’s employees and was not open 

to the general public. Id. at 1117-18. Klar is therefore distinguishable and 

does not require us to disregard the charging of a fee in determining whether 

Plaintiff was an invitee or a licensee when he attended the party.

In addition, there is evidence from which a jury could find that 

defendants Thacker and Gleason had reason to know of a likelihood that the 

party would attract persons who would commit crimes against the partygoers. 

There was evidence from the statements that Thacker and Gleason made to

the police, which are admissible against them under Pa.R.E. 803(25), that 

individuals that they believed to be gang members had come to a party or 

parties at the Property before the July 2014 party and committed crimes. 

Munch Dep. 7-10, 21, 73-74; Palmer Dep. 10, 12-13, 19; Palmer Ex. 1 at 9-

12. Gleason told police that he suspected that the people who attacked guests 

at the July 2014 party were gang members and that some of them had

“barged their way into” a party at the Property two to three weeks earlier and 

committed a theft. Munch Dep. 7-10; Palmer Ex. 1 at 10. Thacker told the 
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police that the attackers were gang members, that some of them had been to 

his parties on several past occasions and stolen from him, and that on the first 

of those prior occasions, in December 2013, one of the gang members had 

punched Torregrossa in the face “for no reason.” Munch Dep. 7-8, 21, 73-74; 

Palmer Dep. 10-13, 19; Palmer Ex. 1 at 9, 11-12. Because a jury could find 

from these statements that Thacker and Gleason knew before the July 2014 

party that their parties had been invaded by people that they believed to be 

dangerous, there was sufficient evidence that they had reason to know of a 

danger to support a duty to protect their partygoers from harm from such 

third parties by providing security, by calling the police earlier, or by warning

the partygoers of that danger. 

The record with respect to defendant Torregrossa, however, is 

significantly different. Not only was Torregrossa not a lessee of the Property,

Lease; H. Cole Dep. 59-61, but there was not sufficient evidence to support a 

finding that Torregrossa lived at the Property at the time of the July 2014 

party or was responsible for the Property at that time. Torregrossa testified 

that he only stayed over at the Property frequently and did not live there or 

pay rent. Torregrossa Dep. 17-18. Unlike the record with respect to 

defendant Gleason, there is no evidence to the contrary. Thacker testified 

that Torrogrossa did not live at the Property and Gleason testified that 

Torregrossa sometimes stayed there overnight, but did not have a room there. 

Thacker Dep. 92; Gleason Dep. 46, 73-74. Although Moustafa testified that 
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he thought that Torregrossa lived at the Property, he admitted that he, 

Moustafa, had not lived at the Property after October or November 2013, that 

he did not know whether or when Torregrossa lived at the Property, and that 

his only reason to believe that Torregrossa lived there was that Torregrossa 

had been there on the isolated occasions that Moustafa visited the Property 

after he moved out. Moustafa Dep. 10-11, 14-16, 20-24. The only other 

evidence that Plaintiff contends showed that Torregrossa lived at the Property 

is a police report from September 25, 2014, more than two months after the 

July 2014 party, which only shows that a police officer called to the Property 

for a disturbance on that date referred to Torregrossa as the person that he 

thought rented the Property. 9/25/14 Police Incident Report. There was no 

testimony from the officer who authored that report as to what this conclusion 

was based on or whether it was based on any statement by Torregrossa that 

he lived at or was renting the Property.

There was also no evidence that Torregrossa organized the party. 

Torregrossa testified that he was not at the Property when the party was 

planned and came over to the Property from the house where he was living 

after the party was underway because Thacker had invited him to the party. 

Torregrossa Dep. 13-14, 27. Plaintiff does not point to any evidence that 

contradicted this testimony or supported an inference that Torregrossa

organized or planned the party. At most the record supports an inference that

Torregrossa, after he arrived at the party, assisted in collecting the entrance 
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fees and letting guests into the party. Thacker Dep. 18-20, 34-35; Miller Dep. 

19-21; Torregrossa Dep. 14-16. That is insufficient to impose a duty on a 

non-occupant to protect persons on the premises from harm by third parties. 

See Castellano, 70 Pa. D.&C.4th at 426 (defendant whose “only involvement 

was to assist the party organizers on the night of the party by checking the 

identification of attendees and guarding the rear entrance” of the premises at 

which an alcohol party was held did not owe partygoers a duty to protect them 

from violent acts of third parties). 

Moreover, there was no evidence admissible against Torregrossa that 

supports an inference that he had reason to know that there was a danger to 

partygoers from third parties. No witness testified that there had been 

violence or gang members at any prior party at the Property at which he or 

she had been present. The only evidence concerning problems with prior 

parties, other than Thacker’s and Gleason’s statements to the police, was that 

there had been noise complaints, not that there had been any crimes or 

incidents of violence. Torregrossa Dep. 64, 72-73; Gleason Dep. 52-53; 

Thacker Dep. 14-15, 58-59; H. Cole Dep. 34, 45-46; 3/26/14 Police Incident 

Report. Thacker’s and Gleason’s statements to the police are not admissible 

to prove Torregrossa’s liability, because they are hearsay admissible only 

against the declarants, Thacker and Gleason, as statements of a party 

opponent. Pa.R.E. 803(25). 
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Plaintiff also argues that regardless of whether they owed him a duty as 

occupants of the Property, Thacker, Gleason, and Torregrossa can be liable to 

him on the ground that they served alcohol to persons who were under the 

age of 21. In addition to the duties that a party host owes as a possessor of 

land, an adult host who knowingly serves alcohol to persons under age 21 is 

liable for injuries caused by the underage drinkers’ intoxication. Orner v. 

Mallick, 527 A.2d 521, 523-24 (Pa. 1987); Congini v. Portersville Valve 

Co., 470 A.2d 515, 518 (Pa. 1983). This claim fails, however, because, as 

the trial court correctly held, there was no evidence that the attack on Plaintiff 

or his injuries were caused by any underage consumption of alcohol. 

Contrary to Plaintiff’s characterizations of the party as an underage 

drinking event, there was very little evidence of underage drinking. Plaintiff

was over the age of 21 and Thacker, Gleason, Torregrossa, and most of the 

other identified partygoers were 21 or older. Plaintiff Dep. 15; 7/6/14 Police 

Incident Report at 2-3, 7-9. While there was evidence that two invited 

partygoers were under the age of 21, Thacker Dep. 46; 7/6/14 Police Incident 

Report at 4, those partygoers’ consumption of alcohol and intoxication had no 

causal connection to Plaintiff’s injury, as there was no claim or evidence that 

either was involved in the attack on Plaintiff or did anything that provoked it. 

Plaintiff points to no evidence that any other partygoer was less than 21 years 

old. 
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There was evidence that several of the attackers were underage,

including the two who were alleged to have attacked Plaintiff. 7/6/14 Police 

Incident Report at 5-7. There was no evidence, however, that any of the 

attackers consumed alcohol. Munch Dep. 57, 82; Thacker Dep. 52; Gleason 

Dep. 48; Torregrossa Dep. 26; Miller Dep. 64. Not only was there testimony 

that the attackers said that they did not want to pay because they were not 

going to drink, but no witness testified that they saw any of them with a red 

drinking cup or saw any of them drink alcohol at the party. Miller Dep. 13, 

64; Thacker Dep. 52; Gleason Dep. 48; Torregrossa Dep. 26.

The Landlord Defendants

The evidence was undisputed that the Coles were landlords out of 

possession of the Property. Generally, landlords out of possession do not owe 

any duty to non-tenants and are therefore not liable for injuries suffered by 

non-tenants on the leased premises. Brown v. End Zone, Inc., 259 A.3d 

473, 491 (Pa. Super. 2021); Jones v. Levin, 940 A.2d 451, 454 (Pa. Super. 

2007); Dorsey v. Continental Associates, 591 A.2d 716, 718 (Pa. Super. 

1991). 

Exceptions to this rule exist 1) where the injury is caused by a physical 

defect in the premises and certain additional facts are shown; 2) where the 

landlord leases the property for a purpose involving the admission of the public 

and neglects to inspect for or repair dangerous conditions existing on the 

property before possession is transferred to the lessee; and 3) where the 
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injury was caused by activities of the lessee or others on the premises and the 

landlord a) at the time of the lease consented to those activities or knew that 

they would be carried on and also b) knew or had reason to know that the 

activities would unavoidably involve an unreasonable risk or that special 

precautions necessary to safety would not be taken. Brown, 259 A.3d at

491-92; Dorsey, 591 A.2d at 718-19. 

None of these exceptions applies here. While there was evidence that 

some parts of the Property were damaged or in poor condition, Torregrossa 

Dep. 62-63; Gleason Dep. 54; Thacker Dep. 64-66, there was no causal 

relationship between any of these defects and Plaintiff’s injuries. Rather,

Plaintiff’s injuries were caused by a violent assault and the attackers entered

the Property through a door that was not broken or damaged. Thacker Dep. 

93; Gleason Dep. 75-76; Torregrossa Dep. 14, 88; Miller Dep. 51.

There was also no evidence to support a duty to Plaintiff based on the 

purpose for which the Property was leased or the Coles’ knowledge of the 

activities to be carried out on the Property when they leased the Property. 

The Coles leased the Property under a residential lease that specifically 

provided that “[o]peration of any business from the property is not permitted.” 

Lease at 2. There was no evidence that the Coles had knowledge or any notice 

at the time that they leased the Property that Thacker or other tenants

intended to use the Property to host alcohol parties open to the public or for 

which admission was charged or at which underage drinking occurred. The 
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evidence concerning the Coles’ knowledge was that after the lease was 

entered into and Thacker and others had moved in, there were noise 

violations in connection with parties held by the tenants and that Horace Cole 

heard rumors more than six months after the lease was entered into that there 

were parties at the Property where alcohol was served and an admission fee 

was charged. Gleason Dep. 52-53; Thacker Dep. 14-15, 58-59; Torregrossa 

Dep. 49, 64, 72, 85-86; H. Cole Dep. 34, 36-37, 45-46, 69-70; 3/26/14 Police 

Incident Report. 

Plaintiff argues that notwithstanding the fact that the lease was a 

residential lease and there was no evidence that the Coles had any knowledge 

at the time that the lease was entered that would create a duty to their 

tenants’ guests, the Coles can be liable for his injuries because they were 

allegedly aware before the July 2014 party occurred that the tenants were 

charging an admission fee for alcohol parties that they hosted and were 

serving alcohol to minors and because the Coles violated East Stroudsburg 

ordinances limiting occupancy and requiring owners to manage their property 

to prevent public disturbances.

4 We do not agree that the evidence here 

concerning the Coles’ post-lease knowledge rises to a level that is sufficient to 

____________________________________________

4 Although Plaintiff’s expert also offered opinions that the Coles owed Plaintiff 

various alleged duties in his report, those opinions cannot create a genuine 

issue of material fact or constitute a basis for holding that the Coles owed 

Plaintiff a duty because, as noted above, the issue of duty is a question of law 

for the court to decide, not an issue of fact. Walters, 187 A.3d at 221-22; 

Baumbach v. Lafayette College, 272 A.3d at 89.
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make an out-of-possession landlord who leases a house for residential 

purposes liable for harm to his tenants’ guests caused by violent acts of third 

parties.

Contrary to Plaintiff’s assertions in his brief, there was no evidence that 

the Coles had knowledge of underage drinking at parties on the Property. The 

theoretical possibility that they could foresee that some alcohol consumption 

by minors might occur cannot provide a basis for imposing a duty on them.

Liability for alcohol consumption by minors is limited to persons involved in 

planning the event where alcohol is served and those who serve or supply the 

alcohol or purchase alcohol for minors to drink; ownership of the property 

where the underage drinking occurs is not sufficient to support liability.

Alumni Association v. Sullivan, 572 A.2d 1209, 1213 (Pa. 1990); 

Bartolomeo v. Marshall, 69 A.3d 610, 618 (Pa. Super. 2013); Winwood, 

788 A.2d at 984-85; Kapres v. Heller, 612 A.2d 987, 992 (Pa. Super. 1992), 

aff’d, 640 A.2d 888 (Pa. 1994). 

There was also no evidence that the Coles had any knowledge of any 

incident of violence or any security problem at the Property or at any party at 

the Property before the attack on Plaintiff. H. Cole Dep. 52-53. Gleason and 

Thacker did not report the crimes and presence of gang members at prior 

parties to the police until after the attack on Plaintiff. Munch Dep. 43-44. The 

only police report concerning an incident at the Property prior to July 5, 2014 

that is in the record concerned “a report of a loud party” and the only police 
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action was an instruction to the occupants “to turn the music d[o]wn.” 

3/26/14 Police Incident Report at 2. 

The only evidence concerning the Coles’ knowledge that alcohol parties 

were being held at the Property at which an admission fee was charged 

consisted of Horace Cole’s testimony that he heard “rumors to that effect”

sometime in the summer of 2014 from a person who lived near the Property

and that as a result of hearing this information, he told the tenants of the 

Property before the July 2014 party not to have such parties. H. Cole Dep. 

36-37, 69-70, 72-73. The mere charging of a fee to attend an event that 

serves alcohol, while relevant to the status of the individuals who pay the fee, 

does not show any particular likelihood of violence or danger to the persons 

attending the event. Indeed, Plaintiff was fully aware that he was paying a 

fee to attend the party.

Plaintiff’s claims against the Coles are therefore entirely different from 

the facts in those cases where property owners have been held to owe a duty 

to protect persons on their premises from third-party violence or a duty to 

persons other than their tenants. While Paliometros and Rabutino involved 

liability for injuries at parties where alcohol was served, the defendants in

those cases were in possession of the premises where the plaintiff was injured, 

not landlords out of possession. Paliometros, 932 A.2d at 130-34 (defendant 

was a motel that allowed its rooms to be used for fraternity alcohol party that 

involved underage drinking); Rabutino, 809 A.2d at 935, 938-40 (defendant 
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was a hotel that allowed its rooms to be used for rowdy underage New Year’s 

Eve alcohol party).

In the other cases holding that persons other than establishments that 

serve alcohol could be liable for injuries caused by third parties at a premises 

serving alcohol, the defendants had leased their property to a business that 

served alcohol or made their property available for the specific purpose of a 

public event at which alcohol would be served and were not landlords who 

leased their property to individuals for solely residential purposes. In Brown, 

the landlord rented the premises to an adult-entertainment club that served 

alcohol and the incident in which the plaintiffs were injured was a fight 

involving patrons and an exotic dancer who worked at the club. 259 A.3d at 

479 & n.4, 492. In Castellano, the defendant possessors of the premises

were an entity that temporarily rented its premises to groups for public events

at which alcohol was served and the organizers of such an event that rented 

it for that purpose. 70 Pa. D.&C.4th at 417-18, 421-25. 

In addition, unlike the Coles, the defendants in both of those cases had 

notice of significant instances of violence before the plaintiffs were assaulted. 

In Brown, the landlord was an affiliate of the tenant club and had actual 

knowledge before the incident of alcohol serving violations, security problems, 

and 24 instances of violence, including shootings, fights, assaults, and visibly 

intoxicated patrons. 259 A.3d at 480, 492-93. In Castellano, the defendant

that rented out its premises for the party knew before the party in question 
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that “rowdiness, fights and underage drinking” and “two prior shootings” had 

occurred at such events and two of its representatives were present at the 

party where the attack occurred. 70 Pa. D.&C.4th at 425-26.

In contrast, this Court has held that a landlord renting to college 

students for residential purposes is not liable for injuries that resulted from 

an alcohol party held on the rented premises, even though it is foreseeable 

that such parties will occur. Kapres, 612 A.2d at 992. In Kapres, this Court 

held, in words equally applicable here:

There is no Pennsylvania law which makes it incumbent upon 

landlords to police the activities, legal or otherwise, of their 

tenants. ... The fact the parties appellant allegedly attended were 

held on property owned by the adult appellees is of no 

consequence considering their obvious detachment from the 

events leading to appellant’s tragic accident.

Id.

The remaining cases relied on by Plaintiff that involve liability of a 

landlord are not to the contrary, as they involve essential facts that are 

completely absent here. In Palermo v. Nails, 483 A.2d 871 (Pa. Super. 

1984), the property owner had not given up control of the premises because 

she was allowing the occupant, a relative, to live on the premises rent-free 

without a lease. Id. at 473. In addition, the property owner had actual 

knowledge of the danger of injury, as she knew before the victim was attacked 

by the occupant’s dog both that the occupant kept a vicious dog on the 

premises and that the dog had previously attacked someone. Id. at 473-74. 

Portee v. Kroznelk, 166 A.2d 328 (Pa. Super. 1960), involved an injury 
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caused by a physical defect in a portion of the premises that the landlord did 

not lease and over which it retained possession and control, not an injury 

caused by an attack by third parties. Id. at 330. 

Plaintiff’s claims that the Coles violated ordinances limiting occupancy 

and requiring owners to manage their property to prevent public disturbances

likewise cannot support liability. Violation of an ordinance or statute can 

create a duty to the plaintiff only where the purpose of the ordinance or statute 

is to protect a particular class of persons, rather than the general public, and 

the plaintiff is within the class of persons that it is designed to protect. 

Congini, 470 A.2d at 517-18; Wagner v. Anzon, Inc., 684 A.2d 570, 574 

(Pa. Super. 1996). To the extent that ordinances concerning public 

disturbances are designed to protect a particular class of persons rather than 

the general public, they are designed to protect neighbors in the area where 

noisy or disruptive parties are held, not to protect partygoers such as Plaintiff. 

Allowing more individuals to reside at the Property than permitted by 

ordinance had no possible causal connection to Plaintiff’s injuries, as he was 

attacked by persons who were not occupants of the Property.

Conclusion

For the foregoing reasons, we conclude that Plaintiff was at the Property 

as an invitee of defendant Thacker and the other occupants of the Property

and that there were genuine issues of fact as to whether defendant Gleason 

lived at the Property and whether defendants Thacker and Gleason had reason 
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to know before the July 2014 party of a likelihood that conduct of other 

persons would endanger their invitees. The trial court, however, did not err 

in holding that there was insufficient evidence to support Plaintiff’s claims 

against defendants Torregrossa and the Coles. Accordingly, we reverse the 

trial court’s orders granting summary judgment in favor of defendants Thacker 

and Gleason and affirm its orders granting summary judgment in favor of 

defendants Torregrossa and the Coles. 

Orders of July 24, 2019 granting summary judgment in favor of Ely-Or 

Thacker and Andrew Gleason reversed. Orders of July 24, 2019 granting 

summary judgment in favor of Andrew Torregrossa, Horace S. Cole, and 

Sonya K. Cole affirmed. Jurisdiction relinquished.

 President Judge Panella joins this memorandum.

 Judge Nichols concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2022